Zoning – Part 1

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

Church Law and Tax 1990-09-01 Recent Developments


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).

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