On appeal from the Superior Court, Appellate Division, whose opinion is reported at 189 N.J. Super. 404 (1983).
For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock and O'Hern. For affirmance -- Justices Schreiber and Garibaldi. The opinion of the Court was delivered by Handler, Justices. Clifford, Justice, concurring in result. Garibaldi, Justice, dissenting. Clifford and O'Hern, JJ., concurring in the result.
The question posed by this appeal is whether a municipal zoning ordinance that excludes "churches and similar places of worship" from a residential use district can be applied to prohibit a minister from temporarily using his home to hold a one-hour religious service each week for his congregation. The minister claims that the ordinance does not, with sufficient clarity, forbid this religious activity, and, as applied against him, it is unconstitutionally vague. We agree.
The defendant, Robert J. Cameron, is a minister in the Reformed Episcopal Church, a denomination that includes some six or seven thousand adherents nationwide. When this litigation began, he was the spiritual leader of the Mount Carmel Reformed Episcopal Church congregation. Until the spring of 1981, this congregation met in a local school building. However, an increase in rent forced the group to relocate. The congregation decided to meet in the defendant's home until a permanent location could be found. Its services were attended by about twenty-five people and were conducted once each week for one-hour. These were the same services the congregation previously had held at the school, and included prayers, a sermon, and the taking of a collection.
The Franklin Township's zoning law designated seventeen zone classifications for land use in the municipality. Ordinance 832, § 404 (1976). The ordinance established single-family houses as the only permitted use in the R-15 zone, in which the Cameron property was located. Id., § 504.1. The ordinance
also expressly allowed "churches and similar places of worship" in addition to single family homes in other residential zones. See, e.g., id., §§ 501.1.c, 502.1.b, 511.1.b. Thus, it is not disputed that "churches and similar places of worship" were excluded by the ordinance from the use district that included Cameron's neighborhood.*fn1
On August 11, 1981 the Township charged the defendant with violating § 504.1 of the zoning ordinance by using his home "for activities other then [sic] permitted use." This complaint arose after one of the defendant's neighbors reported that the religious service could be heard eighty feet from the defendant's home, and that cars parked on the street by those attending the service hindered the passage of traffic. The Township's chief zoning official later testified that one Sunday he heard church music. Based on this evidence the Municipal Court of Franklin Township found the defendant to be in violation of the ban against "churches and similar places of worship." The judge ordered the defendant to cease holding a "worship service" in his home, subject to a $500 fine for each future violation.
Following an appeal and a trial de novo, the Law Division also held that defendant had violated the ordinance by using his home as a "church." State v. Cameron, 184 N.J. Super. 66 (1982). This decision was affirmed by the Appellate Division, with Judge Antell dissenting on the grounds that the ordinance's prohibition of churches was too vague to apply. 189 N.J. Super. 404 (1983). Defendant then appealed as of right to this Court under Rule 2:2-1(a).
We begin our analysis by recounting the reasons that both the Federal and State Constitutions render vague laws unenforceable. See U.S. Const., Amend. V; N.J. Const. (1947) Art. I, par. 1. The evils of vague laws were explained in Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222, 227-28 (1972) (footnotes omitted):
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Thus, the constitutional ban on vague laws is intended to invalidate regulatory enactments that fail to provide adequate notice of their scope and sufficient guidance for their application. Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S. Ct. 839, 843, 31 L. Ed. 2d 110, 115 (1972). The requirement of statutory clarity "is essentially a due process concept grounded in notions of fair play." State v. Lashinsky, 81 N.J. 1, 17 (1979); accord State v. Lee, 96 N.J. 156, 165 (1984).
To avoid the pitfall of vagueness, the terms of a zoning ordinance must enable a person of "common intelligence, in light of ordinary experience" to understand whether contemplated conduct is lawful. Lashinsky, supra, 81 N.J. at 18. The determination of vagueness must be made against the contextual background of the particular law and with a firm understanding of its purpose. As noted in Village of Hoffman Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 498, 102 S. Ct. 1186, 1193, 71 L. Ed. 2d 362, 371 (1982), the standard to determine the vagueness of a law is not one that can "be mechanically applied. The degree of vagueness that the Constitution tolerates -- as well as the relative importance of fair notice and fair enforcement -- depend in part on the nature of the enactment."
