Daily Development for Thursday, April 25, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

ZONING; USE RESTRICTIONS; RELIGIOUS ACTIVITIES: The Religious Land Use Act strongly limits a governmental body from applying land use regulations in a way that imposes a substantial burden on a religious institution's use of its own property.

Millington Baptist Church v. The Planning Board of the Township of Bernards, SOM-L-1615-99 (N.J. Super. Law Div. 2001), Unpublished; January 19, 2001:

A Church sought major site plan and lot merger approval to construct a large project as a permitted use in a residential zone. Under the relevant ordinance, a "house of worship [meant] a special purpose building that is architecturally designed and particularly adapted to the primary use of conducting on a regular basis formal religious services by a religious congregation." The zone also permitted public or private schools, but such uses were listed separately from use as a house of worship.

The Church's plans showed space not only to be used for worship, but also showed no fewer twenty classroo ms and a set of six other rooms, seemly designed as a childcare center.

The lower court took a good deal of testimony and determined that the Church's application called for at least two principal uses: a house of worship, and a school. That decision implicated a zoning ordinance that required a total number of parking spots equal to the sum of the spots required for a house of worship and those needed for a school.

The Appeals Court viewed the major issue in this proceeding, by a neighbor to overturn the approvals granted to the Church, to be whether the Church was a proposed single use or a multiple use building. With that question in mind, the court recognized that it was only to determine if the zoning board had acted arbitrarily or capriciously.

Under the municipality's zoning rules, no lot could have more than one principal use. Here, it was clear that in addition to the area set aside for religious services, the plans clearly included a school and likely included a "child care" area. The Church's position was that "all the activities that [would] occur at the [project were] elements of its core use as a church." It argued that all the activities were grounded in its fundamental mission which, according to literature submitted to the Court, clearly included worship, outreach, service, and teaching.

With this information before it, the Court, pointing to the United States Constitution, the New Jersey Constitution, New Jersey case law, and the federal Religious Land Use and Institutionalized Persons Act of 2000, made clear that regulation in the guise of a zoning ordinance could not dictate which ministries a church could or could not perform in its house of worship. The Religious Land Use Act specifically made clear that "[no] government shall impose or implement a land use regulation in any manner that imposes a substantial burden on the religious exercise of a person, including their religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest." Here, the neighbor did not plead or even allege that there was a compelling government interest.

It offered no proofs of a compelling government interest. Lastly, the objecting neighbor offered no proofs that obtaining the use variance was the least restrictive means of furthering the "unarticulated compelling governmental interest." Therefore, the Court concluded that the zoning board was correct when it determined that "the applicant will have only one principal use on the Property and accessory uses, which are customarily incidental to that principal use of a house of worship."

Comment 1: It may be that the "compelling state interest" idiom is going to become increasingly important in future battles over the application of this federal law. Although the core activities of many churches are relatively inoffensive, one hotly debated activity is supplying services to homeless persons - an activity which often draws to residential neighborhoods parties whom the neighbors deem to be "strongly undesirable." Also there's the question of noise. Church bells on Sunday morning are one thing. What about conga drums at midnight? Outdoor chanting at dawn? Wait and see.

Comment 2: For a view of the act that suggests that it is an "atom bomb" in the hands of churches, see: http://www.lawyersweeklyusa.com/alert/usa/zoning.htm

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