State ex rel. Lake Drive Baptist Church v. Village of Bayside Bd. of Trustees

• Decision Date: 07 March 1961
• Citation: 12 Wis.2d 585,108 N.W.2d 288
• Parties: STATE ex rel. LAKE DRIVE BAPTIST CHURCH, a Wis. corporation, Appellant, v. VILLAGE OF BAYSIDE BOARD OF TRUSTEES, a legislative body of the Village of Bayside, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 288

108 N.W.2d 288

12 Wis.2d 585

STATE ex rel. LAKE DRIVE BAPTIST CHURCH, a Wis. corporation, Appellant, v. VILLAGE OF BAYSIDE BOARD OF TRUSTEES, a legislative body of the Village of Bayside, et al., Respondents.

Supreme Court of Wisconsin.

March 7, 1961.

Paul C. Konnor, Nathaniel D. Rothstein, Jack E. Keyes, Milwaukee, for appellant.

Suel O. Arnold, Milwaukee, for respondents.

Joseph J. Shutkin, Irvin B. Charne, Nathan Schapiro, Alvin Friedman, Milwaukee, Leo Pfeffer, New York City, of the New York Bar, and Joseph Minsky, Chicago, Ill., of the Illinois Bar, of counsel, for amicus curiae.

FAIRCHILD, Justice.

1. Statutory authority of village to zone with respect to churches. ¹ Zoning power is conferred on cities and villages by sec. 62.23(7), Stats., made applicable to villages by sec. 61.35. It includes the power to regulate the 'location and use of buildings, structures and land for trade, industry, residence or other purposes.' The supreme court of Missouri has held that, under the rule of ejusdem generis, the same words in the statutes of that state do not convey authority to control the location of schools or other public buildings or churches. ² We are asked to follow that court, but decline to do so. We are satisfied that zoning ordinances in this state ordinarily do regulate the use of land for many purposes not similar to trade, industry and residence use. We have treated private schools ³ and bible camps ⁴ as subject to city zoning power, and considered a county jail as not so subject because of special statutes governing its location. ⁵

2. Constitutionality of a zoning ordinance which excludes a church from a district where dwellings are permitted. With respect to use of land in residence districts for a church, zoning ordinances fall into three types: (1) permitting churches in all; (2) permitting a church only upon special permit, after hearing; and (3) excluding churches, often, if not usually from districts where residential use is itself restricted to certain types of dwellings. ⁶

It appears that most zoning ordinances fall into the first two types. ⁷ The first presents no constitutional problem. Many of the cases on this subject arise from denials of permits under the second type of ordinance. Standards in ordinances of the second type appear to be vaguely defined or omitted, and that fact has given rise to some difficulty. A practical advantage of this method is that it permits administrative determination on a case by case basis of the suitability of particular sites for church use. We are urged to decide the matter before us on the principle that only the first, or possibly the second type of ordinance is valid. Several courts, in considering whether to set aside a denial of a permit under an ordinance of the second type, have said that an ordinance of the third type would be invalid. ⁸

The supreme court of Texas had an ordinance of the third type before it, and held it invalid. ⁹

The supreme court of Florida held a similar ordinance valid. ¹⁰ The court noted that the church bought the property with knowledge of the zoning restrictions; there were sites available in districts where churches would be permitted; church use would cause the value of the surrounding property to depreciate, and give rise to a genuine traffic problem. The court also pointed out that churches are now customarily used for many activities besides worship services and prayer meetings.

