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

108 N.W.2d 288, 12 Wis. 2d 585, 1961 Wisc. LEXIS 436

• Court: Wisconsin Supreme Court
• Decided: March 7, 1961
• Status: Published

Opinions

Fairchild, J.

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 camps⁴ 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 that 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 chttrch 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 and where an ordinance permitted homes, municipal buildings, railroad stations, public schools, and clubhouses.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 restrictions were in effect in Bayside before July, 1954. It was in the first half of 1954 that the village board first indicated that it would agree to construction of a church on plaintiff’s site. In June of 1954, plaintiff was incorporated, apparently choosing its name with the expectation that it would build at the proposed site. The ordinance adopted in July, 1954, appears to exclude churches from the entire village. We do not hesitate to say that the ordinance in that form was invalid.²³ From July, 1954, to November, 1956, it would have been lawful to build a church anywhere in the village. It was during this period that plaintiff accepted from Dr. Davis the six lots it now owns, and presented its first proposed plans. Although the plans were disapproved, disapproval was based on the type of structure proposed, and not on the use of the land for a church.

5. Presumption of validity. “Under well-established rules, where a municipal body enacts regulations pursuant to authority expressly granted, all presumptions are in favor of its validity, and any person attacking it must make the fact of its invalidity clearly appear.” ²⁴ Cases like the present, however, raise not only the questions usually raised by restriction upon an owner’s right to use his property, but the additional question of whether religious freedom is being unduly impaired. We conclude that it is the duty of a court to give the closest scrutiny to the question whether the exclusion of a church from a district is justified.

The supreme court of Oregon has commented critically on a tendency “to cloak petitioning churches with a species of judicial favoritism under the zoning laws.” ²⁵ It seems to us that the courts must be sensitive to any claim that an undue burden is put upon freedom of worship. This is true both because of the importance of this freedom, and because of the real possibility that an overgenerous reliance upon the presumption of validity may cloak discriminatory action against a religious group which is too small a minority in the community to have an effective voice.

6. Vested rights. Plaintiff argues that its action in reliance upon favorable intimations of the village board gave it a property right to construct a church on its site, or estopped the village board from preventing it. Counsel cites Rosenberg v. Whitefish Bay (1929), 199 Wis. 214, 225 N. W. 838, and subsequent decisions. Plaintiff accepted the land (as a gift), chose its name, and prepared its first plans after the board manifested a favorable attitude and before the 1956 amendment. The record does not disclose the extent of any expenditure during that period, and we do not find that the principle of the Rosenberg Case is applicable.

7. Arbitrary action of the board. As we have heretofore noted, the Bayside ordinance of 1954 excluded churches from the village, and therefore could not have prevented plaintiff from building on its site. Assuming that the 1956 amendment, by providing that churches might be erected in certain districts, made valid the parts of the ordinance excluding churches from other districts, was it arbitrary and capricious not to include plaintiffs site in a district where plaintiff could proceed with its building? While plaintiff’s prior relationship with the village board and its various activities in reliance thereon are insufficient to give plaintiff a so-called “vested” right to build, they do provide strong equitable considerations for favorable zoning if at all reasonable.

In reaching the conclusion that the action of the village board was arbitrary and capricious, we have been persuaded by the following propositions: (a) Plaintiff is entitled to the benefit of equitable considerations arising out of its actions in reliance on the board’s indication of agreement, (b) The board rejected not only its own original view, but the recommendation of the consultant it employed, and the repeated recommendation of the village plan commission, (c) It appears that the property is better suited for a church than for residences, (d) Any traffic hazard could be readily eliminated by the village, (e) The fact that other owners combined their lots in Pelham Heath has little significance.

8. Suitability of site, amd effect on other lots. A Mr. Wahlberg testified that he was a lawyer and real-estate broker with twenty years’ experience; that he specialized as a broker in land subdivision and development, and had, in the past, developed land in the village of Bayside; that he had purchased lots in all three Pelham Heath subdivisions starting in 1954, and had purchased about 110 individual lots. At the time of the trial, he owned 15 out of the 76 lots in Pelham Heath No. 2, 35 out of the 131 lots in Pelham Heath, and 38 out of 80 lots in Pelham Heath No. 3. He testified that in Pelham Heath No. 2 there were eight residences in existence or under construction, 22 in Pelham Heath, and five in Pelham Pleath No. 3. The average market value of these homes was from $30,000 to $35,000, including land and buildings. It was his opinion that the church lots are not suited for residential use because of proximity to the Saxony restaurant, and the flow of traffic on the highway, and the difficulty of ingress and egress from a residence on these lots fronting the highway. With specific reference to the church construction as proposed by plaintiff, it was his opinion that it would have no adverse effect on other lots or improvements in the Pelham Heath subdivisions. As an owner of land in the area, he would have no objection to the construction of the church, and would, in fact, favor it, because the lots were not usable as residential lots, and would be adaptable for a well-designed church with offstreet parking and setbacks; that the construction of a church would make other lots generally more salable.

