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Rhode Island Avenue is not one of the city’s most vibrant retail corridors. Other than development at Rhode Island Station, it doesn’t quite have the buzz and attention of Georgia Avenue, with its residential projects popping up left and right. (It’s also difficult to move forward with much alacrity when your councilmember is under investigation for embezzlement).
One of the deadening factors, theorizes the Avenue’s blog, is the proliferation of storefront churches that only serve a small sector of the neighborhood and are usually only active a day or two during the week. Lots of other neighborhoods have zoning overlays that guide commercial development. Could Rhode Island Avenue use such an overlay to cut down on the number of houses of worship, in favor of retail uses that really serve the neighborhood? Wouldn’t that run afoul of the First Amendment’s protection of religious freedoms?
Well, here’s how things work in D.C. For most commercial overlays, there’s a list of allowed uses. Anything not on that list—-including churches/synagogues/mosques/etc.—-requires permission from the Board of Zoning Adjustment in order to get a certificate of occupancy (the rules only apply to new applications; existing uses are grandfathered in). And there’s precedent for the restrictions being enforced. Back in 2007, the McLean Bible Church tried to conduct services at the Uptown Theater in Cleveland Park, but was kiboshed by the Zoning Administrator, and never tried to get a special exception from the BZA.
What hasn’t been tested, though, is how such restrictions would hold up under a legal challenge. The federal governing law here is the Religious Land Use and Institutionalized Persons Act of 2000 (which I believe should be pronounced are-LOOP-ah), passed in response to onerous zoning restrictions on houses of worship. Here’s what the Justice Department has to say about how it ought to be interpreted:
So long as a municipality applies its codes uniformly and does not impose an unjustified substantial burden on religious exercise, it may apply traditional zoning concerns—such as regulations addressing traffic, hours of use, parking, maximum capacity, intensity of use, setbacks, frontage—to religious uses just as they are applied to any other land uses.
Which still, it seems, doesn’t really address the question of whether you can exclude churches entirely. But until a church decides to challenge the law, Rhode Island Avenue, I’d say go right ahead.