Zoning Law for Churches
By Richard R. Hammar, J.D., LL.M., CPA
© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m15
The civil courts often have been called upon to define the term church in the context of zoning laws. To illustrate, 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. Soon after the softball diamonds were completed, the church conducted a softball tournament over a two--week period. Games lasted until 11:30 p.m. 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.”1 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.”2
Another court ruled that a convent and chapel constituted a “church” for purposes of zoning law despite the operation of a bookstore and audiovisual center on the premises. The court concluded that the convent and chapel, by themselves, clearly satisfied the definition of a church. The fact that a bookstore and audiovisual center were also operated on the premises did not affect this conclusion, since the books and materials were religious and educational in nature and were sold to support the order's missionary and instructional purposes. The court quoted from a 1943 decision of the United States Supreme Court: “The mere fact that religious literature is sold rather than donated does not transform evangelism into a commercial enterprise.” Further, the court concluded that the definition of “church” must be “regarded broadly for zoning purposes in order to avoid serious constitutional questions.” Finally, the court rejected the claim that the convent and chapel should not be allowed in a residential neighborhood since they “would be a detriment to the neighborhood by increasing traffic congestion.” The court observed that the intersection where the order planned to construct the convent and chapel “carried a daily traffic volume of over 18,000 cars,” and that the construction of the convent and chapel “would draw approximately twenty [additional] cars per day.” This case will be of interest to the many churches that operate bookstores on their premises.3
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.4 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 chid 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.
A New York state court ruled that a church could operate a homeless shelter despite the complaints of neighboring residents.1 In response to a citywide need for emergency shelters for thousands of homeless, an Episcopal church in New York City opened its doors to groups of 10 homeless men for temporary emergency shelter 3 nights each week. The church was part of a network of some 380 churches and synagogues in the city that provide more than 400,000 individual nights of temporary shelter annually. The city provides the churches and synagogues with beds, linens, clothing, toiletries, and cleaning supplies, and inspects shelters for compliance with health and safety regulations. Homeless men are transported to the church from a “drop--in center,” and arrive at 9:30 PM. They are picked up by bus the following morning at 6:00 AM. From the time of their arrival until their departure the next morning, the men are continually supervised and are not allowed to congregate in the street. The church's minister asserted that sheltering the homeless is an important part of the church's religious mission. Neighboring luxury condominium owners sought a court order preventing the church from continuing its homeless shelter. They complained that the shelter violated city zoning laws, and constituted a public nuisance. The court began its opinion by observing that the lawsuit “concerns the extent, if any, to which the court may or should be brought in as arbiter of a dispute involving the right of a church and its parishioners to exercise their religion and to practice Christian charity by temporarily sheltering the homeless and the rights of some adjacent property [owners] who fear crime, drug sales, prostitution and a [decrease] in their property values.” The court acknowledged that churches may only be used for religious and social purposes, but it noted that “it has long been held that a church or synagogue may be used for accessory uses and activities which go beyond just prayer and worship.” The court concluded that a church's operation of a shelter for the homeless is a legitimate “accessory use” of a church, since it “is a use which is clearly incidental to, and customarily found in connection with,” a church. Therefore, a church's operation of a homeless shelter did not violate the city's zoning laws.
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.2 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.”
A New York court ruled that a city zoning board acted improperly in denying a homeowner's application to use his home as a church.3 The court noted that “the inclusion of churches among uses permitted in the [residential] zoning district is tantamount to a legislative determination that the use is in harmony with the general zoning plan and will not be detrimental to the surrounding area. It is presumed that a religious use will have a beneficial effect in a residential area.” However, this presumption may be “rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like.” The zoning board's refusal to allow the homeowner to use his home as a church was improper since it was “based on conclusory findings and not upon substantial evidence of significant adverse effects.”
Many other courts have been asked to decide whether a particular use or activity comes within the definition of the term church in the context of municipal zoning laws. The following activities and uses have been held to come within that definition: use of a home across the street from a church for women's fellowship meetings and religious education classes;4 a single--family residence used by the United Presbyterian Church as a religious coffeehouse for university students;5 a priest's home, convent, and parochial school;6 a 24--acre tract of land containing a large mansion that was used as a synagogue and a meeting place for the congregation's social groups and youth activities;7 a kindergarten, play area, and parochial school;8 a 37--acre estate used by an Episcopal church as a religious retreat and center for religious instruction;9 and a private school operated by a Baptist church.10
Other courts have concluded that certain activities do not constitute a church in the context of zoning laws. To illustrate, one court has held that an area restricted to residential and church uses could not accommodate temporary, open--air camp meetings.11 The court observed that not every place in which religious services are conducted is a church. It inferred that a church at the least must consist of “a building set apart for public worship,” and thus could not include camp meetings. Another court held that a dwelling of 16 bedrooms and 12 bathrooms occupied by 25 people comprising four different families, all members of the American Orthodox Catholic Church, was not a church or parish house even though religious instruction was given daily for one hour to the children and three times a week to the adults.12 The court reasoned that “the principal use of the building . . . is that of a dwelling for residential purposes” and that “the incidental religious instruction provided to the families does not change this fact.”
Similarly, when a farmers' organization purchased a church building for meetings promoting agriculture and “higher ideals of manhood, womanhood, and citizenship,” a court concluded that the building no longer could be considered a church.13 “A church,” observed the court, “[is] a place or edifice consecrated to religious worship, where people join together in some form of public worship.”
Other courts have held that the following organizations were not churches for purposes of zoning laws: a 28--acre tract used by a Jewish foundation for a conference center, leadership training center, and children's retreat;14 a private school operated by a local Baptist church;15 camp meetings;16 a parish house used for Sunday school, choir practice, and church committee meetings;17 a religious retreat house;18 a dwelling of sixteen bedrooms and twelve bathrooms occupied by twenty--five persons comprising four different families, all members of the American Orthodox Catholic church;19 a child--care center operated in a minister's residence;20 a single--family residence used for organized religious services;21 and a college.22
Many zoning laws permit uses that are “accessory” to a permitted use. 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.23
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;24 a kindergarten play area;25 a parking lot;26 residential use of church buildings by members;27 a home for parochial school teachers;28 a school;29 and a neon sign constructed on church property to inform the public as to the time of worship services;30 a center for performing arts;31 and a sanctuary or shelter for the homeless.32
For related information on this topic see the following articles: