Zoning Law and 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: m82

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.¹

It is important to recognize that municipalities have no inherent authority to enact zoning laws. Zoning laws constitute an exercise of the police power—that is, the authority inherent in state governments to enact laws in furtherance of the public health, safety, morals, and general welfare. Unless a state specifically delegates such authority to a municipality, the municipality will have no authority to enact a zoning ordinance. Most states, however, have adopted “enabling acts” which delegate such authority to designated municipalities. The authority of a municipality to enact a zoning ordinance therefore is limited by the terms of the enabling statute. It is also limited by constitutional considerations, for many courts have ruled that the United States Constitution prohibits the enactment of zoning ordinances that are unreasonable, discriminatory, or arbitrary. And, since a state's delegation of zoning power to a municipality constitutes a delegation of state “police power,” a municipal zoning ordinance to be valid must in fact further the public health, safety, morals, or general welfare. Further, zoning ordinances that restrict the location of churches in certain areas must not run afoul of the constitutional guarantees of assembly and the free exercise of religion.

The typical zoning ordinance divides a municipality into zones or districts in which only certain activities or uses are permitted. For example, it is common for a municipal zoning ordinance to divide a municipality into residential, commercial, and industrial districts, with the activities and uses permitted in each district described in the ordinance. Nonconforming uses and activities may be authorized in some cases through variances, special use permits, or by the fact that the nonconforming use preceded the enactment of the zoning ordinance.

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 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 a growing number are requiring churches to obtain a permit prior to obtaining 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 from the entire community.

It is the view of “the long line of cases”¹ or “the wide majority of courts”² that churches may not be excluded from residential districts. This conclusion 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.³ A few courts have ruled that churches may not be regulated regarding their purchase or use of property within residential zones.⁴ 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 that

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.⁵

Another New York court similarly observed that

[w]e 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.⁶

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. The application of this rule can be demonstrated by reviewing a few representative court rulings. For example, a New York state appeals court ruled that a city acted improperly in denying a synagogue's application for a special use permit without making any attempt to accommodate the proposed religious use.⁷ The synagogue applied for a special use permit that would have allowed it to operate in a residential property. The city council rejected the permit application, and the synagogue appealed. An appeals court concluded that the city's denial of the permit was “arbitrary, capricious, and an abuse of discretion.” The court acknowledged that “there is no exemption from zoning rules for religious uses, nor is there any conclusive presumption that any religious use automatically outweighs its ill effects.” However, “where the applicant is a religious institution, more flexibility is required and efforts must be made to accommodate the religious use, if possible.” In fact, “every effort must be made to accommodate the religious use subject to conditions reasonably related to land use.”

The court noted that the city council rejected the synagogue's permit application “without making any attempt to accommodate the proposed religious use.” Such an act, concluded the court, was improper. The city had “an affirmative duty to suggest measures to accommodate the proposed religious use.” The court found that the synagogue's proposed religious use could have been accommodated by the city: “For example, we observe that the accommodation of the religious use and maintenance of the public's safety, health, and welfare could have been achieved by limiting the number of persons who could attend services or meetings at any given time, and by posting `no parking' signs along the street to prevent hazardous road conditions, and by limiting the hours during which meetings or instruction could be held . . . .” The court ordered the city council “to issue the permit upon such reasonable conditions as will allow the [synagogue] to establish its house of worship, while mitigating any detrimental or adverse effects on the surrounding community.”

Another New York appellate court struck down as unreasonable a city's refusal to grant a church's request for a special use permit authorizing it to build a new sanctuary.⁸ Noting that churches “enjoy a presumptively favored status with respect to the police powers sought to be protected by zoning laws,” the court concluded that “our examination of the reasons enumerated by the [city] for denying [the church] a special use permit discloses that the rejection was unreasonable. No expert evidence was proffered concerning any detrimental effect on traffic or drainage.”

In another New York case, a municipality denied a congregation permission to construct a church on a two--acre tract of undeveloped property in a residential district on the grounds that the presence of a church and its associated traffic would devalue the adjoining properties, create a fire hazard, and adversely affect the health, safety, and welfare of neighborhood residents. A New York appellate court, in overruling the action of the municipality, held that the potential traffic and safety hazards and property devaluation were 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.”⁹

The courts of several other states have reached similar conclusions.¹⁰ Several illustrative cases are summarized below.

