Messiah Baptist Church v. County of Jefferson, State of Colo.

• Decision Date: 06 October 1988
• Docket Number: No. 87-1634,87-1634
• Citation: 859 F.2d 820
• Parties: MESSIAH BAPTIST CHURCH, a Colorado non-profit corporation; Thom Moore; Ardel Moore; Donna L. Nive; and Jess Paulsen, Plaintiffs-Appellants, v. The COUNTY OF JEFFERSON, STATE OF COLORADO, the Board of County Commissioners of the County of Jefferson, State of Colorado; Hal Anderson, Bob Clement, and James Martin, not individually but as members of the Board of County Commissioners of the County of Jefferson, State of Colorado, Defendants- Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 820

859 F.2d 820

MESSIAH BAPTIST CHURCH, a Colorado non-profit corporation;

Thom Moore; Ardel Moore; Donna L. Nive; and Jess Paulsen, Plaintiffs-Appellants, v. The COUNTY OF JEFFERSON, STATE OF COLORADO, the Board of

County Commissioners of the County of Jefferson, State of

Colorado; Hal Anderson, Bob Clement, and James Martin, not

individually but as members of the Board of County

Commissioners of the County of Jefferson, State of Colorado,

Defendants- Appellees.

No. 87-1634.

United States Court of Appeals, Tenth Circuit.

Oct. 6, 1988.

Ronald S. Loser (J. Scott Needham, with him on the briefs), of Loser, Davies, Magoon & Fitzgerald, P.C., Denver, Colo., for plaintiffs-appellants.

Gay B. Ummel (Patrick R. Mahan, Co. Atty., with her on the briefs), Asst. County Atty, Golden, Colo., for defendants-appellees.

Before McKAY, TACHA and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

The Messiah Baptist Church and various individuals representing a class ("Church") filed an action for damages under 42 U.S.C. Sec. 1983 against Jefferson County, Colorado, and its Board of Commissioners ("County"). The Church contends the zoning regulations enacted by the County are facially unconstitutional under the Due Process Clause of the Fourteenth Amendment and the Free Exercise Clause of the First Amendment. The Church also contends the special-use provisions added to the zoning regulations by amendment in 1976 arose from an unconstitutional delegation of power.

Both parties moved for summary judgment below. The district court upheld the constitutionality of the zoning regulations, granted the County's motion and denied the Church's motion for summary judgment. From this order the Church appeals.

We AFFIRM.

FACTS

In July 1974, the Church purchased approximately eighty acres of vacant land in Jefferson County, Colorado. The land was located in an area of the County which was zoned Agricultural Two District (A-2). The A-2 zoning district allowed general ranching, intensive agricultural use, and agriculturally related uses while protecting the surrounding land from harmful results. Land in the A-2 zoning district could be used for dwellings, barns, stables, poultry hatcheries, dairy farms, greenhouses, roadside stands, feedlots, feeding garbage to hogs, veterinarian hospitals, and the storage of manure and related uses. Land in the A-2 zoning district could not be used for schools, community buildings, and churches, even as special uses.

In 1974, the zoning regulations provided for twenty-five zoning districts. Sixteen of these districts authorized a residential use in some form. Of the sixteen zoning districts authorizing residential uses, thirteen specifically authorized a church use as a matter of right. The remaining nine zoning districts were devoted to agricultural, commercial, and industrial uses and did not allow residential uses of any type. With the exception of zoning districts A-1 and A-2, a church was an authorized use by right in every zoning district which authorized permanent residential use.

In September 1974, the Church applied for a building permit to erect a single structure which was to be used for worship, administrative offices, and school purposes. The application was denied, and the Church apparently attempted to appeal this decision to the County. The record, however, is silent as to whether or not any direct action was taken by the Church concerning its appeal.

Two years later, in July 1976, the County amended the A-2 zoning regulations to authorize church uses by special-use permit, subject to approval by the planning commission and the County. Shortly after this amendment, the Church filed an application for a special-use permit indicating an intent to develop its entire eighty acres. The Church subsequently withdrew this application.

In April 1978, the Church again applied for a special-use permit, this time to build a 12,000 square foot structure to be used for worship services, administrative offices, classrooms, recreation (gymnasium) purposes, parking areas for 151 vehicles, and an "amphitheater" where worshipers could park and, without leaving their cars, listen to religious services through means of individual sound transmission devices similar to those used by "drive-in" movie theaters.

