State v. Cameron

GARIBALDI, Justice,

dissenting.

This zoning case presents the issue of whether a minister’s home, used each Sunday by his congregation for formal, liturgical services, is a “church” within the meaning of the Franklin Township Zoning Ordinance (Ordinance). I would hold that a home is a church when it is used as the regular site for the traditional services of an organized, recognized religious body, which services are presided over by the ordained minister of that body. When all these elements are present, the use is within the Ordinance’s commonly-accepted meaning of “church and similar places of worship.” Because all of these conditions are met here, I would hold that the Rev. Mr. Cameron’s home was used as a church within the meaning of the Ordinance.

In reaching this conclusion, I find that the ordinance in question does not unconstitutionally restrict the religious freedom of the Rev. Mr. Cameron or his congregation and that the ordinance in question, with sufficient clarity, forbids the religious activity conducted by the Rev. Mr. Cameron in his home, and as applied to him, is not constitutionally vague.

I

The controversy arose when the Rev. Robert J. Cameron used his home to hold regular church services every Sunday for the congregation of Mount Carmel Reformed Episcopal Church, of which he is the minister. The Reformed Episcopal Church is a recognized religious denomination that separated from the Epis*611copal Church in 1893. The Rev. Robert J. Cameron is a graduate of the Theological Seminary of the Reformed Episcopal Church of Philadelphia, Pennsylvania. He was ordained as a Deacon in 1978 and later was ordained as a Presbyter, the highest order of ordination in his church. He is currently the minister and spiritual leader of the Mount Carmel Reformed Episcopal Church congregation and is compensated for these services.

Until sometime in the spring of 1981, the congregation held its regular formal Sunday services in a local school building. It advertised its services in local newspapers. An increase in rent led to the transfer of services to defendant’s home. The congregation, despite a diligent search, could not find a permanent location that it could afford to rent. According to the Rev. Mr. Cameron, the use of temporary facilities would have caused a hardship. First, the liturgical or formal services require the use of certain religious articles that are heavy and difficult to transport and are subject to accidental damage if stored. These articles include a prayer desk (i.e., a kneeler); a lectern to hold the church bible; a pulpit from which to speak; pews or chairs for the congregation; and, if possible, a communion rail at which members may receive communion. Second, the Rev. Mr. Cameron asserts that secular surroundings detract from the solemnity of the services. According to the Rev. Mr. Cameron’s affidavit, he decided to follow the traditional practice in his church, as well as in many others, of holding services for a “fledging congregation” in the home of its minister or one of its members “until a permanent ‘church’ location can be obtained.”

For the first few weeks after moving its Sunday services to the Rev. Mr. Cameron’s house, the congregation continued to advertise its services in the local newspaper. Home News, June 13, 1981, “In the Churches,” at 5 (“The 11 a.m. service of Mount Carmel Reformed Episcopal Church will take place at [the Rev. Mr. Cameron’s residence], in the Somerset section [of Franklin Township], with the Rev. Robert J. Cameron preach*612ing.”). After the congregation discontinued this advertisement, attendance at the services was by invitation only, with invitations extended to “people that we know, we meet [sic].” No signs of any kind were placed at the Rev. Mr. Cameron’s home to indicate that services were being held.

The Sunday church services held at the Rev. Mr. Cameron’s bouse were the same services the congregation previously had held at the school. Until halted by court order, these services were conducted every Sunday from 11 a.m. to noon, first in the defendant’s living room, then in a room that he recently had added to his house for, according to his building permit application of April 29, 1981, “activities of the owner,” which included prayers, a sermon by the Rev. Mr. Cameron, singing, and the taking of a collection. It is clear that the home was not “used only infrequently and incidentally for religious worship,” as the majority alleges. 100 N.J. 599. A number of people regularly attended these services. A neighbor testified that he could hear the singing and the sermon from his home eighty feet from the defendant’s home, and that cars parked on the street by those attending the service hindered the passage of traffic. The Township’s chief zoning code enforcer also testified that one Sunday he heard church music emanating from the Rev. Mr. Cameron’s house and saw a total of fourteen ears parked in front of the house, seven in the driveway and seven on the street.

