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Accessory Uses

§ 5.02.02
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.

Many zoning laws permit uses that are "accessory" to a permitted use. As one court has observed:

A church is more than merely an edifice affording people the opportunity to worship God. Strictly religious uses and activities are more than prayer and sacrifice and all churches recognize that the area of their responsibility is broader than leading the congregation in prayer. Churches have always developed social groups for adults and youth where the fellowship of the congregation is strengthened with the result that the parent church is strengthened. To limit a church to being merely a house of prayer and sacrifice would, in a large degree, be depriving the church of the opportunity of enlarging, perpetuating, and strengthening itself and the congregation.[119] Cash v. Brookshire United Methodist Church, 573 N.E.2d 692 (Ohio App. 1988).

To illustrate, one court upheld a church's right to construct a recreational complex on property adjacent to its sanctuary despite the claim of neighboring landowners that the complex was not a church and thus should not be permitted in a residential district.[120] Corporation of the Presiding Bishop v. Ashton, 448 P.2d 185 (Ida. 1968). The court concluded that the term church "is broader than the church building itself" and must be interpreted to include "uses customarily incidental or accessory to church uses … if reasonably closely related, both in distance and space, to the main church purpose." The court upheld the use of the recreational complex since the activities conducted on the field were an integral part of the church's overall program.

Other courts have found that the following uses were accessory to a permitted church use and therefore were appropriate in a residential district:

  • a church activities building and playground;[121] Board of Zoning Appeals v. New Testament Bible Church, Inc., 411 N.E.2d 681 (Ind. 1980).
  • a kindergarten play area;[122] Diocese of Rochester v. Planning Board, 154 N.Y.S.2d 849 (1956).
  • a parking lot;[123] Mahrt v. First Church of Christ, Scientist, 142 N.E.2d 567 (Ohio 1955), aff'd, 142 N.E.2d 678 (Ohio 1955).
  • residential use of church buildings by members;[124] Havurah v. Zoning Board of Appeals, 418 A.2d 82 (Conn. 1979).
  • a home for parochial school teachers;[125] Board of Zoning Appeals v. New Testament Bible Church, Inc., 411 N.E.2d 681 (Ind. 1980).
  • a school;[126] City of Concord v. New Testament Baptist Church, 382 A.2d 377 (N.H. 1978); Westbury Hebrew Congregation, Inc. v. Downer, 302 N.Y.S.2d 923 (1969); Diocese of Rochester v. Planning Board, 154 N.Y.S.2d 849 (1956).
  • a commercial day-care center;[127] Noah's Ark Christian Child Care Center v. Zoning Hearing Board, 831 A.2d 756 (Pa. Common. 2003).
  • a neon sign constructed on church property to inform the public as to the time of worship services;[128] Parkview Baptist Church v. Pueblo, 336 P.2d 310 (Colo. 1959).
  • a center for performing arts;[129] North Shore Hebrew Academy v. Wegman, 481 N.Y.S.2d 142 (1984).
  • a sanctuary or shelter for the homeless.[130] St. John's Evangelical Lutheran Church v. City of Hoboken, 479 A.2d 935 (N.J. App. 1983); Lubavitch Chabad House of Illinois, Inc. v. City of Evanston, 445 N.E.2d 343 (Ill. App. 1982); Greentree at Murray Hill Condominium v. Good Shepherd Episcopal Church, 550 N.Y.S.2d 981 (1989).

Not every use of church property, however, will be so approved. The following uses of church property have been disallowed on the ground that they were not accessory to permitted church use:

