Pastor, Church & Law

The Minority View: The Government May Restrict Church Construction in Residential Zones

§ 07.06.02

Key point 7-06.02. Some courts permit local zoning commissions to restrict the location of churches in residential areas.

Some courts are willing to exclude churches from residential zones. Generally, this result has been accomplished in two ways: (1) Courts have simply upheld municipal decisions denying a church’s application for a permit to acquire property in a residential zone. These courts reason that the interests of neighboring residents and the integrity of the residential community as a whole outweigh any interest the church has in locating in the zone. (2) Some courts have upheld the legal validity of municipal zoning laws prohibiting churches in residential zones.

In one of the first cases to break from the majority rule, a California state appeals court upheld a city’s exclusion of churches from single-family residential districts. In defending its conclusion, the court observed:

It is a matter of common knowledge that people in considerable numbers assemble in churches and that parking and traffic problems exist where crowds gather. This would be true particularly in areas limited to single family dwellings. There necessarily is an appreciable amount of noise connected with the conduct of church and youth activities. These and many other factors may well enter into the determination of the legislative body in drawing the lines between districts, a determination primarily the province of the city. A single-family residence may be much more desirable when not in an apartment house neighborhood or adjacent to a public building such as a church. The municipal legislative body may require that church buildings be erected to conform to health and safety regulations as provided in its building code and we see no reason to hold that churches may be erected in a single family residential area when a duplex, triplex, or other multiple dwelling can lawfully be excluded therefrom. The provision in the ordinance for a single-family residential area affords an opportunity and inducement for the acquisition and occupation of private homes where the owners thereof may live in comparative peace, comfort and quiet. Such a zoning regulation bears a substantial relation to the public health, safety, morals and general welfare because it tends to promote and perpetuate the American home and protect its civic and social value.134 Corporation of Presiding Bishop v. City of Porterville, 203 P.2d 823, 825 (Cal. App. 1949).

In other words, since a city can exclude apartment complexes from single-family residential districts to avoid noise and traffic congestion, it can exclude churches for the same reason.

Since California courts pioneered the “minority view,” this view is sometimes called the California rule.135 See also Matthews v. Board of Supervisors, 21 Cal. Rptr. 914 (Cal. App. 1962).However, even in California there have been court decisions upholding the right of churches to locate in residential districts despite the protests of neighboring residents.136 See, e.g., Gray v. Board of Supervisors, 316 P.2d 678 (Cal. App. 1957); McLain v. Planning Commission, 319 P.2d 24 (Cal. App. 1957).

In another early case parting with the majority view, an Oregon state court observed:
Traffic congestion is a phrase comprehending many facets. As used in a matter of this kind, it implies all of the nuisances, inconveniences and hazards to which the public generally, and those residing in the same area, may be exposed. Off-street parking would, no doubt, in some places tend to minimize some of the disadvantages of such congestion, but it cannot be expected to avoid all of its resulting annoyances and potential dangers. The incidents of traffic congestion include, among other things, noise, fumes, the intrusion of automobile lights, the blocking of private driveways by parked cars, and delays in normal travel for those using the highways. But most important are the increased dangers of injury to persons and property. We do not mean to infer that the church-going public is less diligent than others in their respect for the traffic laws. However, even the worthy and cautious persons of that class and their children are too often the victims of the careless.

The test of whether or not the building of a church in a given zone will produce traffic congestion or augment existing traffic conditions to a point of hazard cannot be made solely in terms of what a given number of church members might produce with their probable use of a certain number of automobiles. If a church is perchance, in an area where few people live or travel, then it might be relatively easy for a zoning board to determine, in the absence of other circumstances, that the building of a place of worship at such a given site, within the restricted zone, would not create traffic problems. If so, it would be unreasonable to deny such a religious organization an opportunity to erect its building at that point. On the other hand, if traffic congestion is already a real or threatening problem near the site where a congregation desires to build, and the church would bring to that community enough additional vehicles to definitely establish congestion at that point, then the [city] council would be reasonably warranted, if not duty bound, to deny a permit for its erection.137 Milwaukee Company of Jehovah’s Witnesses v. Mullen, 330 P.2d 5, 18-20 (Ore. App. 1958).

In recent years, many courts have been willing to balance the interests of the church, neighboring residents, and the community as a whole, in deciding whether or not to allow a church to locate on a particular piece of property within a residential zone. In many cases, the courts have concluded that the exclusion of churches from residential districts is justified.

The Religious Land Use and Institutionalized Persons Act (RLUIPA)

RLUIPA is a federal law enacted in 2000 that prohibits any government agency from imposing or implementing “a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.”

