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Burlington Assembly of God Church v. Zoning Board of Adjustment Township of Florence

Decided: April 25, 1989.


Haines, A.j.s.c.


The Assembly of God Church ("church") owns 106 acres of land in Florence Township, Burlington County, upon which it operates, as permitted zoning uses, a church, a school with 300 students and housing for a fleet of 35 buses. It wishes to operate a radio station on the property which will broadcast church, school and public interest programs, the latter being overseen by a panel of local citizens. The station, which requires the construction of two antenna towers on the school property 184 feet in height, will be located in the school building. The towers cannot be constructed without a zoning variance, applications for which were denied by the local board of adjustment and then granted by this court in an earlier decision.

The court's reversal did not end the litigation. Damage claims, based upon the federal Civil Rights Act, 42 U.S.C.A. § 1983, remain for resolution. These claims rest upon the allegation that the township's zoning ordinance and the board of adjustment's refusal to grant a variance denied the church's constitutional rights to freedom of religion and freedom of speech. The board now moves for partial summary judgment dismissing the church's civil rights claims and the church, by cross-motion, seeks summary judgments against the board and the township establishing liability of both with respect to the civil rights claims. This opinion concludes that the board's motion must be denied and the cross-motion of the church granted.

A. Freedom of Religion.

(1) Immunity.

The board first argues that it has immunity from damage liability because it was acting judicially in deciding the variance issue. This argument, if directed to the members of the board, would be correct. However, the board itself is not immune. T & M Homes, Inc. v. Twp. of Mansfield, 162 N.J. Super. 497, 393 A.2d 613 (Law Div.1978); Centennial Land & Dev. Co. v. Twp. of Medford, 165 N.J. Super. 220, 397 A.2d 1136 (Law Div.1979). Nor is the Township of Florence immune. Municipalities have no immunity in a suit for damages under the Civil Rights Act. Owen v. City of Independence, 445 U.S. 622, 100 S. Ct. 1398, 63 L. Ed. 2d 673 (1980). It is clear that if the "custom and practice" of the community, as reflected in the township's ordinance and the decisions of the board, violate the church's constitutionally protected rights, both board and township are liable for damages.

(2) Religious Uses and the First Amendment.

The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." The New Jersey Constitution (1947), Art. 1 par. 3, provides the same protection.

The question here is whether the proposed radio station constitutes a religious use with which the municipality, in the adoption of its zoning ordinance and the board of adjustment in its implementation of that ordinance, cannot interfere. Religious uses are broadly defined. Thus, 2 Anderson, American Law of Zoning (3 ed. 1986), § 12.29 says:

The limitations on municipal power to regulate . . . [the religious] aspects of community life are severe. The courts react sharply when municipal governments move to curb religious activity; the ends of municipal zoning regulation seldom are considered important enough to justify restrictions which cripple or even seriously inconvenience a religious institution. [ Id. at 558]

Other commentaries broaden the theme. In 2 Rathkopf, The Law of Zoning and Planning (4 ed. 1988), § 20.03, the following appears:

It has previously been commented upon that the concept of what constitutes a Church has changed from a place of worship alone, used once or twice a week, to a Church used during the entire week, nights as well as days, for various parochial and community functions. It seldom consists of one building, but where it does, the building is itself of sufficient size to accommodate all of its various activities. The question arises as to the extent to which the additional activities are covered by the cloak of immunity which traditionally has been extended to the Church.

The language of the courts in several cases indicates that it is difficult to find an activity which, if sponsored by the Church, would not ...

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