Cornerstone Bible Church v. City of Hastings

• Decision Date: 01 November 1991
• Docket Number: No. 90-5347,90-5347
• Citation: 948 F.2d 464
• Parties: CORNERSTONE BIBLE CHURCH, James Bzoskie, Appellants, v. CITY OF HASTINGS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 464

948 F.2d 464

CORNERSTONE BIBLE CHURCH, James Bzoskie, Appellants, v. CITY OF HASTINGS, Appellee.

No. 90-5347.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 13, 1991.

Decided Nov. 1, 1991.

Jordan Lorence, Washington, D.C., argued (Cimron Campbell, Mark N. Troobnick and Jane E. Hadro, Washington, D.C., and Wendell R. Bird, Atlanta, Ga., on brief), for appellants.

Barbara J. Hoekstra, Hastings, Minn., argued (James M. Hamilton and George L. May, Hastings, Minn., on brief), for appellee.

Before LAY, Chief Judge, McMILLIAN and ARNOLD, Circuit Judges.

LAY, Chief Judge.

Cornerstone Bible Church (Church) and its pastor, James Bzoskie, appeal the district court's grant of summary judgment in favor of the City of Hastings, Minnesota. The suit arose from enforcement of a zoning ordinance restricting the location of the Church from the town's central business district. Upon review we affirm in part, reverse in part, and remand for trial.

I.

The City of Hastings (City) is the second oldest city in the State of Minnesota. Established along the Mississippi River in 1853, the City's business district developed parallel to the river. Although the City has expanded and now covers more than ten square miles, the riverside business district has been preserved and is a significant business area.

In the mid-1970s the City set out to revitalize its central business district. It developed a Downtown Revitalization Plan designed to preserve and restore the central business district. The goals of the Revitalization Plan are promoted by the City Planning Commission and are enforced under the City's zoning ordinance.

The City zoned its central business district commercial (C-3) with the intent of establishing "a community-regional commerce district ... in recognition of the existing downtown commercial development and of the need for its future expansions, rehabilitation and redevelopment." Hastings, Minn., Zoning Ordinance § 10.17 subd. 1. Permitted land uses in the C-3 zone include commercial establishments, public and semi-public buildings, private clubs, second-floor apartments, parking lots and "[a]ccessory uses incidental to the foregoing principal uses." Id. at subd. 2. Uses allowed under special permit include gas stations, drive-in establishments, creameries and small animal clinics. Section 10.17 does not mention churches. ¹

The Cornerstone Bible Church was organized in Hastings in 1983. The Church first met in Pastor James Bzoskie's home. The congregation quickly outgrew that location and the Church rented space in the local high school. Seeking a permanent home, the Church first purchased property on 10th Street in an industrial zone, making the purchase contingent on City approval of a change in zoning to residential use, which would encompass churches. The City denied the zoning change but the Church went ahead with the purchase.

During this time the Church leased the Caturia Building in the central business district and began conducting church activities there. The City notified the Church that it must discontinue using the Caturia Building for church activities. The Church responded by negotiating to purchase a theatre in the central business district. The Church requested the City to amend the zoning ordinance to allow church activities at the theatre. The City denied the request but gave the Church an extension of time to vacate the Caturia Building.

The Church then proposed yet another location, at 515 East 3rd Street in an area zoned for industrial use. The City gave preliminary approval to a change in zoning for the site but the Church withdrew its request and requested rezoning of its 10th Street property. The City denied the request and continued to press the Church to leave the Caturia Building. The Church then filed this lawsuit.

Although the Church has requested zoning variances or amendments with respect to both industrial and commercial zones, this lawsuit focuses on the City's exclusion of churches from the central business district (C-3) zone. The City Council resolution denying the Church's request to use the Caturia Building expresses the City's rationale for precluding churches from the central business district:

The nature and timing of general church activities is in contrast to the business environment and to the business hours of the downtown. Therefore, no business or retail contribution or activity is generated which is contrary to the intent of the C-3 zone and the goals and objectives of the Downtown Redevelopment Plan and the Hastings Comprehensive Plan.

