Churching NIMBYs: Creating Affordable Housing on Church Property

abstract. In recent years, faith communities across the United States have begun to create affordable housing on church property, inspired by sincerely held religious beliefs. Some are building microhomes behind their houses of worship. Others are converting residences once used by religious ministers—from rectories to abbeys to convents—into units for seniors and low-income families. Still others are repurposing their vacant schools, church parking lots, and undeveloped parcels of land for denser multifamily structures, from townhouses to apartment buildings. Within housing-advocacy circles and among faith communities, these continent-wide efforts to create affordable housing on church property have manifested an affirmative declaration: “Yes, In God’s Backyard.”

Legal scholarship and popular media have extensively documented the affordable-housing crisis. In particular, scholars and commentators have underscored the pernicious role of exclusionary zoning in strangling housing production, ultimately sending regional housing prices skyward. When faith communities create affordable housing on church property, much of which is located in residentially zoned areas, they seek something other than fair market value. Some might call it “charity” (tzedakah) or “discipleship,” a commitment to “welcome the stranger” or to “love your neighbor as yourself.”

Faith communities seek theologically and morally sound uses for their underutilized property, but often struggle to overcome the regulatory and financial hurdles of adaptive reuse. Local governments can incentivize redevelopment that benefits the wider community, growing their affordable housing supply. But their mutual benefit does not exempt faith communities from challenge when they choose to redevelop church property for affordable housing. Neighbors may seek to thwart faith communities from introducing denser, multifamily residential structures in their backyard, relying on land-use restrictions designed to prohibit less costly forms of housing. When they succeed, these challenges from NIMBY (“Not In My Backyard”) neighbors can limit both housing supply and the free exercise of religion.

This Feature thus proposes a novel response to exclusionary zoning: religious liberty. Where sincerely held religious beliefs inspire faith communities’ efforts to create affordable housing, these communities can assert constitutional and statutory free exercise protections against land-use decisions that obstruct denser, less expensive, multifamily developments on church land. This Feature also explores municipal and state legislative reforms that lower the barrier where faith communities struggle to overcome the regulatory and financial hurdles of adaptive reuse and demonstrates the breadth of potential for affordable housing on church property, drawing on public sources and a novel data set to map parcels owned by Roman Catholic dioceses in Chicago, Illinois and Oakland, California across municipal zones.

Regardless of how faith communities came to own property within their limits, or why faith communities seek to repurpose property within their limits, most local governments need property within their limits to create affordable housing. And faith communities are willing partners in their endeavor.

author. Associate Professor of Law, Notre Dame Law School; Faculty Director, Church Properties Initiative, Fitzgerald Institute for Real Estate; Priest of the Congregation of Holy Cross. I received valuable feedback on this project from participants in the Notre Dame Law School Faculty Colloquium and the Fitzgerald Institute for Real Estate Church Properties Conference. I offer my heartfelt thanks to Stephanie Barclay, Sadie Blanchard, Molly Brady, Samuel L. Bray, Christian Burset, G. Marcus Cole, Michael Francus, Nicole Stelle Garnett, Richard W. Garnett, Sherif Girgis, Michael A. Helfand, Bruce Huber, Daniel B. Kelly, James J. Kelly Jr., Meredith Holland Kessler, Maria Maciá, Daniel Markovits, Lloyd Hitoshi Mayer, Stefan McDaniel, John Meiser, Paul B. Miller, Daniel Moore, Jeffrey Pojanowski, Claire Priest, Carol M. Rose, Michael Schierl, David N. Schleicher, Noel W. Sterett, Jay Tidmarsh, Avishalom Tor, and Francisco J. Urbina for their insightful comments and instructive suggestions. My thanks extend to Christopher D’Urso, Natasha Reifenberg, and Jonathan Perez-Reyzin, whose masterful editing and relentless encouragement brought this Feature to life. I remain indebted to Madeline Johnson, our Program Manager for the Church Properties Initiative, who offered joyful and indefatigable assistance in collecting, evaluating, and mapping church property data for this project. For any errors, mea culpa.

Is this not the fast that I choose: releasing those bound unjustly, untying the thongs of the yoke; setting free the oppressed, breaking off every yoke? Is it not sharing your bread with the hungry, bringing the afflicted and the homeless into your house; clothing the naked when you see them, and not turning your back on your own flesh? Then your light shall break forth like the dawn . . . .