The Ordinance establishes seventeen different zones. Defendant’s home is located in the R-15 residential zone, which permits only single-family dwellings. In addition to R-15, “churches and similar places of worship” are prohibited in only two other residential zones, R-10 and R-7. Of all the residential zones, these three zones have the smallest lot sizes and the densest population.

“Churches and similar places of worship” are permitted uses in all the other strictly residential zones, R-20, R-40 and RO-40-1 and in the R-R zone, R-A zone and OPT zone. In *613some of these zones there are minimum lot requirements for “churches and similar places of worship.” However, the OPT zone, which abuts the R-15 zone, the zone in which the defendant’s home is located, permits one and two family dwellings, with no minimum lot requirement.

II

I do not find any merit in the Rev. Mr. Cameron’s allegation that the exclusion of churches and similar places of worship from a single-family residential zone constitutes an unwarranted restriction of religious worship. Mr. Cameron relies primarily on Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), to support his position that the Ordinance unconstitutionally restricts his religious freedom. These cases are inapplicable.

In Wisconsin v. Yoder, supra, the United States Supreme Court held that the application to the Amish of compulsory school attendance laws violated the freedom of religion clause of the first amendment. The evidence in that case established that requiring attendance in high school would “contraveneQ the basic religious tenets and practice.” 406 U.S. at 218, 92 S.Ct. at 1534, 32 L.Ed.2d at 26. There was also expert testimony that compulsory attendance could ultimately destroy the church community. Id. at 212, 92 S.Ct. at 1531, 32 L.Ed.2d at 23. Neither danger is present here.

The Ordinance’s exclusion of places of worship from the R-15 zone does not manifest the constitutional infirmities that caused the law in Wisconsin v. Yoder, supra, to fall. There is no prohibition of religious activity throughout the Township. No one is required to act contrary to his or her religious beliefs and no one is required to abandon any religious belief in order to comply with the law.

Nor is the situation in Sherbert v. Verner, supra, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965, similar to this case. The *614United States Supreme Court in that case held that South Carolina’s refusal to pay unemployment compensation to a Seventh-Day Adventist because of her refusal to work on Saturdays was unconstitutional as applied. The Court emphasized that

not only is it apparent that appellant’s declared ineligibility for benefits derives solely from the practice of her religion, but the pressure upon her to forgo that practice is unmistakable. The ruling forces her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand. [Id. at 404, 83 S.Ct. at 1794, 10 L.Ed.2d at 970.]

Nonetheless, the Supreme Court has never implied that every law that imposes some burden on the exercise of religion is unconstitutional. Activities protected by the first amendment are subject to reasonable time, place, and manner restrictions. Heffron v. International Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298, 306 (1981).

The Rev. Mr. Cameron argued that this Ordinance is not a valid restriction because it fails to meet a heightened level of scrutiny and to serve a significant governmental interest, as such restrictions must. See id. at 649, 101 S.Ct. at 2564, 69 L.Ed.2d at 307. The question whether an ordinance should be subjected to a stricter level of scrutiny was addressed by the Sixth Circuit Court of Appeals. In a case strikingly similar to this one, that court found no first amendment infringement of the Free Exercise Clause to exist, and thereafter found a “rational basis” on which to uphold a municipal zoning ordinance that prohibited construction of church buildings in virtually all residential districts. Lakewood, Ohio Congregation of Jehovah’s Witnesses, Inc. v. Lakewood, 699 F.2d 303 (6th Cir.), cert, denied, 464 U.S. 815, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983).

The Court focused on the centrality of the burdened religious observance to the believer’s faith to determine the existence of an unconstitutional infringement. It first noted that the construction of the Kingdom Hall was merely “a desireable accessory of worship, not a fundamental tenet of the Congregation’s *615religious beliefs.” Id. at 307. It next noted that the ordinance resulted in making the practice of the Jehovah’s Witnesses’ beliefs more expensive, but did not require the Congregation to abandon its religious beliefs.

The burdens imposed on the Congregation by the ordinance are an indirect financial burden and a subjective aesthetic burden. The Congregation may build a church in Lakewood only in commercial or multi-family residential district. Land in these districts is more expensive and, the Congregation claims, less conducive to worship than the area where the lot is located. However, this is not a case where the Congregation must choose between exercising its religious beliefs and forfeiting government benefits or incurring criminal penalties. No pressure is placed on the Congregation to abandon its beliefs and observances. While it is true that the Congregation would face penalties if it began building on the proposed site, the penalties would not have the purpose or the effect of dissuading the Congregation from practicing its faith. In short, the burdens of the ordinance are the increased cost of purchasing land and the violation of the Congregation’s aesthetic senses, if the Congregation chooses to build a new church in Lakewood.
lid. at 307.]

