OPINION OF THE COURT
Shapiro, J.
The Board of Trustees of the Incorporated Village of Oyster Bay Cove (the board) denied petitioner’s application for permission to use certain real property which it owns as a church and residence for priests. Special Term (Burke, J.) annulled that determination and remitted the matter to the [648]*648board with a direction that it grant the application under "such reasonable conditions as will permit establishment of petitioner’s church while mitigating the detrimental or adverse effects of such use upon the community.” We affirm.
The issue raised on this appeal is a recurrent one: whether a local zoning power may completely bar a religious organization from using its property for church purposes in an area zoned for residential use.
The petitioner, a not-for-profit corporation, was established by a congregation of separatist "traditional” Roman Catholics in 1973 under the aegis of the St. Pius X Society. It is the owner of a two-acre parcel of land in an area classified and zoned by a local zoning ordinance solely as a residential district and with a requirement that building lots have a minimum area of two acres. The parcel is located at the dead end of a private road more than four tenths of a mile from the nearest public road and the owners and occupants of the houses in the area are strongly opposed to its use for church purposes.
Their opposition and appellants’ denial of petitioner’s application are based upon the contentions that the church and its attendant traffic will devalue their properties, that the parcel is inappropriate for a church, that the proposed use of the parcel by the petitioner would create a fire hazard, and that the use will adversely affect the health, safety and welfare of residents of the village.
Thus, this is another in the line of cases beginning with Matter of Community Synagogue v Bates (1 NY2d 445) and Matter of Diocese of Rochester v Planning Bd. of Town of Brighton (1 NY2d 508) in which a local community seeks to use its zoning power to prevent the creation of a church in an area zoned for residential use.
Since the facts and the text of the relevant provisions of the appellants’ zoning ordinance are set forth fully in the opinion of our dissenting brother, we do not set them forth here.
In Matter of Diocese of Rochester (supra, p 526), the Court of Appeals said: "That is not to say that appropriate restrictions may never be imposed with respect to a church and school and accessory uses, nor is it to say that under no circumstances may they ever be excluded from designated areas.”
Later, in Matter of Westchester Reform Temple v Brown (22 [649]*649NY2d 488, 496-497), the court again noted its awareness that there might be a conflict between the need to protect the public health, safety or welfare and the constitutional duty not to abridge the free exercise of religion and declared that a community faced with such a problem should, if possible, comply with both requirements, saying: "We have not said that considerations of the surrounding area and potential traffic hazards are unrelated to public health, safety or welfare when religious structures are involved. We have simply said that they are outweighed by the constitutional prohibition against the abridgement of the free exercise of religion and by the public beneñt and welfare which is itself an attribute of religious worship in a community. If the community can, consistent with this policy, both comply with the constitutional requirement and, at the same time, avoid or minimize, insofar as practicable, traffic hazards or other potential detriments bearing a substantial relation to the health, safety and welfare of the community, there is no barrier to its doing so” (emphasis supplied).
It is noteworthy that, in speaking of the "constitutional prohibition against the abridgement of the free exercise of religion”, the court recognized and paid deference to "the public benefit and welfare which is itself an attribute of religious worship in a community.” Human experience teaches us that public officials, when faced with pressure to bar church uses by those residing in a residential neighborhood, tend to avoid any appearance of an antireligious stance and temper their decision by carefully couching their grounds for refusal to permit such use in terms of traffic dangers, fire hazards and noise and disturbance, rather than on such crasser grounds as lessening of property values or loss of open space or entry of strangers into the neighborhood or undue crowding of the area. Under such circumstances it is necessary to most carefully scrutinize the reasons advanced for a denial to insure that they are real and not merely pretexts used to preclude the exercise of constitutionally protected privileges.
In Jewish Reconstructionist Synagogue of North Shore v Incorporated Vil. of Roslyn Harbor (38 NY2d 283), the court’s opinion, written by Judge Fuchsberg and in which Judges Gabrielli and Cooke (now Chief Judge) concurred, struck down the special use ordinance there under consideration. The ordinance directed the authorities to deny a permit if they [650]*650found that the religious use would "have any detrimental effect on public safety, health, or welfare, including effects on traffic, on fire safety, and on the character of the surrounding neighborhood” (supra, p 289).
