Church of Christ in Indianapolis v. Metropolitan Bd. of Zoning Appeals of Marion County (Division I)
| Decision Date | 24 January 1978 |
| Docket Number | No. 2-776A261,2-776A261 |
| Citation | 175 Ind.App. 346,371 N.E.2d 1331 |
| Parties | The CHURCH OF CHRIST IN INDIANAPOLIS and Robert Morse, Appellants (Petitioners below), v. The METROPOLITAN BOARD OF ZONING APPEALS OF MARION COUNTY (DIVISION I), Reverend James E. King, Mrs. Patricia Miller, Mrs. Douglas Horth, Frank J. Russell, W. James Wood, as Members of Respondent, Board of Zoning Appeals, the Consolidated City of Indianapolis, against and through its Department of Metropolitan Development, Division of Planning & Zoning, and F. Ross Vogelgesang, its Administrator, the Consolidated City of Indianapolis, against and through its Department of Metropolitan Development, Division of Code Enforcement, and James Crawford, Jr., its Director, Robert H. Kern and Marjorie Kern, Appellees (Respondents below). |
| Court | Indiana Appellate Court |
Larry F. Whitman, David F. Rees, Frank E. Spencer, Indianapolis, for appellees.
The Church of Christ in Indianapolis (the Church) and Robert Morse (Morse) appeal a judgment affirming a decision of the Metropolitan Board of Zoning Appeals, Division I (the Board) upholding determinations by the Division of Planning and Zoning, Department of Metropolitan Development of the City of Indianapolis (Metro) denying the Church and Morse the right to locate and operate a church within a residentially zoned area.
We reverse.
The facts most favorable to the judgment of the trial court are:
On May 16, 1975, the Church purchased by contract property consisting of land and a residence located at 2015 North Graham Avenue in the City of Indianapolis. The land so purchased was zoned "D-5". 1
Land within the D-5 classification is to be used for residential purposes only. It is "permissive", only permitting those usages which are specifically enumerated within the designation itself. They are:
one family dwellings
two family dwellings if the land is located upon a corner lot
certain listed temporary uses
The classification does not list churches.
In June of 1975, the Church and Morse applied for, and received, permits from Metro allowing them to modify the structure located on the property. They began using the structure for religious purposes shortly after receipt of this permit.
On July 15, 1975, a Notice of Zoning Violation was issued to Sena Daniel, the contract seller, as the record owner of the property, and delivered to the premises by the Indianapolis Division of Code Enforcement, another division of the Department of Metropolitan Development. The violation charged was the usage of the property for church purposes which, according to the notice, was an activity contrary to the purposes permitted by the D-5 zoning classification.
In August, 1975, the Church applied for an Improvement Location Permit from the Division of Planning and Zoning (Zoning). The permit requested permission for the construction of six off-street parking spaces with ultimate increase in the number of such spaces to twenty. The permit was denied because the D-5 classification did not permit churches within an area so zoned.
The Church then filed an administrative appeal with the Board. In upholding the legality of the actions of Metro, the Board specifically found that the primary use of the property zoned D-5 as a church was in violation of the zoning ordinance. 2
The Church, by writ of certiorari, sought review by the Marion Circuit Court. In affirming the determinations of the Board & Metro, the Circuit Court stated in part:
7. The subject real estate is zoned D-5 by the zoning ordinance of Indianapolis and Marion County and, because of such classification, may not be used as a church unless such zoning classification is changed or real estate zoning variance is granted upon a proper showing and upon compliance with proper and appropriate standards.
8. The decision of the Metropolitan Board of Zoning Appeals affirming the decisions of the administrators of planning and zoning and code enforcement was not arbitrary or capricious nor did such decision or the prior decision of the administrators of the divisions of planning and zoning or code enforcement amount to a denial of constitutional rights under either the Constitution of the United States of America or the Constitution of the State of Indiana.
This appeal followed.
A sole issue is presented: 3
Has the Church been unconstitutionally excluded from a residential area?
PARTIES' CONTENTIONS The Church's position is that notice of the zoning "violation" and the subsequent denial of an improvement location permit to establish parking spaces for a church in a residentially zoned area is illegal because churches cannot be excluded from areas so zoned.
The City responds that, while the zoning ordinance in question does prohibit the establishment of a church in the area this, in itself, is not illegal because the zoning ordinance precludes only the primary usage of the property for church purposes. This, argues the City, does not preclude persons from meeting for religious purposes in a residential structure. The City further argues that provisions exist for variances and re-zoning, and that the Church was required to avail themselves of these provisions.
CONCLUSION The exclusion of a Church from a residential area by a zoning ordinance is a violation of the fundamental right of freedom of worship protected by the first and fourteenth amendments to the U.S. Constitution and Article One of the Indiana Constitution.
Denial by the City of Indianapolis of the use of this residential property for religious purposes presents the classic confrontation between exercise of the police power 4 and a fundamental constitutional right. If the citizen fails to heed Wendell Phillip's admonition that "Eternal vigilance is the price of liberty", encroaching government may devour that fundamental right (and what is more fundamental than freedom of religion, which is a vital part of freedom of thought?). Wittingly or unwittingly the City of Indianapolis has been guilty of such an encroachment.
Despite the fact that as long ago as 1954 the Supreme Court firmly embraced the principle that the building of a church may not be prohibited in a residential district, the City of Indianapolis deleted churches from its Zoning Ordinance "U-1" residential classification when the present "D-5" residential classification was adopted in 1966. See Board of Zoning Appeal of Decatur v. Decatur Indiana County of Jehovah's Witnesses (1954), 233 Ind. 83, 117 N.E.2d 115.
