Building Codes
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: m06
Many municipalities have enacted building codes prescribing minimum standards in the construction of buildings. Such codes typically regulate building materials, construction methods, building design, fire safety, and sanitation. The validity of such codes has consistently been upheld by the courts.1
The courts consistently hold that churches must comply with municipal building codes that are reasonably related to the legitimate governmental purpose of promoting the public health, safety, morals, or general welfare. To illustrate, one court ruled that “the building of churches is subject to such reasonable regulations as may be necessary to promote the public health, safety, or general welfare.”2 In another case, a municipality brought an action against a church in order to prevent the continued use of a church school that did not comply with the building code.3 The church school was allegedly deficient in several respects, including inadequate floor space, inadequate ventilation, no approved fire alarm system, no fire extinguishers, no fire detectors, no sprinkler system, no fire--retardant walls, no exit signs, uneven stairs, and doors that did not open outward. The Supreme Court of Washington acknowledged that application of the building code to the church school would result in a closing of the school, and that this in turn would impair the church members' constitutional right to guide the education of their children by sending them to a church--operated school. However, the court observed that this constitutional right was not absolute, but could be limited by a showing that the building code was supported by a “compelling state interest” and that it was the least restrictive means of accomplishing the state's interest.
Similarly, another court upheld the action of a municipality in ordering substantial renovations in a church--operated school to bring it into compliance with the building code.4 The court rejected the church's claims that the less stringent building code provisions applicable to church buildings should apply to the school, and that application of the more stringent building code provisions applicable to schools would infringe upon the church's right to freely exercise its religion. The court observed:
This is not a case where application of the Code forces a choice between abandoning one's religious principles and facing criminal charges. . . . The Code does not restrict or make unlawful any religious practice of the plaintiff; the Code simply regulates the condition of the physical facility if it functions as a school . . . .5
It is also clear that state laws establishing minimum standards for the safety of children in child--care facilities and enforcing such standards through inspections and licensing does not violate the religious freedom of a children's home administered by a religious organization.6
For related information on this topic see the following articles:Regulation of Charitable Solicitations
Limitations on Charitable Giving
Federal and State Securities Laws
Judicial Resolution of Church Disputes
The Civil Rights Restoration Act of 1987
Americans with Disabilities Act
Political Activities by Churches and Other Religious Organizations