Zoning – Part 3

Church Law and Tax 1990-09-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Zoning

Church Law and Tax 1990-09-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• A federal appeals court was asked to decide whether a church’s constitutional rights were violated by a city ordinance prohibiting churches from meeting without a special use permit. An Evanston, Illinois zoning ordinance permits churches to locate anywhere in the city provided they obtain a special use permit from the city. To secure a permit, a church must file a detailed plan for the use of the facilities and pay a fee of approximately $400. The city zoning board then holds a hearing and renders a decision. The entire process takes between four and six months. Churches conducting services without a permit are guilty of a misdemeanor and are subject to fines of $25 to $500 per day. A small, fundamentalist church began conducting services in Evanston without a permit. The church met in the pastor’s apartment, and then in a rented hotel room. It sought a permanent location, but allegedly could not find one since landlords either were unwilling to rent to the church until it obtained a permit, or increased the rent to an unaffordable level. The church filed a lawsuit against the city in federal court, alleging that its constitutional rights were violated by the city’s permit procedure. Specifically, it argued that the procedure violated the constitutional guarantees of religious freedom and the “equal protection of the laws.” With regard to the equal protection claim, the church claimed that other organizations (e.g., theaters, funeral homes, hotels, community centers) were not required to obtain permits to operate, and thus the permit procedure treated churches differently and less favorably without any apparent basis. The federal trial court dismissed the church’s religious claim, but it did agree that the city’s permit procedure violated the church’s constitutional right to the “equal protection of the laws,” and it awarded the church nearly $18,000 in damages under title 42, section 1983 of the United States Code. This law (referred to as “section 1983” by lawyers) 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. Significantly, the court granted the church a “summary judgment,” meaning that it found the church’s position so clearly correct that it refused to submit the case to a jury. The city promptly appealed this decision to a federal appeals court, which dismissed the case on the technical ground that the church lacked “standing” to challenge the city’s permit procedure. The federal Constitution, as interpreted by the Supreme Court, forbids the federal courts from resolving a case unless the plaintiff has “standing”—meaning that the plaintiff has suffered “some actual or threatened injury” and that the injury “fairly can be traced to the challenged action and is likely to be redressed by a favorable decision.” The appeals court concluded that the church lacked standing under this definition and accordingly could not maintain its lawsuit against the city. Why did the church lack actual or threatened injury? For two reasons. First, the city had never enforced the special permit requirement and accordingly there was no threat of legal consequences if the church disregarded it. The court observed: “A party must reasonably assert that it fears enforcement in order to establish standing. Here, given [the city’s] historic policy of non-enforcement and [the church’s] repeated violations of the ordinance without any municipal retaliation, [the church] cannot reasonably assert that they fear enforcement.” Second, the court rejected the church’s claim that its difficulty in locating permanent facilities was caused by the ordinance and established standing. The court found this claim too “conjectural” and “abstract” to create standing. It noted that the church had failed to produce any affidavits from landlords who refused to rent to the church because of its refusal to obtain a permit. It also observed: “[The church] relies on the mere possibility that, absent the ordinance, it could have more easily acquired rental property …. Such speculative claims cannot constitute distinct and palpable injury for purposes of standing. Claims of such vague economic harm are precisely the type of abstract or conjectural allegations spurned by the Supreme Court. [The church] never applied for a special use permit, nor was threatened with punishment for operating a church facility in violation of the ordinance. Thus, any fear of enforcement or increased difficulty in securing housing does not present any real controversy before the court.” This case is very significant (despite the appeals court’s crabbed interpretation of the standing requirement) since it represents another example of a court (in this case, the federal district court) awarding a church monetary damages under “section 1983” for a 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. To be sure, the federal appeals court dismissed the case, but it did so on for technical reasons that in no way diminish the significance of the trial court’s decision. Further, the appeals court seemed to concede that it would have affirmed the district court’s award of monetary damages had the city ever enforced its permit procedure, or had the church presented more evidence of the unwillingness of landlords to rent to the church. In many cases, these factors will be present, and presumably churches in such cases will be entitled to monetary damages. This, indeed, is a significant development that should be of interest to all church leaders, and their advisers. Love Church v. City of Evanston, 896 F.2d 1082 (7th Cir. 1990).