An Indiana court, in striking down a municipal ordinance that prohibited churches in residential areas, held that the ordinance constituted “a violation of the fundamental right of freedom to worship protected by the first and fourteenth amendments to the United States Constitution . . . .”¹¹ The court observed that “[e]arly and modern case law alike has not countenanced the exclusion of churches from residential districts, even though inconveniences may be caused by the influx into a neighborhood of vehicular or pedestrian traffic.” The court also acknowledged that churches are subject to such reasonable regulations as may be necessary to promote the public health, safety, and general welfare, but insisted that “[r]easonable restrictions . . . are not tantamount to exclusion.”

A New Jersey court ruled that a city cannot totally exclude churches from residential districts.¹² A Jehovah's Witness congregation applied to city officials for approval to build a church in an area zoned for manufacturing use. The city then rezoned much of the community, changed the area where the church was to be built from a manufacturing to a residential district, and then prohibited the building of churches in all residential districts. The congregation challenged the city's action as a violation of the constitutional guaranty of religious freedom. The court agreed: “Municipalities have the power to zone their districts, but to exclude churches and other places of worship from the very areas (residential communities) that they draw their members from and relocate them to a less desirable zone of the township . . . offends the very essence of . . . the New Jersey Constitution.”

Another New Jersey court rejected an effort by concerned citizens to prevent a Jewish congregation from constructing a synagogue in their residential neighborhood.¹³ The congregation proposed to construct a 2,000 square--foot sanctuary with 120 seats and a parking lot with room for 20 vehicles. The congregation claimed that it had to construct its building in a residential area, since most of its members were Orthodox Jews who had to walk to services on the Sabbath. The 20 parking spaces satisfied the local zoning law which required 1 parking space for every 6 sanctuary seats. The neighboring residents conceded that the planned synagogue met the technical requirements of the zoning ordinance, but they argued that the ordinance was invalid since it did not require adequate parking for houses of religious worship. A state appeals court rejected the neighbors' position, and allowed the congregation to proceed with construction. The court acknowledged that zoning laws must advance the “public morals and the general welfare,” but it noted that “the courts have held that religious activity itself is in furtherance of public morals and the general welfare, and that religious institutions enjoy a highly--favored and protected status, which severely curtails the permissible extent of governmental regulation.” For a zoning law to be invalid, it must be arbitrary or not reasonably designed to advance public morals or the general welfare.

The court concluded that the neighboring residents had failed to satisfy this test. While the court agreed that more parking spaces might be desirable, it could not agree that the zoning ordinance was “arbitrary.” It noted that the congregation's members were forbidden to drive to religious services on the Sabbath, and that off--street parking was available to accommodate vehicles during occasional social events occurring during the week. The court also quoted with approval from rulings of the United States Supreme Court that have found that “the Constitution affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any,” and that “[w]e are a religious people whose institutions presuppose a Supreme Being.” It concluded that “our branches of government have a right, indeed an obligation, to recognize the freedom of all to worship and to do that which is reasonable to respect this essential freedom.” The court acknowledged that “it was probably impossible” for a growing congregation to build a sanctuary in a residential neighborhood “without offending some residents.” However, “the law cannot expect the impossible.”

An Illinois state appeals court ruled that a city's refusal to grant a church's application for a “conditional use permit” violated the church's first amendment guaranty of religious freedom.¹⁴ A Lutheran church in a Chicago suburb experienced explosive growth, but was left with inadequate parking space. To help solve its parking problem, the church sought permission from the city to convert two private residences that it owned on adjoining property into 57 additional parking spaces. The city denied this request on the grounds that the proposed parking lots would adversely affect the value of neighboring properties (the church was located at the entrance to a residential subdivision), and would “injure the use and enjoyment” of the neighborhood. It rejected the church's claim that a limitation on the number of its parking spaces would interfere with the free exercise of its religion. The court concluded that the city had not given due weight to the church's constitutional right to freely exercise its religion. While conceding that city zoning ordinances are presumed to be valid, the court observed that this presumption “diminishes” when an ordinance “limits the free exercise of religion.” Significantly, the court concluded: “The location of a church can be regulated by zoning ordinances in proper cases; however, in determining whether this is a proper case for such a restriction, we must take into account that the freedom of religion, and other first amendment freedoms, rise above mere property rights. In addition, first amendment rights and freedoms outweigh considerations of public convenience, annoyance, or unrest.” The court concluded that the city had erred in denying the church's request for a permit to convert the two residential properties into additional parking spaces. It rejected the city's claim that the “parking needs of a church should be considered on different legal principles than those applied to the church building itself.” This decision represents one of the strongest statements by a court of the right of a church to develop its property despite the complaints of neighboring landowners.

