Zoning – Part 2

A Pennsylvania court ruled that a commercial child care center was a permissible “accessory use” of church property under the zoning ordinance.

Church Law and Tax 2004-07-01

Zoning – Part 2

Key point 5-02.02. Local zoning laws generally allow “churches” in residential areas. The courts generally have extended this term to various “accessory uses” that are needed for a church to carry out its mission and purposes.

* A Pennsylvania court ruled that a commercial child care center was a permissible “accessory use” of church property under the zoning ordinance. A church (Church A) operated a commercial child care program on its premises. The church sold its property to another church (Church B). While Church B had no intention of relocating to the newly acquired property, it did plan on conducting some activities on the premises and also decided to continue the child care program. It applied for an occupancy permit to allow it continue the child care program. A local zoning board noted that the child care program was a permitted “accessory use” when Church A used the property for church purposes. But, when Church B acquired the property, and failed to conduct any worship services on the premises, the child care program no longer was a permitted accessory use. As a result, the zoning board refused to issue Church B an occupancy permit to continue the child care program. A state appeals court reversed this decision and ordered a permit to be issued. It noted that “an accessory use is permitted on the same lot as a principal use if it is clearly incidental to and customarily found in connection with a particular principal use.” The court noted that Church B was using the property for a variety of church outreach programs, and stressed that church activities include more than traditional worship. The court concluded, “The demand for day care in today’s society cannot be questioned and churches throughout the country have played a significant role in meeting this pressing need …. Accessory uses to churches include parochial schools, parking lots and playgrounds, rectories, gymnasiums and swimming pools, Boy Scout rooms and other places of quasi-public assembly, day care centers and drug rehabilitation centers.” The court quoted from research by the National Council of Churches:

The NCC canvassed over 14,000 church-housed day care programs and concluded that “church-housed programs probably constitute the largest group of day care providers in the nation.” Significantly, forty-four percent of the study’s church-housed programs were only that: church-housed, not church-operated. The churches’ involvement in these programs is limited to that of a landlord, albeit a rather generous one. For the day care tenants the appeal is fairly obvious: in addition to subsidization or waiver of rent, utilities and maintenance costs, church day care tenants benefit from convenient locations, spaces that are often already designed for small children, and most importantly, the tax-exempt status of their gracious hosts. The churches view the arrangement as an opportunity to contribute their facilities to a worthy cause. The other fifty-six percent of the study’s programs were housed and operated by the host churches. The churches typically view day care as an aspect of their particular ministries: some host churches are simply trying to provide a valuable community service, or to meet the day care needs of their congregations’ families; others act out of evangelism and a desire to promote Christian education. Yet despite these religious goals, almost none of the church-operated programs restrict participation to members of their own congregations, and “symbols, practices, and teachings commonly viewed as ‘religious’ are conspicuously absent from most church-operated programs.”

The court concluded, “The history of the property, the academic sources relied upon by [the church], persuasive case law from other jurisdictions and common experience demonstrate that day care centers are customarily found in connection with churches …. Religious institutions consider day care centers to be a part of their mission. The court thus concludes that the zoning board erred in determining that day care operation is not a use customarily found in connection with churches, and it holds that the day care use is a proper accessory use to the church’s use of the property as a whole.”

Application. This case supports the classification of church-based child care centers as permissible “accessory uses” under local zoning laws, whether they are operated as a ministry of the church or run by a commercial firm on church premises. Noah’s Ark Christian Child Care Center v. Zoning Hearing Board, 831 A.2d 756 (Pa. Common. 2003).

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