Finding no infringement of religious freedom to exist, the court invoked the standard of review established in Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). It determined that the ordinance did bear a “substantial relation to the public health, safety, morals or general welfare.” 272 U.S. at 395, 47 S.Ct. at 121, 71 L.Ed. at 314. Accordingly, the Court held that the ordinance was rationally based and that Lakewood had met its minimal burden in justifying its zoning ordinance.

The exclusion of all uses except residential substantially minimizes congestion, noise and confusion due to motor vehicle traffic. The City has legitimately and rationally exercised its police power to preserve a “quiet place where yards are wide, people few, and motor vehicles restricted.” Belle Terre, 416 U.S. [1] at 9, 94 S.Ct. [1536] at 1541 [39 L.Ed.2d 797 (1974) ] [Lakewood, supra, 699 F.2d at 308.]

As in Lakewood, there is no infringement of religious freedom here. The exclusion of places of worship from the R-15 zone poses no threat to the continued existence of the Reformed Episcopal Church. Defendant has not demonstrated that anyone wishing to attend religious services, including the *616members of the Rev. Mr. Cameron’s congregation, has suffered any particular detriment.

In fact, the Rev. Mr. Cameron did not claim before the Municipal Court, or the Appellate Division, nor does he claim here, that unless the congregation could conduct religious services at his home, it will be unable to conduct religious services at any other location. Nor has the Rev. Mr. Cameron presented any facts that would support a claim that the exclusion of churches from the R-15 zone effectively terminates his congregation’s right to practice its religion. Nothing in the ordinance suggests that a minister residing in any of the zones allowing churches would be prohibited from holding church services in his home; that the Rev. Mr. Cameron could not conduct services in the abutting OPT zone, either by acquiring a home or using the home or business establishment of someone located in that zone; or that it is impossible for the congregation to practice its religion in a neighboring municipality.

The fact that Rev. Mr. Cameron’s congregation was unable to continue to rent premises from the Board of Education suggests that financing is a problem with any relocation. That observation, however, is very far from the proof needed to support the conclusion that there were no other practical alternatives that would not violate the Ordinance. Accordingly, there has been no showing that the Ordinance in fact infringes upon the Congregation’s right to free exercise of religion.

The municipality also satisfies the second prong of the test set forth in Lakewood — namely, that the Ordinance bears a substantial relation to the public health, safety, morals, or general welfare. The significance of the Township’s interest in regulating traffic, safety, noise, and congestion becomes clear when the Ordinance is viewed as a whole. The United States Supreme Court has acknowledged that a municipality has the power to “lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Belle Terre v. Boraas, 416 U.S. 1, 9, 94 *617S.Ct. 1536, 1541, 39 L.Ed.2d 797, 804 (1974). This power becomes meaningless if uses with any first-amendment protec-tipn may not be excluded from a residential zone.

Defendant asserts that his activities are “innocuous” and no different in their effect from having a few people over for cocktails. The government, he argues, therefore has no significant interest in regulating his activity per se. Any deleterious effects can be regulated through enforcement of criminal statutes, general police power ordinances, and by application of the law of nuisance.

This argument misses the point for two reasons. First, it is no defense to a zoning ordinance to allege that other types of conduct would not be a violation of the zoning ordinance. That a householder, for example, may have several children who make substantial noise playing in the backyard does not mean that a nursery school could be established in such a zone. Similarly, that a small place of worship, a small restaurant, or small retail establishment may be less disruptive to the tranquility of a single-family zone than a large family is irrelevant.

Second, it is premised on the notion that the governmental interest in regulating a particular land use should be assessed on a case-by-case basis rather than as part of a whole planning scheme. This notion ignores the reason zoning became popular. Early zoning ordinances arose in part to subject certain unwanted uses to restraint without the necessity of proving the elements of public or private nuisance on a case-by-case basis. 1 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning, § 1.01 at 1-3, 1-11. Thus one purpose of a zoning ordinance is to relieve a municipality of the need to investigate each individual situation. This purpose is achieved by allowing a municipality to classify uses. Id.

