Last modified: 10/28/2015 3:04:37 PM
The leaders of a Pembroke church on Route 3 intend to prove in court that they have a right to place on their lawn an 8-by-4-foot electronic sign that displays biblical messages.
The Hillside Baptist Church – which is working in collaboration with Signs For Jesus – currently has a manual signboard and is located in a zone that prohibits electronic signs.
The church exhausted its options within municipal government Monday, when the zoning board at a rehearing unanimously refused to grant a variance or overrule the code enforcement officer’s denial from this spring.
Signs For Jesus, and its director, Fab Cusson, constructed a similar sign on Route 4 in Chichester four years ago, which displays short messages, such as, “With God all things are possible.” Chichester’s planning board denied that proposal in 2011, spurring a lawsuit in the U.S. district court in Concord, before the planning board reversed course.
Zoning board Vice Chairman Bruce Kudrick said Monday the town’s restriction on electronic signs was imposed “to protect the historic integrity and character of Pembroke Street.” Board members cited residents’ intent to avoid an evolution toward the industrialized segment of the same road as it runs through Hooksett to the south.
The church, however, pointed to the electronic sign that Pembroke Academy displays about 2 miles away within the same zone, similar to the style it is proposing. The high school installed its electronic message board “against the wishes of the town,” Kudrick said, noting that the school district is exempt from municipal land-use regulations because it is a separate government entity.
Nevertheless, Pembroke Academy’s sign features prominently in the church’s argument, formulated through attorney Michael Tierney, who has successfully argued religious cases in multiple New Hampshire towns.
Tierney said the zoning board erred in its application of the federal Religious Land-Use and Institutionalized Persons Act when it effectively treated the church differently than Pembroke Academy. RLUIPA applies to both state and municipal laws, Tierney said.
“The town of Pembroke’s power to zone is conferred by state law. Denying the church the right to put up a sign similar to the sign that Pembroke Academy put up down the street would violate the equal terms provision of RLUIPA,” Tierney wrote.
Kudrick said the board disagreed. It argued that Pembroke Academy “is not an appropriate point of comparison because it is a benefactor of the state law exemption.” He also countered a secondary argument posited by the church: that the zoning ordinance “substantially burdens” the church’s religious exercise, which in this case is “the use of a sign to communicate a biblical message.”
Kudrick said that members of the church are required to walk about 300 feet from the building to manually change the letters on its existing sign and that “does not rise to the level of a substantial burden.”
“A substantial burden occurs only when the ordinance renders religious exercise officially impractical,” Kudrick said. “The ordinance prohibits electronic signs and does not render worship impractical . . . and does not effectively bar Hillside from using its property to exercise its religion.”
Tierney said court cases interpreting RLUIPA have found that municipalities requiring religious entities to obtain conditional use permits or variances that other entities are not required to obtain – such as Pembroke Academy – “is a substantial burden.”
“The fact that the church may express its message through a different medium or in a different location does not relieve the town of its obligation not to impose burden on the church’s use of its own property,” Tierney wrote.
In addition to the federal law, Tierney wrote that the state Constitution says a municipality can’t deny a private landowner the right to use his property in a similar manner to how a governmental landowner is permitted to use his property. He continues to argue that a restriction of the church’s ability to communicate its message via an electronic message board would also violate the First and Fourteenth Amendments of the U.S. Constitution.
“The town’s prohibitions on these signs are arbitrary and not narrowly tailored to accomplish any important government interest,” he wrote.
On that point, several Pembroke residents who spoke at the hearing disagreed. Among them was state Rep. Dianne Schuett, who said there are 21 other businesses and churches on Pembroke Street that currently have “unobtrusive signs.”
“I can bet you every single one of those people will want a (similar) sign if this exemption is granted. That’s the slippery slope I’m worried we’ll be falling down,” she said.
As the church moves to appeal the Pembroke decision, Tierney said it’s considering its legal options. It could appeal the zoning board’s decision to superior court, or, because of relevant federal law, to the U.S. district court in Concord.
Cusson, the Signs For Jesus director, said when he heard the 11-minute-long motion that Kudrick made to deny the application, he decided the meeting was “just a formality.”
“It’s obvious they had made up their mind before the meeting even happened tonight,” he said.
(Nick Reid can be reached at 369-3325 or nreid@cmonitor.com or on Twitter
@NickBReid.)