A federal district court in Alabama ruled that a county's practice of prohibiting churches from building new facilities if neighboring residents object violated the churches' constitutional right of religious freedom.¹⁵ A county adopted a new zoning ordinance that limited churches to “institutional districts.” The ordinance purposely failed to recognize any land as an institutional district, so that churches would be forced to seek a zoning variance before purchasing property for church use. This procedure was designed to give the county “better site development controls over institutional construction.” A Mormon congregation that had outgrown its existing facility attempted to purchase land on which it proposed to construct a new sanctuary. It filed an application to have the property rezoned as an “institutional district,” but its application was denied by the county following a hearing in which several neighboring residents expressed “vociferous opposition.” The residents lived in an affluent residential district adjacent to the church's proposed building site, and they were horrified by the impact the church would have on the “aesthetics” of the community and the value of existing homes. The county commission based its denial of the church's application on the basis of the “will of the people.” One commissioner stated that churches should not locate anywhere that they are not wanted. The court noted that the church had outgrown its present facility, and that the church had “as a central tenet of its faith the need to assemble together and strengthen the faith of each other and to partake of communion.” The court concluded that the church's constitutional right to exercise its religion was violated by the county's procedure:

It is undisputed that the primary, if not the sole, policy reason for establishing the [county's institutional district] system was to give it “site control” . . . . The court recognizes that the [county is] allowed to consider . . . neighborhood aesthetics. On the other hand, it is too great a burden on religious interests to allow this to be determined [in each case] based upon neighborhood opposition. . . . Allowing churches to go only where they are welcome smacks of an unreasonable burden, even if the opposition is not related to the denomination of the church. . . . The court's primary conclusion is that the burden here on religion is that the ability of a church to locate or not is dependent on the acceptability of that church, or any church, to the surrounding community, without there having been any predetermination that churches are allowed to go in any area.¹⁶

This case will lend support to the right of churches to acquire land for church use if (a) no land is zoned for church use, and churches are required to apply for a zoning variance for any land that they purchase for church use, and (b) the decision whether or not to grant the zoning variance depends on opposition or support by neighboring residents.

A federal appeals court decision strongly supports the right of churches to locate in residential districts.¹⁷ The court ruled that a city's refusal to permit an Islamic center to operate within city limits near a university campus violated the constitutional guaranty of religious freedom. A city zoning ordinance prohibited the use of any building as a church in all areas of the city near a university campus unless a special permit was obtained from the city council. Twenty--five churches were granted permits to operate in restricted areas. However, the Islamic center's request for a permit was denied. No reason was given for the denial, though a neighborhood spokesman expressed concern over “congestion, parking, and traffic problems.” The center sued the city, arguing that the city's action in banishing it from the restricted area near the university campus, while allowing 25 churches to meet in the same area, violated the right of Muslims to the free exercise of their religion. The city denied that the Muslims' rights were violated, since “they can establish a mosque . . . outside the city limits or buy cars and ride to more distant places within the city.”

The federal appeals court observed that the city's suggestion was “reminiscent of Anatole France's comment on the majestic equality of the law that forbids all men, the rich as well as the poor, to sleep under bridges, to beg in the streets, and to steal bread.” The court further observed that “laws that make churches accessible only to those affluent enough to travel by private automobile obviously burden the free exercise of religion by the poor.” And, while “the constitution does not forbid all governmental regulation that imposes an incidental burden on worship by making the free exercise of religion more difficult or more expensive,” once it is established that a governmental action burdens religious exercise, “the government must offer evidence of an overriding interest” to justify its action. In this case, however, the city “advanced no rational basis other than the neighborhood opposition to show why the [permit] granted all other religious centers was denied the Islamic center . . . . [N]eighbors' negative attitudes or fears, unsubstantiated by factors properly cognizable in a zoning proceeding, are not a permissible basis” for denying a permit. Further, the court concluded that the city had acted improperly in “applying different standards” to the Islamic center than to the “worship facilities of other faiths.” This decision is binding authority in federal courts located within the fifth federal circuit, which includes the states of Texas, Louisiana, and Mississippi.