—Isaiah 58:6-81

Introduction

In July 2021, Glencliff United Methodist Church welcomed individuals and families experiencing homelessness into twenty-two microhomes behind its South Nashville sanctuary.2 In offering a portion of her church’s land for “The Village at Glencliff,” Reverend Ingrid McIntyre hoped to create “a new space . . . for the people she encountered every day trying to survive on Nashville’s streets,” unable to afford the exorbitant price of local housing.3 The Village aims to nurture a “loving, hospitable, compassionate and rehabilitative community for our friends who are transitioning . . . toward permanent supportive housing.”4 For members of Glencliff United Methodist Church, efforts to provide transitional housing on church property are part of their Christian discipleship, an uplifting religious mission that reaches beyond the walls of their sanctuary.5

This mission reaches outside the sanctuary because communities of faith gather for more than worship. Across the United States, churches like Glencliff serve the spiritual and corporal needs of believers and unbelievers alike, educating the young in schools, feeding the hungry in soup kitchens, welcoming the homeless in shelters, caring for the sick in clinics, and burying the dead in cemeteries.6 These ministries on church-owned property flow from the same religious belief given ritual expression in
worship.7 Faith communities discern how to use their property based on what their theological and moral convictions require.

In recent years, these convictions have inspired numerous faith communities to create affordable housing on church property. Some, like Glencliff, have built microhomes behind their houses of worship.8 Others have converted housing once used by religious ministers—from rectories to abbeys to convents—into low-income
residences.9 Still others are repurposing their vacant schools, church parking lots, and undeveloped parcels of land for affordable-housing units, both permanent (e.g., low-income senior housing) and temporary (e.g., emergency shelters).10 Within housing-advocacy circles and among faith communities, these continent-wide efforts to create affordable housing on church property have manifested an affirmative declaration: “Yes, In God’s Backyard.”11

Faith communities can breathe new life into their underutilized property by creating affordable housing. And local governments can grow their affordable housing supply by allowing faith communities such adaptive reuse. But such mutual benefit does not exempt faith communities from challenge when they choose to redevelop their property for affordable housing. Neighbors may seek to thwart faith communities like Glencliff from introducing denser, multifamily housing in their backyards.12 When they succeed, these challenges from NIMBY (“Not In My Backyard”) neighbors can altogether limit new housing construction and the free exercise of religion, contributing to America’s affordable-housing crisis.

The affordable-housing crisis has been extensively documented in legal scholarship and popular media. In particular, scholars and commentators have underscored the pernicious role of exclusionary zoning—that is, local land-use controls designed to prohibit the construction of less costly forms of housing—in strangling housing production, ultimately sending regional housing prices skyward.13 As Professor Robert C. Ellickson argues in his new book, “Low-visibility zoning controls constitute what is likely the most consequential regulatory program in the United States.”14 Proposals seeking to permit greater residential density, particularly in neighborhoods of existing single-family homes, largely fail at city hall.15

While many exclusionary practices, both past and present, have been motivated by racism and classism, local homeowners’ interest in fiscal advantage remains a principal catalyst for exclusion.16 Exclusionary policies can raise home values. Where schools are funded primarily by local property taxes, “measures that prevent the construction of least-cost housing deter entry by those who would not pay their own way.”17 When suburbs have “few close counterparts, exclusion can enable homeowners to drive up the value of their houses by preventing the construction of competing units.”18 As zoning issues arise in established neighborhoods, local officials typically defer to residents living closest by, who standardly prefer to maintain the status quo.19

Affordable-housing advocates and legal scholars suggest that state legislatures and Congress should correct local zoning abuses. Where local governments zone without concern for effects on regional housing consumers, states can preempt their power to zone, freeing state judiciaries to decide against exclusionary practices. Federal aid for housing vouchers and state agencies established to address local zoning issues can bolster these state-level efforts.20 But such solutions presume that property owners in residentially zoned areas all think alike, seeking to drive up their properties’ value by preventing new housing construction.

