New Laws Sweep Away Barriers to Churches Helping the Homeless

by Jim Scarantino | Oct 15, 2021 | General

Local laws can no longer stop religious organizations from hosting the homeless on their property. Tent encampments, tiny homes, safe parking programs, RV living and church buildings used as dormitories and apartments cannot be prohibited by municipal codes or county ordinances.

In 2019 the Washington Legislature enacted a set of laws that explicitly authorize religious organizations to “host the homeless” anywhere on their property, inside or outside buildings. Cities and counties are prohibited from imposing conditions other than those necessary to protect public health and safety. “Necessary” means no less restrictive alternative can be found. Even if “necessary” to serve those goals, the conditions imposed by a city or county may not “substantially burden” the decision of the religious organization regarding the location of a temporary tent encampment, tiny homes village, safe parking program or use of buildings to host the homeless.

The laws are dense, packed with a litany of restrictions on the powers of local government. RCW 35.21.915 applies to most cities and towns. RCW 36.01.290 applies to counties.

This is true separation of church and state. The sovereignty of churches was recognized in medieval times—or so Hollywood tells us in films where the king’s pursuit ends at cathedral doors. Here, in the real world, the legislature has recognized a limited, but still robust sovereignty for church properties.

These laws remain untried and untested in Jefferson County.  Earlier in the year the Housing Solutions Network began meeting with churches to encourage hosting programs. Now two churches are going to put the new laws to use. New Life Church Assembly of God in Port Townsend has announced a safe parking program—allowing people to sleep in their cars and RVs. The church already has an RV on its property. The full program, which will accept up to five vehicles to start, is expected to launch mid-November. Another religious organization is on the brink of initiating a safe parking program and I will leave that announcement to them.

These programs would otherwise be illegal under Port Townsend’s prohibition against tent and RV camping.  All zoning restrictions are likewise unenforceable against church programs to shelter the homeless.

The tiny home village at the Port Hadlock Community United Methodist Church is not an exercise of that church’s authority to override county ordinances. The quaint village of attractive shelters sits on church property covered by a long-term lease with OlyCap. The project was done in compliance with the county’s regulations, not despite them. That project has motivated other religious organizations to step up and pitch in. I write this article in the hope that it motivates someone to approach their church leadership to consider their own homeless hosting program, be it as modest as providing refuge to just one fellow human being.

In this article I use “churches” and “religious organizations” interchangeably, though the latter term is far broader. The latter term would apply, of course, to a mosque or temple. It also applies to a Unitarian fellowship or Quaker meeting. It would also apply to the home churches scattered around our area, each of which, conceivably, could undertake their own hosting program on residential properties.

This is huge in a small way.

Churches do not need to exhaust the process and bear the cost of obtaining a conditional use permit. All that is required is for the church to hold a public meeting where concerns of neighbors and others may be aired. Then the project may proceed without further ado, even over strenuous objection from neighbors and city officials. (More on that below, under the heading, “Grace.”)

The law, incredibly, puts the burden for providing public notice for the meeting on local government. The religious organization can act quickly, giving the city just 96 hours notice. Then it is up to the city to put out word in newspapers, on its website or via street signs near the meeting place.

The city or county can’t stop the project. It is exempt from all the laws used to delay and frustrate housing development and efforts to shelter the unhoused. There are only a few narrow exceptions, none of which would apply to a safe parking program or tiny home village. Port Townsend’s pre-existing emergency tent encampment rules might apply to a tent encampment, but would not govern RVs on a church property. I also conclude that a church could place mobile homes on its property despite any contrary local regulations.

In the case of a response to a declared emergency, the church can accept homeless on its property without any notice to government or public meeting. The Jefferson County Board of County Commissioners declared a housing emergency in 2017, and reaffirmed that declaration in 2019. That is a sufficient emergency declaration to obviate the legal necessity of scheduling and holding a public meeting. Any church in Jefferson County that takes in someone washed up at their door in need of shelter is on solid footing in immediately letting them pitch a tent, park an RV, move into the church or an outbuilding, or occupy a tiny home.

I think every church should have a foldable cot and inflatable mattress ready in a closet, and, if they have the space, an RV, mobile home and/or tiny home available for such emergencies. “Anyone who sets himself up as ‘religious’ by talking a good game is self-deceived. This is the kind of religion that is hot air, and only hot air. Real religion, the kind that passes muster before God the Father, is this: reach out to the homeless and loveless in their plight, and guard against corruption from a godless world.” 1 James 26-27 (The Message translation).

