Religious Uses in Nonresidential Districts

What limitations does a municipality face in excluding religious uses in commercial or industrial districts? That issue has arisen in several cases over the last year and a half, most recently in Western New York District, Inc. v. Village of Lancaster (see infra). Although neither New York nor federal courts have definitively answered that question, it appears that municipalities enjoy more latitude to exclude religious uses in commercial and industrial districts than they enjoy with respect to residential districts.

The Preferred Status of Religious Uses

More than 50 years ago, the Court of Appeals established that municipalities may not exclude churches from residential areas. In Diocese of Rochester v. Planning Board, 1 NY2d 508, the church challenged the town's denial of a special permit and variance that would have permitted construction of a church in a single-family district. The applicable zoning ordinance permitted churches in the district upon grant of a permit by the planning board. The board, however, rejected the church's application, indicating expressly that it would not grant any permit for a church in a built-up residential area, which would, in effect, have excluded churches from any 'class A' residential district in the town. The Court of Appeals held that a policy excluding churches from residential districts did not promote health, safety, and welfare, and was therefore invalid. The court considered and rejected the planning board's reasons for its policy ' including avoiding change in the character of an existing residential neighborhood, protecting property values, and preventing loss of tax revenue ' and held that none of them was sufficient to support an absolute exclusion of churches.

The court noted, in particular, that the town's policy would cause hardship to parishioners: 'Thus the Diocese is forced to locate in an undeveloped section of the town without being able adequately to serve the territorial needs of its parishioners, in the hope that people of the Catholic faith will move near it. We know of no rule of law which requires that churches may only be established in sparsely settled areas.' Id. at 523.

In subsequent cases, the Court of Appeals has held that even when a municipality permits religious uses in residential areas, the municipality may not impose restrictions on religious users that impose significant financial burdens. Thus, in Westchester Reform Temple v. Brown, 22 NY2d 488, the court held that the planning board's application of setback restrictions to the temple's application to expand constituted an impermissible restriction on free exercise of religion. And in Jewish Reconstructionist Synagogue v. Incorporated Village of Roslyn Harbor, 38 NY2d 283, the court struck down a 100-foot setback requirement applicable to religious uses in residential areas. In both cases, the court has indicated that even legitimate concerns with traffic hazards cannot outweigh the rights of religious users. See, e.g., Westchester Reform Temple v. Brown, 22 NY2d at 496-97.

More recently, the court has, in Matter of Pine Knolls v. Zoning Board of Appeals, 5 NY2d 407, upheld a zoning board determination denying a church's application to build a secondary driveway when the board could substantiate traffic concerns with the driveway. The court emphasized, however, that the church's proposed expansion could be completed without the secondary driveway. And Pine Knolls stands alone among the Court of Appeals cases in denying to a church the development rights the church sought.

Commercial and Industrial Districts

Municipalities may have significantly different reasons for attempting to exclude religious uses from commercial or industrial areas. Neighboring industrial uses, for instance, might fear nuisance suits by churches, a problem not present when churches locate in residential areas. Cf. Petra Presbyterian Church v. Northbrook, 489 F.3d 849, 852 (7^th Cir. 2007) [Posner, J.]. Or, as in the Western New York case, the municipality may have made investments in infrastructure designed specifically to attract industrial uses (and their tax base) to the area, an investment on which the municipality will not receive a return if religious uses are permitted in the industrial area.

Moreover, some of the reasons for requiring that churches be permitted in residential areas lose their force when a church seeks to locate in an industrial area. Proximity to parishioners ' particularly an issue with Orthodox Jewish congregations, whose members cannot drive on the Sabbath ' is less of an issue when the church or synagogue seeks to locate in an industrial area. Thus, some of the policy concerns articulated in the Diocese of Rochester case simply do not apply.

Perhaps for that reason, there is some reason to believe that the Court of Appeals might uphold an absolute exclusion of churches from industrial areas. In a recent case, Albany Preparatory Charter School v. City of Albany, 31 AD3d 870, the Third Department struck down an exclusion of educational uses from a commercial district, and the majority concluded that the principles applicable to absolute exclusion for residential districts applies to all districts. Justice Spain, however, wrote a concurrence noting that the reasons for prohibiting exclusions from residential areas do not apply with respect to other districts. In the Western New York case, the court cited that concurrence.

RLUIPA

Even if a municipality could persuade the New York courts that an absolute exclusion of religious uses from industrial districts would be consistent with the public health, safety and welfare, and would not infringe on free exercise of religion, the municipality would face another obstacle: the federal Religious Land Use and Institutionalized Persons Act (42 U.S.C. sec. 2000cc et seq.). The statute prohibits a municipality from imposing a land use restriction that 'imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution' unless the government can demonstrate a compelling state interest. 42 USC sec. 2000cc(a)(1).

In a recent case, however, the Seventh Circuit has held that a municipality's exclusion of a church from an industrial area does not impose a substantial burden on religious exercise within the meaning of the statute unless the church can show that there is a paucity of land elsewhere in the municipality. Petra Presbyterian Church, supra at 851. As Judge Posner noted: 'The ban on churches in the industrial zone cannot in itself constitute a substantial burden on religion, because then every zoning ordinance that didn't permit churches everywhere would be a prima facie violation of RLUIPA.' As a result, the court in Petra did not require the municipality to demonstrate a compelling state interest to justify the exclusion.

Stewart E. Sterk is Editor-in-Chief of this newsletter. He would like to thank Karen Lieu, who provided helpful research assistance in the preparation of this article.

