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

Church Law and Tax 1990-07-01 Recent Developments


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).

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