Accessory Religious Uses — Key To Regulation May Be Protecting Residential Zone

March 28, 2001

Generally speaking, state and federal courts have granted places of worship a special status in a residentially zoned community, although that view may have to be tempered in light of recent decisions by the U.S. Supreme Court./1 In large measure, these courts also accord similar protection to accessory religious uses that go beyond prayer and worship./2 This is not to say, however, that local governments are without authority to regulate these accessory uses, much as a municipality may impose appropriate conditions in conjunction with a zoning change or a grant of a variance or special permit to other applicants./3

Indeed, a municipality may be able to exclude an accessory religious use from a residential zone under certain very precise circumstances. For example, an accessory religious use may be excluded from a zoning district if it is not confined to the same lot on which the principal use is located./4

As Supreme Court, Nassau County, stated in a case involving a drug rehabilitation center on a church’s property, an accessory religious use also may be excluded if there is a genuine danger to the community./5 Mere inconvenience to the public or to the local residents, however, is insufficient./6

Reasonable Regulation

In situations where a municipality may not exclude a religious use or an accessory use, it nevertheless may be able to impose reasonable regulations on the use. As a general proposition, a municipality may properly enact a zoning ordinance authorizing the religious use as a special permit use and empowering the zoning board to impose reasonable conditions that relate to the public’s health, safety or welfare without running afoul of the Constitutional guarantee of free exercise of religion./7

Such conditions may be imposed on the religious use to the same extent they may be imposed on other uses. These conditions run the gamut from fencing, landscaping, screening and safety devices to limits on building location, building facade, hours of operation, parking and outdoor lighting./8

Importantly, it appears that such regulations are more likely to be upheld to the extent that their intent is to protect the integrity and tranquility of the residential zone, rather than actually to regulate the religious use. Put differently, conditions that might otherwise be upheld may be found to be invalid in a particular case if they are not aimed at minimizing an impact that results from the granting of the application but rather seek to regulate the operation of the enterprise on the premises./9

The distinction between protecting a residential zone and regulating the religious use should not necessarily be surprising, given the frequency with which courts recite and uphold this distinction in other situations.

For instance, in Driesbaugh v. Gagnon,/10 the New York Court of Appeals upheld a condition limiting, to two, the number of vehicles that could be parked outside an automobile body repair shop during working hours, finding it protected the character of the agricultural-residential neighborhood.

The Appellate Division, Second Department, has reached the same conclusion. Thus, in Plandome Donuts, Inc. v. Mammima,/11 the court ruled that a requirement that a reserved parking area be open to the public on weekends in a grant of a conditional use permit was valid because it was intended to protect the neighboring properties from the possible adverse effects of the proposed business, such as traffic congestion and parking problems.

Additionally, in Shorelands, Inc. v. Matthew,/12 the court found that conditions in the grant of a use variance requiring that unauthorized uses, including loud music and fee parking, be discontinued were valid because they were intended to protect neighboring residential property.

The Appellate Division, Third Department, has reached the same result. In Twin Tower Little League, Inc. v. Town of Poetenkill,/13 for example, the court upheld a limitation contained in an area variance on the hours of lighting for ball fields, finding that neighboring property owners raised valid concerns at the hearing that the lighting was intrusive and would lower their property values. In Nardone v. Zoning Board of Appeals, Town of Lloyd,/14 the court also found that off-street parking conditions for an apartment building in a residential zone imposed pursuant to use and area variance applications were valid to maintain the residential character of the neighborhood./15

Religious Uses

The philosophical underpinning of these decisions has been employed in a number of cases involving religious uses. For instance, in Holy Trinity Greek Orthodox Church of Hicksville, Inc. v. Casey,/16 the Second Department upheld a Board of Zoning Appeals denial of a variance for the reduction of off-street parking spaces for a church use. The court found that the record contained substantial evidence that a 50-space off-street parking deficiency generated by the proposed religious use would have a negative impact on the surrounding community and concluded that the denial of the application for a variance was reasonably related to the public health, safety and welfare of the Town of Oyster Bay.

