The outrageous attempts by Chicago and Boston, among other locations, to prevent Chick-fil-A from opening stores in those locations, in blatant violation of the First Amendment, and solely because of the owners' theological beliefs - that homosexual behavior is sinful - point up a problem with the current structure of building and zoning laws.
While the use of these laws to prevent a business from opening because of the religious beliefs of its owners is obviously abusive, it is the existence of overly restrictive and arbitrary zoning and building laws which enable the abuse in the first place. And these laws are used constantly in less obvious ways to stifle business and growth, increase the cost of development, and enable petty tyrants to impose their personal preferences.
Local land use laws (the building and zoning codes) are most often so restrictive that nothing can be built without obtaining some sort of exemption, special use or other discretionary exception. And the process for obtaining those exceptions is so expensive and time consuming, and so completely without any objective standards, that the board making decisions on the exception can never be reversed or held to account for its decisions. As a result, persons seeking to build, renovate or locate in a local jurisdiction essentially require permission from the municipality to do so. And there is virtually no appeal from an arbitrary decision.
Sometimes these arbitrary decisions are relatively harmless, such as a zoning board requiring a brick exterior as a condition for some variance even though the Code has no brick requirement. Sometimes the results are far more serious than an increase in costs, however. Our law firm has represented numerous churches and religious organizations around the country which have been denied permission to locate in a municipality under circumstances which indicate that the reason was racial or religious prejudice, or simply antipathy toward religion itself.
In Chicago, as a practical matter, any special permission, and therefore any development, requires the approval of the alderman for the ward in which the property is located. And there is no appeal. Thus a single individual can prevent a project for any reason or no reason, including some pretty reprehensible ones.
The solution is for building and zoning laws to be simplified, and made less restrictive, so that most projects can be built without seeking an exception or exemption as long as the rules are followed. Where there is a need to have an exemption or special permit, the exemption should be granted based on clear, objective standards that avoid discretion on the part of the municipality. And finally, there should be a clear path to appeal any arbitrary or incorrect decision by the municipality, or in the case of a municipality that engages in selective enforcement of its standards. This is what the rule of law requires.
And, of course, the land use laws should explicitly prohibit any content related discrimination. So the political or theological opinions of the owners, or espoused by the organization, would not be relevant, and churches are treated the same was as any other assembly, or similar, use.
