• Key point. Some courts have ruled that the first amendment guaranty of religious freedom permits churches to operate private schools on their premises even though those premises are not zoned for school use.
A federal court in Colorado ruled that a city violated the constitutional rights of a church by refusing to allow it to conduct a school on its premises. The church is located in an area that is zoned for residential and church uses, but not for school uses. The church began operating a school on its premises and was later ordered to close the school by county zoning authorities on the ground that the church's property was not zoned for school use. The school later sued the county, claiming that its first amendment right to freely exercise its religion was violated by the county's actions. A federal court agreed. The court began its opinion by observing that the question here is whether the county has impermissibly burdened the religious activities of the church by prohibiting the use of the church building for daily religious education by the use of a zoning code which restricts the location of secular private schools. The court emphasized that it was not dealing with the construction of a new building to be used by the church for school purposes, but rather with a desire by the church to use its present facilities for school purposes. The court concluded that the county's action could be upheld only if it was supported by a compelling government interest, and it ruled that such an interest was not present in this case. It rejected the county's claim that a compelling government interest was demonstrated by neighbors' complaints about the increased noise and traffic congestion, and the reduction in water pressure, that a school would create. The court noted that property owners can engage in accessory uses that are customarily incidental to the principal building or use. It concluded that the
conduct of a school within the church building is integrally related to the religious belief of the church membership. The [church] is nt arguing for a right to be free from zoning or to build a church where it pleases. It purchased an existing church building in a district where a church is a use by right. The restriction now is on religious conduct …. The restriction on the educational use of the building is not different, in principle, from a governmental imposed restriction on the religious ceremonial practices in the church. In sum … the denial of [the church's] special use application for the operation of a school within the church building is a substantial burden on the free exercise of religion by the membership of the church and is prohibited by the [first amendment].
It is important to note that the court ordered the county to pay the church's attorney's fees, and it also suggested that the church was entitled to money damages under federal law as a result of the county's violation of its constitutional rights. Title 42, section 1983 of the United States Code allows persons and organizations whose constitutional rights are violated to sue the offender for money damages—even if the offender is a city or other government unit. This case is very significant since it illustrates the availability of money damages under "section 1983" for a city's violation of a church's constitutional rights. The importance of such rulings cannot be overstated—for they represent a recognition of an extremely potent weapon that is available to churches when confronted by overzealous local officials who are unsympathetic and indifferent to the religious beliefs and practices of the church. Alpine Christian Fellowship v. Pitkin County, 870 F. Supp. 991 (D. Colo. 1994). [ Zoning Law for Churches, Zoning Law and Churches, Zoning Laws and Private Schools]
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