Burlington Assembly of God Church v. Zoning Bd. of Adjustment Tp. of Florence

• Decision Date: 25 April 1989
• Citation: 570 A.2d 495,238 N.J.Super. 634
• Parties: BURLINGTON ASSEMBLY OF GOD CHURCH, Plaintiff, v. ZONING BOARD OF ADJUSTMENT TOWNSHIP OF FLORENCE and Township of Florence, Defendants.
• Court: New Jersey Superior Court

Page 634

238 N.J.Super. 634

570 A.2d 495

BURLINGTON ASSEMBLY OF GOD CHURCH, Plaintiff, v. ZONING BOARD OF ADJUSTMENT TOWNSHIP OF FLORENCE and Township of Florence, Defendants.

Superior Court of New Jersey, Law Division Burlington County.

Decided April 25, 1989.

Frederick W. Hardt, Moorestown, for plaintiff.

Arthur L. Shanker, Atlantic City, for defendant Board of Adjustment (Weiner, Ostrager, Fieldman & Zucker, Moorestown, attorneys).

Michael S. DiCroce, Westmont, for defendant Tp. of Florence (Slimm, Dash & Goldberg, Westmont, attorneys).

HAINES, A.J.S.C.

The Assembly of God Church ("church") owns 106 acres of land in Florence Township, Burlington County, upon which it operates, as permitted zoning uses, a church, a school with 300 students and housing for a fleet of 35 buses. It wishes to operate a radio station on the property which will broadcast church, school and public interest programs, the latter being overseen by a panel of local citizens. The station, which requires the construction of two antenna towers on the school property 184 feet in height, will be located in the school building. The towers cannot be constructed without a zoning variance, applications for which were denied by the local board of adjustment and then granted by this court in an earlier decision.

The court's reversal did not end the litigation. Damage claims, based upon the federal Civil Rights Act, 42 U.S.C.A. § 1983, remain for resolution. These claims rest upon the allegation that the township's zoning ordinance and the board of adjustment's refusal to grant a variance denied the church's constitutional rights to freedom of religion and freedom of speech. The board now moves for partial summary judgment dismissing the church's civil rights claims and the church, by cross-motion, seeks summary judgments against the board and the township establishing liability of both with respect to the civil rights claims. This opinion concludes that the board's motion must be denied and the cross-motion of the church granted.

A. Freedom of Religion.

(1) Immunity.

The board first argues that it has immunity from damage liability because it was acting judicially in deciding the variance issue. This argument, if directed to the members of the board, would be correct. However, the board itself is not immune. T & M Homes, Inc. v. Twp. of Mansfield, 162 N.J.Super. 497, 393 A.2d 613 (Law Div.1978); Centennial Land & Dev. Co. v. Twp. of Medford, 165 N.J.Super. 220, 397 A.2d 1136 (Law Div.1979). Nor is the Township of Florence immune. Municipalities have no immunity in a suit for damages under the Civil Rights Act. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). It is clear that if the "custom and practice" of the community, as reflected in the township's ordinance and the decisions of the board, violate the church's constitutionally protected rights, both board and township are liable for damages.

(2) Religious Uses and the First Amendment.

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." The New Jersey Constitution (1947), Art. 1 par. 3, provides the same protection.

The question here is whether the proposed radio station constitutes a religious use with which the municipality, in the adoption of its zoning ordinance and the board of adjustment in its implementation of that ordinance, cannot interfere. Religious uses are broadly defined. Thus, 2 Anderson, American Law of Zoning (3 ed. 1986), § 12.29 says:

The limitations on municipal power to regulate ... [the religious] aspects of community life are severe. The courts react sharply when municipal governments move to curb religious activity; the ends of municipal zoning regulation seldom are considered important enough to justify restrictions which cripple or even seriously inconvenience a religious institution. [Id. at 558] Other commentaries broaden the theme. In 2 Rathkopf, The Law of Zoning and Planning (4 ed. 1988), § 20.03, the following appears:

It has previously been commented upon that the concept of what constitutes a Church has changed from a place of worship alone, used once or twice a week, to a Church used during the entire week, nights as well as days, for various parochial and community functions. It seldom consists of one building, but where it does, the building is itself of sufficient size to accommodate all of its various activities. The question arises as to the extent to which the additional activities are covered by the cloak of immunity which traditionally has been extended to the Church.