© Copyright 1990, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m82 m47 c0690

Legal Developments

Zoning – Part 4

Church Law and Tax 1990-09-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Zoning

Church Law and Tax 1990-09-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• A New York state appeals court ruled that a city acted improperly in denying a synagogue’s application for a special use permit without making any attempt to accommodate the proposed religious use. The synagogue applied for a special use permit that would have allowed it to operate in a residential property. The city council rejected the permit application, and the synagogue appealed. An appeals court concluded that the city’s denial of the permit was “arbitrary, capricious, and an abuse of discretion.” The court acknowledged that “there is no exemption from zoning rules for religious uses, nor is there any conclusive presumption that any religious use automatically outweighs its ill effects.” However, “where the applicant is a religious institution, more flexibility is required and efforts must be made to accommodate the religious use, if possible.” In fact, “every effort must be made to accommodate the religious use subject to conditions reasonably related to land use.” The court noted that the city council rejected the synagogue’s permit application “without making any attempt to accommodate the proposed religious use.” Such an act, concluded the court, was improper. The city had “an affirmative duty to suggest measures to accommodate the proposes religious use.” The court found that the synagogue’s proposed religious use could have been accommodated by the city: “For example, we observe that the accommodation of the religious use and maintenance of the public’s safety, health, and welfare could have been achieved by limiting the number of persons who could attend services or meetings at any given time, and by posting ‘no parking’ signs along the street to prevent hazardous road conditions, and by limiting the hours during which meetings or instruction could be held ….” The court ordered the city council “to issue the permit upon such reasonable conditions as will allow the [synagogue] to establish its house of worship, while mitigating any detrimental or adverse effects on the surrounding community.” This case will be helpful to any church or religious congregation that is seeking a zoning permit. Harrison Orthodox Minyan v. Town Board, 552 N.Y.S.2d 434 (N.Y. App. 1990).

Legal Developments

Zoning – Part 1

Church Law and Tax 1990-09-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Church Property, Zoning

Church Law and Tax 1990-09-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• A federal appeals court ruled that a municipal zoning ordinance prohibiting churches in single-family residential areas without a conditional use permit did not violate the constitutional guaranty of religious freedom. The San Francisco City Code prohibits churches in residential districts unless a conditional use permit is granted. Before granting a permit, the city must determine that the proposed use is necessary, and compatible with the neighborhood, and will not be detrimental to the health, safety, convenience or general welfare of persons residing in the vicinity. A church desiring to establish a church in a single-family residence applied to the city for a permit. A group of 190 neighboring residents signed a petition in opposition to the permit, based on the following considerations: (1) there already are too many churches in the neighborhood; (2) the church would not maintain neighborhood characteristics; (3) there is a housing shortage in the neighborhood; (4) an additional church would create additional traffic that would create safety hazards for neighbors; (5) inadequate parking spaces; and (6) excessive noise. A city zoning commission denied the church’s permit request, and the church filed a lawsuit claiming that the city’s actions violated its constitutional rights. A federal district court ruled in favor of the city, and the church appealed. A federal appeals court also ruled in favor of the city. The appeals court based its decision on a 3-part test that it created. The court ruled that in evaluating whether a city’s denial of a church’s zoning permit application violates the constitutional guaranty of religious freedom, the following three factors must be considered: (1) the magnitude of the impact on the exercise of religious beliefs; (2) the existence of a compelling governmental interest justifying the burden on the exercise of religious belief; and (3) the extent to which recognition of an exemption from the permit procedure would interfere with the objectives sought to be advanced by the city. With regard to the first factor, the court rejected the church’s claim that the city’s denial of the permit exerted a significant impact on its religious beliefs. The court, noting that the church had been meeting in a rented hotel banquet room, observed that “it is difficult for us to find a significant burden on religious practice if the church had not previously been practicing home worship. The burden on religious practice is not great when the government action, in this case the denial of a use permit, does not restrict current religious practice but rather prevents a change in religious practice.” Further, the court emphasized that the city’s denial “did not prevent all home worship,” but rather a “denial to worship in this specific home. The burdens imposed by this action are therefore of convenience and expense, requiring [the church] to find another home or another forum for worship. We find that the burden on religious practice in this zoning scheme is minimal.” With regard to the second factor, the court observed that the city has an interest in protecting the interests of neighboring property owners, and that this interest is “particularly strong” when a church is applying for a nonresidential use in a residential neighborhood. With regard to the third factor, the court concluded that the “minimal” burden on the church’s religious practices and beliefs was clearly outweighed by the city’s “strong” interest in preserving the character and welfare of its neighborhoods. The court rejected the church’s contention that the city’s application of its zoning laws discriminated against churches generally, or that the city and the neighboring residents “conspired” to deprive the church of its constitutional rights. Christian Gospel Church, Inc. v. San Francisco, 896 F.2d 1221 (9th Cir. 1990).

