Members of Christ Episcopal Church in Toms River, New Jersey, urge drivers to help the parish fight the mayor’s proposal to turn the church property into parkland. Photo: Courtesy of Denise Henry
[Episcopal News Service] A New Jersey church was thrust into the national spotlight in recent months when town officials targeted the property for seizure, by eminent domain if necessary, to create new public parkland. Episcopal leaders insisted Christ Episcopal Church in the town of Toms River was not for sale.
Legal experts and property rights lawyers interviewed for this story told Episcopal News Service that Christ Church likely would be on solid ground in fighting to maintain ownership of its 11-acre property, though existing case law leaves unanswered how courts might rule if the church asserts its rights both as a property owner and as a house of worship.
The town’s proposal is “clearly an abusive use of eminent domain,” Ilya Somin, a law professor at George Mason University in Arlington, Virginia, told ENS. He thinks the church has a strong argument that the officials’ actions really were intended to thwart the congregation’s interest in creating a homeless shelter on the property.
Robert Thomas, director of property rights litigation with the Pacific Legal Foundation, a public interest law firm that defends property owners, agrees that “a lot of smoke” in Toms River may signal a property rights fire. Thomas said the church could argue under property law that Mayor Dan Rodrick’s park proposal is illegal as a “pretextual taking,” a legal term applied when governments give one rationale for eminent domain as a cover for some other unacknowledged goal.
“The timing, it raises some eyebrows about what’s the real purpose” for taking the church, Thomas told ENS.
Rodrick first proposed voluntarily buying or forcibly seizing Christ Church’s property in April, and the Toms River council voted later that month to move forward initially with his plan. Rodrick said he envisioned creating a multiuse park on the church’s property because that part of town lacks recreational facilities.
Then in June, a town zoning board rejected the church’s request for a zoning variance that would have allowed is 17-bed homeless shelter to be built. Harvey York, an attorney representing Christ Church, told ENS this week that the congregation was still considering whether to appeal the zoning board’s decision.
The mayor’s proposed eminent domain ordinance requires a second approval to take effect. A final vote had been scheduled for July 30, but Rodrick postponed it indefinitely after facing a vocal outcry from church leaders and the church’s supporters, as well as a petition drive seeking to block the pending ordinance. The mayor’s opponents launched a separate campaign attempting to recall him.
“The church and the diocese are prepared for a long court fight to protect our congregation and property from this egregious land grab,” the Rev. Lisa Hoffman, Christ Church’s rector, wrote in a May message to her congregation. New Jersey Bishop Sally French has said the diocese will do “all that we can” to help defend the church in any property dispute.
New Jersey Bishop Sally French, fifth from right, joins other Toms River Christian, Jewish and Muslim faith leaders in singing “God Bless America” to end a May 27 Interfaith Prayer Service for the Freedom of Religious Expression attended by more than 250 people at Christ Church. Photo: Mary Frances Schjonberg/Episcopal News Service
Legal experts say an eminent domain proceeding involving a church would not be unprecedented – houses of worship are not immune from governments legally taking some or all of their property, with fair compensation and for public use – though those experts also say they are following the Toms River dispute with keen interest, given the questions it may raise about the proper application of state and federal laws.
“I think what’s interesting about it is it kind of stands at the confluences of two different kinds of religious land disputes,” Eric Rassbach, vice president and senior counsel at the public interest nonprofit Becket Fund for Religious Liberty, said in an ENS interview.
The first is the general threat of eminent domain, a legal process by which a government can take privately owned property even if the property owner doesn’t want to give it up. The U.S. Constitution’s Fifth Amendment limits the use of eminent domain by requiring that governments provide “just compensation” when taking property for “public use.” Congress and some states have passed laws giving property owners additional protections.
Secondly, Rassbach said, the timing of Toms River’s eminent domain threat raises additional red flags, given that the mayor has opposed broader efforts to assist people experiencing homelessness and that some of his constituents had complained specifically about Christ Church’s homeless shelter proposal.
The congregation, which has said its outreach ministries are rooted in the Christian call to help those in need, could argue that the town’s actions are unfairly limiting how it lives out that call, Rassbach said. Unlike other property owners, houses of worship benefit from additional protections under the First Amendment and a federal law known as the Religious Land Use and Institutionalized Persons Act. In Toms River, the town would have the burden of proving it is using eminent domain consistently, fairly and in a way that doesn’t place undue burden on the church’s exercise of its faith.
No lawsuits have yet been filed. Paul Ambos, chancellor of the Diocese of New Jersey, told ENS by email this week that he has “confidence in the position of Christ Church” and the diocese. He declined to comment further on “contingent litigation plans.”
For comparison, Rassbach gave the example of another New Jersey case. In the town of Wayne, a community of Albanian Muslims wanted to build a new mosque on property they owned, but local officials, at first reluctant to grant building permits, eventually announced they planned to seize the property for public open space.
“In a lot of situations, municipalities make up these reasons post hoc,” Rassbach said. The congregation sued with the Becket Fund’s help and won in 2007, and it was able to proceed with its mosque project.
In another case, a Christian church in San Buenaventura, California, sued the city for refusing to allow it to maintain a facility that ministered to unhoused people during the day. It won that case on appeal in 2016 while asserting its rights under the First Amendment and federal law.
Even so, governments have had considerable leeway in their use of eminent domain since the U.S. Supreme Court’s 2004 ruling in the case known as Kelo v. City of New London. That case allowed the seizure of private property even though the Connecticut city government’s “public use” justification involved giving the seized property to private developer for a project that would benefit New London economically.
Somin, the George Mason University law professor, said Toms River officials’ motives would weigh heavily in a potential lawsuit. If the documents produced by the town detailed objections to Christ Church’s homeless shelter while showing little depth of planning for an eminent domain seizure, “that would be a point in favor” of the church, Somin said.
Thomas, the property rights expert at Pacific Legal Foundation, acknowledged that eminent domain can be used as a legitimate tool in the public’s interest.
“In our system, if someone wants to buy your house, you can tell them no,” he said, but the government doesn’t have to take “no” as the final answer. At the same time, he underscored the potentially severe negative impacts on the property owner, whether a church or a private citizen. In those cases, eminent domain should only be used as a “last resort,” he said.
– David Paulsen is a senior reporter and editor for Episcopal News Service based in Wisconsin. He can be reached at dpaulsen@episcopalchurch.org.