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.”¹⁸ 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 federal district 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.¹⁹

This case is very significant (despite the appeals court's decision) since it illustrates the potential relevance of the equal protection guaranty in the context of zoning, and it illustrates 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 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.

Obviously, any attempt by a municipality to totally exclude churches from all districts, whether residential, commercial, or industrial, would be unconstitutional.²⁰

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.²¹

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 occasionally is referred to as the California rule.²² 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.²³

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.²⁴

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. To illustrate, the first federal appeals court decision to address this issue ruled that a zoning ordinance that prohibited churches from all residential zones did not violate a church's constitutional rights.²⁵ 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.²⁶

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.²⁷ The San Francisco City Code prohibits churches in residential districts unless a conditional use permit is granted. Before granting a permit, the city must determine that the proposed use is necessary, and compatible with the neighborhood, and will not be detrimental to the health, safety, convenience or general welfare of persons residing in the vicinity. A church desiring to establish a church in a single--family residence applied to the city for a permit. A group of 190 neighboring residents signed a petition in opposition to the permit, based on the following considerations: (a) there already are too many churches in the neighborhood; (b) the church would not maintain neighborhood characteristics; (c) there is a housing shortage in the neighborhood; (d) an additional church would create additional traffic that would create safety hazards for neighbors; (e) inadequate parking spaces; and (f) excessive noise. A city zoning commission denied the church's permit request, and the church filed a lawsuit claiming that the city's actions violated its constitutional rights. A federal district court ruled in favor of the city, and the church appealed. A federal appeals court also ruled in favor of the city.

The appeals court based its decision on a 3--part test that it created. The court ruled 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: (a) the magnitude of the impact on the exercise of religious beliefs; (b) the existence of a compelling governmental interest justifying the burden on the exercise of religious belief; and (c) the extent to which recognition of an exemption from the permit procedure would interfere with the objectives sought to be advanced by the city. With regard to the first factor, the court rejected the church's claim that the city's denial of the permit exerted a significant impact on its religious beliefs. The court, noting that the church had been meeting in a rented hotel banquet room, observed that “it is difficult for us to find a significant burden on religious practice if the church had not previously been practicing home worship. The burden on religious practice is not great when the government action, in this case the denial of a use permit, does not restrict current religious practice but rather prevents a change in religious practice.” Further, the court emphasized that the city's denial “did not prevent all home worship,” but rather a “denial to worship in this specific home. The burdens imposed by this action are therefore of convenience and expense, requiring [the church] to find another home or another forum for worship. We find that the burden on religious practice in this zoning scheme is minimal.” With regard to the second factor, the court observed that the city has an interest in protecting the interests of neighboring property owners, and that this interest is “particularly strong” when a church is applying for a nonresidential use in a residential neighborhood. With regard to the third factor, the court concluded that the “minimal” burden on the church's religious practices and beliefs was clearly outweighed by the city's “strong” interest in preserving the character and welfare of its neighborhoods. The court rejected the church's contention that the city's application of its zoning laws discriminated against churches generally, or that the city and the neighboring residents “conspired” to deprive the church of its constitutional rights.

The federal appeals court for the eleventh circuit (comprising the states of Alabama, Florida, and Georgia) ruled that a city zoning ordinance excluding churches from single--family residential zones did not violate the constitutional guaranty of religious freedom.²⁸ The zoning ordinance of Miami Beach, Florida, excluded churches from single--family residential zones, but permitted them in other zones comprising 50 percent of the city's territory. An orthodox Jewish rabbi who conducted daily religious services in his residence was ordered by the city to discontinue the services on the ground that his residence was located in a single--family district that did not permit religious services. The rabbi sued the city, arguing that the ordinance violated his constitutional rights to freely exercise his religion.