What limitations does a municipality face in excluding religious uses in commercial or industrial districts? That issue has arisen in several cases over the last year and a half, most recently in Western New York District, Inc. v. Village of Lancaster (see infra). Although neither New York nor federal courts have definitively answered that question, it appears that municipalities enjoy more latitude to exclude religious uses in commercial and industrial districts than they enjoy with respect to residential districts.

The Preferred Status of Religious Uses

More than 50 years ago, the Court of Appeals established that municipalities may not exclude churches from residential areas. In Diocese of Rochester v. Planning Board , 1 NY2d 508, the church challenged the town's denial of a special permit and variance that would have permitted construction of a church in a single-family district. The applicable zoning ordinance permitted churches in the district upon grant of a permit by the planning board. The board, however, rejected the church's application, indicating expressly that it would not grant any permit for a church in a built-up residential area, which would, in effect, have excluded churches from any 'class A' residential district in the town. The Court of Appeals held that a policy excluding churches from residential districts did not promote health, safety, and welfare, and was therefore invalid. The court considered and rejected the planning board's reasons for its policy ' including avoiding change in the character of an existing residential neighborhood, protecting property values, and preventing loss of tax revenue ' and held that none of them was sufficient to support an absolute exclusion of churches.

The court noted, in particular, that the town's policy would cause hardship to parishioners: 'Thus the Diocese is forced to locate in an undeveloped section of the town without being able adequately to serve the territorial needs of its parishioners, in the hope that people of the Catholic faith will move near it. We know of no rule of law which requires that churches may only be established in sparsely settled areas.' Id. at 523.

In subsequent cases, the Court of Appeals has held that even when a municipality permits religious uses in residential areas, the municipality may not impose restrictions on religious users that impose significant financial burdens. Thus, in Westchester Reform Temple v. Brown , 22 NY2d 488, the court held that the planning board's application of setback restrictions to the temple's application to expand constituted an impermissible restriction on free exercise of religion. And in Jewish Reconstructionist Synagogue v. Incorporated Village of Roslyn Harbor , 38 NY2d 283, the court struck down a 100-foot setback requirement applicable to religious uses in residential areas. In both cases, the court has indicated that even legitimate concerns with traffic hazards cannot outweigh the rights of religious users. See, e.g., Westchester Reform Temple v. Brown , 22 NY2d at 496-97.

More recently, the court has, in Matter of Pine Knolls v. Zoning Board of Appeals , 5 NY2d 407, upheld a zoning board determination denying a church's application to build a secondary driveway when the board could substantiate traffic concerns with the driveway. The court emphasized, however, that the church's proposed expansion could be completed without the secondary driveway. And Pine Knolls stands alone among the Court of Appeals cases in denying to a church the development rights the church sought.

Commercial and Industrial Districts

Municipalities may have significantly different reasons for attempting to exclude religious uses from commercial or industrial areas. Neighboring industrial uses, for instance, might fear nuisance suits by churches, a problem not present when churches locate in residential areas. Cf. Petra Presbyterian Church v. Northbrook , 489 F.3d 849, 852 (7 th Cir. 2007) [Posner, J.]. Or, as in the Western New York case, the municipality may have made investments in infrastructure designed specifically to attract industrial uses (and their tax base) to the area, an investment on which the municipality will not receive a return if religious uses are permitted in the industrial area.

Moreover, some of the reasons for requiring that churches be permitted in residential areas lose their force when a church seeks to locate in an industrial area. Proximity to parishioners ' particularly an issue with Orthodox Jewish congregations, whose members cannot drive on the Sabbath ' is less of an issue when the church or synagogue seeks to locate in an industrial area. Thus, some of the policy concerns articulated in the Diocese of Rochester case simply do not apply.

Perhaps for that reason, there is some reason to believe that the Court of Appeals might uphold an absolute exclusion of churches from industrial areas. In a recent case, Albany Preparatory Charter School v. City of Albany , 31 AD3d 870, the Third Department struck down an exclusion of educational uses from a commercial district, and the majority concluded that the principles applicable to absolute exclusion for residential districts applies to all districts. Justice Spain, however, wrote a concurrence noting that the reasons for prohibiting exclusions from residential areas do not apply with respect to other districts. In the Western New York case, the court cited that concurrence.

RLUIPA

Even if a municipality could persuade the New York courts that an absolute exclusion of religious uses from industrial districts would be consistent with the public health, safety and welfare, and would not infringe on free exercise of religion, the municipality would face another obstacle: the federal Religious Land Use and Institutionalized Persons Act (42 U.S.C. sec. 2000cc et seq.). The statute prohibits a municipality from imposing a land use restriction that 'imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution' unless the government can demonstrate a compelling state interest. 42 USC sec. 2000cc(a)(1).

In a recent case, however, the Seventh Circuit has held that a municipality's exclusion of a church from an industrial area does not impose a substantial burden on religious exercise within the meaning of the statute unless the church can show that there is a paucity of land elsewhere in the municipality. Petra Presbyterian Church, supra at 851. As Judge Posner noted: 'The ban on churches in the industrial zone cannot in itself constitute a substantial burden on religion, because then every zoning ordinance that didn't permit churches everywhere would be a prima facie violation of RLUIPA.' As a result, the court in Petra did not require the municipality to demonstrate a compelling state interest to justify the exclusion.

Stewart E. Sterk is Editor-in-Chief of this newsletter. He would like to thank Karen Lieu, who provided helpful research assistance in the preparation of this article.