The application of RLUIPA to church zoning cases is addressed fully in section 7-06.4.

Case studies

  • The federal appeals court for the sixth circuit (comprising the states of Kentucky, Michigan, Ohio, and Tennessee) ruled that a zoning ordinance that prohibited churches from all residential zones did not violate a church’s constitutional rights. A church in need of a larger facility found a parcel of vacant land in a residential zone, and applied to the city for a permit to construct a church. The city denied the application on the basis of the zoning ordinance that prohibited churches in all “low density” residential zones. The church sued the city on the ground that the ordinance violated its constitutional right to freely exercise its religion. It stressed that only 10 percent of the community was zoned to accommodate churches, and that available building sites were more expensive and less conducive to worship than residential zones. In rejecting the church’s claim, the appeals court noted that while the city’s action made the practice of the church’s religion more costly and less desirable aesthetically, these “burdens” did not amount to a violation of the First Amendment guarantee of religious freedom. The court emphasized that the First Amendment only protects governmental interference with a “fundamental tenet” or “cardinal principle” of a church. It observed: “The effect of the [city] ordinance is not to prohibit the congregation or any other faith from worshipping in the city. … The lots available to the congregation may not meet its budget or satisfy its tastes but the First Amendment does not require the city to make all land or even the cheapest or most beautiful land available to churches. … [T]he [city] ordinance does not exclude the exercise of a First Amendment right, religious worship, from the city.” 138 Lakewood, Ohio Congregation of Jehovah’s Witnesses v. City of Lakewood, 699 F.2d 303 (6th Cir. 1983). The court suggested that an ordinance that permitted churches but not secular organizations within residential zones would violate the First Amendment’s nonestablishment of religion clause. The court’s First Amendment analysis presumably is binding upon the state and federal courts within the sixth circuit, which comprises the states of Kentucky, Michigan, Ohio, and Tennessee.
  • The federal appeals court for the ninth circuit (comprising the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) 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 court concluded 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. The court concluded that the impact of its ruling on the congregation’s religious belief was not significant; the city’s decision was supported by a compelling interest; and, allowing the church an exemption from the permit procedure would materially interfere with the purpose of that procedure. 139 Christian Gospel Church, Inc. v. San Francisco, 896 F.2d 1221 (9th Cir. 1990). The court’s First Amendment analysis presumably is binding upon the state and federal courts within the ninth circuit, which comprises the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
  • The federal appeals court for the 10th circuit (comprising the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming) ruled that a church’s constitutional right to religious freedom was not violated by a county’s refusal to permit the church to construct a sanctuary on land not specifically zoned for church uses. The church owned an 80-acre tract of vacant land in an area zoned for agricultural uses. Its application for a special permit to construct a sanctuary was rejected by the county planning commission because of a number of concerns, including access problems, erosion hazards, and inadequate fire protection at the site. The appeals court rejected the church’s claim that its right to freely exercise its religion had been violated by the county’s action. It found that the county’s action did “not in any way regulate the religious beliefs of the church,” and did not regulate “any religious conduct of the church or its members.” The court concluded that “a church has no constitutional right to be free from reasonable zoning regulations nor does a church have a constitutional right to build its house of worship where it pleases.” 140 Messiah Baptist Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988). The court’s First Amendment analysis presumably is binding upon the state and federal courts within the tenth circuit, which comprises the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. One of the three judges who participated in this case dissented from the court’s decision. The dissenter insisted that the court had improperly viewed the church’s interest as “merely a secular building activity.” On the contrary, “places of worship have in almost all religions been as integral to their religion as have Sunday School, preaching, hymn singing, prayer, and other forms of worship. … Churches are the situs for the most sacred, traditional exercise of religion: baptisms, confirmations, marriages, funerals, sacramental services, ordinations, and rites of passage of all kinds.” Indeed, “if First Amendment free exercise rights are not triggered by the impingement on places of worship, the right of free exercise of religion is for practical purposes subject to broad infringement in all of its aspects except perhaps belief.” The dissenter further noted that when government agencies seek to encumber the use of buildings for religious worship, they are, in fact, impinging on … three different interests recognized by the First Amendment itself—speech, assembly, and religious exercise.” Because of this significant impact on constitutionally protected rights, the court had erred in too quickly dismissing the church’s interest as “merely a secular building activity” that required little judicial deference.

A number of state courts have reached similar results.141 See generally RATHKOPF, supra note 126, at § 20.01; YOKLEY, supra note 126, at § 35-14; WILLIAMS, supra note 126, at § 77.02.However, this view still represents a minority position among the states.

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