  • parking of a church bus on church property;[131] East Side Baptist Church v. Klein, 487 P.2d 549 (Colo. 1971).
  • a ritualarium constructed by a Jewish synagogue;[132] Sexton v. Bates, 85 A.2d 833 (N.J. 1951), aff'd, 91 A.2d 162 (N.J. 1952).
  • a 301-foot radio transmission tower that was more than ten times higher than neighboring residences;[133] Gallagher v. Zoning Board of Adjustment, 32 Pa. D. & C.2d 669 (Pa. 1963).
  • a school.[134] Damascus Community Church v. Clackamas County, 610 P.2d 273 (Ore. 1980), appeal dismissed, 450 U.S. 902 (1981).
Case studies
A federal appeals court ruled that a county did not violate a church's constitutional right to religious freedom by denying it a zoning variance to operate a homeless shelter on its premises. A church became concerned with the problem of homelessness in its community. Homeless people were living in vacant lots under unsanitary conditions. In response to this community crisis, the church converted a building on its premises into a shelter for the homeless. The shelter created considerable distress among some residents of the community who were concerned about health and safety problems associated with the shelter. A zoning board later ordered the church to close the shelter on the ground that it was not a permitted use of the church's property under the county zoning ordinance and the church had not been granted a variance. The church sued the county arguing that closing the shelter would violate its First Amendment right to freely exercise its religion. Specifically, the church argued that sheltering the homeless is an essential aspect of the Christian faith. A federal appeals court ruled that no constitutional rights had been violated by the county's action.[135] First Assembly of God v. Collier County, 20 F.3d 419 (11th Cir. 1994). The court relied almost entirely on a 1993 decision of the United States Supreme Court in which the Court struck down a municipal ordinance that prohibited ritualistic animal sacrifices by the Santeria religion. The Supreme Court observed: "In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Church of the Lukumi Babaluaye, Inc. v. City of Hialeah, 113 S. Ct. 2217 (1993). The federal appeals court concluded that the county zoning law that prohibited the operation of homeless shelters without a variance was a "neutral law of general applicability," and accordingly it was valid even if it burdened the church's exercise of its religion. Accord Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F. Supp. 1554 (M.D. Fla. 1995). But see Capital City Rescue Mission v. City of Albany, 652 N.Y.S.2d 388 (N.Y. 1997).
The Alabama Supreme Court ruled that a church could not create a parking lot on land located across the street from the church. A church purchased land across the street from the church building in order to expand its parking facilities. Neighboring landowners complained that such a use of the property was not permitted by local zoning law. A local zoning board ruled in favor of the church. It reasoned that churches were permitted uses in the area in question, and that a church parking lot should be permitted as an "accessory use" by a church. The neighbors appealed to a state appeals court, which reversed the decision of the zoning board and prohibited the church from establishing the parking lot. The case was then appealed to the state supreme court, which agreed with the appeals court that the parking lot should not be allowed. The court noted that the local zoning ordinance defined an accessory use as a use "on the same lot with" the principal use or structure. The court concluded that "the definition of accessory use in the ordinance is consistent with the general rule that the accessory use must be located on the same lot as the building to which it is accessory." Since the proposed parking lot was across the street from the church, it was not "on the same lot" and accordingly could not be permitted as an accessory use.[136] Ex parte Fairhope Board of Adjustments and Appeals, 567 So.2d 1353 (Ala. 1990).
A city enacted a zoning ordinance permitting only single-family dwellings, churches, schools, libraries, and farms in areas classified as "residential." A church purchased seven acres of undeveloped land in a residential zone and constructed a church building, parking lot, and recreational complex consisting of two softball diamonds. The softball diamonds were surrounded by banks of high-intensity electric lights, which made nighttime games possible. Several neighbors complained of the bright lights, noise, dust, traffic, and stray softballs. The city discontinued electrical service to the softball fields, defending its action on the ground that the lighted softball fields were not a permissible activity in a residential zone. The church sued the city, arguing that the softball fields were a legitimate extension of the church itself, and therefore were permissible. The court agreed with the church: "The activities conducted on this field are an integral part of the church program and are sufficiently connected with the church itself that the use of this property for recreational purposes is permissible." The court emphasized that "the term 'church' is broader than the church building itself" and must be interpreted to include "uses customarily incidental or accessory to church uses … if reasonably closely related, both in substance and in space, to the main church purpose."[137] Corporation of the Presiding Bishop v. Ashton, 448 P.2d 185, 189 (Ida. 1968).
The Missouri Supreme Court ruled that a church-run child care center is a permissible activity on church property zoned exclusively for church or residential purposes. The court acknowledged that the zoning ordinance did not allow child care facilities in the neighborhood in which the church was located, but it concluded that such an activity was a permissible "accessory" use. The court observed: "The day care program is subordinate to the principal use of the church. It was created by the governing body of the church and funded by the church. The governing body determined the curriculum for the program and hired a director. The record shows that the church operates the day care to attract new members to the church and accomplish its mission of preaching the gospel and serving the community. Similarly, the day care is subordinate in area to the principal building and use of the church. The day care service contributes to the comfort and convenience of the church parishioners by providing child care for them. The day care proper is located on the same lot as the church and it is located in the same zoning district." Accordingly, the child care center was an accessory use of the church under Missouri law and was a permissible use of church property.[138] City of Richmond Heights v. Richmond Heights Presbyterian Church, 764 S.W.2d 647 (Mo. 1989). Accord Shim v. Washington Township Planning Board, 689 A.2d 804 (N.J. Super. 1997) ("What is clear from this modern trend is that a church's ministry is not confined to prayer or dissemination of its religious beliefs. Religious institutions consider day care centers as part of their spiritual mission, not necessarily in advancing their religious teachings, but by providing a valuable community service. Grounded on this broad-based commitment, we are persuaded that a church-operated day care center is … an incidental use of church facilities.")
An Ohio appeals court ruled that a church could use its property to conduct a "Little League" baseball program, despite the claim of a neighbor that such use violated local zoning law. The church maintained that one of its fundamental tenets was that worship involves not only religious services, but also reaching out to the community through sponsorship of activities such as scouting and Little League. The church property was located in a residential zone, which permitted churches and "church use." A trial court agreed with the neighbor that the operation of a baseball program on church property was not a permitted use of church property in an area zoned for "church use." A state appeals court reversed this decision and permitted the baseball program to continue. The court observed: "The trial court appears to suggest that a church is only a building and any use of the building or land adjacent must be necessary to the operation of that building as a church. We disagree." The Ohio court concluded that "activities such as sponsoring a Little League baseball program on land owned by, and adjacent to, the [church] are incidental to, and form a part of, the public worship program of [the church] and are permitted under the city zoning ordinances as a church use." The court emphasized that zoning ordinances must be construed "in favor of the property owner" (whose use of property is being questioned) and "in favor of the free use of property."[139] Cash v. Brookshire United Methodist Church, 573 N.E.2d 692 (Ohio App. 1988). The court rejected the neighbor's claim that the property's ineligibility for a property tax exemption prevented it from being considered an accessory use of the church.
A Pennsylvania state court ruled that a local zoning board acted improperly in refusing to allow a church to use a portion of its property for counseling services. The church sought a permit allowing it to convert a building containing the church offices into a counseling center. The church offered extensive pastoral counseling services to members and non-members alike. A zoning board denied the church's request on the ground that professional counseling was not a permitted use in a residential district (in which the church was located). The board expressed the view that "the counseling sought to be offered was of a secular nature and not directly related to the church's function." The church challenged this ruling in court, and won. The court ruled that the church's properties could lawfully be used for counseling since "counseling is an integral part of the church's activities" and therefore was a permissible "church use."[140] Church of the Savior v. Zoning Hearing Board, 568 A.2d 1336 (Pa. Common. 1989). See also Needham Pastoral Counseling Center, Inc. v. Board of Appeals, 557 N.E.2d 43 (Mass. App. 1990).
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