Found v. Morris Cnty. Bd. of Chosen Freeholders, A–71 September Term 2016

Citation232 N.J. 543,181 A.3d 992
Decision Date18 April 2018
Docket Number079277,A–71 September Term 2016
Parties FREEDOM FROM RELIGION FOUNDATION and David Steketee, Plaintiffs-Appellants, v. MORRIS COUNTY BOARD OF CHOSEN FREEHOLDERS, The Morris County Preservation Trust Fund Review Board, Joseph A. Kovalcik, Jr., in his official capacity as Morris County Treasurer, The Presbyterian Church in Morristown, First Presbyterian Church of New Vernon, St. Peter's Episcopal Church, First Reformed Church of Pompton Plains, Church of the Redeemer, Community of St. John Baptist, Stanhope United Methodist Church, Church of the Assumption of the Blessed Virgin Mary, First Presbyterian Church of Boonton, St. Peter's Episcopal Church in Mountain Lakes, Ledgewood Baptist Church, and Community Church of Mountain Lakes, Defendants-Respondents.
CourtUnited States State Supreme Court (New Jersey)

Paul S. Grosswald argued the cause for appellants Freedom from Religion Foundation and David Steketee (Paul S. Grosswald, on the brief, and Andrew L. Siedel and Ryan D. Jayne, of the Wisconsin bar, admitted pro hac vice, on the briefs).

John M. Bowens, Florham Park argued the cause for respondents Morris County Board of Chosen Freeholders, the Morris County Preservation Trust Fund Review Board, and Joseph A. Kovalcik, Jr., in his official capacity as Morris County Treasurer (Schenck, Price, Smith & King, attorneys; John M. Bowens, on the briefs).

Kenneth J. Wilbur argued the cause for respondents The Presbyterian Church in Morristown, et al. (Drinker Biddle & Reath, attorneys; Kenneth J. Wilbur and Justin M. Ginter, Florham Park on the briefs).

Alex J. Luchenitser (Americans United for Separation of Church and State) a member of the District of Columbia bar, admitted pro hac vice, argued the cause for amici curiae American Civil Liberties Union, American Civil Liberties Union of New Jersey, and Americans United for Separation of Church and State (American Civil Liberties Union of New Jersey; Barry, Corrado & Grassi; Americans United for Separation of Church and State; and American Civil Liberties Union Foundation, attorneys; Edward L. Barocas, Jeanne M. LoCicero, Rebecca Livengood, Frank Corrado, Wildwood, Alex J. Luchenitser, Richard B. Katskee, a member of the District of Columbia and Maryland bars, admitted pro hac vice, and Daniel Mach, a member of the District of Columbia and New York bars, admitted pro hac vice, on the brief).

Cameryn J. Hinton, Deputy Attorney General, submitted a brief on behalf of amicus curiae New Jersey Historic Trust (Christopher S. Porrino, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel, Cameryn J. Hinton and Susan M. Scott, Deputy Attorney General, on the brief).

Thomas A. Gentile, Florham Park submitted a brief on behalf of amicus curiae The Becket Fund for Religious Liberty (Wilson Elser Moskowitz Edelman & Dicker and The Becket Fund for Religious Liberty, attorneys; Thomas A. Gentile, on the brief, and Hannah Clayson Smith, Luke William Goodrich, and Diana Marie Verm, members of the Court of Appeals of the District of Columbia bar, admitted pro hac vice, on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

From 2012 to 2015, Morris County awarded $4.6 million in taxpayer funds to repair twelve churches, as part of a historic preservation program. This appeal raises two questions: whether the grant program violated the Religious Aid Clause of the New Jersey Constitution and, if so, whether the Religious Aid Clause conflicts with the Free Exercise Clause of the United States Constitution.

The Religious Aid Clause has been a part of New Jersey's history since the 1776 Constitution. The clause guarantees that "[n]o person shall ... be obliged to pay ... taxes ... for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry."

N.J. Const. art. I, ¶ 3. The clause reflects a historic and substantial state interest. We find that the plain language of the Religious Aid Clause bars the use of taxpayer funds to repair and restore churches, and that Morris County's program ran afoul of that longstanding provision.

Morris County and the grant recipients claim that to withhold grants from eligible churches would violate their rights under the Free Exercise Clause of the First Amendment. The County and the churches rely heavily on Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ––––, 137 S.Ct. 2012, 198 L.Ed.2d 551 (2017), for support.

