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Pembroke Zoning Board reverses course to allow Next Level Church in prohibited zone

Last modified: 11/25/2015 1:18:07 AM
Facing a potential lawsuit, Pembroke’s zoning board reversed course Monday on a September decision and capitulated to a church that seeks to move into the town’s commercial district.

The board members appeared defeated as they voted, 3-2, to approve the Next Level Church’s application for 79 Sheep Davis Road, where churches are prohibited and taxable businesses are encouraged.

What changed from the previous unanimous denial wasn’t the church’s plan; it was the board’s understanding of the looming threat of a formidable lawsuit.

All public commentators spoke against the application, saying the town designed and invested in the commercial zone to boost the tax rolls and that a tax-free church would not achieve that purpose. Chairman Bill Bonney said if his board were to decide simply by looking at the town’s ordinance and variance criteria, “we would probably deny it . . . and certainly a lot of townspeople might think that’s a great thing that we did that.”

“But I don’t think it’s a propitious thing to do at all,” he added, because of the federal Religious Land-Use and Institutionalized Persons Act, which was cited by Next Level Church’s attorney, Michael Tierney.

Bonney noted two factors he understood as a violation of RLUIPA if the board moved to deny: first, a Presbyterian church was allowed into the commercial zone by variance in 2012, and the town can’t discriminate between churches; second, local zoning can’t create a zone that broadly prohibits religious uses where similar secular uses, such as movie theaters, are allowed.

“It may be swell for us to sit here and deny this, but we could end up spending a lot of money on attorneys, and Next Level Church could end up being right where they want to be,” he said.

The property in question, 79 Sheep Davis Road, was previously a tax-exempt adult day care program. It has been vacant for more than two years and may become the permanent home for a new Concord congregation that currently rents its meeting space. It is located in a commercial zone that includes about 8 percent of the land in town.

Tierney is also representing a separate Pembroke church in a federal case involving the zoning board. The Hillside Baptist Church was denied an application to use an electronic signboard, while a school down the street has a similar fixture. Tierney wrote in an email that he planned to file a lawsuit for the Hillside Baptist Church in Concord’s U.S. district court Tuesday.

Bonney said his board was faced with a “lose-lose proposition” Monday: pay to fight against the Next Level Church in court and potentially lose, or approve the application and eschew potential tax revenue.

“I wish as a board that we could just look at the five (variance) criteria and say they don’t meet it and deny them, but I think that would be a foolhardy thing to do,” he said.

Vice Chairman Bruce Kudrick said while the RLUIPA was designed to prevent discrimination against churches, he felt it amounted in this case to discrimination against the town, which is unable to enforce the zoning voted in by the residents.

The federal government does “not care about the taxpayers and the people who live in these towns. . . . They helped the churches out, but they didn’t help the town out,” he said.

At the conclusion of the board’s discussion, Bonney began to read through the criteria to evaluate the application. Is it contrary to the public interest? Board member Dana Carlucci said it would be. Is the spirit of the ordinance observed?

“Again,” Carlucci said before shrugging and audibly sighing. “It’s black and white.”

Carlucci and Kudrick were in the minority of a split vote on the five-member board.

Tierney, in an interview after the meeting, said, “We presented our arguments as to why a church should be allowed to operate in any location that a secular assembly is allowed to operate in, and the board realized that’s what the law requires and therefore granted the appropriate relief, as they’re expected to do.”

(Nick Reid can be reached at 369-3325, nreid@cmonitor.com or on Twitter @NickBReid.)


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