Religious Land Use — Towns Face Tough Fight To Limit Accessory Activities
January 24, 2001
In the early days of zoning law, courts invoked the U.S. Constitution to justify a special status for places of worship in a residentially zoned community. Put simply, places of worship such as a church or synagogue were considered unique contributions to the public welfare and were permitted to override duly enacted zoning ordinances.
In 1990, at the federal level, the playing field was leveled by the U.S. Supreme Court, in Employment Division, Department of Human Resources of Oregon v. Smith. In Smith, the Court held that the compelling interest test no longer applied to the analysis of religious uses vis a vis governmental restrictions. This philosophy was buttressed in 1997 in City of Boerne v. Flores, in which an application to expand a Catholic Church located in a city’s preservation district was held to be subject to the city’s land use preservation laws. Although invited to do so, the Court did not revisit Smith and held that Congress’ attempt to override Smith by statute (the Religious Freedom Restoration Act of 1993) was unconstitutional, thus leaving Smith as the law of the land. The Supreme Court’s Smith and Boerne rulings may affect whether houses of worship are still entitled to a special status, especially with respect to “religious” uses and “accessory” uses.
Certainly, the definition of “religious use,” and whether something is a related “accessory use,” is not always clear in all cases.
On the one hand, courts state that religious usage is not limited only to actual prayer or worship services. On the other hand, the New York Court of Appeals has pointed out that the operation of a country club cannot be considered a valid religious activity.
But a review of New York decisions — all of which were rendered before the Supreme Court’s Smith ruling, a time when the Court gave greater deference to religious uses under the compelling state interest test — demonstrates that courts broadly interpret accessoryuses to an established religious use (usually a house of worship), and that it is difficult to persuade them that a proposed use is improper or that it is more like a “country club” than something appropriate, notwithstanding the Court of Appeals’ statement that “each case ultimately rests upon its own facts.”
This broad interpretation tends to result in a preferred status not only for the religious use but also for the accessory use, which is generally not religious in nature. In other words, if the principal use was as a house of worship, just about any salutary or charitable use was approved as an “accessory use” and permitted irrespective of the zoning.
This is not to suggest, however, that local governments are without power to regulate accessory religious uses. In New York, Article 9 of the Constitution and the other strong powers bestowed on local government tend to nourish local governments’ ability to deal with such uses.
Further, comprehensive planning concepts, and common sense, should operate to assist in the evaluation of the use. In addition, the impact of the Supreme Court’s Smith and Boerne decisions has probably not yet been fully felt at the state level.
Accessory Uses
Courts have upheld a wide variety of accessory uses. For example, in Jewish Reconstructionist Synagogue of North Shore, Inc. v. Incorporated Village of Roslyn Harbor the Court of Appeals ruled that a synagogue had the right to convert a house on property it purchased in the Village of Roslyn Harbor into a residence for its rabbi. In another case, Matter of Community Synagogue, the Court ruled that a permissible accessory use for a church or synagogue included “indoor and outdoor activities” for young people. And in Matter of the Diocese of Rochester v. Planning Bd. of Town of Brighton, the Court found that accessory uses for a church included a school; meeting room; kindergarten; small games, open field, and hard-top play areas; and a parking lot that would accommodate 144 cars.
Courts, indeed, have gone well beyond these kinds of accessory uses. One might suspect that the essence of a religious use is religion, yet Nassau County Supreme Court has held that as a matter of law a synagogue was entitled, as an accessory use, to use classrooms in its building for teaching secular subjects.
Day Care Center Allowed
The same court, in Matter of the Unitarian Universalist Church of Central Nassau v. Shorten, found that a church could operate or permit the operation of a day care center on its property. In its decision, the court rejected the local government’s argument that a day care center was not a religious activity. Without any analysis, it simply concluded in the broadest language that operation of a day care center is “well within the ambit of religious activity.”
Indeed, the court went even further in Slevin v. Long Island Jewish Medical Center when it ruled that an accessory use to a church included operating, in cooperation with a hospital, a drug rehabilitation center on the church’s property — without requiring that the church demonstrate how many of the participants in the center, if any, were church members and with the court’s understanding that only a small portion of the participants were community residents.
Observing that the term “religious use” was defined broadly for zoning purposes, the court’s decision quoted a Long Island clergyman to the effect that the drug center program was “a specific effort to be obedient to Christ’s command to heal.” The court also quoted Pope Paul VI as saying that priests must approach drug addicts, “particularly young ones, attempting to restore to them, with God’s help, free and responsible self-control.” After referring to a statement by then-President Richard Nixon that “[i]n the final analysis, if there is an answer to the drug problem [the clergymen] have it,” the court held that the drug center was a religious use of the church property and a valid extension of the religious institution for zoning purposes.
A more recent ruling (but still during the pre-Smith era), Greentree at Murray Hill Condo v. Good Shepherd Episcopal Church, upheld efforts of a New York City church to operate a homeless shelter. The court noted that it has long been held that a church or synagogue may be used for accessory uses and activities that go beyond just prayer and worship. Referring to a variety of court rulings that have found various uses to be accessory uses for a church or synagogue, it then simply stated, “it is clear that the [c]hurch’s temporary homeless shelter sanctuary program is, as a matter of law, a permissible ‘accessory use’ of the [c]hurch which is a protected activity under . . . the New York City Zoning Resolution and under the [c]hurch’s current certificate of occupancy.”
