Zoning Laws and Private Schools
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: m65
Most courts hold that churches may establish private schools on church--owned property that is zoned for either residential or church use.1 This view is based on a number of grounds, including the following: (1) a private school is permissible “accessory use” of church property; (2) a church school is an integral and inseparable part of a church and therefore is a permissible use wherever churches are permitted; (3) a zoning law that excludes private schools from church--owned property bears no reasonable relation to the promotion of public health, safety, morals, or general welfare and is therefore invalid; and (4) schools are permitted in residential districts where churches generally are located.2
Obviously, a zoning ordinance that excludes private schools from an entire municipality is invalid.3 Further, a zoning ordinance that imposes conditions on private schools that are so burdensome that no school could reasonably be expected to comply amounts to an impermissible exclusion of such schools from a municipality.4 Zoning ordinances that exclude private schools from certain districts within a municipality likewise have been invalidated if public schools were permitted in the same districts,5 or if such an exclusion bore no reasonable relation to the promotion of the public health, safety, morals, or general welfare.6
Zoning ordinances permitting church schools in certain districts only by special permit generally have been upheld. In a leading case, one court observed that the use of private property, including church--owned property, may be regulated by a municipality in the interest of the public health, safety, morals, or general welfare. Therefore, reasoned the court, it is appropriate to prevent churches from constructing or operating a private school on church--owned property unless they have applied for and received a special permit from municipal authorities, following a comprehensive review by the city of the impact of such a school on the public health, safety, morals, and general welfare.7 Most courts have found the following grounds to be insufficient justification for denying a special permit authorizing the creation of a private school on church property or otherwise excluding private schools from certain districts: adverse effect on the value of neighboring properties, loss of tax revenues, decreased enjoyment of neighboring property because of the increase in noise and other inconveniences, traffic hazards, and neighborhood opposition.8
For related information on this topic see the following articles:Incorporation and Tax Exemption of Private Religious Schools
Proof of Nondiscrimination in Private Schools
Right to Attend Private Schools
The Distinction Between Public and Private Education
Discharge and Discipline of Students of Private Schools
Discharge and Discipline of Teachers
Application of Federal Labor and Discrimination Laws to Private Schools
Government Regulation of Private Schools
Safety and Health Regulations for Private Schools
Taxation of Private Religious Schools
Child Abuse Reporting Requirements for Private Schools
Legal Liability for Student Injuries