Zoning – Part 1

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

Church Law and Tax 1990-03-01 Recent Developments


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).

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