Key point 7-06.03. Local zoning commissions may violate a church’s First Amendment right to the free exercise of religion by imposing unreasonable restrictions on the church’s ability to purchase and develop land for church use. Churches whose constitutional rights are violated in this manner may be able to sue for money damages under federal law.
What legal recourse does a church have if its exclusion from a city (or portion of a city) violates its constitutional rights? In the past, churches that have been denied access to certain locations by action of a zoning board generally have been content to seek a reversal of such a determination in the civil courts. In recent years, however, some churches have gone a step further and have sued cities for violating their constitutional rights. The relevant statute is title 42, section 1983, of the United States Code, which specifies:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
To illustrate, a New Jersey state court ruled that a church could sue a city that had improperly denied its request to build two radio antenna towers on its property.142 Burlington Assembly of God Church v. Zoning Board, 570 A.2d 495 (N.J. Super. 1989). See also Burlington Assembly of God Church v. Zoning Board, 588 A.2d 1297 (N.J. Super. 1990), in which the same court rejected the church’s claim that it was entitled to damages of nearly $800,000, comprised mostly of the projected revenues it lost by not being able to broadcast programs for some four years during the lawsuit. The court concluded that the proper measure of damages was the lost property value resulting from the city’s denial of the church’s constitutional rights. Since the value of the church’s property was in no way diminished by the city’s denial of the tower permit, the court refused to award the church any monetary damages.An Assemblies of God church in New Jersey owned 106 acres of land, on which it operated a church and a school with 300 students and a fleet of 35 buses. The church wanted to establish a radio station on its property for broadcasting religious and educational programs. The station required a zoning variance permitting the construction of two 184-foot radio antenna towers. A local zoning board denied the church’s request on the grounds that the proposed towers would create a safety hazard and would interfere with radio, television, and telephone usage in the neighborhood. A state court reversed the zoning board’s decision, and ordered it to grant the church’s request for a variance to construct the towers. The court’s ruling did not end the litigation, however, for the church promptly sued the city and zoning board, alleging that they had violated its constitutional right to freely exercise its religion. The church relied on title 42, section 1983, of the United Stated Code. The court not only ruled that the church was entitled to money damages under “section 1983,” but it did so by granting the church’s motion for summary judgment. This means that the court found the church’s demand for money damages to be so clearly authorized by law that it refused to submit the question to a jury.
The court rejected the city’s claim that it was “immune” from being sued, noting that “municipalities have no immunity in a suit for damages under the Civil Rights Act” and that “it is clear” that a city that violates a church’s constitutional rights “is liable for damages.” The court agreed with the church that the radio antenna towers were needed to advance its religious beliefs, and accordingly they served a religious function that was protected by the First Amendment guaranty of religious liberty. The court emphasized that the courts of New Jersey have “provided broad support for the constitutional guarantees of religious freedom” and that a city “may not exercise its zoning power in violation of the fundamental tenets of the First Amendment.” It added: “Churches convey their constitutionally protected religious messages primarily by means of the written and spoken word. In doing so, they are not confined to utterances within a church building but are free to disseminate their beliefs through every avenue of communication. Radio and television facilities are not denied to them.”
The court conceded that a zoning board could interfere with a church’s constitutional right of religious freedom if an “overriding governmental interest” exists. The court found no compelling interest in this case that outweighed the church’s rights under the First Amendment. The only two concerns raised by the city were that the antenna towers would create a safety hazard and would cause radio interference in the immediate neighborhood. The court denied that either of these concerns presented a sufficiently compelling interest. As to the safety claim, the court simply observed that the church planned to build the towers on its 106 acres “a good distance from neighboring properties.” Further, the evidence demonstrated that the proposed towers were “too well designed” to “give any weight” to the city’s concern that they might fall over. As to the city’s concern about radio interference, the court noted that the church had obtained a license from the Federal Communications Commission (FCC) to operate the station, and that the FCC had concluded that the station “could be operated at acceptable interference levels.” This case is significant in its recognition that churches may sue governmental agencies that deny them their constitutional rights.
