Pastor, Church & Law

§ 7.09

---

Key point 7-09. A nuisance is any use of property that results in significant annoyance or discomfort to neighboring landowners. Some church activities may constitute a nuisance. The courts will weigh the annoyance and discomfort to neighboring landowners with the church's constitutional right to exercise its religion. In some cases the courts may order a church to limit the activity causing the nuisance, or eliminate it entirely.

In general, the term nuisance refers to an activity or use of property that results in material annoyance, inconvenience, discomfort, or harm to others. It is, for example, a nuisance to use one's property in such a way as to cause excessive noise, odor, smoke, vibration, debris, drainage, obstruction, or injury to neighboring landowners. It ordinarily is not a defense that the condition constituting a nuisance existed before the arrival of neighboring residents.

An activity or condition permitted on church property can constitute a nuisance. One court has held:

A church building is as lawful as any other structure. It is not only lawful, but essential to our Christian civilization. … It is not, however, above the law. Like any other edifice or structure, however lawful in purpose and use ordinarily, it may become unlawful. The place of its location, and the time and manner of its use, may be such, under the circumstances, as to constitute that interference with the rights of others as to become in law a nuisance. …[185] Waggoner v. Floral Heights Baptist Church, 288 S.W. 129, 131 (Tex. 1926).

To illustrate, a church that conducted lengthy revival services punctuated by shouting and singing that could be heard more than a mile away was found guilty of permitting a nuisance.[186] Assembly of God Church v. Bradley, 196 S.W.2d 696 (Tex. 1946).

Another court refused to prevent the construction of a church in a residential district despite the allegations of neighboring landowners that the church consisted of "holy rollers" who would conduct boisterous services until the late hours of the evening, making neighboring homes unfit for habitation.[187] Dorsett v. Nunis, 13 S.E.2d 371 (Ga. 1941). The court reasoned that the existence of a church building close to the homes of neighboring landowners, as well as the noise that might result from an "orderly and properly conducted Christian service therein," were not matters that would constitute a nuisance. The court did acknowledge that it was possible for a church to conduct services with sufficient noise to constitute a nuisance. Nevertheless, the court concluded that it could not prevent the construction of a church in a residential neighborhood based on the mere conjecture of neighboring landowners that the church ultimately would constitute a nuisance.

Another court, in a similar case, concluded that "something more than the threatened commission of an offense against the law of the land is necessary to call into exercise the injunctive powers of the court."[188] Murphy v. Cupp, 31 S.W.2d 396, 399 (Ark. 1930). The court also held that a church building itself is not a nuisance, and therefore its construction cannot be enjoined on the ground that it will be the source of unreasonably loud worship services. The proper remedy for unreasonably loud services, concluded the court, would be to halt or abate the excessive noise, and not to prevent the construction of the church.

The playing of church bells three times a day and four times on Sundays at regular hours for a period of approximately four minutes has been held not to constitute a nuisance despite the contention of neighboring landowners that the volume of the bells adversely affected their health and serenity. The court held that a material interference with physical comfort must occur before a nuisance can exist, and that the ringing of church bells simply did not constitute a material interference:

Bells in one form or another are a tradition throughout the world. … In the Christian world, every church is proud of its bells. The bells are rung for joy, for sadness, for warnings and for worship. There are people who find total beauty in the … daily ritual ringing at the Cathedral of Notre Dame in Paris. There is little question that the sound is often deadening when these bells start to ring, but for the general enjoyment of the public, it is considered acceptable.[189] Impellizerri v. Jamesville Federated Church, 428 N.Y.S.2d 550 (1979).

One court concluded that the use of church property for school purposes does not amount to a nuisance.[190] Mooney v. Village of Orchard Lake, 53 N.W.2d 308 (Mich. 1952).

Case studies

• A federal court in New York ruled that a city did not violate the rights of neighbors by refusing to enforce a noise ordinance against a church that broadcast amplified music from its steeple.[191] Diehl v. Village of Antwerp, 964 F. Supp. 646 (N.D.N.Y. 1997). For two weeks a Congregational church broadcast amplified sounds and music for lengthy periods of time from speakers located in its steeple. Certain neighbors found the volume and duration of these sounds so distressful that they called the state police to advise them of the noises. The state trooper who responded to the call allegedly told the neighbors that the noises were loud enough to constitute a violation of state law. The neighbors also insisted that the church's actions violated a village ordinance relating to "peace and good order," which prohibits persons or organizations from ringing a bell or making other improper noises that disturb the peace, comfort, or health of the community. The city council and district attorney's office both refused to act on the neighbors' complaints. A court eventually directed the church to limit the amount of sounds and music which were being amplified from its steeple. The neighbors later sued the city, claiming that its refusal to enforce the law demonstrated an improper preference for the church that deprived the neighbors of their civil rights, including their constitutional right to equal protection of the law. They further maintain that the city's actions violated the First Amendment's nonestablishment of religion clause. A state appeals court rejected the neighbors' claims. First, it ruled that the city had not violated the neighbors' constitutional right to the equal protection of the laws. It pointed out that an equal protection claim requires a showing of intentional discrimination, and this requires proof that "similarly situated persons" have been treated differently. The neighbors failed to present such evidence. Further, the court ruled that the city's failure to enforce state and local law did not violate the First Amendment. In particular, it noted that the neighbors failed to explain how a failure to enforce a noise ordinance amounts to state action endorsing religion. It also pointed out that a local court did impose restrictions to reduce the amount of noise coming from the church. The court concluded: "Plaintiffs have alleged that the loudness and duration of the church music was distressful to them, and the town does not deny this accusation. Indeed, although some might consider the church's actions unneighborly or lacking in Christian forbearance, unneighborly behavior is not necessarily unconstitutional behavior. Given the facts and circumstances as plaintiffs have alleged them, there can be no argument that defendants' actions violated plaintiffs' constitutional rights."
• A federal district court in Rhode Island ruled that a city's sound ordinance that exempted church bells did not violate the nonestablishment of religion clause of the First Amendment.[192] Devaney v. Kilmartin, 88 F.Supp.3d 34 (D.R.I. 2015).