Accordingly, the Ordinance does not infringe upon the Rev. Mr. Cameron’s first amendment rights. Nor does the exclusion of churches from single-family zones violate the New Jersey Constitution of 1947, art. I, para. 3, 6, 18. The Ordinance, by *618limiting the secular interests of the Congregation to establish a place of worship at a location of its own choosing, does not deprive anyone “of the inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience.” Id., para. 3. In addition, as in Lakewood, the Ordinance is rationally based inasmuch as the municipality is merely invoking its police power to maintain the peace and tranquility of its residential neighborhoods.

Ill

Nor do I agree with this Court’s decision today that the Ordinance does not, with sufficient clarity, forbid the religious activity conducted by the Rev. Mr. Cameron in his home and, as applied to him, is vague and constitutionally unenforceable.

Although the Rev. Mr. Cameron and the majority couch their objection in terms of the unconstitutional vagueness of the statute, their basic argument is simply that the use of the home for regular religious services did not render his home a “church” within the meaning of the Ordinance. Thus, according to this argument, the Ordinance is inapplicable in this context.

The majority, in concluding that the phrase “churches and similar places of worship” is vague, analyzes the word “church” by focusing on the building or structure that is being used to signify a church or similar place of worship, rather than on the religious activity in which the participants engage. It is the activity, not the structure, towards which the Ordinance is directed. To interpret the Ordinance as narrowly as the majority suggests would leave uncovered many activities otherwise intended to be restricted.

In the absence of an explicit indication to the contrary, thee court presumes that the legislative body intended that a term, like others generally employed, be construed according to its commonly-accepted meaning. Twin-City Bible Church v. Zoning Bd. of Appeals, 50 Ill.App.3d 924, 927-28, 8 Ill.Dec. 919, *619921-22, 365 N.E.2d 1381, 1383-84 (1977) (construing “church”); Moyer v. Board of Zoning Appeals, 233 A.2d 311, 316-17 (Me.1967) (construing “hotel”); Jones v. Zoning Hearing Bd. of Lower Merion Tp., 7 Pa.Cmwlth. 284, 288-89 (1972) (construing “club”). All that is required is that the interpretation proceed in accordance with what commonly would be understood by the language employed. See 1 A. Rathkopf & D. Rathkopf, The Law of Zoning & Planning, supra, § 9.03, at 9-6 (4th ed. 1985); Renz v. Penn Cent. Corp., 87 N.J. 437, 440 (1981) (words in statutes construed according to common meaning); Levin v. Parsippany-Troy Hills, 82 N.J. 174, 182 (1980) (same); Abbotts Dairies, Inc. v. Armstrong, 14 N.J. 319, 325 (1954) (same). The label given the use by the owner does not determine whether a proposed use comes within the terms of a zoning ordinance. This is ascertained from the actual use and the method of operation. 1 A. Rathkopf & D. Rathkopf, The Law of Zoning and Planning, supra, § 9.06, at 9-17.

New Jersey case law accords with these principles. In George v. Board of Excise, 73 N.J.L. 366 (Sup.Ct.1906), aff'd o.b., 74 N.J.L. 816 (E. & A. 1907), the court held that a building, partially used as a dwelling and storage area and partially used as a mission by “Faith Curists,” was not a church. The Faith Curists, who evidently were not organized under the laws of New Jersey, held services on certain evenings and on Tuesdays (but not on Sundays) and conducted a Sunday school in the building. Id. at 367. The court suggested that the common meaning of “church” is a “body of persons of a common religious faith associated for purposes of worship under some form of permanent organization.” There was no testimony “that any religious organization holds within the proscribed area stated meetings for church services,” so the court held that a building, in which a group of merely “religiously inclined persons” met “together for Bible study and the like,” was not a church. Id. at 368. This reasoning suggests that the activities at the location are the determining factors to establish whether a building is used as a “church.”