In the case before us, all of the churches have active congregations, and all have conducted regular worship services in one or more structures repaired with grant funds. Several churches specifically explained that they sought funds in order to be able to continue to host religious services. We do not believe Trinity Lutheran would require that grants be considered and extended to religious institutions under those circumstances.

We therefore reverse the trial court's decision to uphold the grants.

I.
A.

In 1992, the voters of Morris County approved a referendum to create a trust for open space and farmland preservation. The trust was funded by a county property tax. Ten years later, the voters authorized the County Freeholder Board to permit historic preservation funding under the trust. Today, the trust is known as the Morris County Open Space, Farmland, Floodplain Protection and Historic Preservation Trust Fund.

At the time of the grants in question, the trust considered applications to stabilize, repair, rehabilitate, renovate, restore, improve, protect, or preserve historic properties. To be eligible for consideration, a property had to be located in Morris County and either be listed on the National or New Jersey Register of Historic Places or be eligible for listing by the State historic preservation office.

Only four kinds of entities could apply for grants: municipal governments within Morris County; Morris County government; charitable conservancies whose purpose includes historic preservation; and religious institutions.

A review board evaluated applications and made recommendations to the Freeholder Board. Among other things, the review board considered the significance of the property, its physical condition and proposed use, the applicant's ability to match the funds requested, and the project's relationship to heritage education and tourism.

The Freeholder Board approved final awards. For religious institutions, grants could fund assessment reports, preparation of construction documents, construction projects for a building's exterior as well as its mechanical, electrical, and plumbing systems, and other items.

Certain conditions applied to grant recipients. Successful applicants that received construction grants of more than $50,000 cumulatively, over any number of funding cycles, had to execute a thirty-year easement agreement with the County. The "easement is a deed restriction that is used to assure long-term preservation of a historic property through proper maintenance and by limiting changes in use or appearance and preventing demolition of the property."

Grantees were also required to provide public access to properties that received grant funds. The County and the grant recipient were to "negotiate the days and hours that the property [would] be open to the public."

All work on a project had to be completed within two years once a grant was awarded; a one-year extension could be sought. Applicants who received funding also had to list their property on the National and New Jersey Registers of Historic Places.

B.

From 2012 to 2015, the Freeholder Board approved a total of $11,112,370 in grants from the trust fund. The Board awarded $4,634,394, or 41.7 percent, to twelve churches. The grants funded the preparation of construction documents and plans, and the restoration of church buildings, towers, parish houses, windows, and other items.

According to the parties' joint statement of stipulated facts, all twelve churches "have active congregations" and all "have conducted regular worship services in one or more of the structures" for which grant funds have been or will be used. All twelve houses of worship are Christian churches.

In addition to the stipulation, the record also includes the grant applications that the churches submitted, which detailed how the requested funds would be used and why they were needed. Several successful applicants specifically stated that funds were needed to allow the church to offer religious services. The Presbyterian Church in Morristown, for example, sought funds to restore the exterior of its chapel. The Church explained that a grant would "historically preserve the building allowing its continued use by our congregation for worship services as well as by the community and many other outside organizations that use it on a regular basis." The Church received a preservation grant to repair the chapel's roof and the air shaft in the church building; to pay for finishes, moisture protection, and other costs; and to finance interior carpentry, masonry, and concrete work.

The Church of the Redeemer received grants for the restoration of the exterior of its church building and parish house. As to the building, the Church wrote in its application that "[t]he impact of restoring the large slate roof and tower is entirely positive. It will restore a key structural element that has failed and assist in assuring that the building can continue in its existing use as a church and as an important building in Morristown."

Saint Peter's Episcopal Church of Morristown sought and received funds to repair the interior of its church tower. The Church observed that the funding would "ensure continued safe public access to the church for worship, periods of solitude and meditation during the week, and several concerts throughout the year, as well as the treasures the church and tower contain."

The First Baptist Church of Ledgewood received funds to create preservation...

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3 cases
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    • May 2, 2018
    ...the history and import of the Religious Aid Clause of our State Constitution in Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders, 232 N.J. 543, 181 A.3d 992, 2018 WL 1832631 (2018), this Court's most authoritative prior application of the provision arose in Resn......
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