A federal appeals court rejected the rabbi's claim and upheld the city's ordinance. The court readily acknowledged the difficulty of balancing the competing interests of government and religion in the context of municipal zoning legislation. It insisted, however, that such conflicts must be resolved through a balancing of the respective interests: “[T]he balance depends upon the cost to the government of altering the activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity.” The court noted that the city's objective of separating residential and non--residential zones was a significant one. It quoted with approval from an earlier decision of the United States Supreme Court: “[The segregation of residential from non--residential neighborhoods] will increase the safety and security of home life, greatly tend to prevent street accidents, especially to children by reducing traffic and resulting confusion . . . decrease noise [and] preserve a more favorable environment in which to raise children.”²⁹ The appeals court concluded that “granting an exemption [to churches and synagogues] would defeat city zoning policy in all neighborhoods where the exemption was asserted.”

The court concluded that the burden imposed by the zoning ordinance on religious freedom “stands toward the lower end of the spectrum,” since the ordinance “does not prohibit religious conduct per se [but rather] prohibits acts in furtherance of this conduct in certain geographical areas.”  The court stressed that the zoning ordinance permitted churches in over half of the city's territory, and that a permissible zone was located just four blocks from the rabbi's residence. These facts persuaded the court that the balance tipped in favor of the city in this case. The court was quick to add that “all should understand that we have not written today for every situation in which these issues might arise—only that we have done our best . . . in solving this very, very delicate problem.”

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.³⁰ 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.”

A federal district court in Minnesota ruled that a city's refusal to allow a church to operate in a commercial zone did not violate the church's constitutional rights.³¹ A city zoning ordinance permitted churches in residential zones, but not in commercial or industrial zones. A new church congregation began meeting in a pastor's home. As the congregation grew, it began meeting in a public school building, and then in a commercial building. Eventually, the city notified the church that use of the commercial building violated city zoning law. The church unsuccessfully sought to amend the zoning ordinance to permit churches in commercial zones, and then it sought to locate other sites for church services. The church was not able to find suitable accommodations in a residential zone, and continued to meet in the commercial building. When the city ordered the church to vacate the building, the church filed a lawsuit alleging that the city's actions violated the constitutional guaranty of religious freedom. The court rejected the church's position. It noted the constitutional guaranty of religious freedom is not violated unless “something is prohibited because of its religious affiliation or its display of religious belief.” This was not the case here, the court concluded, since the city had not barred churches from commercial zones because of their religious character: “The zoning ordinance neither excludes only churches from the commercial and industrial zones nor reveals an anti--religious intent.”

A number of state courts have reached similar results.³² However, this view still represents a minority position among the states.

The definition of the term church in the context of municipal zoning ordinances is considered in Zoning Law.

b. Accessory Uses

The concept of accessory uses is considered in Zoning Law.

c. Legal Remedies Available to a Church for Improper Expulsion

What if any 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.³³ 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 similarly ruled that a church could sue a city for violating its constitutional rights.³⁴ 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 very 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.

d. Ordinances Restricting Certain Activities Within Prescribed Distance of a Church

Several courts have upheld municipal zoning ordinances prohibiting the location of “adult theaters” within a prescribed distance of a church, despite the claim that such ordinances constitute an impermissible establishment of religion.³⁵ To illustrate, the United States Supreme Court ruled in 1986 that cities are free to ban adult bookstores or theaters within 1,000 feet of churches, schools, or residences, provided that such restrictions do not deny such businesses “a reasonable opportunity to open and operate an adult theater [or bookstore] within the city.”³⁶ However, the United States Supreme Court struck down an ordinance giving churches the authority to “veto” applications for liquor licenses by facilities located within a 500--foot radius of a church.³⁷ The Court concluded that the ordinance substituted the unilateral and absolute power of a church for the decisions of a public legislative body, and thereby “enmeshed” churches in the process of government.

e. Regulation of Signs and Property

Sign ordinances regulating the height, size, and number of signs have been applied to churches despite the claim that they violate a church's constitutional right to freely exercise its religion.³⁸

Regulation of Charitable Solicitations

Limitations on Charitable Giving

Federal and State Securities Laws

Copyright Law

Building Codes

Nuisance

Government Investigations

The Civil Rights Act of 1964

Judicial Resolution of Church Disputes

Church Landmarking

Eminent Domain

The Civil Rights Restoration Act of 1987

Americans with Disabilities Act

Political Activities by Churches and Other Religious Organizations