Church seeks fairness for plans to build McKinney Texas Temple

A town council’s vote to reject the plans for the McKinney Texas Temple filed by The Church of Jesus Christ of Latter-day Saints violates the Free Exercise Clause of the First Amendment, according to a letter to the council from the attorney representing the church.

The Fairview Town Council unanimously denied a conditional use permit for the temple after a four-hour meeting on Aug. 6. Fairview and McKinney are neighboring suburbs within the Dallas-Fort Worth metroplex and the proposed temple site is in Fairview.

Fairview’s conditional use permit process is “highly subjective” and creates a “substantial burden” to the religious exercise of the church and its members that runs afoul of the First Amendment, federal and state law and court precedents, according to the letter from the church’s attorneys, Richard Abernathy and Jared Pace of McKinney law firm of Abernathy Roeder Boyd Hullett.

“Nothing in the Town of Fairview’s Code of Ordinances would justify denying the church’s application,” the attorney’s wrote in the letter, which was sent to the mayor and each member of the council. “The town’s staff report correctly concludes that the church meets all legal requirements necessary for approval.”

The church’s spokesperson for the temple project said the church is considering its next step.

“The church’s application for the temple meets all zoning requirements for a place of worship in this community,” Melissa McKneely said in an email. “Due to the outcome of the vote, the church will explore other avenues to ensure the temple proposal receives the due process it is entitled to under the law. Future updates from the church will be posted on: mckinneytexastemple.org .”

Fairview’s decision, legal or not, is a window into the intersection of zoning ordinances, federal and state religious liberty laws and the way courts have interpreted them and the First Amendment. The church says it wants to be treated fairly.

What has the church proposed for the Fairview Texas Temple?

The church’s membership in the Dallas area is expanding, and the number of Latter-day Saints in Texas has grown from 132,000 in 1985 to 385,000 today. The church’s Dallas Texas Temple, built directly in the midst of single-family homes and near to two other houses of worship, has been the only temple serving the area since it opened in 1984.

President Russell M. Nelson announced the McKinney Temple, named for Fairview’s neighbor, in October 2022. The church announced the site location in December 2023.

McKneely said church membership in Dallas-Fort Worth has quadrupled since 1984.

The church plans to build what for it is a medium-sized temple of 44,000 square feet on 8 acres. The plans call for the temple to be 65 feet and a 108-foot steeple, for a total height of 173 feet.

Fairview Mayor Henry Lessner and others on the council said the steeple is too tall and the town would not issue a permit unless the church reduced the total height to 68 feet.

Church representatives approached the town this summer and offered to rename the temple for Fairview and reduce the steeple by 15 feet. That would make it similar in total height to the 154-foot tower the Fairview Town Council approved in 2006 for the Creekwood United Methodist Church. The Methodist church so far has not erected the tower.

The proposed temple would be located on Stacey Road, a four-lane state highway, along a section colloquially known as Church Row and across the street from a shopping center. From west to east, Church Row consists of the Sloan Creek Campus of the Chase Oaks Church, a Latter-day Saint meetinghouse, the proposed temple site and a 5-acre parcel where the the Twin Creeks Church of Christ plans to build.

Twin Creeks is expected to apply for a conditional use permit later this year.

What do Fairview’s zoning laws say about churches?

Fairview’s zoning ordinances include a provision for sexually-oriented businesses but no zone in the city includes churches as a permitted use. A church cannot build a chapel or synagogue or mosque without going before the town council to seek a conditional use permit.

Most American cities and towns anticipate the construction of churches in neighborhoods in their zoning laws. The church applied for a conditional use permit to build the temple in an area of Fairview that is zoned “One-Acre Ranch Estate.” The zone caps building heights for homes at 35 feet, but the town has provided conditional use permits in residential zones for cell towers, water tanks and churches.

“RE-1 zoning is used for single-family homes and facilities that pertain to them, which includes churches,” the church’s attorneys wrote.

Municipalities grant conditional uses when builders agree to mitigate the effects bigger, taller structures may have. Ordinances regularly expect churches that build on land abutting residential property to provide a landscape buffer.

Church representatives said the McKinney Temple plans do that. Most neighbors won’t be able to see the temple at all due to the height of the trees surrounding the property, and those who can see it will see only a portion of the thin spire, they said. The church published images that showed how tall the temple would look from various nearby locations.

“The temple is practically invisible from the surrounding neighborhoods,” the church’s attorneys wrote. They added, “Its visibility will be reduced when the Twin Oaks Church of Christ builds its house of worship on the lot immediately to the east.”

From the church’s perspective, Fairview is a residential Dallas suburb with eight churches in an area with substantial commercial buildings. If built, the temple would sit 1.6 miles from the Fairview Town Center mall, which sits on 65 acres and includes more than 900,000 square feet in stores.