*620That the nature of the user should be considered is not surprising. As long ago as 1841, Justice Nevius, in his dissent in Trustees of the Baptist Soc’y v. Fisher, 18 N.J.L. 240, 254 (Sup.Ct.), noted that the meaning of the term “church” had shifted over the years so that it involved an organizational aspect. The term “church”

anciently signified any public meeting convened to consult upon the common welfare of a State, was afterwards used to designate the place of sacred or religious meetings, and again it was applied to religious congregations, assemblies or associations, but at the present time and under our institutions and laws, it must be understood to express a spiritual or religious corporation. This is now its ordinary acceptation and it must be considered as used in that sense in these articles of association.
[Id. at 257.]

Newark Athletic Club v. Board of Adjustment, 7 N.J. Misc. 55 (Sup.Ct.1929), also focused on the actual use made of the property. In that zoning case, an applicant sought a permit to erect a public garage in a district that did not zone against such structures unless particular restrictions applied. One such restriction precluded construction of the garage within 200 feet of a church. The court was therefore required to determine whether a particular structure could be characterized as a church within the meaning of the statute. The building in question was a parish house used for conducting

the Sunday school of Trinity Parish, at which there are prayers read, hymns sung, the reading of scripture and bible instruction, twice each Sunday except during July and August. There is choir practice every night in the week except Friday. There are church committee meetings and church social functions held there and services for deaf mutes held once a month except during Lent. In this building are also held meetings of the young people of the church, the women’s auxiliary and boy scouts. Meetings of the vestry are also probably held in this building.
[Id. at 58.]

Unlike the people using the mission in George, the people using Trinity Parish were an organized religious body. However, the congregation had a main place of worship, Trinity Church, which suggests that the activities at the parish house, like the activities at the Faith Curists’ mission, differed from those traditionally reserved for the body’s main place of worship.

*621These eases accord with the following dictionary definition of church in Black’s Law Dictionary, 306 (4th ed. 1951):

CHUECH. In its most general sense, the religious society founded and established by Jesus Christ, to receive, preserve, and propagate his doctrines and ordinances.
It may also mean a body of communicants gathered into church order, Stebbins v. Jennings, 10 Pick. (Mass.) 193; body or community of Christians, united under one form of government by the profession of the same faith, and the observance of the same ritual and ceremonies, McNeilly v. First Presbyterian Church in Brookline, 243 Mass. 331, 137 N.E. 691, 694; building, Combined Congregations of District of Columbia v. Dent, 140 F.2d 9, 10, 78 U.S.App. D.C. 254; congregation, Trustees of Pencader Presbyterian Church in Pencader Hundred v. Gibson, Del., 22 A.2d 782, 787, 788; organization for religious purposes, Williams v. Williams, 215 N.C. 739, 3 S.E.2d 334, 338; place where persons regularly assemble for worship, Stubbs v. Texas Liquor Control Board, Tex.Civ.App., 166 S.W.2d 178, 180; religious society or body, In re Werner's Will, Sur., 181 N.Y.S. 433, 434; society of persons who profess the Christian religion, Church of the Holy Faith v. State Tax Commission, 39 N.M. 403, 48 P.2d 777, 784.
In English ecclesiastical law. An institution established by the law of the land in reference to religion. 3 Steph. Comm. 54. The word “church” is said to mean, in strictness, not the material fabric, but the cure of souls and the right of tithes. 1 Mod. 201.
A congregational church is a voluntary association of Christians united for discipline and worship, connected with, and forming a part of, some religious society, having a legal existence. Anderson v. Brock, 3 Me. 248.

The cited cases also accord with the standard dictionary definition that a church is a “place of worship of any religion.” See Webster’s New International Dictionary 404 (3d ed. 1971).

Zoning ordinances frequently define permitted or proscribed activity with commonly-used words such as “restaurants,” “hospitals,” and “hotels.” As discussed above, there exists a presumption that the legislature intended that one should construe such terms according to their commonly-accepted meaning. To do otherwise and follow the reasoning of the majority, which relies upon the building or structure, would result in an anomalous result. For example, in excluding restaurants from particular zones in the municipality, the Ordinance makes no mention of dining activity as such. The generic word “restaurant” connotes a variety of interpretations. One might conceive of a restaurant as a posh eatery requiring valet parking *622and formal attire or a small store-front delicatessen with a few tables and chairs. The common thread running through these images is the activity that occurs therein. To focus on the building or structure would impose an impossible task on the drafters of such statutes.

