Pastor, Church & Law

The Majority View: Churches May Build in Residential Zones

§ 07.06.01

Key point 7-06.01. Most courts have ruled that churches have a legal right to locate in residential districts.

1. IN GENERAL

Many courts have ruled 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.

A few courts have ruled that churches may not be regulated regarding their purchase or use of property within residential zones.¹¹²However, 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.¹¹³

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.¹¹⁴

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.

Case studies

A New York 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. 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.”¹¹⁵
A New York 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. 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.”¹¹⁶
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.” ¹¹⁷

The courts of several other states have reached similar conclusions.¹¹⁸Several illustrative cases are summarized below.

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. 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.” 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: “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. ¹¹⁹
A Connecticut court ruled that a local zoning commission acted improperly in denying a church a special permit to construct a sanctuary in a residential zone. The court observed: “[E]ven though churches may not be completely excluded from residential zones they can be subject to reasonable regulation as to their location without violation of the constitutional guarantee of freedom of religion. … Cases from other states have held that it is illegal for a municipality to exclude churches in all zones, from all residential zones, to allow them in the municipality only with a special permit, or have held that there was no compelling reason to deny a special permit. … These cases are based on the concept that such zoning restrictions must yield to the right of freedom of religion protected by the … United States constitution and comparable provisions in state constitutions where the zoning regulations unreasonably hinder or restrict religious activities. Constitutional provisions do not prevent all governmental regulation of churches and religious organizations, and they may be subject to religiously neutral regulation for a secular governmental purpose under the police power, such as, fire inspection and building and zoning regulations.” The court concluded that “some increased traffic from construction of a church … is not a sufficiently significant factor to warrant limitation of freedom of religion by denial of a special permit.” ¹²⁰
A Florida court ruled that a county commission acted unlawfully in limiting a church school to grades K-6 and 150 students. The court noted that the church only had to demonstrate that its proposal was “consistent with the county’s land use plan; that the uses are specifically authorized as special exceptions and unusual uses in the applicable zoning district; and that the requests meet with the applicable zoning code standards of review. If this is accomplished, then the application must be granted unless the opposition carries its burden, which is to demonstrate that the applicant’s requests do not meet the standards and are in fact adverse to the public interest.” The court noted that the commission based its decision on county zoning maps, staff recommendations, aerial photographs, and testimony of neighboring property owners who expressed concern about increased traffic and a loss of “green space.” Such evidence, however, was not sufficient to limit the school to 150 students and grades K-6. ¹²¹
An Illinois 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. 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. ¹²²
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. …” 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.” ¹²³
A federal appeals court (with jurisdiction over Louisiana, Mississippi, and Texas) decision strongly supports the right of churches to locate in residential districts. 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. … Neighbors’ 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.” ¹²⁴
A New Jersey court ruled that a city cannot totally exclude churches from residential districts. 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.” ¹²⁵

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.”¹²⁶To 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.¹²⁷

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.¹²⁸

3. SPECIAL USE PERMITS

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.¹²⁹A 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.

The purpose of the special use ordinance … is the accommodation of desirable land uses which cannot be subject to rigid and restrictive classification into the traditional residential, commercial, and industrial zoning districts. It is the legislative accommodation of special uses which necessitates an administrative review of the impact of the special use at a particular location within a given zoning district. Accordingly, the requirement for a use permit is set out in the ordinance so that the body entrusted with the task of reviewing the application can make certain that it would not adversely affect the public interest if placed in a particular location within the permitted zone.

The court rejected the claim that applying the special use permit procedure to churches violated the First Amendment. It noted that the United States Supreme Court has ruled that a government regulation which clearly furthers a secular public purpose does not violate the free exercise clause, though the regulation as applied burdens a religious belief or practice, as long as the regulation is “a valued and neutral law of general applicability.” Employment Division v. Smith, 494 U.S. 872 (1990). A special permit procedure is such a law, the Indiana court concluded. Regulation of land use “is a secular public purpose, and the special use ordinance carries out this purpose in a manner which is generally applicable to all special uses.”

The court also rejected the property owner’s claim that the procedure for obtaining a special use permit imposed a substantial and unreasonable burden on the exercise of religion. It concluded that any burden imposed by compliance with the special use procedure was minimal.

Case studies

A federal court in Illinois ruled that the legal rights of churches were not violated by a city zoning ordinance that required churches to obtain a special use permit before locating in certain commercial and manufacturing districts. The court concluded that the zoning ordinance was neutral and of general applicability, and did not single out churches for adverse treatment. As a result, it did not violate the First Amendment. It observed: “The requirement that an individual must go through the processes and meet the standards, is a requirement imposed on all special use applicants, regardless of the character of the proposed use. Therefore, the zoning ordinance and related provisions are valid neutral and generally applicable zoning regulations that impose no substantial burden to the free exercise of religion.” ¹³⁰
A Missouri court ruled that a church’s constitutional rights were not violated by a city ordinance requiring it to obtain a special permit before building a multi-purpose building on its property. The court noted that “numerous decisions have acknowledged that municipalities, in the exercise of their police powers, may regulate churches” in order to promote the “health, safety, morals, or the general welfare of the community.” The court concluded that “it is clear from these cases that the fact that a municipality exercises some control over the conduct of churches is not, per se, violative of a church’s right to the free exercise of religion; but rather a determination of whether such regulation is tantamount to an infringement of the free exercise of religion depends on the facts and circumstances of each case. Thus, city’s mere requirement that the church apply for a special use permit did not infringe on the free exercise of religion.” ¹³¹
The Washington State Supreme Court ruled that the First Amendment guaranty of religious freedom did not exempt a church from having to obtain a “conditional use permit” before using property in a rural area for church purposes. It relied on the following language from a United States Supreme Court decision: “It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals. When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs.”¹³²The court concluded that requiring the church to apply for and obtain a conditional use permit before using property in a rural district for church purposes did not create “anything more than an incidental burden upon the free exercise of religion. ¹³³

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