Not all statutes need attain the same level of definitional clarity under the vagueness doctrine. For example, a statute effecting "economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action." Id. at 498, 102 S. Ct. at 1193, 71 L. Ed. 2d at 371-72. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process. Penal laws, on the other hand, are subjected to sharper scrutiny and given more exacting and critical assessment under the vagueness doctrine than civil enactments. See, e.g., Lee, supra, 96 N.J. at 167; Town Tobacconist v. Kimmelman, 94 N.J. 85, 119 n. 16 (1983). As pointed out in Hoffman Estates, supra, 455 U.S. at 498-99, 102 S. Ct. at 1193, 71 L. Ed. 2d at 371-72, greater imprecision can be tolerated in enactments with civil rather than criminal penalties because of differences in the likelihood, as well as in the consequences, of any misunderstanding.
Another material consideration that can elevate the level of judicial scrutiny for vagueness is the extent to which the regulatory law impacts on constitutional interests. "[P]erhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights." Hoffman Estates, supra, 455 U.S. at 499, 102 S. Ct. at 1193, 71 L. Ed. 2d at 372. In particular, the scrutiny to be accorded legislation that trenches upon first amendment liberties must be especially scrupulous. See, e.g., Smith v. Goguen, 415 U.S. 566, 573, 94 S. Ct. 1242, 1247, 39 L. Ed. 2d 605, 612 (1974); Town Tobacconist, supra, 94 N.J. at 119 n. 16; see also In re Hinds, 90 N.J. 604, 618 (1982) (extra scrutiny for overbreadth in a first amendment context); New Jersey Chamber of Commerce v. New Jersey Election Law Enforcement Comm'n, 82 N.J. 57, 70 (1980) (same).
Judicial analysis of statutory vagueness also depends upon whether a law is challenged as applied, or facially. A statute that is challenged facially may be voided if it is "impermissibly vague in all its application," that is, there is no conduct that it proscribes with sufficient certainty. Hoffman Estates, supra, 455 U.S. at 495, 102 S. Ct. at 1192, 71 L. Ed. 2d at 369; Lee, supra, 96 N.J. at 167; Town Tobacconist, supra, 94 N.J. at 119. A statute so lacking in definitional certainty can be characterized as "perfectly vague." L. Tribe, American Constitutional Law 720 (1978). In Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 29 L. Ed. 2d 214, 217 (1971), for example, a law that forbade groups of three or more persons to gather on sidewalks and "annoy" passers-by was considered to have no ascertainable standard for inclusion or exclusion by which to determine if particular conduct was forbidden, and was thus wholly void for vagueness. Similarly, in Smith v. Goguen, supra, 415 U.S. at 578, 94 S. Ct. at 1250, 39 L. Ed. 2d at 614-15, a law that forbade "contemptuous treatment" of the American flag was found to so lack certainty of meaning as to be perfectly vague and unenforceable in its entirety.
A statute can be challenged "as applied" if the law does not with sufficient clarity prohibit the conduct against which it sought to be enforced. In Palmer v. City of Euclid, 402 U.S. 544, 91 S. Ct. 1563, 29 L. Ed. 2d 98 (1971), for example, an ordinance providing for punishment of "suspicious persons" was deemed to have a clear core meaning and thus was not found wholly void for vagueness; nevertheless the law was found vague as applied in the particular case. A party may test a law for vagueness as applied only with respect to his or her particular conduct; if a statute is vague as applied to that conduct, it will not be enforced even though the law might be validly imposed against others not similarly situated. See L. Tribe, American Constitutional Law, supra, at 721. Conversely, if a statute is not vague as applied to a particular party, it may be enforced even though it might be too vague as applied to others. See, e.g., Lee, supra, 96 N.J. at 167 (criminal
statute found facially valid because not "impermissibly vague in all its applications," also found valid as applied, notwithstanding the possibility of other circumstances in which it would be too vague to apply); Lashinsky, supra, 81 N.J. at 18 (criminal statute prohibiting "obstruction" of another person acknowledged to be potentially vague but, nevertheless, found to be sufficiently clear as applied to defendant's conduct in the particular case).
