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Saturday, December 18, 2010

Merrimack, Goffstown churches say towns discriminate against them

CONCORD – Churches in Merrimack and Goffstown have sued their respective communities for religious discrimination, charging that the towns’ zoning and planning boards have violated their federal rights by refusing to let them build.

The Merrimack Congregation of Jehovah’s Witnesses and the Goffstown Harvest Christian Church filed suits Thursday in U.S. District Court, both represented by attorney Michael Tierney, of Manchester.

The Merrimack church filed suit against the town zoning board, while the Goffstown case involves the zoning and planning boards.

Tierney introduced the Merrimack suit by quoting from the Religious Land Use and Institutionalized Persons Act of 2000.

The federal law holds that cities and towns can’t apply planning and zoning regulations in ways that “impose a substantial burden” on the freedom to worship, unless they can show that those regulations are “the least restrictive means” of regulation.

Courts around the country are still working out exactly how the law squares with local zoning and planning regulations.

“The right to assemble for worship is at the very core of the free exercise of religion,” Tierney wrote. “Churches and synagogues cannot function without physical space adequate to their needs and consistent with their theological requirements.

“The right to build, buy or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes,” Tierney wrote, citing the “Statement of Congressional Intent” for passage of the RLUIP Act.

“Churches, in general, and new, small, or unfamiliar churches in particular, are frequently discriminated against in the fact of zoning codes and also in highly individualized and discretionary processes of land use regulation,” the statement continues.

While such discrimination is sometimes explicit, “More often, discrimination lurks behind such vague and universally applicable reasons as traffic, aesthetics, or ‘not consistent with the city’s land use plan.’ ”

Merrimack zoning ordinances require a special exception to build a house of worship within a residential area, where most churches in town are located, the suit states. However, the town’s zoning board has refused to grant the Jehovah’s Witness Congregation an exception to build a Kingdom Hall on Wire Road, citing traffic and its effect on surrounding property values, the suit states.

The congregation of 90-100 people has no place to worship in town, the suit notes.

In August, the congregation contracted with Ronald Therrien to buy nearly 12 acres at 63 Wire Road, hoping to break ground in the spring.

The Zoning Board of Appeals denied the congregation’s request for a special exception to build a house of worship there, however, after a public hearing on Sept. 23, and then voted against rehearing the case in October and November.

The suit charges religious discrimination, claiming board members cited traffic, but also feared “annoying” proselytizing by Jehovah’s Witnesses.

“A majority of the houses of worship currently located in Merrimack are located in residential districts,” their suit states, adding, “In the past fifteen years, no church has ever been denied a special exception by the Merrimack ZBA (Zoning Board of Appeals). Churches wishing to expand in the residential district have never been denied approval.”

In contrast to the Jehovah’s Witnesses congregation in Merrimack, the Goffstown Harvest Christian Church has a location at 542 Mast Road, where it operates a church and food pantry. The church bought property in an industrial zone off Route 114 in 2005, and received a special exception to build there in 2006, and yet has been unable to build, the suit states.

“The town has thrown up road block after road block in order to try and stop the construction of the church,” including changing its zoning ordinances to prohibit religious assemblies in industrial zones, the suit states.

Both lawsuits charge that the towns have violated federal law and that their zoning regulations are unconstitutional. In both cases, the groups ask that the U.S. District Court order the towns to allow the churches to build, and award damages and legal fees.

Andrew Wolfe can be reached at 594-6410 or awolfe@nashuatelegraph.com.