Legal Developments

Zoning

Church Law and Tax 1990-07-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Church Property, Zoning

Church Law and Tax 1990-07-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• Can neighboring property owners prevent a church from operating a shelter for the homeless on its property? The was the issue before a New York court. In response to a citywide need for emergency shelters for thousands of homeless, an Episcopal church in New York City opened its doors to groups of 10 homeless men for temporary emergency shelter 3 nights each week. The church was part of a network of some 380 churches and synagogues in the city that provide more than 400,000 individual nights of temporary shelter annually. The city provides the churches and synagogues with beds, linens, clothing, toiletries, and cleaning supplies, and inspects shelters for compliance with health and safety regulations. Homeless men are transported to the church from a “drop-in center,” and arrive at 9:30 PM. They are picked up by bus the following morning at 6:00 AM. From the time of their arrival until their departure the next morning, the men are continually supervised and are not allowed to congregate in the street. The church’s minister asserted that sheltering the homeless is an important part of the church’s religious mission. Neighboring luxury condominium owners sought a court order preventing the church from continuing its homeless shelter. They complained that the shelter violated city zoning laws, and constituted a public nuisance. The court began its opinion by observing that the lawsuit “concerns the extent, if any, to which the court may or should be brought in as arbiter of a dispute involving the right of a church and its parishioners to exercise their religion and to practice Christian charity by temporarily sheltering the homeless and the rights of some adjacent property [owners] who fear crime, drug sales, prostitution and a [decrease] in their property values.” The court acknowledged that churches may only be used for religious and social purposes, but it noted that “it has long been held that a church or synagogue may be used for accessory uses and activities which go beyond just prayer and worship.” The court concluded that a church’s operation of a shelter for the homeless is a legitimate “accessory use” of a church, since it “is a use which is clearly incidental to, and customarily found in connection with,” a church. Therefore, a church’s operation of a homeless shelter did not violate the city’s zoning laws. Could the shelter be shut down on the ground that it constituted a nuisance? No, concluded the court. It observed that a nuisance involves an intentional, unreasonable, and substantial interference with another’s right to use and enjoy his property. The court concluded that the shelter was not a nuisance, since it was not an intentional, unreasonable, or substantial interference with neighboring landowners’ use or enjoyment of their properties. Greentree at Murray Hill Condominium v. Good Shepherd Episcopal Church, 550 N.Y.S.2d 981 (Sup. 1989).

Legal Developments

Zoning

A Pennsylvania state court ruled that a local zoning board acted improperly in refusing to

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Church Property, Zoning

A Pennsylvania state court ruled that a local zoning board acted improperly in refusing to allow a church to use a portion of its property for counseling services.

The church sought a permit allowing it to convert a building containing the church offices into a counseling center. The church offered extensive pastoral counseling services to members and non-members alike.

A zoning board denied the church's request on the ground that professional counseling was not a permitted use in a residential district (in which the church was located). The board expressed the view that "the counseling sought to be offered was of a secular nature and not directly related to the church's function."

The church challenged this ruling in court, and won. The court ruled that the church's properties could lawfully be used for counseling since "counseling is an integral part of the church's activities" and therefore was a permissible "church use." Church of the Saviour v. Zoning Hearing Board, 568 A.2d 1336 (Pa. Common. 1989).

Legal Developments

Zoning – Part 2

Church Law and Tax 1990-05-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Zoning

Church Law and Tax 1990-05-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• A New York court ruled that a city zoning board acted improperly in denying a homeowner’s application to use his home as a church. The court noted that “the inclusion of churches among uses permitted in the [residential] zoning district is tantamount to a legislative determination that the use is in harmony with the general zoning plan and will not be detrimental to the surrounding area. It is presumed that a religious use will have a beneficial effect in a residential area.” However, this presumption may be “rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like.” The zoning board’s refusal to allow the homeowner to use his home as a church was improper since it was “based on conclusory findings and not upon substantial evidence of significant adverse effects.” Neddermeyer v. Ontario Planning Board, 548 N.Y.S.2d 951 (1989).