The language of the courts in several cases indicates that it is difficult to find an activity which, if sponsored by the Church, would not share the immunity. [Id. at 20-53]

1 Rohan, Zoning and Land Use Controls (1986) 3.05 suggests the following test:

The right of a community to impose appropriate and reasonable restrictions upon the use of property for religious purposes does not allow it to adopt regulations unrelated to the public welfare, which in effect exclude a proposed religious use from a residential district. The denial of a request for permission to erect a house of worship must be supported by evidence that such denial bears a real and substantial relationship to the community's public welfare and is not an arbitrary or unreasonable restriction. The preferred status of a religious institution will be disregarded, however, where the court is convinced that a proposed use will increase community hazards to the point of real personal danger. [Id. at 3-232-233]

The New Jersey courts have not decided whether a radio station, operated by a church on church property in furtherance of its own religious purposes, can be prevented from doing so by a zoning regulation. Nevertheless, our courts have provided broad support for the constitutional guarantees of religious freedom, sometimes in a zoning context. Thus in N.J. Bd. of Higher Ed. v. Shelton College, 90 N.J. 470, 448 A.2d 988 (1982), the Court said:

The First Amendment guarantee of religious freedom protects against more than direct State proscription of religious practices. Any State action that unduly burdens the free exercise of religion violates the First Amendment. [at 482; citations omitted]

Farhi v. Deal Boro. Comm'rs., 204 N.J.Super. 575, 499 A.2d 559 (Law Div.1985), held that a municipal zoning ordinance which prevented the gathering of religious worshipers in a private residence was an unconstitutional denial of the free exercise of religion. In St. John's Evangelical Lutheran Church v. Hoboken, 195 N.J.Super. 414, 479 A.2d 935 (Law Div.1983), the court held that a shelter for homeless people, operated by a church on its own property, was a "religious use" with which the municipal zoning ordinance could not interfere. The court said:

Regardless of how the City's zoning ordinance is construed, a municipality may not exercise its zoning power in violation of the fundamental tenets of the First Amendment. Government is precluded under the First Amendment from "prohibiting the free exercise" of religion.

....

Under the First Amendment government must be neutral toward religion. Government may breach that neutrality if it denies or unreasonably limits the religious use of land. It is indeed late in the day for government to interfere with religion. Pilgrims and others who fled to this country in order to pursue their religious beliefs where and how they wished, undoubtedly thought they had ended government intrusion on religious liberty. [at 419, 479 A.2d 935; citations omitted]

Justice Clifford, dissenting in State v. Cameron, 100 N.J. 586, 498 A.2d 1217 (1985), a case involving interference through zoning with the use of a house for religious purposes, stated his view of the First Amendment very clearly:

... [O]ne must recognize that the power to affect, through zoning, religious activity in a residential area surely has its limits. Like any other aspect of the police power, the zoning authority must be exercised for the general welfare of the community, and "must be exercised within constitutional limits." Moreover, courts have held that religious activity itself is in furtherance of public morals and the general welfare, and that religious institutions enjoy a highly-favored and protected status, which severely curtails the permissible extent of governmental regulation in this area....

The free-exercise clauses of United States and New Jersey Constitutions extend to all lawful conduct founded in religious belief. Deprivation of the protections afforded thereby requires the State to demonstrate some "overriding governmental interest", that justifies the "substantial infringement of appellant's First Amendment right" and to show that "no alternative forms of regulation would combat such abuses without infringing First Amendment rights." [at 606-607; citations and footnote omitted]

Numerous cases in foreign jurisdictions have considered the definition of religious use in a zoning context. Matter of Faith For Today, 11 A.D.2d 718, 204 N.Y.S.2d 751 (1960), aff'd 9 N.Y.2d 761, 215 N.Y.S.2d 70, 174 N.E.2d 743 (1961), considered an issue closely comparable to the one addressed here. The New York court held that the production of television programs for the propagation of the gospel could not be prohibited by a zoning regulation. Uses recognized as religious in other cases are illustrative: education for children of church members, Catholic Bishop of Chicago v. Kingery, 371 Ill. 257, 20 N.E.2d 583 (1939); a school, Concord v. New Testament Baptist Church, 118 N.H. 56, 382 A.2d 377 (Sup.Ct.1978); a day care center, Unitarian Universalist Church v. Shorten, 63 Misc.2d 978, 314 N.Y.S.2d 66 (Sup.Ct.1970); a center for the performing arts, Shore Hebrew Academy v. Wegman, 105 App.Div.2d 702, 481 N.Y.S.2d 142 (1984); a home for developmentally disabled persons, Diocese...