City of Englewood v. Apostolic Christian Church

Mr. Justice McWilliams

specially concurring:

Zoning ordinances which purport to regulate and control the new construction of churches in a given zoned area are generally divided into three types: (1) those which expressly authorize the location of a church in a given zoned area; (2) those which purport to expressly exclude or ban churches from a given zoned area; and (3) those which are “permissive” as to the location of a church within a particular zoned area. The latter type permits a church to locate in a given zoned area only after obtaining a permit therefor as the result of favorable action by an administrative body designated to consider such requests. The zoning ordinance of Englewood with which we are here concerned is of the latter or “permissive” type. In other words the zoned area where plaintiff church (hereafter referred to as the plaintiff) seeks to locate is not one where the ordinance contains a blanket exclusion of all churches. Rather it is an area where the right of a church to locate therein is permissive rather than absolute. The zoning ordinance in question also provides that the decision as to whether a church shall be permitted to locate in this particular residential area rests with the Board of Adjustment.

*381In the instant case the plaintiff sought authorization from the Board of Adjustment to build its church in the so-called “permissive area” and additionally sought in connection therewith a building permit from the building inspector. Both of these requests were denied. The Board of Adjustment in denying plaintiff’s request stated:

“That after considering all the evidence, including the plans presented by the applicant for the church building, it is the decision of the Board that the variance cannot be justifiably granted; that the request, if authorized, would substantially and permanently injure the appropriate use of adjacent conforming property and thus be against the provisions of Article II, section 7, paragraph 2 (e) of the Englewood zoning ordinance. It is the further finding of the board that to allow the variance, the public interest would not be fully protected as set forth by Article IV, section 3, paragraph 12 of the zoning ordinance.” (Emphasis supplied.)

Following denial of its request, plaintiff brought this action in the district court to compel the building inspector to issue the building permit and requesting a declaration that the zoning ordinance in so far as it purports to ban or limit the construction of a church in the area involved be declared unconstitutional. Finally it is alleged that the acts of defendants in denying the requested permits were arbitrary, capricious and in excess of their authority.

All pertinent facts were stipulated and no oral testimony was offered by either party. The trial court granted the relief prayed and held the portion of the zoning ordinance with which we are concerned to be in violation of the First and Fourteenth Amendments to the United States Constitution and Article II, section 25, of the Colorado Constitution, and additionally held that the administrative acts of all defendants were arbitrary.

Basically three questions are posed by the record before us: (1) Is that portion of the zoning ordinance lim*382iting and making permissive the right of a church to locate in this particular zoned area constitutional? (2) If so does the zoning ordinance contain adequate standards to govern the Board of Adjustment in exercising its discretionary power, or does it constitute an unlawful delegation of legislative power? (3) If the answer to the preceding questions be in the affirmative, then in denying plaintiff’s application, did the Board act arbitrarily and capriciously?

Proceeding first to consideration of the constitutionality of a zoning ordinance of the so-called “permissive” type. It is my considered judgment that such ordinance is constitutional and does not impinge on plaintiff’s constitutionally protected rights. The matter is one of first impression in Colorado. Cases from other jurisdictions draw a clear distinction between zoning ordinances which ban a church from a given area, and those which give only a permissive right to locate therein. The weight of authority is that an ordinance which bans a church absolutely from a given area is unconstitutional. It should be noted, however, that both California and Florida uphold the constitutionality of even this extreme type of zoning ordinance. See Presiding Bishop etc. v. Porterville, 90 Cal. App. (2d) 656, 203 P. (2d) 823, and Miami Beach United Lutheran Church v. Miami Beach (Fla.), 82 So. (2d) 880.

However, the weight of modern authority is that a permissive ordinance is constitutional and the action of a zoning board in denying an application of a church will be upheld if and only if there be substantial evidence tending to show that the granting of the permit would be detrimental to the health, safety, morals or general welfare of the community. See State of Washington ex rel. Wenatchee Congregation of Jehovah’s Witnesses v. The City of Wenatchee, et al., 50 Wash. (2d) 378, 312 P. (2d) 195; Milwaukie Company of Jehovah’s Witnesses v. Mullen, et al., 214 Ore. 281, 330 P. (2d) 5; Diocese of Rochester v. Planning Board of Brighton, 1 *383N.Y. (2d) 508, 136 N.E. (2d) 827; State ex rel. Anshe Chesed Congregation v. Bruggemeier, 97 Ohio App. 67, 115 N.E. (2d) 65, and West Hartford Methodist Church v. Zoning Board of Appeals, 143 Conn. 263, 121 A. (2d) 640.

Believing the particular type of zoning ordinance here under attack to be constitutional, I accordingly disassociate myself from the language of the majority opinion, which characterizes that portion of the zoning ordinance with which we are concerned as a “blanket exclusion of churches from single and double family residence districts.” As I understand the ordinance under attack its provisions are “permissive,” hence I deem it to be constitutional and not in violation of the First and Fourteenth Amendments to the U. S. Constitution or Article II, section 25 of the Colorado Constitution.

Without going into great detail it is also my conclusion that the Charter of Englewood and this zoning ordinance contain sufficient standards and directions to the end that the Board of Adjustment does not have unbridled discretion to grant or deny permits, but that its action must be consonant with the standards set forth in the Charter and Municipal Ordinances of Englewood.

The final question is whether the Board of Adjustment was justified in denying plaintiff’s application, or whether such denial was arbitrary and capricious? Upon careful examination of the record I am convinced that evidence of any real substance to justify the action of the Board of Adjustment is totally lacking. Indeed the reasons given by the Board are in themselves rather nebulous and ephemeral, it having assigned only two reasons for denying plaintiff’s application: (1) to grant the request would “substantially and permanently injure the appropriate use of adjacent and conforming property,” and (2) that if the variance was allowed “the public interest would not be fully protected.”

Zoning regulations are only justified on the ground that they protect and promote the general welfare relat*384ing to health, morals and safety. It would be difficult to argue that the location of a church even in a residential area would adversely affect its health or morals! The reported cases seem to uphold the action of a Board of Adjustment in denying the application of a church to build in a residential area if and only if there is a strong showing that to permit such would endanger the public safety because of the greatly increased flow of traffic and resulting congestion, fumes, noise and the like. No such showing was made in the instant case and indeed the Board of Adjustment expressly commented in the minutes of its meeting that plaintiffs plan disclosed “that parking is adequate for the building.” The possible depressive effect on property values by the erection of a church in a residential zone is not in itself sufficient ground for denying a permit for construction of a church. See Diocese of Rochester v. Planning Board of Brighton, supra, and for an excellent and complete annotation on this general subject see 74 A.L.R. (2d) 379.

In Bohn v. Board of Adjustment of Denver, 129 Colo. 539, 271 P. (2d) 1051, this Court said: “It is a fundamental principle recognized by all authorities that any regulation or restriction upon the use of property which bears no relation to public health, morals or general welfare cannot be sustained as a proper exercise of the police power of the municipality.” In the instant case the action of the Board of Adjustment in denying plaintiff’s application “bears no relation to public health, morals or general welfare [and] cannot be sustained as a proper exercise of the police power of the municipality.” The trial court was correct in vacating the action of the Board of Adjustment with direction that the application be granted and the building permit issued.

For the reasons above stated, I concur in the result reached by the majority.

I am authorized to state that Mr. Justice Sutton concurs in this specially concurring opinion.