To summarize, a law that is challenged for facial vagueness is one that is assertedly impermissibly vague in all its applications. A statute that is challenged as applied, however, need not be proven vague in all conceivable contexts, but must be shown to be unclear in the context of the particular case. In either a facial or as-applied vagueness attack, the level of judicial scrutiny and degree of required clarity will depend on the purpose of the statute, the context in which the law is challenged, the conduct that is subject to its strictures, the nature of the punishment that is authorized, and, finally, the potential impact of the statute upon activities and interests that are constitutionally protected.
We now turn to examine the defendant's claim that his conviction cannot stand because the phrase "churches and similar place of worship" renders the ordinance vague as applied against him. In evaluating this claim, we are adjured to follow an analytic approach by which the level of clarity required of the language of the enactment depends on the nature of the activity that is sought to be regulated. See Hoffman Estates, supra.
The activity that is the target of the zoning ordinance in this case is neither commercial nor economic in character. Further, although for some purposes zoning laws may constitute civil regulation, this law, as enforced, is penal or quasi-criminal in nature. See Town of Kearny v. Modern Transportation Co.,
116 N.J. Super. 526, 530 (App.Div.1971). Finally, as stressed by Judge Antell in his dissent below, 189 N.J. Super. at 410, the ordinance impinges directly upon constitutionally-protected interests. The threat or actuality of enforcement could undermine the rights to free exercise of religion, free speech, free assembly, and privacy. For these reasons, constitutional due process calls for the utmost clarity concerning the scope of the ordinance's intended prohibitions. See Hoffman Estates, supra.
In considering the ordinance itself, we note initially that there are no apparent extrinsic factors to aid us in determining the intended meaning to be ascribed to the ordinance's critical phrase "churches and similar places of worship." Although in many situations the term "church" would raise no unusual interpretive problems, such problems are posed in this case because of the penal application of the zoning ordinance to a constitutionally-protected activity that is allegedly encompassed by the pertinent language.
Being not otherwise defined, the generic word "church" admits a variety of interpretations. See, e.g., Ghent, "What Constitutes 'Church,' 'Religious Use,' or the like within Zoning Ordinance," 62 A.L.R. 3d 197 (1975) (citing cases using definitions of church such as: a church is something more than merely a building in which the actual religious services are held; a church is a building set apart for public worship, especially Christian worship, but the conclusion does not follow that every place in which religious services are conducted is a church; a church is more than merely an edifice affording people the opportunity to worship God; the concept of what constitutes a church has changed from a place of worship; see also, e.g., the dissenting opinion, post at 610 (a home can be "a church when it is used as the regular site for the traditional services of an organized, recognized religious body, which services are presided over by the ordained
minister of said religion"); Law Division opinion, 184 N.J. Super. at 82 (a church is "a place where persons regularly assemble for worship"); Appellate Division opinion, 189 N.J. Super. at 405 (churches are buildings "set apart for public worship [including] the principal house of a parish"). Thus, the term "church" encompasses various possible meanings, and subtle distinctions in meaning can have critically different consequences when sought to be applied as part of a penal statute in a context that involves constitutionally-protected interests.
This legislative deficiency, however, need not result in the ordinance being considered perfectly vague, and therefore wholly void. Even though an application of the ordinance to the conduct of certain religious practices might be problematic in some situations and raise legitimate doubts as to the vagueness of the ordinance so applied, the ordinance could be validly applied in other conceivable contexts without raising genuine vagueness concerns. For example, the ordinance would certainly be understood to prohibit the use of structures erected for the conduct of certain religious functions. Indeed, in this case, no one appears to contest the proposition that, without offending vagueness standards this ordinance could be applied to prohibit the construction of a special purpose building that is architecturally designed and particularly adapted for the primary use of conducting on a regular basis formal religious services by a religious congregation. See Board of Zoning Appeals v. Wheaton, 118 Ind.App. 38, 76 N.E. 2d 597, 601 (1948); Combined Congregations v. Dent, 140 F.2d 9, 10 (D.C.Cir.1943); 2 The New Encyclopedia Britannica 921 (1984). A building with those characteristics would indisputably constitute a "church."