They did so because it contained no substantial requirement that efforts to accommodate or mitigate the effects be made and they then interpreted the decision in Matter of Diocese of Rochester (1 NY2d 508, supra) to mean that "where an irreconcilable conflict exists between the right to erect a religious structure and the potential hazards of traffic or diminution in value, the latter must yield to the former” (supra, p 288).
In our case appellants claim that their denial of petitioner’s application resulted from their findings that the proposed use would generate considerable extra traffic, pose a danger to area residents and others, result in lot area coverage of 40% to 55% when only 15% is permitted by the ordinance, create drainage and sewage problems, be inappropriate for a place of public assembly because there is no secondary means of access, and substantially devalue adjacent property and destroy the character of the area. Appellants noted that the planning history of the subdivision in which the property is located involved a low-density residential use only. They apparently entirely disregarded the applicant’s offer to comply with all appropriate safety requirements, noting, instead (and this may well have let the "cat out of the bag”), that the erection of a church in the contemplated area would disturb or annoy adjacent residents and there were already two religious facilities in the village.
Our dissenting brother contends that in affirming here this court "necessarily accepts the proposition implicit in the opinion of Special Term, that if the adverse or detrimental effects of petitioner’s church cannot be mitigated and an irreconcilable conflict develops between the right to erect a religious structure and the hazards generated by the religious structure, the latter- must yield to the former.” In so doing he fails to give proper weight to the fact that the judgment under [651]*651appeal does not so hold, nor is there any necessity for such a determination at this point.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION OF THE COURT
Shapiro, J.
The Board of Trustees of the Incorporated Village of Oyster Bay Cove (the board) denied petitioner’s application for permission to use certain real property which it owns as a church and residence for priests. Special Term (Burke, J.) annulled that determination and remitted the matter to the [648]*648board with a direction that it grant the application under "such reasonable conditions as will permit establishment of petitioner’s church while mitigating the detrimental or adverse effects of such use upon the community.” We affirm.
The issue raised on this appeal is a recurrent one: whether a local zoning power may completely bar a religious organization from using its property for church purposes in an area zoned for residential use.
The petitioner, a not-for-profit corporation, was established by a congregation of separatist "traditional” Roman Catholics in 1973 under the aegis of the St. Pius X Society. It is the owner of a two-acre parcel of land in an area classified and zoned by a local zoning ordinance solely as a residential district and with a requirement that building lots have a minimum area of two acres. The parcel is located at the dead end of a private road more than four tenths of a mile from the nearest public road and the owners and occupants of the houses in the area are strongly opposed to its use for church purposes.
Their opposition and appellants’ denial of petitioner’s application are based upon the contentions that the church and its attendant traffic will devalue their properties, that the parcel is inappropriate for a church, that the proposed use of the parcel by the petitioner would create a fire hazard, and that the use will adversely affect the health, safety and welfare of residents of the village.
Thus, this is another in the line of cases beginning with Matter of Community Synagogue v Bates (1 NY2d 445) and Matter of Diocese of Rochester v Planning Bd. of Town of Brighton (1 NY2d 508) in which a local community seeks to use its zoning power to prevent the creation of a church in an area zoned for residential use.
Since the facts and the text of the relevant provisions of the appellants’ zoning ordinance are set forth fully in the opinion of our dissenting brother, we do not set them forth here.
In Matter of Diocese of Rochester (supra, p 526), the Court of Appeals said: "That is not to say that appropriate restrictions may never be imposed with respect to a church and school and accessory uses, nor is it to say that under no circumstances may they ever be excluded from designated areas.”
Later, in Matter of Westchester Reform Temple v Brown (22 [649]*649NY2d 488, 496-497), the court again noted its awareness that there might be a conflict between the need to protect the public health, safety or welfare and the constitutional duty not to abridge the free exercise of religion and declared that a community faced with such a problem should, if possible, comply with both requirements, saying: "We have not said that considerations of the surrounding area and potential traffic hazards are unrelated to public health, safety or welfare when religious structures are involved. We have simply said that they are outweighed by the constitutional prohibition against the abridgement of the free exercise of religion and by the public beneñt and welfare which is itself an attribute of religious worship in a community. If the community can, consistent with this policy, both comply with the constitutional requirement and, at the same time, avoid or minimize, insofar as practicable, traffic hazards or other potential detriments bearing a substantial relation to the health, safety and welfare of the community, there is no barrier to its doing so” (emphasis supplied).
