Recent Developments in New Jersey Regarding Zoning

A New Jersey court ruled that a city zoning board acted properly in allowing a church to construct a sanctuary and preschool on an undeveloped tract, despite the protests of neighbors.

Church Law and Tax1998-03-01


Key point. A church can establish a child care facility on its property even if such a use is not specifically permitted under local zoning law, so long as it is an “accessory use” of the church’s property.

A New Jersey court ruled that a city zoning board acted properly in allowing a church to construct a sanctuary and preschool on an undeveloped tract, despite the protests of neighbors. A Seventh Day Adventist church purchased a 10—acre tract of land in a “low density residential” zone. Churches are a permitted use in this zone. The church applied to the local zoning board for site plan approval to construct a 15,000 square—foot church on the site. The proposed facility included a religious sanctuary, fellowship hall, offices, a library, and a preschool. During the board hearing, much of the testimony focused on whether the increased traffic generated by the proposed church facilities would cause a traffic hazard in the area on Saturday mornings and afternoons when the church’s religious services are conducted, and on weekday rush hours when children would be dropped off and picked up from the preschool. The board considered the church’s traffic consultant’s testimony that the entranceway would present a safe and efficient means of traffic flow to and from the property. It also consulted with the city’s own planning officials. After additional studies, the board approved the church’s site plan application. Neighboring landowners challenged the board’s approval in court on the following grounds: (1) the preschool component of the site plan application “constituted a variant use” requiring separate site plan approval; and (2) the site plan approval for the church was arbitrary, capricious, and unreasonable since the board failed to consider traffic congestion on abutting streets. A state appeals court rejected both arguments.

A church preschool is a permitted “accessory use”

The neighboring landowners insisted that a preschool is not a permitted use of property in a low density residential zone, and that it is not an “accessory use” to the principal use of the property as a church. The court agreed that a preschool is not a permitted use of property in a low density residential zone. It also conceded that the zoning statute permits only 12 kinds of “accessory uses” in such zones, and this list does not include preschools. However, the court concluded that these facts did not prevent the church from operating a preschool on its property. It referred to the “settled rule” that “an accessory use need not derive from the express terms of the ordinance; an accessory use is implied as a matter of law as a right which accompanies the principal use.” The court continued:

The term accessory uses as used by the courts may be predicated upon a specific provision relating to accessory uses found in the ordinance, or may be based upon the concept that whether or not the ordinance provides for accessory uses, the litigated use is one so customarily incidental to the principal use of the zoning lot that it is, as a matter of law, a part of the permitted use …. In our view, it is not consistent with “the letter and underlying philosophy” [of the zoning] ordinance to conclude that its drafters intended to abrogate this settled zoning principle simply because it enumerated specific “permitted” accessory uses. We note, for example, that public playgrounds and public and parochial schools and colleges are permitted in the [low density residential] zone. We doubt that the [city] intended that lighting for the playgrounds or athletic fields for the schools are prohibited because lighting and athletic fields are not among the twelve specified items enumerated as permitted accessory uses in the zone.

The court further noted that the zoning ordinance provides a general definition of an “accessory use,” as one which is (1) “subordinate to” and serves a principal use; (2) located on the same lot as the principal use; and (3) “customarily incidental” to the principal use. This definition, noted the court, “strongly suggests that the [ordinance] intended to extend permitted accessory uses beyond those enumerated in the [low density residential] zone, provided that the proposed use satisfies the three—prong test under the definition. To conclude otherwise would render the general definition of accessory use superfluous.” The court concluded that the listing of 12 permitted accessory uses in the zoning ordinance “were intended only to provide examples of valid accessory uses for ease of administration, they were not intended to exclude accessory uses, implied as a matter of law, as a right which accompanies the principal use.”

The court then addressed the question of whether a church—operated preschool was a permitted accessory use. The court observed that the church’s proposed day care center “clearly satisfied” two of the three prongs of the accessory use test under the ordinance. It would be located on the same lot as the church. It would also be “subordinate” to the church “in that it will utilize less than twenty percent (3,000 square feet) of the 15,000 square—foot proposed church structure.” The question was whether the day care center was “customarily incidental” to the church’s principal use as a place of worship. The court observed: “Churches today are rapidly expanding their activities and ministries, particularly in the areas of education and social services. Thus, church buildings, once used solely for weekly worship, have become the center of diverse parochial and community activities conducted throughout the entire week, day and night.” It then quoted with approval from a decision by another court in an almost identical case finding that a child care center was an accessory use of a church:

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 is located on the same lot as the church and it is located in the same zoning district. City of Richmond Heights v. Richmond Heights Presbyterian Church, 764 S.W.2d 647 (Mo.1989).

The court referred to data showing that a significant percentage of preschool children are enrolled in child care programs, and that “church—housed programs probably constitute the largest group of day care providers in the nation.” The court concluded: “What is clear from this modern trend is that a church’s ministry is not confined to prayer or dissemination of its religious beliefs. Religious institutions consider day care centers as part of their spiritual mission, not necessarily in advancing their religious teachings, but by providing a valuable community service. Grounded on this broad—based commitment, we are persuaded that a church—operated day care center is … an incidental use of church facilities.”

Approval of the church’s site plan

The court then addressed the neighboring landowners’ claim that the approval of the church’s site plan was arbitrary, capricious and unreasonable because the board failed to consider potential traffic problems which may be caused by vehicles using the church facilities. The court rejected this claim on the basis of the board’s extensive consideration of the traffic issue which involved the testimony of the church’s traffic consultant and the city’s own plan.

Application. This case will be helpful to any church that is considering the creation of a preschool or child care facility. One of the first questions that must be addressed by church leaders before embarking upon such a program is whether or not it will be a permitted use of church property under the local zoning ordinance. In many cases, church leaders will discover that the ordinance does not specifically permit child care centers on their property. This case illustrates that such an omission does not prevent the operation of a child care facility. Such a use will be permitted if it is an “accessory use” of the church’s property. This case will strongly support such a conclusion.

There is one other aspect of this case that deserves mention. The court cautioned that the task of defining a church’s accessory uses has a constitutional dimension “regarding the degree to which the first amendment requires accommodation of various activities on church property.” It referred to another case in which a court found that a homeless shelter was a permitted accessory use of a church. St. John’s Evangelical Lutheran Church v. City of Hoboken, 479 A.2d 935 (N.J. Super..1983). The court in that case permitted the shelter on the basis of the first amendment’s guaranty of religious freedom, holding that the shelter was necessary to the church because it fulfilled the church’s religious obligations. The court referred to another case in which a court ruled that the constitutional guaranty of religious freedom extends to a day care center for children because such a use falls “well within the ambit of religious activity.” Unitarian Universalist Church v. Shorten, 314 N.Y.S.2d 66 (Sup.Ct.1970). Such cases provide a powerful inducement to city planners in evaluating a church’s request to operate a child care facility. Shim v. Washington Township Planning Board, 689 A.2d 804 (N.J. Super. 1997). [Zoning Law for Churches, Zoning Law and Churches]

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