On cross-examination, he qualified his testimony with respect to the lots immediately adjacent and directly across the street from the church parking lot which would be adversely affected by the type of traffic which would use it.

9. Traffic hazard. The church parking lot would be reached from North Fielding. The greater part of the anticipated traffic would enter North Fielding from East Brown Deer road, and would enter East Brown Deer road at that intersection after leaving the church. An experienced traffic engineer made a study of the traffic problems at the site, including traffic counts at appropriate times, and the effect of the proposed building on visibility at the curve. It was his opinion that there would be no traffic hazard developing from the amount of traffic generated by the church, and that it would not be necessary to have an officer stationed at the intersection during church hours. The village chief of police testified that it would be a hazard, but it could be eliminated by a stop-and-go light, or stationing an officer.

10. Combining of lots. When the Pelham Heath subdivisions were annexed, they contained small lots (40, 45, and 50-foot widths), and there were no improvements. Some of the owners requested improvement of the lots, and installation of a sewer system. The village board then agreed to furnish a sewer system and improve the streets provided the owners would combine their property so that the minimum width for any building site and sewer connection would be 85 feet, and preferably so that the minimum width would be more than 100 feet. Committees of volunteers were formed to obtain covenants. These covenants read that,

“The owner hereby agrees to consolidate and use his two (2) adjoining lots for the express purpose of creating a single one (1) family residential building site to which there shall be but one (1) sewer connection from any sewer hereafter constructed by the village of Bayside.

“The owner further agrees that consolidation of adjoining lots for the express purpose of creating a single one (1) family residential site will greatly lessen fire hazard, alleviate a water shortage and will improve health, safety, and welfare with regard to sewage disposal.”

It was apparently the theory of the majority of the village board, and the circuit court agreed, that it would be inequitable to zone the church property for institutional use after 75 per cent of the lots in the Pelham Heath subdivisions had signed the consolidation agreements. This is difficult for us to follow, because it does not appear with any clarity that in 1955, when these agreements were signed, there was any representation that would morally obligate the village not to change the zoning in the Pelham Heath subdivisions. This matter does not have much weight in any event, because the church had some equitable considerations in its favor as pointed out above.

The plaintiff acquired its land for church purposes with the knowledge of the village board at a time when the ordinance could not have been enforced against use of the land for church purposes. We conclude that it is inequitable to enforce the ordinance against plaintiff, the board having arbitrarily omitted plaintiffs land from the new “E” districts created in 1956.

By the Court. — Judgment reversed, cause remanded with directions to enjoin enforcement of the Bayside zoning ordinance against construction of a church on plaintiffs site, and to issue a peremptory writ of mandamus commanding the building inspector to issue the building permit applied for.

1 The word “church” is used in this opinion as including a place of worship of any faith.

2 Congregation Temple Israel v. Creve Coeur (Mo. 1959), 320 S. W. (2d) 451, 454.

3 State ex rel. Wisconsin Lutheran H. S. Conference v. Sinar (1954), 267 Wis. 91, 65 N. W. (2d) 43.

4 State ex rel. Covenant Harbor Bible Camp v. Steinke (1959), 7 Wis. (2d) 275, 96 N. W. (2d) 356.

5 Green County v. Monroe (1958), 3 Wis. (2d) 196, 87 N. W. (2d) 827.

6 Milwaukie Co. of Jehovah’s Witnesses v. Mullen (1958), 214 Or. 281, 330 Pac. (2d) 5, 74 A. L. R. (2d) 347.

7 “Regulation of the Location of Churches by Municipal Zoning Ordinances” (1956-1957), 23 Brooklyn Law Review, 185, 186.

8 “The law is well settled that the building of a church may not be prohibited in a residential district.” Dictum in Board of Zoning Appeals v. Decatur, Indiana Co. of Jehovah’s Witnesses (1954), 233 Ind. 83, 91, 117 N. E. (2d) 115, 119.

“It is well established in this country that a zoning ordinance may not wholly exclude a church or synagogue from any residential district. Such a provision is stricken on the ground that it bears no substantial relation to the public health, safety, morals, peace, or general welfare of the community.” Dictum in Diocese of Rochester v. Planning Board (1956), 1 N. Y. (2d) 508, 522, 136 N. E. (2d) 827, 834.

“Since a city cannot legally exclude a church from a residential district by a zoning ordinance, it cannot legally accomplish the same result by denying permits unless the reasons for refusing the permits are based on valid evidence showing that to permit a church would be detrimental to the health, the safety, the morals or the general welfare of the community.” Congregation Committee, North Fort Worth Congregation, Jehovah’s Witnesses v. Haltom City (Tex. Civ. App. 1956), 287 S. W. (2d) 700, 704.

“We seriously question the constitutionality of any enactment that seeks flatly to prohibit the erection of churches in residential districts.” State ex rel. Synod of Ohio v. Joseph (1942), 139 Ohio St. 229, 240, 39 N. E. (2d) 515, 520.

