City of Concord v. New Testament Baptist Church

• Citation: 382 A.2d 377,118 N.H. 56
• Decision Date: 23 January 1978
• Docket Number: No. 7933,7933
• Parties: CITY OF CONCORD v. NEW TESTAMENT BAPTIST CHURCH, Heritage Christian School, Roy A. Forrest& Larry L. Thompson. New Testament Baptist Church, Heritage Christian School v. City of Concord.
• Court: New Hampshire Supreme Court

Page 377

382 A.2d 377

118 N.H. 56

CITY OF CONCORD v. NEW TESTAMENT BAPTIST CHURCH, Heritage Christian School, Roy A. Forrest& Larry L. Thompson.

New Testament Baptist Church, Heritage Christian School v. City of Concord.

No. 7933.

Supreme Court of New Hampshire.

Jan. 23, 1978.

Gibbs, Craze & Thompson, Parma Heights, Ohio (David C. Gibbs, Jr., Parma Heights, Ohio, orally), and McSwiney, Jones & Semple, Concord, for the New Testament Baptist Church.

Paul F. Cavanaugh, City Sol., by brief and orally for the city of Concord.

DOUGLAS, Justice.

The issue in this zoning case is whether a five-day-a-week school run by a fundamentalist church is a facility "usually connected with a church." We hold that it is.

In June of 1971 the Reverend Roy Forrest founded the New Testament Baptist Church in Concord, eventually locating it at 4 Union Street. In 1976 a building at 8 Union Street, separated from the church by one nonowed property, was purchased. The members of the church consider themselves "born-again Christians" and constitute one of about 3,000 congregations of Independent Baptist churches across the nation. The tenets of faith and beliefs of the members of the New Testament Baptist Church require as a convictional matter that their children receive a Bible-oriented education every day of the week, not just on sunday morning. Accordingly in 1976 the Heritage Christian School, as part of the ministry of the church, adopted the Accelerated Christian Education curriculum and provided education in lieu of public school for grades kindergarten through twelve.

Upon the suggestion of city officials, Reverend Forrest on August 3, 1976, filed an application for a special exception with the Zoning Board of Adjustment for the city of Concord, to operate a "private school." The application indicated that the purpose of the request was that "the church is extending its teaching ministry . . . from only on Sunday to . . . during the entire week." The board heard and denied the application on August 11. A rehearing was denied, but the school opened on September 5 without city approval. State authorization as a private school had been obtained, and State agencies had certified compliance with fire and health laws.

The congregation believed that as a matter of conviction, not just convenience, the school must open despite lack of approval from all civil authorities. See Wisconsin v. Yoder, 406 U.S. 205, 215-19, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); State v. Whisner, 47 Ohio St.2d 181, 199-200, 351 N.E.2d 750, 761-62 (1976). The city filed a petition to enjoin the operation of the school, the school and church filed an appeal from the board's action. Both matters were heard by a Master (Robert A. Carignan, Esq.) in June 1977. The master ruled against the church, and his report was approved by Cann, J., who reserved and transferred the exceptions taken by the church. A stay pending appeal granted by this court allowed the school to remain open for its approximately 50 pupils.

Prior to the hearing before the master, the church amended its pleadings to allege that no special exception under the Concord Zoning Ordinance for a private school was in fact needed because the school was a permitted use under the ordinance allowing "facilities usually connected with a church." Despite numerous other arguments by the parties, if the ordinance allows such a facility, then the school may operate without city approval. Whether the school thus qualifies is a question of law upon which this court is "not bound by the conclusions of the zoning board" or master. RSA 31:78. See Becker v. Town of Hampton Falls, 117 N.H. ---, ---, 374 A.2d 653, 654-55 (1977); Gratton v. Pellegrino, 115 N.H. 619, 621-22, 348 A.2d 349, 351 (1975).

The term "connected" in the Concord ordinance should not be read to require physical propinquity but rather to prescribe close association with the primary permitted use. Webster's New International Dictionary (3d ed. 1961). That is the test in the analogous area of accessory uses. Becker v. Town of Hampton Falls, supra at ---, 374 A.2d at 655. The word "usually" is more difficult to analyze. The question of what facilities are "usually" connected or associated with a church could be considered from the viewpoint of the specific church, of churches generally, or of the city. The problem with the latter view is that it involves governmental determination of propriety in religious matters and thus could infringe on the free exercise of religion guaranteed by N.H. Const. pt. I, art. 5 and the federal first amendment. See e. g., Wooley v. Maynard, 430 U.S. 705, 714-15, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977); Wisconsin v. Yoder supra ; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). On the other hand, the church itself cannot have unfettered license.

A test for balancing the respective interests of the parties in determining a reasonable construction of the phrase at issue was developed in the area of tax exemptions for various structures of educational or religious entities. This court has said that "there is a strong presumption in favor of the judgment of an educational institution's officers as to what uses of land or buildings are necessary to promote the institution's purposes." St. Paul's School v. Concord, 117 N.H....