Zoning Churches: Washington State Constitutional Limitations on the Application of Land Use Regulations to Religious Buildings

JurisdictionWashington,United States
CitationVol. 25 No. 03
Publication year2002



Zoning Churches: Washington State Constitutional Limitations on the Application of Land Use Regulations to Religious Buildings

Darren E. Carnell(fn*)


The application of land use regulations to church(fn1) buildings has been the subject of significant debate and judicial activity.(fn2) While the issue has a significant political component, legal issues also affect the regulatory choices available to local governments. In certain circumstances, state or federal laws mandate regulatory systems that apply to churches.(fn3) At the same time, state and federal constitutional and statutory law also limit the applicability of zoning regulations to churches.(fn4) Local governments, and ultimately courts, are left to resolve conflicts between policy-based, legal support for land use regulations on churches and countervailing limits on such regulations.(fn5)

A significant body of scholarship addresses the limits federal law places on the application of land use regulations to churches,(fn6) but the commentary regarding state law is rather limited.(fn7) Accordingly, this Article considers the limits of article I, section 11 of the Washington State Constitution with regard to local zoning. This Article concludes that as a matter of substantive law the free exercise clause of the Washington State Constitution is properly interpreted in a manner consistent with the parallel provision of the United Stated Constitution.(fn8) While the state constitution does apply to a broader class of regulatory activities than does the Federal Constitution,(fn9) the pertinent substantive requirements of the state constitution closely follow the parallel provisions of federal law.(fn10) Consistent with well-developed federal case law, the Washington State Constitution generally allows land use regulations to be applied to church buildings.(fn11)

This Article traces a path to various land use regulatory approaches that should survive scrutiny under the Washington State Constitution. Part I outlines the legal history of challenges to the application of zoning regulations to church buildings;(fn12) Part I also describes the contexts in which such disputes presently arise.(fn13) Part II introduces the Washington State Constitution's provision regarding the free exercise of religion and describes the limited body of case law that has applied this provision in the land use context.(fn14) Part III considers the role of federal case law in interpreting the free exercise clause of the Washington State Constitution.(fn15) Part IV discusses how, if future cases are not resolved under existing case law, cases should be analyzed under the state constitution.(fn16) Finally, Part V briefly considers the limit the establishment clause would impose on any exceptions for churches from generally applicable zoning regulations, whether based on a legislative enactment or a more expansive interpretation of the free exercise clause.(fn17) Ultimately, this Article concludes that land use regulatory systems can be applied to churches in a manner that complies with the Washington State Constitution.

I. Overview of Issues Involving the Regulation of Churches

In the past decade, the application of land use regulations to church buildings has been the subject of significant debate and judicial activity. Recent issues have often involved the regulation of large church buildings, particularly in residential or rural areas.(fn18) Legal disputes surrounding the regulation of churches, however, are not new and are not limited to issues involving the development of large churches in low-intensity land use zones.

The history of legal disputes involving the government's role in regulating religious institutions extends well prior to the past decade.(fn19) Although zoning has a relatively short legal history,(fn20) issues involving churches have been the subjects of dispute for the entire history of modern zoning.(fn21) As early as 1922, state courts considered cases involving the application of land use regulations to church buildings.(fn22) For most of the twentieth century, free exercise challenges to zoning decisions were limited to state courts and in rare cases lower federal courts.(fn23) During this period, local governments were not particularly aggressive about regulating churches.(fn24) When land use regulations were challenged, courts were generally deferential to municipal zoning decisions.(fn25)

Over the past few decades, local governments have become increasingly committed to regulating churches much like they regulate other land uses.(fn26) This increase in zoning activity has been based, at least in part, on the expanding scale of church projects and the corresponding increases in the impacts those projects have on surrounding neighborhoods.(fn27) Several commentators have synthesized case law regarding the impacts of church projects.(fn28)

In addition to having a long history, legal disputes regarding the regulation of churches arise in a variety of contexts. While one recent debate over the regulation of church buildings has involved large churches in low-density areas, issues involving the application of land use regulations to religious uses have arisen in a wide variety of contexts, including the following situations:1. Restrictions on the ability to site churches in commercial and/or industrial areas;(fn29)2. Restrictions on the ability to site churches in residential areas;(fn30)3. Limitations on the scale and intensity of church projects;(fn31) and4. Regulation of ancillary programs such as food banks, homeless shelters, and drug counseling centers.(fn32)

Regardless of the specific substantive provisions of the land use regulations at issue, the method of legal analysis should ordinarily be the same. The commonality among the various systems for regulating churches is similar to other zoning issues; it involves an attempt to mitigate the impacts of development and to ensure compatibility with surrounding areas.(fn33) Zoning decisions regarding churches are subject to legal challenge much like other land use decisions.(fn34) Moreover, zoning decisions that involve churches are subject to challenge under various constitutional and statutory provisions.

II. Washington Law Regarding Article I, Section 11 of the Washington State Constitution and Its Limits

In the State of Washington, the regulation of church buildings requires analysis under the Washington State Constitution. While the U.S. Constitution and federal statutes potentially affect the ability of local governments to regulate church buildings,(fn35) the Washington State Constitution is the source of more stringent limitations on the ability of government to regulate church buildings.(fn36) The state constitution contains its own free exercise clause, and at least in certain circumstances, Washington courts apply this provision more broadly than the Free Exercise Clause of the U.S. Constitution. State law differs from federal law in two significant regards. First, only a narrow category of land use regulations are even subject to challenge under the Free Exercise Clause of the U.S. Constitution, while the Washington State Constitution applies more broadly to land use regulations.(fn37) Second, certain nonpolice power regulations (notably involving historical preservation) can survive scrutiny under the Federal Constitution but not the state constitution.(fn38) Other than these two exceptions, however, the free exercise clause of the state constitution is generally interpreted in a manner consistent with the parallel provision of the Federal Constitution.

The Washington State Constitution provides, in pertinent part, as follows:Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.(fn39)

The body of case law regarding article I, section 11 is somewhat limited. While the Washington Supreme Court has considered this provision on numerous occasions, the body of law with regard to land use issues is rather sparse. The Washington Supreme Court first applied article I, section 11 to land use regulations in 1957.(fn40) State ex rel. Wenatchee Congregation of Jehovah's Witnesses v. City of Wenatchee involved a challenge to the city's decision to deny a permit that was necessary for construction of a church building.(fn41) The court found that the evidence in the record did not support the city's decision.(fn42) Although Wenatchee Congregation was resolved favorably for the church, the case actually supports that application of zoning regulations to churches; the supreme court commented favorably on zoning schemes that ban churches from residential zones.(fn43) In Wenatchee Congregation, the supreme court discussed the split among jurisdictions regarding whether churches could be excluded from residential zones. The court criticized those jurisdictions that prohibited these exclusions and labeled this anti-exclusion position "extreme."(fn44) The basis for the court's criticism was that an...

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