This court citing the foregoing Ohio case has said:

“The majority of courts, on constitutional grounds, refuse to up-nold the exclusion of churches by zoning. Appellants’ argument as to the value of religious institutions to society might be well advanced if we had a zoning ordinance before us.” Hall v. Church of the Open Bible (1958), 4 Wis. (2d) 246, 249, 89 N. W. (2d) 798.

See Bassett, Zoning (1936 ed.), p. 200; 2 Metzenbaum, Zoning (2d ed.), pp. 1461-1464; 2 Yokley, Zoning Law and Practice (2d ed.), pp. 110-112, sec. 222.

See Anno. Zoning Regulations—Churches, 74 A. L. R. (2d) 377.

9 In Sherman v. Simms (1944), 143 Tex. 115, 119, 183 S. W. (2d) 415, 417, the court said: “To exclude churches from residential districts does not promote the health, the safety, the morals or the general welfare of the community, and to relegate them to business and manufacturing districts could conceivably result in imposing a burden upon the free right to worship and, in some instances, in prohibiting altogether the exercise of that right. An ordinance fraught with that danger will not be enforced.”

10 Miami Beach United Lutheran Church v. Miami Beach (Fla. 1955), 82 So. (2d) 880.

11 Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Porterville (Cal. 1949), 338 U. S. 805, 70 Sup. Ct. 78, 94 L. Ed. 487. (Appeal dismissed.)

12 American Communications Asso. v. Douds (1950), 339 U. S. 382, 397, 70 Sup. Ct. 674, 94 L. Ed. 925.

13 Board of Zoning Appeals v. Decatur, Indiana Co. of Jehovah’s Witnesses (1954), 233 Ind. 83, 117 N. E. (2d) 115; Community Synagogue v. Bates (1956), 1 N. Y. (2d) 445, 154 N. Y. Supp. (2d) 15, 136 N. E. (2d) 488; Diocese of Rochester v. Planning Board (1956), 1 N. Y. (2d) 508, 154 N. Y. Supp. (2d) 849, 136 N. E. (2d) 827; State ex rel. Anshe Chesed Congregation v. Bruggemeier (1953), 97 Ohio App. 67, 115 N. E. (2d) 65; Young Israel Organization v. Dworkin (1956), 105 Ohio App. 89, 133 N. E. (2d) 174.

14 Milwaukie Co. of Jehovah’s Witnesses v. Mullen (1958), 214 Or. 281, 330 Pac. (2d) 5, 74 A. L. R. (2d) 347 (denial based on traffic congestion); Galfas v. Ailor (1950), 81 Ga. App. 13, 57 S. E. (2d) 834 (denial based on traffic problem); West Hartford Methodist Church v. Zoning Board of Appeals (1956), 143 Conn. , 121 Atl. (2d) 640 (denial based on substantial injury to surrounding homes).

15 Hall v. Church of the Open Bible (1958), 4 Wis. (2d) 246, 249, 89 N. W. (2d) 798.

16 State ex rel. Saveland Park Holding Corp. v. Wieland (1955), 269 Wis. 262, 270, 69 N. W. (2d) 217.

17 The court quotes from Berman v. Parker (1954), 348 U. S. 26, 33, 75 Sup. Ct. 98, 99 L. Ed. 27, as follows:

“The concept of the public welfare is broad and inclusive. See Day-Brite Lighting, Inc., v. Missouri, 342 U. S. 421, 424 [72 Sup. Ct. 405, 407, 96 L. Ed. 469], The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled. In the present case, the congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the nation’s capital should be beautiful as well as sanitary, there is nothing in the Fifth amendment that stands in the way.” (Emphasis supplied.)

18 Art. I, and sec. 1, art. XIV, amendments to constitution of United States, art. I, Wis. Const.

19 Cantwell v. Connecticut (1940), 310 U. S. 296, 303, 60 Sup. Ct. 900, 84 L. Ed. 1213.

20 Ellsworth v. Gercke (1945), 62 Ariz. 198, 156 Pac. (2d) 242.

21 North Shore Unitarian Society v. Plandome (1951), 200 Misc. 524, 109 N. Y. Supp. (2d) 803.

22 State ex rel. Wisconsin Lutheran H. S. Conference v. Sinar (1954), 267 Wis. 91, 65 N. W. (2d) 43.

23 Mooney v. Orchard Lake (1952), 333 Mich. 389, 53 N. W. (2d) 308; North Shore Unitarian Society v. Plandome (1951), 200 Misc. 524, 109 N. Y. Supp. (2d) 803. See statements pointing out that an ordinance held valid did not completely exclude churches in Milwaukie Co. of Jehovah’s Witnesses v. Mullen (1958), 214 Or. 281, 330 Pac. (2d) 5, 74 A. L. R. (2d) 347; and Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Porterville (Cal. 1949), 338 U. S. 805, 70 Sup. Ct. 78, 94 L. Ed. 487.

24 State ex rel. Newman v. Pagels (1933), 212 Wis. 475, 479, 250 N. W. 430.

25 Milwaukie Co. of Jehovah’s Witnesses v. Mullen (1958), 214 Or. 281, 316, 330 Pac. (2d) 5, 74 A. L. R. (2d) 347, 369.