Constitutional Foundations

This extraordinary development of legislatively carving out refuges from local laws—laws that have contributed greatly to the affordable housing and homelessness crises—is the result of courts’ recognition that serving the homeless is an expression and practice of religious beliefs. The protections of the First Amendment to the United States Constitution and Article I, Section II of the Washington State Constitution operated long before the legislature acted. The right of religious organizations to use their property is actually broader than the statutes in question, which, as the Municipal Research Service Center of Washington has stated, merely attempted to codify and recognize judicial rulings.

The First Amendment right of a church to use its property to care for the homeless was recognized by Congress in the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIP). This law applies the same prohibition against substantially burdening the use of church property. What constitutes “substantial burden”? As explained by the Seattle University School of Law Homeless Rights Advocacy Project: “A substantial burden exists if the religious organization would have to endure additional delay, uncertainty and expense….” Faith is the First Step: Faith-Based Solutions to Homelessness, Means & Rankin (2018). 

The rights of a religious organization are even greater under the Washington State Constitution. Washington’s constitution guarantees, “absolute freedom of conscience in all matters of religious sentiment, belief and worship” so long as the practices are not “inconsistent with the peace and safety of the state.” In 2009, in City of Woodinville v. North Shore United Church of Christ, the Washington Supreme Court held that a temporary moratorium on homeless encampments constituted a substantial burden on the church’s religious beliefs and practices and therefore violated the state constitution. The Washington Supreme Court has employed the same “no less restrictive alternative” and “substantial burden” analysis found in the new statutes.

Either We Have An Emergency, or We Don’t

The legislature recognized that we have a dire homelessness crisis, and did not hem or haw about turning religious organizations loose to do something about it.

Churches had encountered one regulatory obstacle after another in seeking to use their property to help the homeless. Winning a lawsuit years down the road was a hollow victory to a church that could barely meet its own overhead, let alone pay for lawyers and legal costs. Very few churches can shoulder the costs of fighting government. And as the cases worked their way through the courts, people in need were denied help.

The legislature disarmed local government, nearly completely.

Zoning and building codes, and enforcement discretion and abuses, are sometimes used to stop projects incrementally instead of issuing an outright permit denial. No more death by a thousand cuts. A city can’t wear down a religious organization by requiring costly insurance. It can’t impose hope-killing time limits or permit fees. It cannot limit the number of homeless being helped, or restrict shelter to only tents, or only RVs or only cars or only tiny homes and then regulate those units to death.

Religious organizations must reasonably comply with fire codes. They must provide portable toilets and wash stations if there is no access to bathrooms. Electrical wiring must, of course, be inspected for safety. The law says that a local government can enact an ordinance requiring a memorandum of understanding (MOU). But the local government can demand very little in the MOU. Mostly it can make recommendations for the religious organization to accept or reject.

Local code enforcement officers and community development directors may not like seeing their powers and discretion nearly cancelled on properties under their jurisdiction. The legislature heard from churches and homeless service agencies about how those powers were being abused to kill their programs. Even if the obstruction was unintentional, merely a routine enforcement of local regulations, the legislature said, “Enough. We have a real emergency. Get out of the way and let religious organizations do what they can to help.”

Grace

Religious organizations would be well advised to show neighbors and city officials the same love and grace they want to show the homeless. Port Townsend residents near churches no doubt fear the prospect of another Fairgrounds encampment disaster. The Fairgrounds tragedy was an example of government neglect and incompetence. Ironically, it was government insistence on onerous, counter-productive regulations that exacerbated the problems. By the city insisting its unrealistically burdensome and costly regulations be enforced, OlyCap, the only agency with the resources to have competently managed the Fairgrounds as an emergency shelter, had to stand back. The Fairgrounds became a Wild West complete with violence, criminality, disease (addiction the most prevalent) and the loss of life.

Religious organizations need to dispel those fears and work closely with local government, service providers and law enforcement to show how to care properly for the homeless. They are not likely to start with the hard cases—the seriously mentally ill and drug addicted. They just don’t have the resources and skills. They are likely going to start with the “easy yesses.” These programs require background checks and are closely coordinated with law enforcement. Social service agencies are engaged to help the churches and the guests. These programs have been very successful elsewhere for many years, with no reports of harm to the surrounding neighborhoods.

