Cash-strapped cities look to tax churches for road use

January 21, 2011

(RNS) When a community needs to rebuild crumbling roads, should houses
of worship pay fees for the number of times their congregants drive on
them?


That's the question behind a recent suit filed by churches in the
small city of Mission, Kansas, who argue the city's new "transportation
utility fee" is a tax they should not have to pay.


With cash-strapped states and cities facing a slew of tough choices,
there's a growing debate nationwide about whether religious
congregations should help foot the bill.


"It makes no sense to tax churches and to limit their ability to
provide their services, and it does damage to the constitutional
separation between church and state," argues Erik Stanley, senior legal
counsel for the Alliance Defense Fund, which is representing Catholic
and Baptist churches in the city of 10,000.


He acknowledges that church-state separation is generally not an
argument made by his conservative Christian law firm; but in this
instance, he says "there should be a separation here."


Houses of worship are generally exempt from federal and state taxes,
in part because nonprofits are viewed as providing beneficial services
for society.


As a result, municipalities often don't gain any revenue from the
property on which they sit, and Stanley views the fees as a way to get
around the churches' tax-exempt status.


According to the lawsuit filed in December, the city calculated the
number of trips generated to and from a property based on a manual of
the Institute of Transportation Engineers.


The manual estimates that a church produces an average of 5.8
vehicle trips per week for each seat in a sanctuary. That led to a fee
of $898.77 for First Baptist Church of Mission, and $1,685.19 for St.
Pius X Catholic Church.


Stanley said state courts in Idaho and Florida have ruled against
similar fees, determining that city-imposed fees were invalid because
they were not authorized by state legislation.


Mission officials deny that the churches should be exempt, as well
as the notion that the fee amounts to a tax.


"It was just a fair way to spread the cost among those who are
generating the traffic," said Mission Mayor Laura McConwell, "to help
pay for the roads that you need to bring people in either for your
business or for the churches or to people's homes."

She said calling the fee a "driveway tax" is a misnomer.


"We discussed it also with our attorneys ... to make sure we weren't
stepping on anyone's constitutional rights before we instated it," she
said. "I'm pretty comfortable with what we've chosen."


McConwell said her city's fees are due to aging infrastructure, not
the faltering economy. But experts say economic pressures have led
municipalities to levy fees on nonprofits with increasing regularity.


"Given the current economic conditions for cities, we're seeing
cities are looking for other ways to find revenue in order to pay
essential services," said Gregory Minchak, spokesman for the National
League of Cities.


Robert Tuttle, a church-state expert at George Washington University
Law School, said the fee debates in Mission and elsewhere aren't about
churches' tax-exempt status, but whether a government institution is
authorized by state law to impose a fee.


Cash-strapped governments are nothing new, he said, but current
economic challenges are prompting creative ways of dealing with money
woes.


"To the extent that they weren't willing to engage in political
fights before, maybe now they're willing," Tuttle said. "Maybe fees are
hurting churches even more because their donor contributions are down."


A drainage fee in Houston, adopted last year in a close public vote,
has been criticized by churches, which could pay thousands to hundreds
of thousands of dollars for a new city initiative to control flooding.


"If you take $100,000 out of a church budget, that's personnel,
that's benevolent ministries, and those are things that now aren't going
to be done," said the Rev. David Welch, director of the Houston Area
Pastor Council. "Who's going to do it?"


The Archdiocese of Galveston-Houston said early estimates suggest
costs for it and its 78 parishes could reach $1 million.


"We especially realize this fee will place a particular burden on
our poorer inner-city parishes, which have very limited resources," said
Jenny Faber, spokeswoman for the archdiocese. "We hope for a more
equitable solution for our parishes, other religious entities and
nonprofit groups."


Jessica Michan, press secretary for Houston Mayor Annise Parker,
said the City Council still needs to vote on how the fee will be
calculated and what organizations will be exempted. But a city document
about the initiative notes that eight of Texas' 10 largest cities have
drainage fees -- and none exempt churches.


As in Mission, there's been a suit filed to try to halt the fee,
charging that it was vague and therefore invalid.