Boyajian v. Gatzunis

• Decision Date: 03 January 2000
• Docket Number: No. 99-1760,99-1760
• Citation: 212 F.3d 1
• Parties: (1st Cir. 2000) MARGARET BOYAJIAN, CHARLES COUNSELMAN AND JEAN DICKINSON, Plaintiffs, Appellants, v. THOMAS GATZUNIS, BUILDING INSPECTOR OF THE TOWN OF BELMONT; JOHN W. GAHAN III; AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; WILLIAM D. CHIN, AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; THOMAS P. CALLAHAN, JR., AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; CARLO TAGARIELLO, AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; ANTHONY LECCESE, AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; JAMES D. HARRINGTON, AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; CHARLES H. REARDON, AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; KARL TOBIASON, AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF LATTER DAY SAINTS; Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

212 F.3d 1 (1st Cir. 2000)

MARGARET BOYAJIAN, CHARLES COUNSELMAN AND JEAN DICKINSON, Plaintiffs, Appellants, v.THOMAS GATZUNIS, BUILDING INSPECTOR OF THE TOWN OF BELMONT; JOHN W. GAHAN III; AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; WILLIAM D. CHIN, AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; THOMAS P. CALLAHAN, JR., AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; CARLO TAGARIELLO, AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; ANTHONY LECCESE, AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; JAMES D. HARRINGTON, AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; CHARLES H. REARDON, AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; KARL TOBIASON, AS MEMBER OF THE ZONING BOARD OF APPEALS OF THE TOWN OF BELMONT; CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF LATTER DAY SAINTS; Defendants, Appellees.

No. 99-1760

United States Court of Appeals For the First Circuit

Heard January 3, 2000

Decided May 2, 2000

G. Michael Peirce, with whom Mofenson & Nicoletti, Mark A. White, R. Keith Partlow and O'Brien, Partlow & White, P.C. were on brief, for appellants.

Paul Killeen, with whom Edward J. Naughton, Daniel K. Hamptonand Holland & Knight LLP were on brief, for appellee Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints.

David C. Hawkins and Morrissey & Hawkins for appelleeTown of Belmont.

Thomas F. Reilly, Attorney General of Massachusetts andLaDonna J. Hatton, Assistant Attorney General, on brief for Commonwealth of Massachusetts, amicus curiae.

James O. Fleckner, Mark A. Michelson, P.C. and Choate, Hall & Stewart on brief for American Jewish Congress, amicus curiae.

Wilson D. Rogers, Jr., Law Offices of Wilson D. Rogers, Jr., P.C., Frederic J. Torphy, James F. Cosgrove, Cosgrove, O'Connell & Blatt John J.Egan, Egan, Flanagan & Cohen, P.C. and Gerald D'Avolio on brief for the Roman Catholic Archbishop of Boston, the Roman Catholic Bishop of Fall River, the Roman Catholic Bishop of Worcester, the Roman Catholic Bishop of Springfield and the Massachusetts Catholic Conference, amici curiae.

Gerald J. Caruso, Ferriter Scobbo Caruso & Rodophele PC,DevraaG.Bailin and Urbelis, Fieldsteel & Bailin LLP on brief for American Baptist Churches of Massachusetts, American Baptist Churches in the USA, Baptist General Conference, Baptist Joint Committee, Evangelical Covenant Church, Evangelical Lutheran Church in America, General Conference of Seventh-Day Adventists, General Counsel on Finance and Administration of the United Methodist Church, Presbyterian Church (U.S.A.), Reorganized Church of Jesus Christ of Latter Day Saints, United House of Prayer for all People of the Church on the Rock of the Apostolic Faith, Worldwide Church of God and the First Church of Christ, Scientist, amici curiae.

Before: Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.

COFFIN, Senior Circuit Judge.

This case involves a constitutional challenge under the Establishment Clause of the First Amendment to a state law and a town ordinance that prohibit municipal authorities from excluding religious uses of property from any zoning area.It is brought by a group of residents of Belmont, Massachusetts, against Belmont officials and the Church of Jesus Christ of Latter-Day Saints, challenging the construction of a large temple on the edge of a residential district in the town.The district court upheld both provisions of law granting summary judgment for defendants and allowing construction to proceed.We affirm.

I.Background

The essential facts of this case are undisputed and were submitted to the district court with cross-motions for summary judgment.We draw our summary primarily from the district court's opinion, supplementing with details from the decision of the Belmont Zoning Board of Appeals and other pertinent record materials.

Defendant Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints (the "Church" or "LDS") acquired an 8.9-acre parcel of land in the Town of Belmont in 1979.It constructed a meeting house on the property, which is located entirely in a single residential district, and has conducted religious services there since the mid-1980s.

