9-01-02: Liberty Magazine Article "Let My People Speak"
Let My People Speak
From Liberty Magazine
By Alan Reinach
A short drive down a quiet country road, incongruous by its being located between the large population centers of San Francisco and Sacramento, is the Vacaville Seventh-day Adventist Church. Actually, the church itself isn’t quite finished. At present the complex consists of a one-room church school and a fellowship hall where weekly worship is conducted. And off to the side of the 21-acre parcel sits a single-story, triple-wide mobile unit, beautifully landscaped and ready for use. It is this structure, or rather, its use, that has been the subject of a six-year-long battle with the county of Solano. It is a battle that is far from over.
On April 4, 2002, the Solano County Planning Commission met and rejected for the second time an application from the church to use that building to house its radio ministry, KASK, 91.5 FM. An overflow crowd of more than 200 supporters showed up and frequently cheered the parade of speakers who told the planners what a positive influence the station would be and why it would be good for the community. Church lawyers told the planners that they were under obligation to apply a new federal law that strongly favors religious uses. Nevertheless, the commission refused even to consider the federal law, and after brief, rambling, and sometimes incoherent comments, simply voted down the application.
The lone planner who voted in support, Ed Stahl, privately accused the county of a long history of antireligious bias. Vacaville church elder Bill Whiteman recounted a long history of church dealings with the county. He characterized the attitude of both city and county planners as one of “disdain.” “They just don’t want churches in Vacaville,” he said.
Whiteman knows what he is talking about. Although a Seventh-day Adventist church has been in Vacaville since about 1865, they have been battling with the county for more than two decades. In 1976 the church renovated its building on Orchard Street, in the city of Vacaville, after a fire. In 1979 they sought to erect an additional structure to house Sabbath school classrooms, but the city denied permission, citing inadequate parking. Yet the classrooms would be used only to accommodate existing membership. The project did not involve expanding the capacity of the sanctuary.
So the church began what would be a 15- year effort to locate a property where they would have sufficient space to conduct their ministry. Property within the city was too expensive, so they began to look outside, where most of the property was zoned for agriculture. Although the county ordinance permits churches in agricultural zones, three times the county denied the church permission to locate in agricultural areas. Twice the church’s efforts to purchase property resulted in hearings before the planning commission and the county board of supervisors, in 1979, and again in the early nineties.
Finally church leaders asked the planners where they thought the church should look for property. The planners suggested a rural residential zone. Eventually the church purchased the 22-acre property on Allendale Road for nearly three times what they would have paid in 1979. In the meantime, a segment of the church group had branched off to form a new church in nearby Fairfield, so both the membership and financial strength of the congregation were reduced. When it came time to build, they struggled to erect the small school building and a fellowship hall where they could conduct worship services until they had the resources to build an actual church. As Pastor Stan Caylor later testified before the planning commission: “We’re a small church, and if we could afford to locate the radio station in town, we would have done so long ago, and been on the air already.”
KASK is the dream of Dr. Glenn Toppenberg. His day job is serving the medical needs of inmates at the maximum security correctional facility in Vacaville, whose most famous resident may still be Charles Manson. Glenn will freely admit that he has no experience in radio. “God called me to start a radio station,” he insists. “I wouldn’t have done this by myself.” When he retained an engineering firm to locate a frequency, they laughed at him. “You won’t find an available frequency in that crowded urban market,” he was told. “Do it anyway,” he replied. “If God wants me to start a radio station, then He’ll find us a frequency.”
When the predictable results came back negative, Dr. Toppenberg insisted that the engineers send the printed report. After all, it had cost him $ 400. One night he sat down and tried to make sense of all the technical jargon. Several hours later he found what he thought was an available frequency. The next day he called his engineers. They were amazed that Dr. Toppenberg had found what they had missed. “But don’t get your hopes up,” they told him. “The frequency will go to public auction, and you’re not likely to outbid everyone.”
Dr. Toppenberg was undeterred. He prayed and said: “God, if You want me to have this frequency, then I don’t want anyone else to bid on it.” His prayer was answered: when the time came for the public auction, there were no other bidders. Eventually he obtained a license from the FCC and began to plan in earnest for a place to house the station.
The church rallied behind the doctor, and they made plans to install the radio equipment in the new facilities on Allendale Road, in a rural area of Solano County. As the project began to take shape, Dr. Toppenberg and the church leaders quickly realized that there was insufficient room in the planned building and that additional space would be needed.
Lacking any funds for a building, Dr. Toppenberg began his search for a lower cost mobile unit. Eventually he located a triple-wide, single-story, 2,500-square foot-unit for sale for $ 80,000. “It’s perfect for our needs,” Dr. Toppenberg told the owner, “but I’m afraid we can’t afford the price.” “How much can you afford?” asked the owner. “Actually, we can’t afford to pay anything,” replied Dr. Toppenberg somewhat sheepishly. After some thought, the owner offered to donate the unit if the church would pay the cost of moving it, about $ 9,000.