IV

The touchstone in determining whether a statute is impermis-sibly vague is whether the complainant against whom enforcement is sought has been fairly warned that his conduct runs afoul of the statutory proscription. In our recent case of State v. Lee, 96 N.J. 156, 167 (1984), we held that the statute, which makes a person guilty of a fourth degree crime if that person possesses a weapon “under circumstances not manifestly appropriate for such lawful uses as it may have,” was not “impermis-sibly vague in all its applications.” In that opinion we stated: “That the prohibited behavior is not susceptible to precise definition need not lead to legislative paralysis. The words of the challenged statute are a sufficient warning so that an ordinary person ‘is apprised with a reasonable degree of certainty of that which is proscribed.’ ” Id. at 166; see Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362, 371, reh’g denied, 456 U.S. 950, 102 S.Ct. 2023, 72 L.Ed.2d 476 (1982); Town Tobacconist v. Kimmelman, 94 N.J. 85, 118 (1983); Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67, 86 (1960) (hereinafter “Note”). Hence, the presence of knowledge or “scienter” on complainant’s part has been held to be an important determinant with respect to the adequacy of notice that his conduct is proscribed. See Flipside, supra, 455 U.S. at 499, 102 S.Ct. at 1193, 71 L.Ed.2d at 372; Note, 109 U.Pa.L.Rev. at 87 n. 98. Therefore, while many varied meanings may be ascribed to a statutory term, “the fact that punishment is restricted to acts done with knowledge that they contravene the statute” renders untenable a claim that a statute provided claimant with no clear warning. *623American Communications Ass’n v. Douds, 339 U.S. 382, 413, 70 S.Ct. 674, 94 L.Ed. 925, 951, reh’g denied, 339 U.S. 990, 70 S.Ct. 1017, 94 L.Ed. 1391 (1950).

Abstract words may acquire, through daily usage, a content that conveys to any interested person a sufficient concept of what is forbidden. “A term may have a meaning well enough defined to enable one engaged in the trade to apply it correctly.” Annot., 96 L.Ed. 374, 378 (1952). And while it will always be possible for the fertile legal imagination to conjure up hypothetical cases in which the meaning of terms will be disputed, the applicable standard is “the practical criterion of fair notice to those to whom the statute is directed. The particular context is all important.” American Communications Ass’n v. Douds, supra, 339 U.S. 382, 412, 70 S.Ct. 674, 94 L.Ed. 925, 951 (1950); see also Grayned v. City of Rockford, 408 U.S. 104, 111, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222, 229 (1972) (an anti-noise ordinance that proscribed “making of any noise or diversion which disturbs” not impermissibly vague since “we can never expect mathematical certainty from our language.”) Kovacs v. Cooper, 336 U.S. 77, 79, 69 S.Ct. 448, 449, 93 L.Ed. 513, 518, reh’g denied, 336 U.S. 921, 69 S.Ct. 638, 93 L.Ed. 1083 (1949) (use of the words “loud and raucous” in Trenton ordinance restricting sound trucks did not render statute vague and unenforceable because words had through daily use acquired a content that sufficiently conveyed concept of what was forbidden).

The majority urges that this Ordinance, being quasi-criminal in nature, requires the application of heightened scrutiny. 100 N.J. at 594. This strict approach has been rejected by numerous cases. In re Suspension of De Marco, 83 N.J. 25, 36-37 (1980) (citing State v. Parmigiani, 65 N.J. 154 (1974), aff’g State v. Angelo’s Motor Sales, 125 N.J.Super. 200 (App.Div. 1973); State v. Gill, 47 N.J. 441 (1966); State v. Provenzano, 34 N.J. 318 (1961); State v. Gratale Bros., Inc., 26 N.J.Super. 581 (1953)). Instead, the level of scrutiny to be applied has been held to turn on the question of fairness, given the statute *624and its provisions, and given the situation of defendant. Certainly, we must query whether the statute gives a person of ordinary intelligence fair notice that his conduct is forbidden and punishable by certain penalties. But, as we stated in De Marco, supra, 83 N.J. at 37:

That test, however, does not consist of a linguistic analysis conducted in a vacuum. It includes not simply the language of the provision itself, but related provisions as well, and especially the reality to which the provision is to be applied.

