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

Church Law and Tax 1989-07-01 Recent Developments


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).

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