On appeal from the Superior Court of New Jersey, Law Division, Somerset County, whose opinion is reported at 184 N.J. Super. 66 (1982).
Matthews, Antell and Francis. The opinion of the majority was delivered by Matthews, P.J.A.D. Antell, J.A.D. (dissenting).
The judgment of the Law Division is affirmed substantially for the reasons expressed by Judge Meredith in his thoughtful opinion, 184 N.J. Super. 66 (Law Div.1982).
With respect to defendant's argument that a residence does not become a "church or similar place of worship" simply because a congregation holds its regular Sunday services there, we observe, that according to Webster,*fn1 a "church is a building set apart for public esp. Christian worship: as a; the principal house of a parish." The undisputed facts establish that defendant's worship services were moved from a public building to his home for financial reasons. It cannot be seriously disputed that each of the locations constituted the church for the congregation. The issue here is not one of semantics, however, it involves the reasonableness of police power regulation of defendant's asserted First Amendment rights. We are satisfied that Judge Meredith has correctly resolved the issue.
ANTELL, J.A.D. (dissenting).
Defendant was served with a summons charging him with using his property for "other than permitted use" under § 504.1 of the zoning ordinance. The trial in the municipal court proceeded over defendant's repeated declaration that he did not understand the nature of the charge against which he was called upon to defend himself. The property is located in an R-15 zone which the cited section of the ordinance permits to be used for single-family dwellings on lot sizes no less than 15,000 square feet. Defendant's premises meet the standard of permissibility set forth in the ordinance and the question presented is what activities he may carry on in his own home without rendering himself liable under § 1700.2 of the ordinance for monetary penalties and imprisonment for up to 90 days.
In my view, the activities upon which the conviction rests, consisting of "prayers, singing and preaching" between 11 a.m. and noon on Sundays, are permissible. Disruptive conduct arising therefrom may be dealt with only under the general police powers, not as zoning violations. The Law Division and the majority of this court, however, conclude that these transform defendant's home into a "church or similar place of worship." Drawing upon sections of the ordinance which permit churches in other residential zones on lots of not less than two acres, they further conclude that by implication churches are not permitted in the R-15 zone and that defendant is therefore liable to punishment. My disagreement is addressed to the conclusion that defendant's home is being used as a church.
The facts are clear. The property is owned by defendant -- not by a church -- and occupied by him as his residence. Sunday services are attended only by those who are invited by defendant and not in response to an open, public invitation.
The ordinance's section on definitions does not define a "church." Relying on Ritter v. Jersey City Dist. Missionary Society, 105 N.J. Eq. 122, 123 (Ch.Div.1929), the Law Division utilized as its definition "a place where persons regularly assemble
for worship." While this definition may have been workable for the purposes of Ritter, it is obviously not serviceable within the present context. Although churches may be places where people regularly assemble for worship, it does not follow that any place where persons regularly assemble for worship is therefore a church. Portage Tp. v. Full Salvation Union, 318 Mich. 693, 29 N.W. 2d 297, 300 (Sup.Ct.1947), app. dism. 333 U.S. 851, 68 S. Ct. 735, 92 L. Ed. 1133, petition for reh. den., 334 U.S. 830, 68 S. Ct. 1336, 92 L. Ed. 1757 (1948). If applied literally, the definition would effectively proscribe even the convocation of immediate family or friends for evening or weekly prayers and saying grace at the dinner table.
The majority uses a somewhat different definition. Resorting to Webster, it defines a church as "a building set apart for public esp. Christian worship: as a; the principal house of a parish." If major emphasis is placed upon the requirement that a church be a building "set apart for public . . . Christian worship" defendant's home surely would not be a church since it has not been "set apart" and the services are not public. Although it may be utilized for approximately one hour a week for church purposes, in every substantial sense of the word it remains chiefly a residence. While the ...