In De Marco, in determining whether a statute that penalizes physicians for malpractice was to be strictly construed, we considered defendant’s status as a physician and whether a “physician of ordinary intelligence would have to understand that the legislature intended to prohibit violations of the act, intended to prohibit any act of gross malpractice that might threaten the life or health of a patient.” Id. (emphasis added).

Therefore, one 'who may reasonably know that one’s conduct falls within the proscription of the relevant ordinance may be charged with notice that the ordinance would be so construed. One may not thereafter successfully challenge the statute on vagueness grounds simply because other conduct within the ambit of the statute would not be accorded the same fair warning. Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439, 458 (1974).

[T]he decisions of the court upholding statutes as sufficiently certain rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them * * * or a well-settled common law meaning, notwithstanding an element of degree in the definition as to which estimates might differ * * *. [Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926).]

Applying these principles here, the ordinance is sufficiently clear so as fairly to warn the Rev. Mr. Cameron, a minister, that use of his home for regular Sunday services runs afoul of the township’s exclusion of all “churches and similar places of worship” from the R-15 residential zone. As discussed supra at 594-595, the word “church” has acquired a common *625meaning in everyday parlance that turns on the nature of the user and the actual use made of property. The meaning of “church” is well enough established so that a man of the cloth would certainly understand that the religious activities engaged in by his fledgling congregation constituted a “church,” thereby providing him with the fair notice required by procedural due process.

The Rev. Mr. Cameron is an ordained minister of the Reformed Episcopal Church and the spiritual leader of the Mount Carmel Reformed Episcopal Church. The services consisting of prayers, a sermon, singing, and collections, conducted regularly every Sunday at the Rev. Mr. Cameron’s home, were the same services the congregation previously conducted. The services were formal and liturgical and required certain religious equipment, including a prayer desk, a lectern for the church bible, a pulpit, a communion rail, and pews or chairs for the congregation. As defendant himself recognized in his affidavit, the services would be held in his house “until a permanent ‘church’ location can be obtained.” And, of course, the advertisements in the newspapers, although discontinued, support the conclusion that the defendant’s home constituted the church for the congregation of the Mount Carmel Reformed Episcopal Church. It is not unreasonable in my view to charge the Rev. Mr. Cameron with notice that such would be the construction of the ordinance.

Moreover, the Township provided the Rev. Mr. Cameron with notice that his activity was proscribed by the Municipal Zoning Ordinance. The Municipal Court of Franklin Township found the Rev. Mr. Cameron in violation of the Ordinance. Yet, it assessed no penalty against him and instead ordered him to cease holding services in his home subject to a $500 fine for each future violation. Such knowledge belies complainant’s contention that he was deprived of due process because of a lack of notice that the activity in question was proscribed. As *626such, the Rev. Mr. Cameron’s challenge to the constitutionality of the statute on its face and as applied to him must fail.

Y

Subsequent to the oral argument of this case, the Court was advised that Franklin Township had adopted a new zoning ordinance that changed the standards governing the use of a property as a “church” in a R-15 zone and defined the term “church.” Under Kruvant v. Cedar Grove, 82 N.J. 435 (1980), we normally would require that the legality of the use of the Rev. Mr. Cameron’s home as a “church” be determined under the new zoning ordinance. Counsel for the Rev. Mr. Cameron, however, has requested that the “time of decision” rule not be applied here because, as he correctly stated, the application of the new zoning ordinance will not invalidate the Rev. Mr. Cameron’s conviction in municipal court that he had violated the prior Ordinance.

Therefore, I would hold that the Rev. Mr. Cameron’s home is a “church” under the prior Ordinance because it is the regular site for his congregation of Mount Carmel Reformed Episcopal Church. Moreover, I would hold that the Franklin Township’s exclusion of “churches and similar places of worship” from the R-15 zone, in which the Rev. Mr. Cameron’s home is located, was a legitimate exercise of the municipality’s zoning power; that the exclusion violates neither first nor fourteenth amendment rights; and that the prohibition is not vague.

Accordingly, I would affirm the judgment below.

CLIFFORD and O’HERN, JJ., concurring in the result.

For reversal — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK and O’HERN — 5.

For affirmance — Justices SCHREIBER and GARIBALDI— 2.