Legal Developments

Zoning – Part 1

Church Law and Tax 1990-03-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Illinois
Categories: Church Property, Zoning

Church Law and Tax 1990-03-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• An Illinois state appeals court ruled that a city’s refusal to grant a church’s application for a “conditional use permit” violated the church’s first amendment guaranty of religious freedom. Here are the facts. A Lutheran church in a Chicago suburb experienced explosive growth, but was left with inadequate parking space. To help solve its parking problem, the church sought permission from the city to convert two private residences that it owned on adjoining property into 57 additional parking spaces. The city denied this request on the grounds that the proposed parking lots would adversely affect the value of neighboring properties (the church was located at the entrance to a residential subdivision), and would “injure the use and enjoyment” of the neighborhood. It rejected the church’s claim that a limitation on the number of its parking spaces would interfere with the free exercise of its religion. The court concluded that the city had not given due weight to the church’s constitutional right to freely exercise its religion. While conceding that city zoning ordinances are presumed to be valid, the court observed that this presumption “diminishes” when an ordinance “limits the free exercise of religion.” Significantly, the court concluded: “The location of a church can be regulated by zoning ordinances in proper cases; however, in determining whether this is a proper case for such a restriction, we must take into account that the freedom of religion, and other first amendment freedoms, rise above mere property rights. In addition, first amendment rights and freedoms outweigh considerations of public convenience, annoyance, or unrest.” The court concluded that the city had erred in denying the church’s request for a permit to convert the two residential properties into additional parking spaces. It rejected the city’s claim that the “parking needs of a church should be considered on different legal principles than those applied to the church building itself.” This decision represents one of the strongest statements by a court of the right of a church to develop its property despite the complaints of neighboring landowners. There will always be neighbors who will oppose development of church property on the grounds of noise, traffic congestion and safety concerns, pollution, lighting, reduction in property values, and similar concerns. Some courts have let these considerations outweigh a church’s right to build or expand. The Illinois court’s decision will be useful legal authority for any church whose building plans trigger opposition from neighbors or a city government. Our Saviour’s Evangelical Lutheran Church of Naperville v. City of Naperville, 542 N.E.2d 1158 (Ill. App. 2nd Cir. 1989).

Legal Developments

Zoning – Part 2

Church Law and Tax 1990-03-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Arizona
Categories: Church Property, Zoning

Church Law and Tax 1990-03-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• An Arizona state appeals court ruled that county officials acted properly in prohibiting a church from using a warehouse that it constructed without a special use permit. The church purchased 40 acres of land, obtained a valid building permit from the county and made various improvements. Later, without obtaining a building permit, the church constructed a large, steel-sided building for use in printing and distributing King James versions of the Bible to persons worldwide. The 40 acres were zoned for rural use, but one of the permitted uses of the land was as a “public assembly for religious worship.” The county claimed that the church’s warehouse was in essence a “manufacturing” operation which was allowable only upon the issuance of a special use permit, and that without a permit the warehouse was a “nuisance” and its use could be prohibited by law. A trial court upheld the county’s action, and the church appealed. The church raised three arguments on appeal: (1) the warehouse was a permitted “place of religious worship” rather than a manufacturing operation; (2) the warehouse was a permitted “accessory use” of the church; and (3) the county’s action violated the constitutional guaranty of religious freedom. The state appeals court rejected all three arguments. As to the first claim, the court concluded that the warehouse was not a “place of religious worship” according to the “common, plain, natural and accepted” meaning of those words, but rather was a manufacturing operation. As to the second claim, the court simply ruled that the church had failed to raise it in the trial court and therefore could not raise it on appeal. As to the third claim, the court observed that it the first amendment guaranty of religious freedom “does not preclude government activity such as building and zoning regulations as applied to religious organizations.” In responding to the church’s argument that its religious beliefs “prohibit it from seeking state permission to operate its God-commanded ministry,” the court noted that the church had obtained a permit to build its sanctuary. It observed: “We are at a loss to understand why such religious beliefs should not by the same token prohibit it from seeking state permission to build its place of worship, which is equally a ‘God-commanded ministry.'” Cochise County v. Broken Arrow Baptist Church, 778 P.2d 1302 (Ariz. App. 1989).