Overlake Christian Church in Redmond, for instance, has been hosting young men in its safe parking program. These are individuals early in their working lives who don’t have the cash for “first, last and damage deposit.” By saving up money while they are holding an entry-level job, many have been able to stand on their own feet and move into their first apartment. OCC’s parking program keeps the temporarily homeless from becoming the chronically homeless.

However a church chooses to proceed, it must have a heart for everyone impacted. It is not easy. I have been the point of contact for a campaign by a neighbor of my church who wants a homeless couple moved from where they have set up a stable, healthy home. Their nice RV is separated from the neighbor’s house by a tall, solid fence, and is well over 100 feet from the property line and mostly obscured by an outbuilding. The couple is quiet, tidy and considerate. I find the repeated complaints incomprehensible. I try to see it from the neighbor’s eyes, but can’t. Maybe that comes from growing up in a city of row houses and twins. I just don’t get it.

I strive to respond with courtesy. I pray for compassion and a softening of hearts. I pray for myself that I don’t pridefully stand on the law. But I realize that the law that allows churches to help the homeless is the product of a considered democratic and thorough legislative process. Those bills passed overwhelmingly. Because the homeless may live on church property under the clear terms of the law, they have as much right to eat and sleep where they are as anyone else. I cannot surrender their rights. They would be devastated by the message that they count less than others merely because they have less than others, and that all those professions of love were unreliable. Defending their rights under the law—gracefully—is doing justice.

One Life At A Time Does It

Forget about “ending homelessness.” It’s not going to happen, and there’s nothing a religious organization can do to make it happen. There have always been homeless in this nation. The recent epidemic is, however, truly unprecedented. It has been caused, we are finally learning, not by “the failures of capitalism.” It was capitalism that built apartments and starter homes for generations (and all those affordable row houses in my home town). Exclusionary, aka “snob” zoning and building codes endlessly ratcheting up the cost of construction are the antithesis of free enterprise, by the way.

We have learned that our epidemic of homelessness is caused by the “catastrophic and profound loss of community.” That is the on-the-streets, in-the-trenches observation of the Mobile Loaves and Fishes Ministry of Austin, Texas, the organization behind the ground-breaking and successful Community First! housing development for the chronically homeless.

It is also the conclusion of scholars not beholden to the homelessness-industrial complex, that too often has leveraged the homelessness epidemic for political power and lucrative grants that continue and increase regardless of results. “Homelessness is a condition of disengagement from society–from family, neighborhood, friends, church, and community,” Alice Baum and Donald Burnes wrote in perhaps the definitive book on homelessness. Christopher Rufo, who has produced some excellent documentaries in addition to his scholarly writings, reached the same conclusion, but calls this societal disintegration “disaffiliation.” See my April 20, 2021 article, “Our Fifth Column in the Fight Against Homelessness: Churches.”

This is an opportunity to connect with people who have lost meaningful connection and the sense that they are loved. The genuinely friendly smile delivering a cup of hot coffee to someone who has spent the night in a cold car… you’ve just shown them Jesus without saying a word beyond, “Good morning.”

With the legislature making it clear that little stands in the way of churches employing their resources to shelter the homeless, churches are without excuse in failing to act. It need not be an involved program serving dozens of people, requiring huge expenditures of volunteer time and resources churches may never have unless they accept government funds—a very unwise course for any church. Instead of a grandiose War on Homelessness, it could be as simple as letting a veteran pitch a tent below the stained glass, or a family who have seen their rental sold out from under them using a classroom to keep warm and stay together until they find a new home.

We tend to think in macro terms and set ourselves up for failure and self-recrimination. What difference will it make? The problem is so huge. It is beyond us. We are helpless against such odds.

“There are no great things, only small things done with great love.” That is my favorite quote from Mother Teresa. There is also the starfish story. It has been told many ways. I know this one:

One night a storm washed upon the beach thousands and thousands of starfish. They lay gasping for life on the sand as two men walked along the shore. One started tossing the starfish back into the water, a single dying starfish at a time, He was making no noticeable dent in turning the situation around. “Why bother?” the other man said. “What difference does it make?” His companion bent down to reach a struggling starfish and tossed it back into the sea. “It makes a difference to that one.”

Note to self:  Pay attention to the bending down part of the story. That’s important, too.