Zoned Out

Most municipalities in the United States have enacted zoning laws. The purpose of a municipal zoning law is to regulate the growth and development of the city in an orderly manner.

Among the objectives to be served is to avoid mixing together of industrial, commercial, business and residential uses; the prevention of undue concentrations of people in certain areas under undesirable conditions; making provisions for safe and efficient transportation; for recreational needs; and for the enhancement of aesthetic values, all in order to best serve the purpose of promoting the health, safety, morals and general welfare of the city and its inhabitants. (Naylor v. Salt Lake City Corporation, 410 P.2d 764, 765 (Utah 1966)

Historically, churches presented few problems for municipal planners. Churches were allowed in residential districts so that they would be within walking distance of parishioners’ residences. It was unthinkable to locate churches anywhere else. The vast majority of municipalities still permit churches in residential zones. With the advent of the automobile, churches became more incompatible with residential districts for two reasons. First, most parishioners drive their automobiles to church, making it less essential for churches to locate within walking distance of their membership. Second, on at least one day each week the church is the biggest source of traffic congestion, noise, and pollution in many residential neighborhoods. For a growing number of churches, this is becoming true on several days of the week due to additional church services, youth activities, weddings, funerals, child care, rehearsals, civic events, and programs for the poor and elderly. Understandably, many municipalities have reconsidered the traditional view of allowing churches in residential zones without restriction.

This process of reconsidering the proper location of churches within a modern-day community has resulted in a number of views. Most municipalities continue to allow churches in residential zones, but many require churches to obtain a permit prior to obtaining and using property in a residential zone. The permit procedure gives municipal planners greater control over the location of churches within residential zones. Some municipal zoning ordinances prohibit churches in any residential zone, and a few municipalities have attempted to bar churches altogether.

The conclusion that churches may not be excluded from residential districts generally rests upon one of two grounds: First, the exclusion of churches from residential districts infringes upon the freedom of religion guaranteed by the First Amendment; and second, a total exclusion of churches is an invalid and impermissible exercise of the police power since it cannot be said to further the public health, safety, morals, or general welfare.

A few courts have ruled that churches may not be regulated regarding their purchase or use of property within residential zones. However, most courts have concluded that while churches may not be excluded from residential zones, their location within a residential zone can be regulated through a permit application procedure.

To illustrate, a New York court observed:

With respect to zoning restrictions, New York adheres to the majority view that religious institutions are beneficial to the public welfare by their very nature. Consequently, a proposed religious use should be accommodated, even when it would be inconvenient for the community. A religious use may not be prohibited merely because of potential traffic congestion, an adverse effect upon property values, the loss of potential tax revenues, or failure to demonstrate that a more suitable location could not be found. In order to deny a special use permit for a religious use as “detrimental to the public health, safety and welfare,” it must be “convincingly shown that the [proposed use] will have a direct and immediate adverse effect upon the health, safety or welfare of the community.” A distinction must be drawn between danger to the public and mere public inconvenience. Every effort must be made to accommodate the religious use subject to conditions reasonably related to land use. Holy Spirit Association for Unification of World Christianity v. Rosenfeld, 458 N.Y.S.2d 920 (N.Y.A.D. 1983).

Another New York court similarly observed:

We have not said that considerations of the surrounding area and potential traffic hazards are unrelated to the public health, safety or welfare when religious structures are involved. We have simply said that they are outweighed by the constitutional prohibition against the abridgement of the free exercise of religion and by the public Benefit and welfare which is itself an attribute of religious worship in a community. Application of Covenant Community Church, 444 N.Y.S.2d 415 (N.Y. Sup. 1981).

This position often is referred to as the New York rule, since the courts of New York have been the most consistent and forceful in upholding the right of churches to locate without restriction in residential zones.

A number of courts have concluded that a city cannot exclude churches from residential districts if other non-residential facilities are permitted to locate there. This result generally is based on the federal constitution’s guaranty of the “equal protection of the laws.” To illustrate, a federal district court in Illinois ruled that a city ordinance requiring churches to obtain a special use permit from the city prior to acquiring property in any location violated the constitutional guaranty of the equal protection of the laws since the permit requirement did not apply to certain other organizations (e.g., theaters, funeral homes, hotels, community centers). As a result, the ordinance treated churches differently and less favorably without any apparent basis.

The court agreed 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. This law allows persons and organizations whose constitutional rights are violated to sue the offender for money damages-even if the offender is a city or other government unit. 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. A federal appeals court later 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. Love Church v. City of Evanston, 896 F.2d 1082 (7th Cir. 1990).

This case is significant (despite the appeals court’s decision) since it illustrates the potential relevance of the equal protection guaranty in the context of zoning, and the availability of monetary damages under “section 1983” for a city’s violation of a church’s constitutional rights. The importance of such rulings cannot be overstated- for they represent a recognition of a 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 district 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.

Obviously, any attempt by a municipality to totally exclude churches from all districts, whether residential, commercial, or industrial, would be unconstitutional. Diocese of Rochester v. Planning Board, 154 N.Y.S.2d 849 (1956).

Many courts have ruled that while a city cannot exclude churches from residential zones, it can require them to obtain a special use permit in order to use a particular property for church use. To illustrate, an Indiana court ruled that a city ordinance requiring churches to obtain a “special use permit” before using property for religious purposes did not violate the First Amendment guaranty of religious freedom. Area Plan Commission v. Wilson, 701 N.E.2d 856 (Ind. App. 1998)

A city required property owners to obtain a special permit before using their property for any one of 33 different uses, including the operation of a church. A property owner who wanted to use his property as a church obtained a 1-year special use permit. When this permit expired, he filed a lawsuit claiming that the special permit procedure was an unconstitutional interference with the exercise of religion. A state appeals court disagreed.

The court provided a useful summary of “special permit” ordinances:

Special uses are designated because they are necessary to the life and economic health of the community, but have characteristics of operation that do not readily permit classification in the usual residential, commercial, or industrial districts. A property owner may utilize his property to exercise a special use in a traditional zoning district as long as the property owner secures a special use permit and the special use is permitted in that zoning district. A property owner wishing to utilize his property as a school or church is permitted to do so in any residential, commercial, or industrial zoning district. In order to obtain a special use permit, any property owner intending to utilize his property for any of the special uses must comply with the procedure set forth in the special use ordinance.

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. 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. 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.

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.

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.

A federal district court in Illinois ruled that a church could sue a city for violating its constitutional rights. 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.

For more information on zoning laws and churches visit Richard Hammar’s Pastor, Church & Law legal library.