It is noteworthy that, in speaking of the "constitutional prohibition against the abridgement of the free exercise of religion”, the court recognized and paid deference to "the public benefit and welfare which is itself an attribute of religious worship in a community.” Human experience teaches us that public officials, when faced with pressure to bar church uses by those residing in a residential neighborhood, tend to avoid any appearance of an antireligious stance and temper their decision by carefully couching their grounds for refusal to permit such use in terms of traffic dangers, fire hazards and noise and disturbance, rather than on such crasser grounds as lessening of property values or loss of open space or entry of strangers into the neighborhood or undue crowding of the area. Under such circumstances it is necessary to most carefully scrutinize the reasons advanced for a denial to insure that they are real and not merely pretexts used to preclude the exercise of constitutionally protected privileges.
In Jewish Reconstructionist Synagogue of North Shore v Incorporated Vil. of Roslyn Harbor (38 NY2d 283), the court’s opinion, written by Judge Fuchsberg and in which Judges Gabrielli and Cooke (now Chief Judge) concurred, struck down the special use ordinance there under consideration. The ordinance directed the authorities to deny a permit if they [650]*650found that the religious use would "have any detrimental effect on public safety, health, or welfare, including effects on traffic, on fire safety, and on the character of the surrounding neighborhood” (supra, p 289).
They did so because it contained no substantial requirement that efforts to accommodate or mitigate the effects be made and they then interpreted the decision in Matter of Diocese of Rochester (1 NY2d 508, supra) to mean that "where an irreconcilable conflict exists between the right to erect a religious structure and the potential hazards of traffic or diminution in value, the latter must yield to the former” (supra, p 288).
In our case appellants claim that their denial of petitioner’s application resulted from their findings that the proposed use would generate considerable extra traffic, pose a danger to area residents and others, result in lot area coverage of 40% to 55% when only 15% is permitted by the ordinance, create drainage and sewage problems, be inappropriate for a place of public assembly because there is no secondary means of access, and substantially devalue adjacent property and destroy the character of the area. Appellants noted that the planning history of the subdivision in which the property is located involved a low-density residential use only. They apparently entirely disregarded the applicant’s offer to comply with all appropriate safety requirements, noting, instead (and this may well have let the "cat out of the bag”), that the erection of a church in the contemplated area would disturb or annoy adjacent residents and there were already two religious facilities in the village.
Our dissenting brother contends that in affirming here this court "necessarily accepts the proposition implicit in the opinion of Special Term, that if the adverse or detrimental effects of petitioner’s church cannot be mitigated and an irreconcilable conflict develops between the right to erect a religious structure and the hazards generated by the religious structure, the latter- must yield to the former.” In so doing he fails to give proper weight to the fact that the judgment under [651]*651appeal does not so hold, nor is there any necessity for such a determination at this point. The judgment simply annuls the denial of the petitioner’s application and remits the matter to appellants for the purpose of fashioning "such reasonable conditions as will permit establishment of petitioner’s church while mitigating the detrimental or adverse effects of such use upon the community.” Until the appellants attempt to establish such reasonable conditions, it is premature to deal with the issue raised by the dissent, which is whether the petitioner’s right to use its property for church purposes must be implemented even if it develops that it is impossible to fashion reasonable conditions. There is nothing in the record, at this point, which supports any conclusion that such a situation will eventuate here.
We had occasion in a recent decision, Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville (67 AD2d 70, 82, n), to declare: "Implied in both Golden ([Matter of Golden v Planning Bd. of Town of Ramapo, 30 NY2d 359] supra) and Berenson ([Berenson v Town of New Castle, 38 NY2d 102] supra) is the truism that zoning power, an exercise of the police power of the State, is to be used to protect and preserve the common weal, not the private interest of individual property owners or even of a.local community.” Nor may the zoning power be used to deny the constitutional right to the free exercise of religion by a chilling application of zoning laws.
In our view the position taken in the dissent is, at best, premature and at worst an encouragement to those who would limit the constitutional guarantee of the free exercise of religion by using the local zoning power as a free-wheeling excuse to exclude places of religious worship from their neighborhoods.
Chief Judge Breitel concurred in the result, but agreed "with so much of the dissent as characterizes the majority expression of the law as too absolutist in providing a preference and even to some extent an immunity from significant zoning regulation for premises devoted to religious uses”, although he conceded that "there is the broad language in the precedents which might support” the majority view (supra, pp 291-292).