Abram v. City of Fayetteville, 83-183
| Decision Date | 05 December 1983 |
| Docket Number | No. 83-183,83-183 |
| Citation | 661 S.W.2d 371,281 Ark. 63 |
| Parties | , 15 Ed. Law Rep. 409 Julian ABRAM et al., Appellants, v. CITY OF FAYETTEVILLE, Ark., Appellee. |
| Court | Arkansas Supreme Court |
Jones & Segers, Fayetteville, for appellants.
James N. McCord, City Atty., Fayetteville, for appellee.
The issue on appeal is whether either the Free Exercise Clause of the First Amendment or the Religious Liberty Section of the Constitution of Arkansas, or both, authorize a church to operate a parochial school in defiance of a municipal zoning ordinance. The trial court held that the ordinance does not violate the church members' liberty. We affirm. Jurisdiction to decide this constitutional issue is in the Supreme Court. Rule 29(1)(a).
On April 25, 1980, the appellant, the Mission Boulevard Baptist Church, submitted its application for a conditional use permit to authorize the construction of a church on its property, which is located in a R-1, or single family residential, zoning district. On May 12, 1980, the Fayetteville Planning Commission granted appellant church a conditional use permit for the operation of a church. Under the language of the ordinance, both a church and a school are conditional uses in a R-1 district and both must be approved by the planning commission. On May 22, 1980, the city planning administrator, by letter, advised the pastor of appellant church that uses such as kindergarten, nursery school, or grade school had not been approved by the commission and that such uses would require the approval of the planning commission. The building permits issued to appellant each stated: "This is to certify that a building permit is issued for erecting a church ..." and "... not approved for use as a parochial school." The appellant church has not applied for a conditional use permit to construct a school and has not sought approval for the operation of a school.
In September, 1981, appellant opened a school which the trial court found to be "nothing more or less than a school of general curriculum, conducted and taught on a regular hourly and daily basis, comparable in all respects to the public schools." The trial court enjoined appellants from operating a parochial school on the property unless a conditional use permit was obtained from the planning commission.
The appellants contend that the First Amendment to the Constitution of the United States and Article Two, Section Twenty-four, of the Constitution of Arkansas guarantee the right to operate a parochial school as a tenet of religious belief regardless of zoning restrictions. They argue that a parochial school is an integral and inseparable part of the function of a church, and it is not within the province of a municipality to determine the substance of religious activity.
We do not find it necessary to give a complete definition of the word "church." We decide only that "church" in a zoning ordinance connotes its usual and ordinary meaning in light of the entire ordinance and its purposes. The ordinance clearly manifests the city's legislative decision to use different criteria when considering an application for a conditional use permit for a church than when considering such a permit for a school. The ordinance is intended as a land use regulation and the distinction between churches and schools is valid. A school, operating from 8:30 a.m. to 3:15 p.m. each week day, is a more intensive use of land than a church. There is no constitutional prohibition against different requirements for different uses.
The appellants' argument ignores the very real distinction between an infringement upon a religious belief, which is absolutely prohibited, and a limitation upon a religious action, which is subject to reasonable laws...
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