Religious Land Use Jurisprudence: the Negative Ramifications for Religious Activities in Washington After Open Door Baptist Church v. Clark County

• Publication year: 2002
• Citation: Vol. 26 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 26, No. 2FALL 2002

Religious Land Use Jurisprudence: The Negative Ramifications for Religious Activities in Washington After Open Door Baptist Church v. Clark County

Beth Prieve(fn*)

I. Introduction

On March 16, 2000, the Washington Supreme Court entered the debate over whether a church has a constitutional right to be free from reasonable zoning regulations when it decided Open Door Baptist Church v. Clark County.(fn1) Open Door Baptist Church (hereinafter "Open Door") sued Clark County, Washington, alleging that Clark County's zoning laws violated the rights of Open Door's members under the First Amendment's Freedom of Exercise Clause,(fn2) the Washington Constitution's freedom of religion clause,(fn3) and the Religious Freedom Restoration Act of 1993.(fn4) The principal dispute in this case stemmed from a conditional use permit, which local zoning laws required Open Door to obtain in order to operate as a church. Undeniably, this case serves as a prime example of the increasingly familiar conflict between a congregation's fundamental right to freely worship and the power of local government to zone.

Open Door has used the Clark County building located on the property at issue for church purposes since 1990.(fn5) Indeed, the building was originally devoted to church purposes, but was later used as an art school from 1978 until first occupied by Open Door.(fn6) The property was zoned by Clark County under a residential and rural land use designation.(fn7) On January 12, 1995, Clark County determined that Open Door's church site did not conform with the County's zoning code and issued a notice and order.(fn8) Open Door was ordered to "cease all business activities or apply for a conditional use permit within ten days from the date of the notice and order."(fn9) The church contended that requiring it to apply for a conditional use permit violated its constitutional right to the free exercise of religion.(fn10)

The Clark County hearing examiner stated that he did not have jurisdiction to consider state or federal constitutional issues, and concluded, based on applicable land use laws, that the property was being used as a church without the necessary conditional use permit, and was therefore a nonconforming use.(fn11) Accordingly, the hearing examiner affirmed the notice and order requirements and gave Open Door sixty days to file a technically complete application for a conditional use permit.(fn12) Open Door obtained review of the examiner's decision through a writ of certiorari to the Clark County Superior Court by alleging that enforcement of the zoning regulations violated its constitutional right to the free exercise of religion.(fn13) The court vacated the hearing examiner's order, reasoning that the legal standard that allowed the government to burden religious uses (as articulated by the Washington Supreme Court in City of Sumner v. First Baptist Church (fn14) had not been met.(fn15) Addressing the conflict between the power of a governmental entity to zone and the right of a congregation to freely exercise religion, the City of Sumner court noted that its duty was to balance the interests of the parties in order to accommodate both religious freedom and local government's legitimate concerns over land use.(fn16) The court concluded that should Clark County take further enforcement against Open Door to require a conditional use permit, it would bear the burden of complying with the standard set forth in City of Sumner, meaning that the county would have to justify its zoning laws in the case at bar by (1) demonstrating a compelling state interest, and (2) proving that it has chosen the least restrictive alternative to accomplish that result.(fn17) Clark County appealed this ruling to Division Two of the Court of Appeals, which reversed the trial court, holding that the mere process of applying for a conditional use permit did not impose an unconstitutional burden on Open Door.(fn18) Accordingly, Open Door had little choice by way of this decision: it could comply with Clark County's zoning laws by applying for a conditional use permit, or it could close its doors.

There is a long-running, national dispute among churches, cities, and counties over local government's power to use zoning and other land use laws to regulate religious institutions.(fn19) In Washington, religious land use jurisprudence issues have "touched off a holy war."(fn20) Those fighting to keep large churches outside of rural areas concentrate their arguments on growth management concerns(fn21) and the maintenance of public services, which include roads, water, utilities, sewage treatment, and fire and police protection.(fn22) Because the existence of mega-churches can lead to urban-level demands for these goods and services, many zoning law proponents believe counties wisely restrict the locations upon which these newer, large-size churches can be built. (fn23)

Their theory is that zoning restrictions reduce sprawl in rural areas and avoid overburdening local government in its ability to provide public services.(fn24) As seen in Open Door, without such regulations, "one could choose to live in a neighborhood for its entirely residential nature, wake up one morning and find that all other houses on one's block had been replaced by church buildings, and be left without recourse."(fn25)

Conversely, the Catholic Archdiocese of Seattle is leading a crusade to get churches built, noting that church members in rural areas are clamoring for new parishes.(fn26) Alexander Brunett, an Archbishop in Western Washington, has stated that zoning ordinances are placing a burden on the churchgoer's right to worship freely: "a policy that stops people from going to church because the only church available is miles away and is so overcrowded that there is no parking and no place to sit . . . interfere[s] with our right to worship."(fn27) The Archbishop warned: "[I]f we are prevented from meeting the spiritual and educational needs of thousands of Catholics, there will be consequences."(fn28) Moreover, the conservation of resources is not the only pertinent issue here; consideration must also be given to the vast social good that churches create, like the clothes closets, food banks, and day-care operations.(fn29) Ron Hart, an ordained pastor for Walnut Grove Community Church and a former Vancouver, Washington city councilman, made clear that church leaders are not suggesting that churches should be exempt from complying with zoning laws by submitting plans or permits, but rather that "there ought to be somewhere we [churches and congregations] can go to build without having to challenge the whole system."(fn30)

On its face, the Washington Supreme Court's decision in Open Door merely requires a church to go through the conditional use permit process when a zoning ordinance is deemed to pass constitutional muster; however, this decision actually has far greater ramifications because it signals a shift in the court's thinking with regard to the free exercise of religion. Because the court relied on Washington religious land use jurisprudence, this Note will concentrate on the court's analysis of that subject. This Note addresses the issue of whether a zoning ordinance that requires a church to apply for a conditional use permit, while also remitting a concomitant application fee, unconstitutionally infringes upon the church's religious freedom under article I, section 11 of the Washington Constitution. In holding that a zoning ordinance can, in fact, require churches to apply for these conditional use permits, the court demonstrated a significant shift in its religious land use jurisprudence. The court misapplied Washington's freedom of religion test, and in doing so, incorrectly tipped the scales in favor of zoning laws promulgated by local government.

Part II of this Note provides a history of religious land use jurisprudence in Washington. This part addresses growth management laws generally, and where these laws cross paths with constitutional guarantees of the free exercise of religion. Part III focuses on the Washington Supreme Court's Open Door decision, separately addressing both the majority opinion and the dissent. Part IV illustrates how the Washington Supreme Court misapplied Washington's religious freedom test in Open Door and significantly shifted religious land use jurisprudence. Part IV further discusses how this shift may include Washington's adoption of the lower federal standard and elaborates upon the negative ramifications this shift would have on churches throughout the state. Part V concludes this Note, discussing how the free exercise of religion has historically been afforded great protection in Washington, and how the Washington Supreme Court is seemingly moving in a different direction.

II. Religious Land Use Jurisprudence

In order to fully understand both the controversy in Open Door and the implications of this case, one must first grasp some of the fundamentals of religious land use jurisprudence. Not surprisingly, the areas of land use and religious jurisprudence have very well-developed law. Therefore, each of these bodies of law will be separately discussed in this section, followed by an analysis that details the implications of this merger between land use jurisprudence and the law of religion at both the state and federal levels.

A....