Legal Developments

Zoning

Is a church-run child care center a permissible activity on church property zoned exclusively for church or residential purposes?

Richard R. Hammar, Attorney, CPA

Bio

State: Missouri
Categories: Zoning

Is a church-run child care center a permissible activity on church property zoned exclusively for church or residential purposes?

Yes, concluded the Missouri Supreme Court. The court acknowledged that the zoning ordinance did not allow child care facilities in the neighborhood in which the church was located, but it concluded that such an activity was a permissible "accessory" use.

The court observed: "The day care program is subordinate to the principal use of the church. It was created by the governing body of the church and funded by the church. The governing body determined the curriculum for the program and hired a director.

The record shows that the church operates the day care to attract new members to the church and accomplish its mission of preaching the gospel and serving the community. Similarly, the day care is subordinate in area to the principal building and use of the church. The day care service contributes to the comfort and convenience of the church parishioners by providing child care for them.

The day care proper is located on the same lot as the church and it is located in the same zoning district." Accordingly, the child care center was an accessory use of the church under Missouri law and was a permissible use of church property. City of Richmond Heights v. Richmond Heights Presbyterian Church, 764 S.W.2d 647 (Mo. 1989).

Legal Developments

Zoning – Part 3

Church Law and Tax 1989-09-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Zoning

Church Law and Tax 1989-09-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• Can a city zoning ordinance ban “adult” bookstores within 500 feet of a church? That was the issue before a California state appeals court. A city ordinance banned adult bookstores within 500 feet of churches, schools, parks, or residences, or within 1000 feet of any other such bookstore. The court noted that the United States Supreme Court had ruled in 1986 that cities are free to ban adult bookstores or theatres within 1000 feet of churches, schools, or residences, provided that such restrictions do not deny such businesses “a reasonable opportunity to open and operate an adult theatre [or bookstore] within the city.” The California court concluded that the ordinance’s prohibition of adult bookstores within 500 feet of churches, schools, parks, or residences was probably permissible since it did not deny such businesses a reasonable opportunity to operate within the city. However, the prohibition that such bookstores could not operate within 1000 feet of each other left little opportunity for them to operate, and accordingly the entire ordinance was invalid. The court observed that this limitation “made so few sites available that the effect was to greatly restrict access to lawful speech.” City of Stanton v. Cox, 255 Cal. Rptr. 682 (4th Dist. 1989).

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m82 c0589

Legal Developments

Zoning – Part 2

Church Law and Tax 1989-09-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Zoning

Church Law and Tax 1989-09-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• A Pennsylvania state court ruled that an Orthodox Jewish synagogue had improperly been denied a permit to construct a parking lot with 19 spaces on its property. The synagogue was located in a home in a residential zone, and was informed by zoning officials that the property could no longer be used for such purposes unless 19 parking spaces were added to the property. The synagogue’s application for approval to construct 19 parking spaces on its property was denied because it would “adversely affect the traffic conditions” in the vicinity despite the congregation’s insistence that its tenets prohibited the use of vehicles on the Sabbath or on holy days. The court ruled that permission to construct the parking spaces had improperly been denied, since “the central, uncontradicted fact of this case is that … Orthodox Jews do not drive on their Sabbath day of worship or on Jewish religious holidays,” and accordingly that construction of the parking spaces would not “adversely affect the traffic conditions” of the neighborhood. Orthodox Minyan of Elkins Park v. Cheltenham Township Zoning Hearing Board, 552 A.2d 772 (Pa. Common. 1989).

Legal Developments

Zoning

Church Law and Tax 1989-07-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Ohio
Categories: Church Property, Zoning