Those opposed to the temple say Fairview is rural. Some opponents wore green T-shirts with the words “Keeping it country” to the Aug. 6 council meeting.

Town council members said their decision to deny a permit to the Church of Jesus Christ was based on Fairview’s existing zoning ordinances, not religion.

“We’d be happy to have the temple if you can compromise on the building height and steeple height,” a council member said.

The council’s decision was made “without prejudice,” which means the church can return to seek a permit again in the future, but council members told church representatives not to come back until the proposal was for a smaller temple.

One council member said the church must keep the temple to 42 feet and the steeple below 68 feet, apparently because that is the height of the Latter-day Saint meetinghouse.

What legal reasons could Fairview use to deny a permit for the temple?

Church attorneys said Fairview’s ordinances allow it to take 10 factors into consideration when the town council votes on a conditional use permit.

Those factors include transportation and fire safety, flood concerns, noise and lighting, parking and environmental and economic impact.

The attorneys said the church satisfied all 10, leaving the town one option for denying the application: To find that the proposed temple doesn’t meet the 10th factor: “aesthetic appearance of the use, and other sensory effects that may have on the established character of the neighborhood, its property and the property within the town as a whole.”

The proposed temple is consistent with the neighborhood for five reasons, the church attorneys said.

1. Churches are inherently consistent with residential neighborhoods. The Texas Supreme Court declared in 1944 that excluding churches from residential neighborhoods “does not promote the health, the safety, the morals or the general welfare of the community.”

“Churches in residential neighborhoods are a common feature of American life and have never been considered inconsistent with the character of a neighborhood,” the attorneys wrote. “The church’s own experience confirms this. Most of the temples built by The Church of Jesus Christ of Latter-day Saints in the United States are in residential neighborhoods.”

2. The temple lot is not in the middle of a residential neighborhood but on a busy road across from a shopping center.

3. The temple’s size is consistent with the character of the neighborhood because it is similar in height to several structures in Fairview and next to other churches. The town has water towers that reach 165, 155 and 123 feet and are far larger at the top than the temple’s proposed spire, which thins as it rises. Fairview also has a cell tower that reaches 155 feet.

4. The temple’s size is consistent with other churches in residential neighborhoods in the nearby areas. For example, the steeple of the McKinney Baptist Church, which is in the same zip code, reaches 170 feet.

5. The temple would be practically invisible from surrounding neighborhoods.

“The temple could not be any more consistent with the ‘established character of the neighborhood,’” the church’s attorneys wrote.

Does a temple need a spire? Is it legal for a town or city to restrict how tall a spire is?

Church representatives told the city that temples are where Latter-day Saints perform their highest rituals. The walls in a temple’s celestial room are taller to depict what it would be like to live with God. Spires are symbolic of reaching toward heaven and drawing closer to God.

They also said that for Latter-day Saints, the choice of a temple site is a matter of determining God’s will and that temple architecture reflects the church’s belief that the temple is literally the house of the Lord.

The church’s attorneys said that relying on the aesthetic argument is prohibited by two significant laws — the federal “Religious Land Use and Institutionalized Persons Act” passed unanimously by Congress in 2000 and the Texas Religious Freedom Restoration Act of 1999. They also said courts have repeatedly rejected efforts to use aesthetics and sensory effects to trump religious freedom.

Those laws and court decisions, the attorneys said, prohibit any land-use decision that imposes a “substantial burden” on religious exercise. One of those decisions said municipalities may not “second guess” a religious group’s “description of its religious exercise.”

“In short, under TRFRA and RLUIPA, a substantial burden exists when government action prevents the use of real property in a manner motivated by sincerely held religious beliefs,” the church’s attorneys wrote.

They cited 20 court decisions from across the country that supported that position. For example, a New York appellate court in 2002 reversed a city’s denial of a temple steeple in a residential district despite the steeple representing a 77% increase over permitted height. The court said the evidence did not prove the proposed temple would have a “negative visual impact on the surrounding residential area.”

The U.S. Supreme Court ruled in 2014 that a decision imposes a substantial burden if it interferes with “the ability of the [church] to conduct [itself] in accordance with [its] religious beliefs.”

Interestingly, the church’s attorneys noted the recent opposition to proposed temples in Las Vegas and in Heber City, Utah, noting that both cities’ councils unanimously approved the church’s applications despite the fact that both temples reach higher than the one proposed for Fairview. The Lone Mountain Temple in Las Vegas was approved with a 196-foot steeple and the Heber Valley Temple was approved at a height of 200 feet.

The Dallas Morning News published a letter last month from a reader who supported Latter-day Saint temples in Texas though he is not a church member.

The writer, David Haymes, said the Fairview controversy surprised him because he lives near the Dallas Texas Temple and feels its 95-foot steeple “to my eyes is a thing of beauty.”

“I am not a Mormon but I have no objection with Moroni, who sits atop the steeple keeping watch over our neighborhood,” he added.