Another illustration of this rationale’s application occurred in Wellspring Zendo, Inc. v. Trippe,/17 where the Third Department upheld an ordinance requiring a 50 foot buffer screening area along all perimeter boundaries of properties used for permitted nonresidential use in residential districts even as applied to a religious use, where the buffer did not impact on the exercise of the property owner’s religion.

Proof Required

The Court of Appeals has made it clear that, although the scope of permissible religious use and that of accessory religious uses is broad, “each case ultimately rests upon its own facts.”/18 Thus, the extent to which regulation will be permitted depends largely on whether sufficient proof is produced to overcome the presumed beneficial effect of the religious use./19

Therefore, a local government seeking to impose such conditions should make certain that, at the public hearing on the special permit, there is ample evidence of a significant impact on traffic congestion, property values, municipal services and the like./20 Once such evidence is produced, reasonable conditions may be imposed to attempt to reduce the impact. The SEQRA process will be an effective vehicle to study the nature of the impacts of a specific proposed use, and to impose mitigating conditions, if warranted.

NOTES:

1. See John M. Armentano, “Holy Ground,” N.Y.L.J., November 22, 2000, at 5.

2. See John M. Armentano, “Religious Land Use,” N.Y.L.J., January 24, 2001, at 5.

3. See, e.g., St. Onge v. Donovan, 71 N.Y.2d 507 (1988); Cornell University v. Bagnardi, 68 N.Y.2d 583 (1986).

4. See, e.g., Sinon v. Zoning Bd. of Appeals of Town of Shelter Island, 117 A.D.2d 606 (2d Dept. 1986).

5. See, e.g., Slevin v. Long Island Jewish Medical Center, 319 N.Y.S.2d 937 (Sup.Ct. Nassau Co. 1971).

6. Holy Spirit Assn. for Unification of World Christianity v. Rosenfeld, 91 A.D.2d 190, 198 (2d Dept. 1983).

7. See, e.g., Cornell University v. Bagnardi, supra; Summit School v. Neugent, 82 A.D.2d 463 (2d Dept. 1981).

8. See, e.g., Church v. Town of Islip, 8 N.Y.2d 254 (1960) (fencing, planting of shrubbery and limitation that building could be no more than 25% of lot area held valid on approval of zone change application); Perlman v. Board of Appeals of Village of Great Neck Estates, 173 A.D.2d 832 (2d Dept. 1991) (limitation on height of fence in area variance approval held valid because local ordinance provided for such height limits on fences).

9. See, e.g., Town of Huntington v. Sudano, 35 N.Y.2d 796 (1974); Brous v. Planning Board of Village of Southampton, 191 A.D.2d 553 (2d Dept. 1993) (prohibition on second story for existing beach house in application for variance from 100 foot setback requirement held invalid because it did not relate to the purposes of the dune ordinance, i.e., protection of the dunes).

10. 71 N.Y.2d 507 (1988).

11. 692 N.Y.S.2d 286 (2d Dept. 1999).

12. 230 A.D.2d 862 (2d Dept. 1996).

13. 249 A.D.2d 811 (3d Dept. 1998).

14. 144 A.D.2d 807 (3d Dept. 1988).

15. See, also, Proskin v. Donovan, 150 A.D.2d 937 (3d Dept. 1989) (specified type of siding to be used on building held valid to maintain character of neighborhood).

16. 150 A.D.2d 448 (2d Dept. 1989).

17. 211 A.D.2d 23 (3d Dept. 1995).

18. Community Synagogue v. Bates, 1 N.Y.2d 445 (1956).

19. Cornell University, supra, at 594-96.

20. Id. at 595.

John M. Armentano, a partner with the Long Island law firm of Farrell Fritz, P.C., represents local governments and developers in zoning, land use, and environmental matters, including litigation.

This article is reprinted with permission from the March 28, 2001 edition of the New York Law Journal.

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