Church Law and Tax 1989-07-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• What recourse does a church have if a city encourages it to purchase property for the construction of a new facility and then denies the church’s application for a building permit and site approval? None, concluded the Ohio Supreme Court in an unfortunate decision. Church representatives initially met with city officials to explain their plans for the construction of a three-stage religious complex (the third stage involved the construction of a chapel). City officials, by letter, encouraged the church to purchase the property. Accordingly, the church sold its former sanctuary, spent nearly $1.5 million to purchase the new property, began conducting services in a local public high school auditorium, and submitted a site plan to the local building commissioner. To the church’s surprise, the building commissioner rejected the site plan for the following reasons: (1) increased traffic congestion; (2) auxiliary buildings (e.g., a gymnasium, administrative facility, classroom, library) planned by the church were to be constructed prior to the chapel, and accordingly were not permitted uses since they were not “accessory” to a pre-existing church building; and (3) soil erosion and water runoff. Nevertheless, the church applied for a building permit, which was rejected by the city. The church then sued the city, seeking a court order compelling the city to approve the site plan and building permit. A state appeals court granted the city’s motion to dismiss, and the church appealed to the state supreme court which also ruled in the city’s favor. The supreme court observed that “a church is a permitted use in the zoning district in which the property is located. However, absent construction of the church … the accessory buildings, which are to be built first, are not allowed uses. In addition, [the church] did not attempt to resolve problems with soil erosion, drainage and traffic enumerated by the planning commission.” The court conceded that “given a resolution of the problems concerning land use and the sequence of construction, plan approval and a building permit could issue.” A dissenting justice stressed that: (1) under Ohio law it was not proper to deny a site plan or building permit because of fears of increased traffic congestion; (2) the church had agreed, before it submitted its site plan for approval, to construct the chapel prior to the “accessory buildings”; and (3) the soil erosion and water runoff problems were adequately dealt with in the church’s site plan. The dissenter concluded that “the planning commission’s disapproval of the site plan simply because it prefers that the land not be used as it is zoned constituted unlawful rezoning without legislative action and is an abuse of discretion.” The Chapel v. City of Solon, 530 N.E.2d 1321 (Ohio 1988).

Legal Developments

Zoning

Church Law and Tax 1989-05-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Zoning

Church Law and Tax 1989-05-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• A Connecticut court ruled that a convent and chapel constituted a “church” for purposes of zoning law despite the operation of a bookstore and audiovisual center on the premises. The court concluded that the convent and chapel, by themselves, clearly satisfied the definition of a church. The fact that a bookstore and audiovisual center were also operated on the premises did not affect this conclusion, since the books and materials were religious and educational in nature and were sold to support the order’s missionary and instructional purposes. The court quoted from a 1943 decision of the United States Supreme Court: “The mere fact that religious literature is sold rather than donated does not transform evangelism into a commercial enterprise.” Further, the court concluded that the definition of “church” must be “regarded broadly for zoning purposes in order to avoid serious constitutional questions.” Finally, the court rejected the claim that the convent and chapel should not be allowed in a residential neighborhood since they “would be a detriment to the neighborhood by increasing traffic congestion.” The court observed that the intersection where the order planned to construct the convent and chapel “carried a daily traffic volume of over 18,000 cars,” and that the construction of the convent and chapel “would draw approximately twenty [additional] cars per day.” This case will be of interest to the many churches that operate bookstores on their premises. Daughters of St. Paul v. Zoning Board of Appeals, 549 A.2d 1076 (Conn. App. 1988).

Legal Developments

Zoning

Church Law and Tax 1989-03-01 Recent Developments Zoning Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

Church Law and Tax 1989-03-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• A federal appeals court ruled that a church’s constitutional right to religious freedom was not violated by a county’s refusal to permit the church to construct a sanctuary on land not specifically zoned for church uses. The church owned an 80-acre tract of vacant land in an area zoned for agricultural uses. Its application for a special permit to construct a sanctuary was rejected by the county planning commission because of a number of concerns, including access problems, erosion hazards, and inadequate fire protection at the site. The appeals court rejected the church’s claim that its right to freely exercise its religion had been violated by the county’s action. It found that the county’s action did “not in any way regulate the religious beliefs of the church,” and did not regulate “any religious conduct of the church or its members.” The court concluded that “a church has no constitutional right to be free from reasonable zoning regulations nor does a church have a constitutional right to build its house of worship where it pleases.” Of far greater significance than the court’s ruling is the dissenting opinion of one of the court’s three judges. The dissenter insisted that the court had improperly viewed the church’s interest as “merely a secular building activity.” On the contrary, “places of worship have in almost all religions been as integral to their religion as have Sunday School, preaching, hymn singing, prayer, and other forms of worship …. Churches are the situs for the most sacred, traditional exercise of religion: baptisms, confirmations, marriages, funerals, sacramental services, ordinations, and rites of passage of all kinds.” Indeed, “if first amendment free exercise rights are not triggered by the impingement on places of worship, the right of free exercise of religion is for practical purposes subject to broad infringement in all of its aspects except perhaps belief.” The dissenter further noted that when government agencies seek to encumber the use of buildings for religious worship, they are, in fact, impinging on … three different interests recognized by the first amendment itself—speech, assembly, and religious exercise.” Because of this significant impact on constitutionally protected rights, the court had erred in too quickly dismissing the church’s interest as “merely a secular building activity” that required little judicial deference. Messiah Baptist Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988).