The Church later decided to build a temple on the site.An LDS temple is a large facility, of which there are fewer than 100 worldwide, that is used solely for the Church's most sacred ceremonies.Although Belmont's zoning by-law permits religious uses as of right in residential districts, seeBy-law§ 3.3, the Church filed an application for a special permit, as required, because it sought to exceed the allowable height limit.

After a series of public hearings in which opponents raised a variety of concerns, the Zoning Board of Appeals in 1997 approved the special permit.The Church voluntarily made numerous design changes in response to neighborhood concerns and obtained unanimous approval of its new design from the Board before it began construction.The final plans call for the temple to occupy some 69,000 square feet and to include one 139-foot-tall spire and several smaller towers.¹The temple will be set back from abutters by at least 165 feet, and in most locations more than that, although plaintiffs are quick to point out that the setback will consist largely of a parking lot for over two hundred vehicles.

The Belmont by-law allowing religious uses by right in the residential zone where the Church's property is located is in accordance with Mass. Gen. Laws ch. 40A, § 3, known as the "Dover Amendment."That law provides, in part, that a zoning regulation may not restrict the use of land for religious or educational purposes when the property is owned by the Commonwealth, a religious organization, or a nonprofit educational corporation, except that "reasonable regulations" are permitted concerning such characteristics as the bulk and height of structures, open space, and parking.

Plaintiffs brought this suit challenging both Belmont's by-law and the Dover Amendment, claiming that they violate the Establishment Clause of the First Amendment by favoring religious uses of property without a secular purpose.The district court granted summary judgment for the defendants in May 1999, finding that neither of the laws constitutes an impermissible "establishment" of religion.Plaintiffs then filed this timely appeal.

II.Discussion

The First Amendment to the United States Constitution states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," a proscription that has been extended to the States by virtue of the Fourteenth Amendment.As the Supreme Court long has recognized, "tension inevitably exists between the Free Exercise and the Establishment Clauses,"Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788(1973)(citingEverson v. Board of Educ., 330 U.S. 1(1947)andWalz v. Tax Comm'n of City of New York, 397 U.S. 664(1970)), and the Court has "struggled to find a neutral course between [them],"Walz, 397 U.S. at 668.While the Free Exercise Clause admonishes the government against impinging on the religious beliefs and expression of its citizens, the Establishment Clause cautions that the government may not adopt the cause of religion as its own.The Seventh Circuit has noted the challenge of reconciling the two Religion Clauses:

The juxtaposition of the two clauses, and the internal tension they create, makes total separation between religion and government impossible.Lynch [v. Donnelly, 465 U.S. 668, 673(1984)];Lemon [v. Kurtzman, 403 U.S. 602, 614(1971)].Indeed, "[i]t has never been thought either possible or desirable to enforce a regime of total separation" between religion and government.[Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 760(1973).]Thus the Court has recognized that the First Amendment "affirmatively mandates accommodation,"Lynch, 465 U.S. at 673, and "that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause."Hobbie v. Unemployment Appeals Comm. of Florida, 480 U.S. 136, 144-45(1987)(footnote omitted).

Cohen v. City of Des Plaines, 8 F.3d 484, 491(7th Cir.1993);seeCorporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334(1987)(quotingHobbie, 480 U.S. at 144-45);Zorach v. Clauson, 343 U.S. 306, 312(1952)("The First Amendment . . . does not say that in every and all respects there shall be a separation of Church and State.").Our task in navigating the course between the opposing mandates of the Religion Clauses is thus to strike that appropriate balance referred to by the Court as a "benevolent neutrality,"Walz, 397 U.S. at 669;see alsoAmos, 483 U.S. at 334.

As a practical framework for analysis in cases such as this, the Supreme Court has adopted the three-part test articulated inLemon v. Kurtzman, 403 U.S. 602, 612-13(1971), which states that a law does not violate the Establishment Clause if (1) it has a secular legislative purpose, (2) its principal or primary effect neither advances nor inhibits religion, and (3)the statute does not foster excessive government entanglement with religion.See,e.g., Amos, 483 U.S. at 335-39;Rojas v. Fitch, 127 F.3d 184, 187(lst Cir. 1997).The parties generally agree that the third requirement is satisfied in this case, so we will focus, as the parties have done, on the purpose and effects inquiries.Because the statestatute(the Dover Amendment) effectively requires municipalities to enact by-laws like that adopted by Belmont, our conclusion that the Dover Amendment is constitutionally permissible largely resolves the lawfulness of the ordinance as well.We therefore discuss the ordinance only briefly...