Hastily Dr. Toppenberg arranged to move the unit onto the church property and to secure it against the impending winter El Niño rainstorms. At the same time, he began to apply for permits for the building. The planning department became irate that Dr. Toppenberg had proceeded with some construction without a building permit in hand, and proceeded to slap a stop work order on the building.
The stop work order was still in effect when the Planning Commission held its first hearing to consider the use of the building to house the radio station. It was still in effect when the church appealed the denial to the board of supervisors. The supervisors then considered whether the radio station was an accessory use to the church, or if it was a “communications facility” within the definition used by the county ordinance that permits communications facilities in any zone.
Dr. Toppenberg made an extensive presentation to the board of supervisors, unrepresented by lawyers, and documented the Adventist Church’s historic commitment to radio. He argued that nothing could be more central to the ministry of a church—or in legal terms, an accessory use—than preaching the gospel through all available means. The supervisors were unresponsive. One supervisor insisted that a radio station could not be an accessory use because “no other church in the county has one.”
The supervisors also insisted that a manned radio station was not a “communications facility,” even though there was no such restrictive definition of that term in the ordinance, and the FCC has used the term for more than 50 years to include manned facilities. Then, in a 3-2 vote, the supervisors denied permission, determining that the radio ministry was not an accessory use to a church, nor was it a “communications facility.”
At this point, church lawyers were brought in, to see if legal sense might prevail. They also retained experienced church-state litigator Fred Blum, who pointed out that “saying that an Adventist church can’t have a radio station because my church doesn’t have one, is like saying that a Jewish synagogue can’t have a mikvah, used for ritual baths, or that a Catholic church can’t have a confessional. It’s absurd.” So Fred Blum argued, to no avail, before two state courts that ultimately refused to seriously analyze the church’s weighty constitutional claims.
“State courts traditionally avoid constitutional issues in deciding land use claims,” observes Professor Alan E. Brownstein, who teaches constitutional law at the University of California at Davis School of Law. “That’s why it is so important that Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 to give the U.S. Constitution its due, and the federal courts the opportunity to require local governments to deny religiously exclusionary land use practices.”
At the recent Planning Commission hearing, Attorney Blum explained how the problem must be analyzed under the federal law. First, the church bears the burden to demonstrate that denial of the religious use would impose a substantial burden on religion. He argued that denial of permission for a church to carry out its religious ministry on its own property is precisely the sort of activity that RLUIPA was designed to protect. That said, the burden shifts to the county, not only to justify their zoning scheme as a compelling government interest, but to demonstrate why such compelling interests would be threatened by accommodating the religious use in question. In the language of the statute, the county must demonstrate that denying the religious use is the “least restrictive means” of achieving the compelling interests the zoning scheme is designed for. In other words, the religious use must be permitted unless the actual impact of such use on the community would be sufficiently severe, and incapable of being mitigated.
Blum pointed out that the report of the planning commission conspicuously omitted any discussion of the impact the radio station would have on the community because, in fact, there would be none. The building was already approved for use as a caretaker facility, and its use for a radio station would not involve any more staffing, traffic, or noise than what would normally be expected from a residential use.
This testimony was not contradicted by neighbors who testified against the church. Their complaints were about the church and its well, not the radio station itself.
Professor Brownstein rebutted the county attorney’s suggestion that land use was an entirely local matter, and that Congress had no right to intervene. He testified that section 5 of the Fourteenth Amendment gave Congress authority to apply constitutional rights to the states. “I have a hard time understanding why a planning commission would elect to interfere with something so precious—freedom of religion and speech—to accomplish so little,” he testified.
A realtor pointed out that the county frequently grants variances for all sorts of uses, and that this radio station would be a positive benefit to the community.
Despite the overflow crowd, wearing stickers reading “We support a church’s right to religious freedom,” the planners were unresponsive to either the testimony, the requirements of federal law, or the welfare of the community.
“The planners broke faith with their constituents,” observed Brad Newton, government affairs director for the Seventh-day Adventist Church for the region. “They are obligated to implement land use decisions to advance the public good, and reneged on that obligation in this case.”
Dr. Toppenberg is determined not to break faith with God. “This radio station was not my idea,” he says. “It was God’s. I’ll stop pushing when God closes all the doors.” As of press time, an appeal is pending with the board of supervisors, and an action has been filed in federal court.
Alan Reinach, a lawyer, is religious liberty director for the Pacific Union Conference of the Seventh-day Adventist Church in North America. He broadcasts a regular radio program called Freedom’s Ring. He writes from Thousand Oaks, California.