Lot And Other Limitations
There are some arguments that courts have accepted to bar a proposed accessory religious use. For one thing, local governments may be able to prevent establishment of a proposed religious use that is an accessory use if it is not confined to the same lot on which the principal use is located, or at least situated on contiguous lots such that the principal and accessory structures form a “unified facility.”
A case decided in 1983 by the Monroe County Supreme Court is significant in this area./18 In that case, Bright Horizon House, Inc., a not-for-profit corporation based in the Rochester area, purchased an 11-acre parcel of land and sought permission to construct a Christian Science-accredited care facility. The proposed facility would have had 32-fee paying residents occupying separate rooms and would have been staffed by accredited Christian Science nurses and practitioners. The local zoning board of appeals refused to grant a variance and Bright Horizon went to court.
In its decision, the court noted that the town code defined an accessory use or structure as one “customarily incidental and subordinate to the principal use or building and located on the same lot with such principal use or building.” In this case, the court emphasized, not only was the property on which Bright Horizons sought to place the facility physically separated from the local Christian Science Church, which was located across the street, but Bright Horizon was a separate organization “in no way affiliated with the church or its activities.”
It should be noted that the court also raised two other interesting points. First, it noted that certain uses ordinarily prohibited in a residential neighborhoods, such as a slaughter house, could not invoke the First Amendment simply because the use is associated with deeply held religious beliefs.
Second, it suggested that religious uses still would be subject to zoning ordinances of general applicability (a preview of Smith), noting that “zoning ordinances would still govern hospitals established and operated by the Jehovah’s Witnesses or a Catholic order, even if the former’s hospital barred blood transfusions and the latter’s prohibited permissive abortions. Such adherence to religious principles would not of itself transform healing institutions into religious ones and thereby require constitutional rights to override zoning ordinances.”
A different basis for limiting an accessory religious use was recognized in Slevin. The court first granted partial summary judgment to the extent of deeming a drug rehabilitation center to be a religious use. It declined, however, to permit the center to go forward without a hearing as to whether it presented such a danger to the public health and safety to the community as would require its discontinuance.
The court stated that where a religious use may be so fraught with danger or peril to the community because of the particular use sought, the detriment to the community can outweigh the religious consideration. For instance, the court continued, “dynamite or contagion carry different weights than nuisance or financial loss.” The net result, the court concluded, was that although religious uses could not be excluded, the religious uses “are nonetheless subject to reasonable regulation weighed in relation to the total safety, health and morals of the community.”
Conclusion
As a general matter, people are accustomed to the traditional religious use: a place of worship. As the law has developed, the consequences of permitting the original use will require the acceptance of other uses that do not involve the right to worship but that are judicially declared appendages to a religious use. With the growing use of comprehensive plans and planned districts, the expanded (and expanding) concept of accessory religious uses is causing greater and greater consternation. The entire area deserves careful study, with the competing values on both sides of the issue carefully considered. To permit one side of the equation to be significantly out of balance, as currently appears to be the case, may only lead to the destruction of the salutary portions of the concept.
NOTES: 1. See, e.g., Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508 (1956).
2. 494 U.S. 872 (1990).
3. 521 U.S. 507 (1997).
4. Boerne stated that “Smith held that neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest.” Id.
5. Matter of Community Synagogue, supra at 453.
6. Id.
7. 38 N.Y.2d 283 (1975).
8. Supra.
9. 1 N.Y.2d 508 (1956).
10. Westbury Hebrew Congregation, Inc. v. Downer, 59 Misc.2d 387 (Sup.Ct. Nassau Co. 1969).
11. 314 N.Y.S.2d 66 (Sup.Ct. Nassau Co. 1970).
12. 319 N.Y.S.2d 937 (Sup.Ct. Nassau Co. 1971).
13. 550 N.Y.S.2d 981 (Sup. Ct. N.Y. Co. 1989).
14. The decision opened with a citation to Luke 2:7, “[T]here was no room for them in the inn.” One paragraph later, it quoted Genesis 4:9, “Am I my brother’s keeper?”
15. Id., at 986 (emphasis supplied); see, also, In re Garden City Jewish Center, 157 N.Y.S.2d 435 (Sup. Ct. Nassau Co. 1956) (meetings of Boy Scouts and Girl Scouts); In re Faith For Today v. Murdock, 204 N.Y.S.2d 751 (2d Dept. 1960), aff’d, 9 N.Y.2d 761 (1961) (religious correspondence school, including necessary mailing machinery).
16. See, e.g., Sinon v. Zoning Bd. of Appeals of Town of Shelter Island, 497 N.Y.S.2d 952 (2d Dept. 1986); Bright Horizon House, Inc. v. Zoning Bd. of Appeals of Town of Henrietta, Monroe County, 469 N.Y.S.2d 851(Sup.Ct. Monroe Co. 1983).
17. De Mott v. Notey, 3 N.Y.2d 116 (1957).
18.
19. Supra.
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 January 24, 2001 edition of the New York Law Journal.
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