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A Guide for Church Trustees
III. Land Use
Zoning
Zoning represents a municipal plan on how land should be used in different parts of the City – for residence, commerce, manufacturing, and recreation, among other uses. Uses of property must be consistent with the zoning law for that area.
Before purchasing or leasing property for use in the ministry, the Trustees should be sure that the property carries the proper zoning classification for its intended use and that the building meets applicable buildings code requirements for the same. This is particularly important, for example, in attempting to use a residence as a place of worship. Fire prevention considerations in the Buildings Code will not permit the issuance of a new Certificate of Occupancy as a place of assembly for a wood-framed building which may be legal as a residence. Churches may lawfully be located as-of-right in all residential areas and most commercial areas in New York. Special permission is required to locate a place of worship in any manufacturing zone.
Landmarking
The issue of local landmark regulation of church property has been identified as a serious intrusion of the government into the affairs of the Church. The designation of church property as a public "landmark" encumbers a significant asset of the Congregation's ministry to the caprice of a government agency. No alteration or repair which affects the exterior of the building may be made without the approval of the Landmarks Preservation Commission which operates without clear standards for its judgments. The expense of complying with the Commission's edicts, even if permission is granted, are considerably greater than with customary construction and repair costs.
The General Counsels of many denominational in the nation have long seen this as a threat to the Church's ability to determine the course of its own ministry and have advised that Trustees who fail to oppose vigorously any attempt to impose a "landmark" designation on property of the Congregation may be in breach of their fiduciary duty. You should be forewarned that grants promised by preservationists are generally very small if they would become available at all.
The Religious Land Use and Institutionalized Persons Act of 2000 provides some protection. In zoning and landmarking cases, it requires that the government justify a breach of the Congregation's First Amendment right to the "free exercise" of religion by showing that the regulation at issue serves a "compelling State interest" (such as public health and safety) and that there is no less restrictive means of achieving that interest. Consult with your Congregation's Attorney or legal advisor if any suggestion of imposing a "landmark" designation of your property is proposed.