Federal appeals court upholds state’s zoning exemption for religious groups

Tuesday, May 9, 2000

A Massachusetts zoning law that allows religious groups great leeway in building and expanding their structures has been found constitutional by a federal appeals court despite an argument by some residents that the law favors religion.

In late 1998, a group of Belmont residents sued the city’s zoning board after it granted the Church of Jesus Christ of Latter-day Saints a permit to build a temple. The temple, which is under construction, is to occupy 69,000 square feet atop Belmont Hill overlooking an area zoned for single-family homes. The zoning board cited a state law that grants nonprofit schools, churches and other religious institutions the right to build anywhere in the state, except Boston and Cambridge, regardless of local land-use regulations. The Belmont residents argued that such a law violates the establishment clause of the First Amendment by favoring religious uses of property.

Last May, a federal judge ruled in favor of the zoning board, concluding that the state law did not constitute an impermissible “establishment” of religion. The residents then asked the 1st U.S. Circuit Court of Appeals to reverse the ruling.

A three-judge panel of the 1st Circuit voted 2-1 last week to uphold the state’s zoning-law exemptions for religious groups.

The residents’ “depiction of the statute as an impermissible legal hammer wielded in favor of religion both grossly exaggerates the reach of the statute and understates the recognition that religion may be given consistent with the Establishment Clause,” Judge Frank M. Coffin wrote in Boyajian v. Gatzunis.

Coffin said the state law, called the Dover Amendment, was created in 1950 in response to local land-use laws that allowed secular groups to build in residential areas, but disallowed sectarian groups from building there. Preventing or reversing religious discrimination is a secular state action, Coffin said.

“In our view, the favorable attitude toward religion reflected in the Dover Amendment does not constitute a fostering of, or favoritism toward, religion over non-religion, but represents a secular judgment that religious institutions, by their nature, are compatible with every other type of land use and thus will not detract from the quality of life in any neighborhood,” Coffin wrote.

Coffin also cited law-review articles detailing “discrimination against religion in the land use context” and reporting “numerous instances of zoning actions that reflect local sentiments ranging from outright hostility to indifference to the needs of religious organizations, with minority religions particularly hard hit.”

“Of particular note is the phenomenon of churches being unwanted either in residential areas — because of increased traffic or noise, or impact on aesthetics — or in business zones — because tax-exempt churches dampen the vibrancy of commercial developments,” Coffin continued.

In his dissent, Chief Judge Juan R. Torruella said the majority erred in characterizing the Dover Amendment as an anti-discrimination measure.

Torruella said the state law bars “any zoning ordinance that ‘prohibits, regulates or restricts’ religious uses’” and is therefore broader than the panel’s description of the law.

Torruella said the law “does not embody the ‘benevolent neutrality’ deigned by the Supreme Court to be the proper balance between competing mandates of the Religion Clauses.”

“A ‘neutral’ statute, in any ordinary sense of that word, would permit (and require) religious uses and religious users to operate on an even playing field with other uses and users, without special hindrances and without special advantage,” Torruella continued. “The Dover Amendment, in contrast, eschews neutrality to place religion in an exalted position, exempt from the ordinary land-use decision making process.”

Attorneys for the Belmont residents could ask the three-judge panel or the full 1st Circuit to rehear the ruling or seek a U.S. Supreme Court appeal. Michael Peirce, one of the residents’ attorneys, did not return calls regarding the ruling.