In May 1978, a public hearing was held before the planning commission concerning the Church's second application for a special-use permit. The planning commission denied the special-use permit, reduced to writing the nine reasons for the denial, which included access problems, erosion hazards, and the fact that fire protection for the site was wholly inadequate.

Due Process

The Church argues that the 1974 A-2 regulations are unconstitutional on their face because they deprive the Church of the right to use its property in violation of the Due Process Clause of the Fourteenth Amendment.

The principal test for measuring the constitutionality of a zoning ordinance under the Due Process Clause is set forth in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). In this case, the owner of a sixty-eight acre tract of vacant land sought to use his land for industrial purposes. The city zoned a portion of the sixty-eight acres for residential uses, and the owner attacked the ordinances on due process grounds. The Supreme Court upheld the zoning ordinances and stated that before a zoning ordinance can be declared unconstitutional on due process grounds, the provisions must be clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Id. at 395, 47 S.Ct. at 121. The Court further held that if the validity of the land classification is "fairly debatable," the legislative judgment must control. Id. at 388, 47 S.Ct. at 118.

The Church seems to contend first that the A-2 zoning regulations are arbitrary because they permit dwellings but exclude churches from the agricultural district. The Church cites numerous state court decisions including City of Englewood v. Apostolic Christian Church, 146 Colo. 374, 362 P.2d 172 (1961), purportedly holding that exclusion of churches from residential areas constitutes arbitrary action. (It should be noted that Englewood was overruled in part, City of Colorado Springs v. Blanche, 761 P.2d 212 (Colo.1988), after the briefs were filed.) The state court cases cited by the Church are distinguishable on the facts from the case now before us. In Englewood, the regulations excluded churches as a use by right from all residential zone districts except the multifamily district. In the instant case, however, the regulations permit church use as a use by right in all but three residential districts. Consequently, the zoning scheme is clearly distinguishable.

Even if Englewood factually were on point, other state cases hold that the exclusion of churches from residential zoning districts is constitutionally permissible. See Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. City of Porterville, 90 Cal.App.2d 656, 203 P.2d 823, appeal dismissed, 338 U.S. 805, 70 S.Ct. 78, 94 L.Ed. 487 (1949). In our view, the better reasoned state court decisions hold that exclusion of churches from particular zoning districts, whether agricultural or residential, is not arbitrary per se.

The Church next argues that the A-2 regulations are arbitrary because they exclude churches but permit large agriculturally related commercial uses in the agricultural district. The Church contends that these commercial uses are at least as intensive as those uses proposed by the Church. In our view, however, the fact that the County's regulatory scheme is one of true differentiation does not render it arbitrary. The agricultural zones permit true and unfettered agricultural uses, and the decision as to what is or is not a compatible use therein is a decision which belongs to the legislative body. If the validity of the legislative classification is "fairly debatable," the legislative judgment must control. Euclid, 272 U.S. at 388, 47 S.Ct. at 118. The Church has not established that the County's choice of compatible uses is unreasonable.

Finally, the Church asserts the court must review the due process challenge to the A-2 zoning regulations under the strict scrutiny standard rather than the reasonable relationship standard because the zoning regulation infringes the Church's First Amendment rights to exercise a religious preference. The Church further contends that the burden, therefore, is upon the parties seeking to uphold the regulation to demonstrate that it serves a compelling state interest and is narrowly drawn to address only the state interests at stake. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981).

In the instant case, however, the Church has not been denied the right to exercise a religious preference. Rather, the Church has been denied a building permit, and may not construct its house of worship where it pleases. That fact standing alone does not amount to a denial of the exercise of a religious preference. (See discussion of Free Exercise of Religion within.)

The record contains no evidence that the zoning regulations infringe upon any protected liberty. The A-2 zoning regulations affect only property interests and, therefore, need only bear a substantial relationship to the general welfare. Euclid, 272 U.S. at 391, 395, 47 S.Ct. at 119, 120. There can be little doubt that the zoning regulations bear a substantial relationship to the general welfare of the residents of Jefferson County. There is nothing arbitrary or unreasonable about precluding the building of a church near a feedlot or near hogs rooting through garbage. We hold that the 1974 A-2 zoning regulations are valid under the Due Process Clause.

Free Exercise of Religion

The Church contends that the 1974 A-2 zoning regulations are invalid on their...