An interpretive approach to the ordinance that includes an emphasis on structure would furnish needed clarity. Moreover, an interpretation that recognizes the relevance of architectural structure, as well as the use of property, is particularly appropriate in the context of municipal land-use regulation, which concerns itself with the use and physical characteristics of land.
See 8 McQuillin, Municipal Corporations 3d ed.) § 25.01 at 6-7; id., § 25.17 at 48; 1 P. Rohan, Zoning and Land Use Controls at 1-6, 7 (Bender pub. 1984). The ordinance thus could be understood to encompass a definition of the term "church" that is specific enough to avoid unfairly surprising any potential defendant and clear enough to guide its enforcement.*fn2
The dissenters would be satisfied to use a less specific definition of the term church, one that is totally unrelated to the notion of a special building or structure. See post at 610. However, in addition to raising due process concerns of whether this activities-oriented definition provides an adequate warning, the vagueness attendant upon an interpretation that relies primarily on an assumed common understanding of religion creates a real and substantial risk of the ordinance being enforced against innocuous or protected conduct. See Cameron, supra, 189 N.J. Super. at 408 (Antell, J. dissenting). Further, any enforcement of the ordinance based on the kind of religion that is being practiced in a home would require local zoning officers to observe and evaluate the religious activities of private citizens. Such regulatory license raises the disturbing
specter of governmental intrusion -- "'continuing official surveillance' of religious persons or entities." See Marsa v. Wernik, 86 N.J. 232, 243 (1981). These are reasons enough to eschew the looser definition.
The defendant quite reasonably suggests that the ordinance's drafters intended precisely a meaning for the word church that encompasses a special purpose building or structure. See, e.g., Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, 699 F.2d 303, 307 (6th Cir.1983), cert. den. 464 U.S. 815, 104 S. Ct. 72, 78 L. Ed. 2d 85 (1983) (ordinance banning church buildings from residential neighborhood expressly recognized to allow congregation to worship in the home of its members). This position is supported by the amendments to the zoning ordinance recently enacted by Franklin Township; these amendments specifically define a church as a "building or structure, or group of buildings or structures where persons regularly assemble for worship, which by design and construction are primarily intended for the conducting of organized religious services and accessory uses associated therewith." Franklin Township, N.J., Ordinance 1182, § A500. While the new ordinance is not dispositive evidence of the intent of the ordinance that is the subject of this appeal, it raises the reasonable possibility that the subject ordinance was also intended to prohibit a church-building in its most specific and literal sense. This possibility argues strongly against imputing to this ordinance any broader or less precise definition of the term church or the like. See Kearny, supra, 116 N.J. Super. at 530.
We need not determine whether the specific definition of a "church," -- one that includes a type of building, as well as religious use -- should be ascribed to the ordinance. Compare State v. Rosenfeld, 62 N.J. 594, 602-03 (1973) (it is unwise for the Court to attempt a narrowing construction to save a law from overbreadth in the absence of an ascertainable legislative preference among alternative possible statutory definitions). Although this is a plausible definition of a church, the ordinance
interpreted with this as its core meaning still could not validly be applied against the defendant in this case. While the ordinance so construed might provide fair warning and adequate guidelines as to what constitutes a "church," that core definition would not encompass the defendant's home. This house is a typical single-family residence, not a building designed or specially constructed for the conduct of formal religious service; it is indistinguishable from other homes in the neighborhood. Further, the defendant's home is used only infrequently and incidentally for religious worship and does not exist for the primary purpose of practicing religion.
