Open Door Baptist Church v. Clark County, 67075-7.

• Court: United States State Supreme Court of Washington
• Citation: 140 Wash.2d 143,995 P.2d 33
• Decision Date: 16 March 2000
• Docket Number: No. 67075-7.,67075-7.
• Parties: OPEN DOOR BAPTIST CHURCH, Reverend Rocky Shanks, and Radine Shanks, Petitioners, v. CLARK COUNTY, a municipal subdivision of the State of Washington; Code Enforcement Division of the Department of Public Services of Clark County; and Larry Epstein, in his official capacity as Clark County Hearings Examiner, Respondents.

995 P.2d 33
140 Wash.2d 143

OPEN DOOR BAPTIST CHURCH, Reverend Rocky Shanks, and Radine Shanks, Petitioners,
v.
CLARK COUNTY, a municipal subdivision of the State of Washington; Code Enforcement Division of the Department of Public Services of Clark County; and Larry Epstein, in his official capacity as Clark County Hearings Examiner, Respondents

No. 67075-7.

Supreme Court of Washington, En Banc.

Argued May 13, 1999.

Decided March 16, 2000.

995 P.2d 34

Donald Esau, Vancouver, for Petitioners

Arthur Curtis, Clark County Prosecutor, Christopher Horne, Deputy, Vancouver, for Respondents.

ALEXANDER, J.

Clark County issued a notice and order to the Open Door Baptist Church (Open Door), based on the County's determination that Open Door's church site did not conform with the County's zoning code. The order required Open Door to either cease its business activities or apply for a conditional use permit. Open Door appealed the determination

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to the Clark County hearing examiner. The hearing examiner affirmed the notice and order. Open Door then obtained review by a writ of certiorari to the Clark County Superior Court. After a hearing, the superior court vacated the hearing examiner's ruling based upon its finding that the County's action would constitute a burden on Open Door's free exercise of religion. The County appealed that decision to the Court of Appeals, arguing that Open Door had failed to demonstrate that applying for a permit would burden its free exercise of religion. Although the Court of Appeals reversed the trial court on this question, it affirmed its decision allowing the County to adjust the permit application fee if Open Door could show that it was unable to pay the fee. Open Door sought discretionary review in this court and we granted it. We affirm the Court of Appeals

FACTS

Open Door has used the Clark County property at issue here as a church since 1990. The building, which is located on the property, had originally been devoted to church purposes, but had been used as an art school from 1978 until first occupied by Open Door. There is no dispute over the fact that this property lies within the County's rural estate zoning district.

On January 12, 1995, Open Door's pastor, Rocky Shanks, was served with a notice and order from Clark County which gave notice of the following violation: "No Conditional Use Permit for church in Rural Estate (RE) Zoning District as per Clark County Code 18.304." Clerk's Papers (CP) at 42. Open Door was ordered "to cease all business activities or apply for a conditional use permit within ten (10) days from the date of this notice and order." CP at 42 (emphasis added). Open Door appealed to the Clark County hearing examiner, arguing that the notice and order was "against the Constitution of the Great State of Washington and the United States Constitution which is the Supreme Law of the Land." CP at 33.

In March 1995, a hearing was held by the hearing examiner at which witnesses testified both for and against the notice and order. The previous owner testified about a meeting that she had attended with Shanks and a Realtor in which the Realtor advised Shanks that "the building was not approved as a church, and that the County needed to issue a conditional use permit to use it as a church." CP at 62. The hearing examiner concluded that he did "not have jurisdiction to consider state or federal constitutional issues or federal statutory issues," and could base his decision only on applicable land use laws. CP at 62. He found that the property was being used as a church without the necessary conditional use permit, and that the use of the property as a church was not a nonconforming use "because the right to use the Property for a church as a nonconforming use expired when the Property was not used as a church from 1978 to 1990." CP at 63 (emphasis added). Accordingly, the examiner affirmed the notice and order, finding that "sixty (60) calendar days ... is a reasonable time in which to file a technically complete application for a conditional use permit, because the Appellants [Open Door] already have participated in a pre-application conference." CP at 63. The examiner ordered that in the event that Open Door failed to file an application by the 60-day deadline, Open Door's use of the property as a church should cease and, should it continue, a daily fine of $50 would be imposed.¹