Legal Developments

Court Struck Down as Unreasonable a City’s Refusal to Grant a Church’s Request for a Special Use Permit

A New York appeals court struck down as unreasonable a city's refusal to grant a

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Zoning

A New York appeals court struck down as unreasonable a city's refusal to grant a church's request for a special use permit authorizing it to build a new sanctuary. Noting that churches "enjoy a presumptively favored status with respect to the police powers sought to be protected by zoning laws," the court concluded that "our examination of the reasons enumerated by the [city] for denying [the church] a special use permit discloses that the rejection was unreasonable. No expert evidence was proffered concerning any detrimental effect on traffic or drainage." North Syracuse First Baptist Church v. Village of North Syracuse, 524 N.Y.S.2d 894 (1988)

Legal Developments

Court Ruled City’s Refusal to Permit an Islamic Center to Operate within City Limits Violated the Guaranty of Religious Freedom

A federal appeals court decision strongly supports the right of churches to locate in residential

Richard R. Hammar, Attorney, CPA

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State: Federal
Categories: Freedom of Religion, Zoning

A federal appeals court decision strongly supports the right of churches to locate in residential districts. The court ruled that a city's refusal to permit an Islamic center to operate within city limits near a university campus violated the constitutional guaranty of religious freedom.

A city zoning ordinance prohibited the use of any building as a church in all areas of the city near a university campus unless a special permit was obtained from the city council. Twenty-five churches were granted permits to operate in restricted areas. However, the Islamic center's request for a permit was denied. No reason was given for the denial, though a neighborhood spokesman expressed concern over "congestion, parking, and traffic problems."

The center sued the city, arguing that the city's action in banishing it from the restricted area near the university campus, while allowing 25 churches to meet in the same area, violated the right of Muslims to the free exercise of their religion. The city denied that the Muslims' rights were violated, since "they can establish a mosque … outside the city limits or buy cars and ride to more distant places within the city."

The federal appeals court observed that the city's suggestion was "reminiscent of Anatole France's comment on the majestic equality of the law that forbids all men, the rich as well as the poor, to sleep under bridges, to beg in the streets, and to steal bread." The court further observed that "laws that make churches accessible only to those affluent enough to travel by private automobile obviously burden the free exercise of religion by the poor." And, while "the constitution does not forbid all governmental regulation that imposes an incidental burden on worship by making the free exercise of religion more difficult or more expensive," once it is established that a governmental action burdens religious exercise, "the government must offer evidence of an overriding interest" to justify its action.

In this case, however, the city "advanced no rational basis other than the neigborhood opposition to show why the [permit] granted all other religious centers was denied the Islamic center …. [N]eighbors' negative attitudes or fears, unsubstantiated by factors properly cognizable in a zoning proceeding, are not a permissible basis" for denying a permit. Further, the court concluded that the city had acted improperly in "applying different standards" to the Islamic center than to the "worship facilities of other faiths."

This decision is binding authority in federal courts located within the fifth federal circuit, which includes the states of Texas, Lousiana, and Mississippi. Churches in these states that face antagonistic zoning boards should profit from this decision. Islamic Center of Mississippi, Inc. v. Starkville, 840 F.2d 293 (5th Cir. 1988)

Legal Developments

Court Addressed Zoning Restrictions on Church Construction in Residential Areas

A local Jehovah's Witnesses congregation purchased a 59-acre tract and applied for approval to construct

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Zoning

A local Jehovah's Witnesses congregation purchased a 59-acre tract and applied for approval to construct a 1500-seat hall in a rural township having a population of 1200. Churches were permitted uses in the township at the time of the application. However, while the application was pending, the township amended its zoning ordinance by placing the entire 59-acre tract in an "R-2" zone and then excluding churches as a permitted use in such zones.

The congregation sued, claiming that the zoning amendments were "arbitrary, capricious, discriminatory, and unlawful," and that they constituted "unlawful discrimination directed against the religious beliefs" of Jehovah's Witnesses and that they violated the constitutional guaranty of religious freedom. A trial court agreed, ruling that "the total exclusion of churches and places of worship from residential districts violates the guaranty of freedom of religion as provided for by the New Jersey Constitution."