It is clear, therefore, that the ordinance as applied to the defendant is vulnerable on vagueness grounds. Its indefinite meanings focusing on religious activity alone fail to furnish adequate warning or sufficiently specific guidelines to assure its fair and consistent enforcement. Further, its more specific core meaning, which imports the concept of a special purpose building, does not cover an ordinary residential home. We accordingly conclude that the ordinance is impermissibly vague as applied to the defendant in this case.*fn3
A conclusion that the narrow circumstances of this case preclude application of the ordinance to prohibit the religious practices conducted in the defendant's home does not, as suggested by the dissenting opinion, compel the municipality to allow in residential zones incompatible uses, such as schools, hospitals or restaurants. See post at 621. These uses may be
reasonably defined with sufficient clarity to overcome vagueness objections with or without the express or implied condition that a unique or special structure or building must be involved. We are satisfied that the level of judicial scrutiny called for in this case in applying the vagueness doctrine would exceed that entailed in determining a similar question as to such other uses. The primary reason for this difference is the comparative strength of the constitutional protection accorded religious freedom. Supra at 599 n. 4; see Hoffman Estates, supra, 455 U.S. at 499, 102 S. Ct. at 1193, 71 L. Ed. 2d at 372.
Further, our determination in this case will not frustrate the municipality in its attempt to regulate other kinds of uses of a private home that may be genuinely incompatible with the predominant character of residential zones. A zoning regulation can serve the general welfare in residential neighborhoods by promoting family-style living, by minimizing congestion, noise, and overcrowding, by encouraging repose and solitude, and by fostering esthetics. To this end, a municipality can exercise its general police powers to deal with the problems of traffic, parking, noise, constant activity, overcrowding, and the like so that the character of the residential neighborhood is preserved. See, e.g., 8 McQuillin, supra, § 25.24 at 63.
Such regulatory ordinances, however, must be drawn narrowly and be directed clearly against the assertedly offensive or detrimental conduct. See State v. Baker, 81 N.J. 99, 105 (1979) (local government cannot prohibit the choice of living arrangements not clearly shown to be incompatible with residential neighborhood); Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 251 (1971) (municipality cannot enact an ordinance banning "group rental" of seaside properties because prohibition is not sufficiently directed to problems of noise, overcrowding, traffic, and the like). This narrow focus is especially mandated when the regulated activity involves constitutionally protected interests. See Schad v. Mount Ephraim, 452 U.S. 61, 68-69, 101 S. Ct. 2176, 2182-83, 68 L. Ed. 2d 671, 680 (1981) (invalidating a ban on "live entertainment" and requiring narrow
drafting to further a substantial governmental interest where constitutional liberties may be imperiled). Consequently, in this context a generalized or broad regulatory ban that may act only as an incidental or accidental restraint upon offensive or detrimental conduct cannot be considered a reasonable exercise of the police powers. As the Court observed in Home Builders League v. Township of Berlin, 81 N.J. 127, 139 (1979),
[a] provision which has some beneficial effect will not automatically be deemed valid and consonant with the general welfare. Attention must also be directed toward the detrimental effects that a particular provision has. * * * Where * * * a zoning provision * * * has effects contrary to the general welfare, * * the court is required to decide whether a proper legislative goal is being achieved in a manner anner reasonably related to that goal.
As already described, supra at 597, in this case the generalized ban on "churches or similar places of worship" has the potential to prohibit perfectly harmless and beneficent activities, as well as those that could disturb and offend neighbors.
It thus appears that the zoning ordinance's exclusion of "churches or similar places of worship" from the particular residential zone is not sufficiently directed against the tangible detrimental effects of particular conduct. It cannot be sustained on these grounds alone as a necessary or reasonable exercise of the police powers. These asserted police power objectives cannot redeem the ordinance's lack of constitutionality on vagueness due process grounds. Accordingly, we conclude that under the circumstances the ordinance cannot be validly applied against the defendant.
In sum, a broad range of possible meanings may be imputed to the phrase, "churches and similar places of worship," in the Franklin Township zoning ordinance. Many of these definitions emphasize only the character of religious activity that is undertaken. It cannot, however, be determined with sufficient certainty what kinds of religious ...