Hastings City Council Resolution No. 4-87 (Jan. 5, 1987). The City Council also found no need to provide space for churches in the central business district because churches are allowed in the residential zones that comprise forty-five percent of the City. Id.

The Church challenged the City's policy of excluding churches from the central business district as violative of its rights to free speech, freedom of association, free exercise of religion, equal protection and

                due process.   The district court granted summary judgment for the City on all claims
                

II.

A. FREE SPEECH

The Church argues that the City's exclusion of churches from the central business district violates the congregation's rights to free speech. Because the City does not preclude churches entirely, the district court held that the zoning ordinance is properly analyzed as a time, place, and manner restriction. City of Renton v. Playtime Theatres Inc., 475 U.S. 41, 46, 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986). The court then held that the City's policy was a valid time, place, and manner restriction under the test set out in Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).

The City allows churches, and by implication organized religious speech, in residential areas but not in the central business district. ² Although the City's stated objective is to allow uses that generate economic activity, the City has chosen to place determinative weight on the fact that the proposed use is a church. Thus, the religious content of the applicant's speech can determine whether the City permits it to locate in the C-3 zone. ³

The Supreme Court's decisions in Renton and Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988), however, make clear that a restriction of speech should be analyzed as content-based only if the asserted justification for the restriction is content-based. Renton, 475 U.S. at 48, 106 S.Ct. at 929; Boos, 485 U.S. at 320-21, 108 S.Ct. at 1163-64. "Government regulation of expressive activity is content neutral so long as it is 'justified without reference to the content of the regulated speech.' " Ward, 491 U.S. at 791, 109 S.Ct. at 2753-54 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984)). In Renton, the zoning ordinance restricted the location of adult theatres--a content-based restriction--but the City justified its ordinance by asserting that it was concerned only with the secondary effects adult theatres have on the surrounding neighborhood. 475 U.S. at 47, 106 S.Ct. at 928-29. The Court analyzed the Renton ordinance as a time, place, and manner restriction. Id. at 46, 106 S.Ct. at 928.

The City does not attempt to justify its ordinance as a valid effort to circumscribe religious worship. The City claims to be interested only in the secondary effects of the Church on economic vitality in the central business district. Although the Church disputes whether economic vitality is the real objective of the ordinance, the City's assertion of a content-neutral justification is sufficient to render the ordinance subject to time, place, and manner analysis. Id. ⁴

In the present case, the C-3 zoning requirements exclude churches altogether. Thus, we express a lingering doubt as to whether the time, place and manner doctrine applies. However, we construe the overall Hastings zoning ordinance, which makes allowances for churches in residential areas, as simply restrictive and therefore find the time, place, and manner rule applicable. In Renton, adult theatres were not banned altogether but were not allowed "within 1000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school." Id. at 43, 106 S.Ct. 926-27. It was on this basis the Court applied the time, place and manner regulation.

Time, Place and Manner.

A valid time, place, and manner restriction must (1) be narrowly tailored to serve a significant governmental interest, and (2) leave open ample alternative channels for communication of the information. Ward, 491 U.S. at 791, 109 S.Ct. at 2753-54. As the district court observed, zoning in general is a legitimate municipal tool and the City's revitalization plan is unquestionably a permissible municipal objective. See Renton, 475 U.S. at 50, 106 S.Ct. at 930. However, the question whether the ordinance is narrowly tailored requires more particularized scrutiny.

Although the City is not required to show that its ordinance is the least-restrictive means of accomplishing its objective, Ward, 491 U.S. at 798, 109 S.Ct. at 2757, the City "may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Id. at 799, 109 S.Ct. at 2758; see also Renton, 475 U.S. at 51-52, 106 S.Ct. at 931 ("[W]hatever evidence the city relies upon [must be] reasonably believed to be relevant to the problem that the city addresses."). This places the burden on the City to provide some factual support for its claim that exclusion of churches advances its goal of revitalizing the central business district.

The City presented affidavits from two city planners containing little more than conclusory statements that excluding churches from the C-3 zone is consistent with the City's planning process and historical land-use. Church App. at 128-35...