It did so in face of general acceptance of the rule that churches are proper in residential districts. 3 Yokely, Zoning Law and Practice § 38-14, and cases collected therein (1955). Early and modern case law alike has not countenanced the exclusion of churches from residential districts, even though inconveniences may be caused by influx into a neighborhood of vehicular or pedestrian traffic. Evidence of the strength of the rule allowing churches in residential areas is shown by two Indiana cases which include as a part of the church use, accessory areas and buildings. Keeling v. Board of Zoning Appeals (1946), 117 Ind.App. 314, 69 N.E.2d 613 (); and Board of Zoning Appeals v. Wheaton (1948), 118 Ind.App. 38, 76 N.E.2d 597 ().
While zoning prohibitions against religious use of property in residential areas violates fundamental rights of freedom of worship and assembly, our Supreme Court in Board of Zoning Appeals of Meridian Hills v. Schulte (1961), 241 Ind. 339, 172 N.E.2d 39, recognized that there is a way to legally exclude churches:
It is also true that churches are subject to such reasonable regulations as may be necessary to promote the "public health, safety, or general welfare." Cantwell v. Connecticut (1940) 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; West Virginia State Board of Education v. Barnette (1943), 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628; Commonwealth of Massachusetts v. Prince (1943), 313 Mass. 223, 46 N.E.2d 755. A municipality may, for example, establish to the extent that it is reasonable to do so, set-back lines. Jehovah's Witnesses, supra ; 1 Yokely § 164; 82 Am.Jur.2d, Zoning & Practice, § 155, p. 641.
Reasonable restrictions, however, are not tantamount to exclusion. They do not prevent the use, they merely conform it to the needs of modern city living spelled out in a master zoning plan, and they must be justified by a showing that the restriction is exercised "in the general public interest of safety, health and morals." Schulte, supra.
While the specific holding in Jehovah's Witnesses was that enforcement of a setback requirement was not unconstitutional, the basic premise for that holding was:
"(f)reedom of worship is a fundamental right protected by the Fourteenth Amendment of the United States Constitution from invasion by state action" and "(t)he law is well settled that the building of a church may not be prohibited in a residential district." 117 N.E.2d at 118, 119. 5
If it were necessary, Schulte, supra is an even more direct precedent for our conclusion that churches may not be excluded from residential areas. Schulte followed the rationale of Jehovah's Witnesses and cited with approval Keeling and Wheaton, and the statement in Yokely, that the ...
To continue reading
Request your trial
-
State v. Cameron
... ... Superior Court of New Jersey, Law Division, ... Somerset County ... Decided Feb. 9, ... a municipality, in the exercise of its zoning power, may exclude places of worship from zones ... , a Presbyter of the Reformed Episcopal Church, lives in a single-family home located in a zone ... See, e.g., Church of Christ v. Metropolitan Board of Zoning, 371 N.E.2d 1331 ... Zoning Board of Appeals, 50 Ill.App.3d 924, 8 Ill.Dec. 919, 365 N.E.2d ... ...
-
Grace Community Church v. Planning and Zoning Com'n of Town of Bethel
... ... Paul, Inc. v. Zoning Board of Appeals, 17 Conn.App. 53, 56, 549 A.2d [42 Conn.Supp ... 275] zone); Church of Christ v. Metropolitan Board of Zoning Appeals, 175 ... , 184 A.2d 42; Church of Christ in Indianapolis v. Metropolitan Board of Zoning Appeals, supra, ... Family Christian Fellowship v. County of Winnebago, 151 Ill.App.3d 616, 104 Ill.Dec ... ...
-
City Chapel Evangelical Free Inc. v. CITY OF SOUTH BEND, DEPT. OF …
... ... INC., a/k/a City Chapel Evangelical Free Church, Defendant-Appellant, ... CITY OF SOUTH BEND, ... Fifteen years earlier, our Court of Appeals had similarly observed that "churches are subject ... not tantamount to exclusion." Church of Christ v. Metropolitan Bd. of Zoning App., 175 Ind ... Denial by the City of Indianapolis of the use of this residential property for ... , Robert Dale Owen, a delegate from Posey County, asserted: ... No legislature could ever refuse ... ...
-
Jehovah's Witnesses Assembly Hall of Southern New Jersey v. Woolwich Tp.
... ... Superior Court of New Jersey, Law Division, ... Gloucester County ... Decided April 20, ... and State Constitutions, the change in zoning is an unlawful prohibition of free exercise of ... can constitutionally exclude a church or house of worship from a residential district ... Indiana--Board of Zoning Appeals v. Decatur Company of Jehovah's Witnesses, 233 ... Indiana--Church of Christ v. Metropolitan Board of Zoning Appeals etc., 175 ... ...
-
Establishing a buffer zone: the proper balance between the First Amendment religion clauses in the context of neutral zoning regulations.
...No. 87101, 2001 WL 290835 (Ill. Mar. 22, 2001) (unofficial disposition); Church of Christ v. Marion County Metro. Bd. of Zoning Appeals, 371 N.E.2d 1331 (Ind. Ct. App. 1978) (favoring religious purposes in zoning); Mooney v. Vill. of Orchard Lake, 53 N.W.2d 308, 309 (Mich. 1952); Chaminade ......