Open Door obtained review of the examiner's decision through a writ of certiorari to the Clark County Superior Court, alleging that enforcement of the zoning regulations violated its federal and state constitutional rights to free exercise of religion. In April 1996, following oral argument, the superior court judge vacated the hearing examiner's order, stating that "Clark County and the Code Enforcement Division of Clark County failed to observe the appropriate legal standards under Sumner v. First Baptist

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Church."² CP at 181. The trial court found that "[w]hat is lacking from the county's presentation ... is a showing that less restrictive alternatives to a full blown conditional use permit with site plan review were considered." CP at 181. It held that were the County "to seek further enforcement in this action," it would "bear the burden of complying with the Sumner standard, and, in the event that there ensues an appeal to a hearings examiner, bear the burden of proving such compliance." CP at 181. Accordingly, the trial court found that the County would have "to justify its regulations by demonstrating a compelling state interest and that it has chosen the least-restrictive alternative to accomplish that result." CP at 184. Moreover, the trial court held that "the necessity of charging the Church the customary fees and costs associated with a conditional use permit, variance or any other application must also be assessed by the County under the same compelling state interest/least-restrictive alternative test." CP at 184

The parties later stipulated "that the cost of land use permits ... is not an issue. The permit process is the issue. Therefore, to the extent that the church has alleged that cost is an issue, Plaintiffs abandon that position."³ CP at 349 (emphasis added). Open Door then moved for summary judgment, in an effort to obtain monetary damages allegedly caused by "prior enforcement activities of the county." CP at 351. It asserted that the County had violated "the U.S. Constitution — Freedom of Exercise clause; the "Washington State Constitution Freedom of Religion clause; and the Religious Freedom Restoration Act of 1993." CP at 350. The trial court partially granted Open Door's motion "on the issue of whether or not the proposed shut-down of plaintiffs' church ... would constitute a burden on plaintiffs' free exercise of religion, under the religious freedom provision of Section 1 of the Washington State constitution and under the Religious Freedom Restoration Act." CP at 354 (emphasis added). It denied summary judgment, however, on "the issue of plaintiffs' entitlement to monetary damages" finding no evidence of "any monetary damages," a finding premised upon the fact that Open Door had not even applied for a conditional use permit. CP at 358. The trial court subsequently withdrew the grant of partial summary judgment in light of City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), wherein the United States Supreme Court struck down the Religious Freedom Restoration Act of 1993.

The County appealed the trial court's ruling vacating the hearing examiner's order. In an unpublished opinion, a panel of the Court of Appeals, Division Two, reversed the trial court on the question of whether applying for a permit would infringe upon Open Door's free exercise of religion. It held that the mere process of applying for a permit did not impose an unconstitutional burden, although it wrote that "[n]othing in this decision will affect Open Door's right to challenge the denial of the conditional use permit" should such a denial occur. Open Door Baptist Church v. Clark County, No. 22285-0-II, slip op. at 6, 91 Wash.App. 1037, 1998 WL 341968 (Wash.Ct.App. June 26, 1998) (emphasis added). It further concluded that if Open Door should first demonstrate its inability to pay the application fee, the burden would shift "to the County to demonstrate a compelling purpose for charging the fees." Open Door Baptist Church, No. 22285-0-II, slip op. at 7-8. Thus, it concluded, "the County must ensure that its fees do not burden Open Door's worship." Open Door Baptist Church, No. 22285-0-II, slip op. at 8.

We granted review upon Open Door's petition for review.

ANALYSIS

The broad question that we are presented with here is whether the County's order requiring Open Door to apply for a conditional use permit, and pay the attendant fees, unconstitutionally burdens the church's religious

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freedom guaranteed by article I, section 11 of the Washington Constitution. In light of the dissent in this case, we emphasize that we are not confronted in this case with the denial of a conditional use permit application, the anticipation of which animates the dissent. Rather, the case presents the question of whether a church must merely alert citizens and their government through the conditional use application process — to its intention to locate in those zoned areas where churches, as is equally true of other uses, are not allowed as of right but are allowed to apply for conditional use status.

Under chapter 18.303A.030 of the Clark County Code, churches are among the conditional uses listed for rural districts. Conditional uses are uses that "may be permitted, subject to the granting of a conditional use permit." CLARK COUNTY CODE (CCC) 18.404.010. The purpose of the rural district, formerly known as the "rural estate" district, is defined as follows: "[T]o provide lands for residential living in the rural area. Natural...