A California Court of Appeal held an ordinance of the third type valid. The court noted that the record did not indicate that the church could not be built in a district where churches would be permitted. ¹¹ The following reference to the decision was made by the supreme court of the United States:

'When the effect of a statute or ordinance upon the exercise of First Amendment freedoms is relatively small and the public interest to be protected is substantial, it is obvious that a rigid test requiring a showing of imminent danger to the security of the Nation is an absurdity. We recently dismissed for want of substantiality an appeal in which a church group contended that its First Amendment rights were violated by a municipal zoning ordinance preventing the building of churches in certain residential areas.' ¹²

Most of the decisions on this subject appear to involve denials of a special permit to build a church under the second type of ordinance. In a number, the denial has been set aside, sometimes with an accompanying statement that there is no valid basis for exclusion. ¹³

In a few cases, denials under the second type of ordinance have been upheld. ¹⁴

It is clear enough that a church has some attributes which tend to make it less desirable to its next-door neighbor than a one-family dwelling. It entails substantial gatherings of people, resulting disturbance, and the problem of parking automobiles. In a case where we permitted enforcement of a private covenant preventing the use of property for a church, we said:

'Conceding the social value of churches, it is nevertheless true that churches, like other places of assembly, produce noise, congestion and traffic hazards. The exclusion of uses which create such conditions in an area planned as residential cannot be said to be against public policy.' ¹⁵

This court has recognized that the protection of property values is an objective upon which a zoning ordinance may be grounded. ¹⁶ In the same decision, it referred to the general rule that zoning power may not be exercised for purely aesthetic considerations, but suggested great doubt whether this rule is still the law. ¹⁷ Whether restriction of use of a district to strictly residential uses will protect property values is the type of question upon which the decision of the municipal board is accepted unless shown to be unreasonable.

A church, however, is not to be viewed merely as the owner of property complaining against a restriction on its use. It may also challenge an ordinance as an unwarranted burden upon, or interference with the freedom of the adherents of the church to worship after the manner of their faith. We are familiar with the constitutional protection of freedom of religion from governmental interference. ¹⁸

An ordinance which excludes a church from a particular district must pass two tests:

(1) Can it reasonably be said that use for a church would have such an effect on the area that exclusion of such use will promote the general welfare, and

(2) Does the exclusion impose a burden upon freedom of worship which is not commensurate with the promotion of general welfare secured?

The United States Supreme Court has said of religious freedom, protected by the First Amendment:

'Thus the Amendment embraces two concepts,--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.' ¹⁹

The test is whether a regulation is an undue infringement. Any restriction upon the opportunity to build a house of worship is at least a potential burden upon the freedom of those who would like to worship there. Whether the burden is slight or substantial will depend upon circumstances. In a community where adequate and accessible building sites are available in all districts, it might be a negligible burden to exclude churches from some of them. There must be many circumstances under which a religious group could demonstrate that an exclusion from a particular area would be a substantial burden.

The Bayside ordinance, since 1956, has excluded churches from 'A', 'B', and 'C' districts, where one-family dwellings are permitted, has permitted dwellings, churches, and other institutions in several 'E' districts, and has confined 'D' districts to dwellings and certain business uses. We conclude that the exclusion of churches, of itself, does not render the ordinance invalid. To determine invalidity would require determination that the 'E' districts do not afford reasonably suitable, accessible, and available sites as compared with those in other districts. While there was testimony questioning the suitability of sites in the 'E' districts, and the court found that some of the land was overpriced, we do not find it necessary, in this case, to decide whether, as to a church first coming upon the scene after passage of the 1956 amendment, the exclusion of churches from all but 'E' districts was an undue burden.

3. Invalidity with respect to 'C' districts. The Bayside ordinance permits schools and municipal buildings in 'C' districts, but excludes churches. Permitted schools are not limited to public schools. Some, at least, of the attributes of a church which annoy neighbors, are also characteristic of schools. It is at least arguable that it is arbitrary and capricious to exclude churches while permitting schools. Exclusion of churches has been held invalid where an ordinance permitted dwellings, schools, colleges, public libraries, public museums and art galleries, parks, etc., and farms and greenhouses ^{20 20} and where an ordinance permitted homes, municipal buildings, railroad stations, public schools, and club houses. ²¹ This court has upheld exclusion of private and parochial high schools from a district where public high schools are permitted, ²² but considered it necessary to point out that while all high schools would present detrimental effects, public high schools presented certain advantages which the zoning authority could have considered compensating. In any event, little attention has been given to this issue in the briefs of the parties here, and we do not decide it.

4. Invalidity of ordinance before 1956. We are not aware what zoning...