Washington high court rejects church’s challenge to county zoning law

Friday, March 17, 2000

Despite cries of religious-liberty violations, Washington state's high court
has ordered a Baptist church to comply with a county zoning ordinance.

For years, the Open Door Baptist Church in Clark County has refused to apply
for a conditional-use permit, which is required for non-residential buildings in
a district zoned for residential properties. After being ordered in 1996 by
county officials to stop holding church services and apply for a conditional-use
permit, the church sued the county, arguing that enforcement of the zoning
regulations violated the church's free exercise of religion right protected by
the First Amendment and the Washington Constitution.

A trial court found in favor of Open Door, saying the county should have come
up with a less restrictive alternative than forcing the church to apply for a
permit. In 1998, a Washington appeals court, however, reversed and ruled in
favor of the county, holding that “the mere process of applying for a permit did
not impose an unconstitutional burden” on the church.

Not satisfied with the decision, the church's pastor, the Rev. Rocky Shanks,
represented by his Vancouver-based attorney, asked the Washington Supreme Court
to reverse. Shanks' attorney argued before the high court that the county's
insistence that the church apply for a conditional-use permit and pay the
attendant fees unconstitutionally violated the members' religious-liberty
rights. The attorney also argued that the county had no compelling reason for
forcing the church to apply for the permit.

The Washington high court agreed with the appeals court, saying the county's
zoning law applies fairly to all residents and only placed incidental burdens on
the church's religious liberties, thereby not arising to a constitutional

Clark County's rural zoning law states that its purpose is to provide land
for “residential living in the rural area,” and that “natural resource
activities such as farming and forestry are allowed and encouraged in
conjunction with the residential uses in the area.”

Justice Gerry L. Alexander, writing for the 7-2 majority in Open Door
Baptist Church v. Clark County
said the issue at hand was “whether a
church must merely alert citizens and their government — through the conditional
use application process — to its intention to locate in those zoned areas where
churches, as is equally true of other uses, are not allowed as of right but are
allowed to apply for conditional use statues.”

The church argued that the Washington Constitution and the free-exercise
clause of the First Amendment exempted it from having to go through the
expensive process of applying for the permit, which the church claimed would
cost a little more than $5,000. The church, moreover, claimed it was doubtful
the county would grant the permit anyway.

The majority found both claims spurious and unsupported by statutory or
constitutional law.

“In the present case, the potential harm would seem to be too attenuated from
the process of which Open Door complains,” Alexander wrote. “What is the 'burden
on the free exercise of religion' that Open Door had identified? It speculates,
based upon the testimony before the hearing examiner of a county official,
without more, that a conditional use permit would probably not be granted. It
writes that 'the Church is being coerced into ceasing its mission and meeting
for corporate worship because it fails to have a conditional use permit. The
burden therefore is clear.' Actually, this burden is quite unclear. The peril
that Open Door predicts will come to pass is just a prediction.”

The church argued that the county had to come up with a “compelling interest”
before being able to enforce the zoning law on the church. Citing the U.S.
Supreme Court's 1963 Sherbert
v. Verner
decision, the church claimed that laws which substantially
infringe upon religion must be justified by a “compelling interest” and be used
because no “alternative form of regulation” exists.

Alexander noted that the Sherbert test had never been used by federal
courts to strike down government actions, except in employment compensation
situations. Moreover, the justice wrote that “we have never invalidated any
governmental action on the basis of the Sherbert test except in the denial of
unemployment compensation.”

The Washington high court also noted that in 1990 the U.S. Supreme Court
ruled in Employment
Div., v. Smith
that “neutral, generally applicable laws may be applied
to religious practices even when not supported by a compelling governmental
interest.” Writing for the Smith majority, Justice Antonin Scalia warned against
“a system in which each conscience is a law unto itself or in which judges weigh
the social importance of all laws against the centrality of all religious

Additionally, in 1997, the U.S. Supreme Court in Boerne
v. Flores
noted that the “least restrictive means requirement” had never
been used by the high court prior to its Smith decision.

“When the exercise of religion has been burdened in an incidental way by a
law of general application, it does not follow that the persons affected have
been burdened any more than other citizens, let alone burdened because of their
religious beliefs,” Alexander wrote for the Washington court.

The Washington high court then cited several federal court decisions in which
religious groups had been denied building and conditional-use permits with no
findings of religious-liberty violations.

As an example, in 1990, the 9th U.S. Circuit Court of Appeals ruled in
Christian Gospel, Inc v. City & County of San Francisco, that denial
of a conditional-use permit for a church to build in a residential neighborhood
did not amount to a constitutional violation. “The burdens imposed by this
action are … of convenience and expense, requiring appellant to find another
home or another forum for worship,” the 9th Circuit ruled. “We find that the
burden on religious practice in this zoning scheme is minimal.”

Moreover, the 10th U.S. Circuit ruled in its 1988 decision in Messiah
Baptist Church v. County of Jefferson
that a “church has no constitutional
right to be free from reasonable zoning regulations.”

Under both federal and state constitutions, “Open Door has simply not met its
threshold requirement of establishing that Clark County's actions caused
anything more than an incidental burden upon the free exercise of religion,”
Alexander wrote for the Washington court.

The dissenters, Justices Richard B. Sanders and Charles Z. Smith, accused
Clark County officials of trying “to zone Open Door out of existence by use of
the conditional use permit process.”

Alexander chided the dissenters for depicting an “antireligious inquisition,”
and said the county's zoning law had nothing to do with the church's religious
leanings. Instead, he said the law was intended to keep the area zoned for
“natural resource activities such as farming and forestry” and “residential
living in a rural area.”

The majority concluded that “Open Door must comply with Clark County's
conditional use process.”

Donald A. Esau, the church's attorney, was unavailable for comment on the
court's ruling.