However, a state appeals court recently reversed this ruling on the ground that it was not supported by sufficient evidence. The appeals court, noting that "the exclusion of churches from residential districts … [is] one of the most common church-zoning issues facing the courts," concluded that "there is one common theme in the cases and academic comment—the court must make a thorough exploration and a careful evaluation of the facts bearing on the competing religious and governmental interests."

Facts that must be considered in such a determination include: (1) whether the activity allegedly burdened by the zoning ordinance is in fact religious; (2) whether the zoning ordinance imposes a significant burden on religious practice; (3) what alternative locations are reasonably available to the religious organization and what zoning alternatives are available to reasonably accommodate the organization; and (4) what interest does the government have in establishing and maintaining the zoning plan. With respect to the last factor, the court noted that "there is a substantial difference between a church conducted in the humble residence of its minister and … plopping down Canterbury Cathedral in the middle of bucolic Somerset County …."

Since the trial court had evaluated none of these factors in reaching its decision, the appeals court remanded the case back for further review. Jehovah's Witnesses Assembly Hall v. Woolwich Township, 537 A.2d 1336 (N.J. Super. 1988)

Legal Developments

Court Ruled City Violated the Guaranty of Religion Clause by Changing Zoning Laws Prohibiting Jehovah’s Witness Building a Church

A Jehovah's Witness congregation applied to city officials for approval to build a church in

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Church Property, Freedom of Religion, Zoning

A Jehovah's Witness congregation applied to city officials for approval to build a church in an area zoned for manufacturing use. The city then rezoned much of the community, changed the area where the church was to be built from a manufacturing to a residential district, and then prohibited the building of churches in all residential districts.

The congregation challenged the city's action as a violation of the constitutional guaranty of religious freedom. The court agreed: "Municipalities have the power to zone their districts, but to exclude churches and other places of worship from the very areas (residential communities) that they draw their members from and relocate them to a less desirable zone of the township … offends the very essence of … the New Jersey Constitution." Jehovah's Witnesses v. Woolrich Township, 532 A.2d 276 (N.J. Super. 1987)

Legal Developments

Court Struck Down Zoning Ordinance Used to Prohibit Religious Meetings in Private Residences

A federal court in Connecticut struck down a zoning ordinance that was used to prohibit

Richard R. Hammar, Attorney, CPA

Bio

State: Connecticut
Categories: Freedom of Religion, Zoning

A federal court in Connecticut struck down a zoning ordinance that was used to prohibit religious meetings in private residences.

An individual conducted three meetings each week in his home, which were attended by about ten persons. In response to a neighbor's complaint, the city notified the homeowner that no further religious meetings could be conducted in his home unless he received city approval. The city cited a zoning ordinance that required city approval of any use of property for religious purposes. No standards were set forth in the ordinance to guide the city's exercise of its discretion.

The court held that the ordinance was void on account of "vagueness." In particular, it did not "assure with certainty whether one may hold Passover Seder in his home, whether he may light a Hannakuh Menorah, meet with a group of youths in one's home to prepare them for the reception of the sacraments of confirmation or communion, or gather with friends to discuss the Bible."

This lack of clarity, and the absence of standards to guide the city in the exercise of its discretion, rendered the ordinance unconstitutional: "The regulation under review, is one which gives an administrative official discretionary power to control in advance the right of citizens to exercise constitutionally protected activities—specifically the free exercise of religion and the right to freely associate with others—and as such it is clearly invalid as a prior restraint on the exercise of such activities." Nichols v. Planning and Zoning Commission, 667 F. Supp. 72 (D. Conn. 1987)

Legal Developments

Freedom of Signage?

A city did not violate the constitutional right of a church to exercise its religion

Richard R. Hammar, Attorney, CPA

Bio

State: New York
Categories: Zoning

A city did not violate the constitutional right of a church to exercise its religion by restricting the size of the church's' exterior sign to twenty square feet, ruled a New York court. "It is wholly appropriate," concluded the court, "to impose limitations on a church property and its accessory uses when reasonably related to the general welfare of the community, including the community's interest in preserving its appearance." Lakeshore Assembly of God Church v. Village Board, 508 N.Y.S.2d 819 (1986).