A federal district court in Illinois ruled that a church could sue a city for violating its constitutional rights.143 Love Church v. City of Evanston, 896 F.2d 1082 (7th Cir. 1990).The city of Evanston, Illinois, adopted a zoning ordinance permitting churches to locate anywhere in the city provided they first obtain a special use permit from the city. To secure a permit, a church must file a detailed plan for the use of the facilities and pay a fee. The city zoning board then holds a hearing and renders a decision. The entire process takes between four and six months. Churches conducting services without a permit are guilty of a misdemeanor and are subject to fines of $25 to $500 per day. A small fundamentalist church began conducting services in Evanston without a permit. The church met in the pastor’s apartment, and then in a rented hotel room. It sought a permanent location, but allegedly could not find one since landlords either were unwilling to rent to the church until it obtained a permit, or increased the rent to an unaffordable level. The church filed a lawsuit against the city in federal court, alleging that its constitutional rights were violated by the city’s permit procedure. Specifically, it argued that the procedure violated the constitutional guarantees of religious freedom and the “equal protection of the laws.” With regard to the equal protection claim, the church claimed that other organizations (e.g., theaters, funeral homes, hotels, community centers) were not required to obtain permits to operate, and thus the permit procedure treated churches differently and less favorably without any apparent basis. The federal trial court dismissed the church’s religious claim, but it did agree that the city’s permit procedure violated the church’s constitutional right to the “equal protection of the laws,” and it awarded the church nearly $18,000 in damages under title 42, section 1983 of the United States Code. Significantly, the court granted the church a “summary judgment,” meaning that it found the church’s position so clearly correct that it refused to submit the case to a jury. The city promptly appealed this decision to a federal appeals court, which dismissed the case on the technical ground that the church lacked “standing” to challenge the city’s permit procedure since the city had never enforced the special permit requirement and accordingly there was no threat of legal consequences if the church disregarded it.
This case is significant (despite the appeals court’s interpretation of the standing requirement) since it represents another example of a court (in this case, the federal district court) awarding a church monetary damages under “section 1983” for a violation of a church’s constitutional rights. The importance of such rulings cannot be overstated—for they represent a recognition of an extremely potent weapon that is available to churches. To be sure, the federal appeals court dismissed the case, but it did so for technical reasons that in no way diminish the significance of the trial court’s decision. Further, the appeals court seemed to concede that it would have affirmed the district court’s award of monetary damages had the city ever enforced its permit procedure, or had the church presented more evidence of the unwillingness of landlords to rent to the church. In many cases, these factors will be present, and presumably churches in such cases will be entitled to monetary damages.
Case study. The Washington State Supreme Court ruled that a religious organization is entitled to monetary damages if a city violates its constitutional rights. A religious organization applied for a conditional use permit to construct a building on its property. A city official denied this application, and the organization promptly filed a second application. This application also was denied, and this denial was affirmed by the city council. The organization appealed to a local trial court, which declared the city’s actions to be in error. The organization then filed a third application for a conditional use permit, and this application was denied by the same city official. When the city council upheld the denial of this application, the organization filed another lawsuit. This time, the organization demanded monetary damages on the ground that the city’s actions had violated its constitutional rights. Specifically, the organization alleged that the city’s actions violated its constitutional right to due process of law. The court ruled that the organization’s constitutional rights had been violated by the city’ actions, and that the organization was entitled to monetary damages. It observed: “Along with the vast majority of federal courts, we recognize that denial of a building permit, under certain circumstances, may give rise to a substantive due process claim. … Such a violation is made out, however, only if the decision to deny the permit is ‘invidious or irrational’ or ‘arbitrary or capricious.'” The court concluded that the city’s actions in denying the building permit satisfied this standard. In particular, it pointed to the fact that the city’s decisions were “without consideration and in disregard of the relevant facts and circumstances.”144 Lutheran Day Care v. Snohomish County, 829 P.2d 746 (Wash. 1992).