When faith communities create affordable housing on church property, much of which is located in residentially zoned areas, they seek something other than fair market value. Some might call it “charity” (tzedakah) or “discipleship,” a commitment to “welcome the stranger,” or to “love your neighbor as yourself.” Certainly, religious institutions have vast and diverse in rem portfolios, and—for various economic, sociological, and demographic reasons—many properties owned by them are underutilized.21 Not every property can be repurposed for every use; indeed, some faith traditions prohibit certain future uses of church property as theologically or morally illicit.22 But where affordable housing remains an acceptable use, communities of faith should be allowed to repurpose their property.

This Feature thus proposes a novel response to exclusionary zoning: religious liberty. Where sincerely held religious belief inspires faith communities’ efforts to create affordable housing, these communities can assert the free-exercise protections of the First Amendment23 and the Religious Land Use and Institutionalized Persons Act24 (RLUIPA) against land-use decisions that obstruct denser, less expensive, multifamily developments on church land.25

In particular, RLUIPA’s “substantial burden” provision explicitly draws together religious exercise and land use:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling government interest; and (B) is the least restrictive means of furthering that compelling governmental interest.26

Under RLUIPA, “land use regulation” denotes “a zoning or landmarking law . . . that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land . . . .”27 And while courts often construe “religious exercise” relative to church property in line with worship and ritual,28 RLUIPA offers a capacious definition: “The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” and “[t]he use, building, or conversion of real property for religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.”29

As with many topics exploring the intersection of property law and religion, there is scant legal scholarship about faith communities repurposing their property for housing, and legal scholars have yet to evaluate the practical, theoretical, or doctrinal contours of “Yes, In God’s Backyard.”30 The literature on religious liberty and church property primarily focuses on litigation involving faith communities seeking to enter residential zones and their efforts to create houses of worship or other ministries within those areas.31 This Feature aims to bolster the scholarly conversation, revealing how church property and religious liberty can be powerfully transformative assets where local land-use regimes have limited housing growth and less costly forms of housing. While providing tools for housing advocates to develop new residential options in the face of persistent exclusionary zoning, this Feature offers multiple models for faith communities seeking theologically and morally sound uses for their underutilized property.

Part I explores the phenomenon of exclusionary zoning, surveying scholarly literature that details how local land-use controls have created barriers to less costly forms of housing, strangled housing production nationwide, and driven up regional housing prices. This Part also discusses how faith communities and local governments can mutually benefit from efforts to repurpose and redevelop underutilized church property, given the thousands of houses of worship closing across the country.

Part II introduces the faith-based movement to create affordable housing on church property. After unpacking the theological and practical convictions that inspire faith communities to repurpose their property (“Yes, In God’s Backyard”), this Part demonstrates the breadth of potential for affordable housing on church property, drawing on public sources and a novel data set to map parcels owned by Roman Catholic dioceses in Chicago, Illinois and Oakland, California across municipal zones. Part II then explores municipal and state legislative reforms that lower the barrier where faith communities struggle to overcome regulatory and financial hurdles of adaptive reuse.32 Such legislation can loosen land-use restrictions that NIMBY neighbors might otherwise use to obstruct denser, less expensive, multifamily residential structures on church land. It can also provide density bonuses and other development incentives for faith communities to create affordable housing on their underutilized property.

Part III defines the constitutional and statutory religious-liberty protections that faith communities could use to challenge exclusionary zoning, examining how the Supreme Court’s religious-liberty precedent should direct judges and local governments when zoning regulations conflict with faith communities’ free exercise of religion. In particular, Mast v. Fillmore County—a case almost entirely unexamined in legal scholarship—reveals how strict scrutiny is meant to operate under RLUIPA, when zoning regulations and religious land uses conflict.33 Part III discusses how courts define the “religious exercise” of faith communities creating affordable housing on church property before recommending a test that courts can use to discern whether land-use restrictions impose a “substantial burden” on faith communities.34 Where sincerely held religious belief inspires their efforts, RLUIPA and the First Amendment should protect faith communities from NIMBY neighbors using land-use restrictions to obstruct denser, multifamily developments on church land.35 Regardless of how faith communities came to own property within their limits, or why faith communities seek to repurpose property within their limits, most local governments need property within their limits to create affordable housing. And faith communities are willing partners in their endeavors.