"change of use" permit such as that was just one step in the process of obtaining a certificate of occupancy under the Construction Code. In itself, the permit did not authorize a change of the "use group" classification of the building, which could only be accomplished after all subcode inspections had been satisfactorily completed and the certificate of occupancy had been applied for and granted. In this case the subcode inspections had been performed, over an extended period of time involving at least one electrical correction and re-inspection in 1992, but the certificate of occupancy for the new "use group" had not been applied for. Mr. Schaefer testified that he wrote the letter to point out that the permit had been erroneously issued because of the lack of a new site plan approval, and to inform plaintiffs that such approval was still needed if a certificate of occupancy were to be issued based upon a change in "use group" classification. Mr. Schaefer also testified that based upon the extent of the renovations which were made to the building, a new site plan approval and certificate of occupancy are required. See description of the statutory scheme to which this letter referred, infra part II.C..
An exchange of correspondence took place between current counsel for plaintiffs, Alicia E. Fenton, Esq., and Mr. Costa as Township Attorney, immediately after the events leading up to Sunday, October 17, 1993. (Compl. Exs. K and L.) Those letters reviewed some of the history and set forth the positions of the writers on the various issues which were then outstanding. In Mr. Costa's letter he advised inter alia that in his view a site plan application did need to be filed, and also an application for a certificate of occupancy. Plaintiffs did file a site plan application on or about November 22, 1993, and, as noted above, an application for certificate of occupancy was filed on December 7, 1993. The Verified Complaint in this case was filed on November 22, 1993.
C. LAND USE PROCEDURES
Defendants supplied the following description of state laws and regulations and local ordinances which defendants assert are relevant in the circumstances.
There are two state statutes which directly pertain to the local events occurring in this case: the State Uniform Construction Code Act, N.J.S.A. 52:27D-119, et seq. ("the Construction Act"); and the New Jersey Municipal Land Use Act, N.J.S.A. 40:55D-1, et seq. ("the Land Use Act").
One of the stated purposes of the Construction Act is "to insure adequate maintenance of buildings and structures throughout the State and to adequately protect the health, safety and welfare of people." N.J.S.A. 52:27D-120(e). The Construction Act authorizes the adoption of a State Uniform Construction Code ("the Construction Code"), N.J.S.A. 52:27D-123, and delegates to the Commissioner of the Department of Community Affairs all the powers necessary or convenient to effect the purposes of the Construction Act, including the power to adopt all necessary and appropriate rules and regulations. N.J.S.A. 52:27D-124. The Construction Code is codified at N.J.A.C. 5:23-1, et seq.. The Construction Act also provides that the Construction Code shall be divided into subcodes. The subcodes are adoptions of the model codes of the Building Officials and Code Administrators International, Inc., the National Electrical Code, and the National Standard Plumbing Code (generally referred to as the "BOCA Code") or some other satisfactory equivalent. N.J.S.A. 52:27D-123(b). The BOCA Code is not found in the New Jersey Administrative Code but is widely used by Construction Code officials and other engineering and construction professionals.
The BOCA Code, Art. 3, contains a description of "use group" classifications. The use group classification of a building will determine which construction standards apply; for example, what plumbing, electrical and fire protection standards must be met. The relevant use groups in this case might be various levels of M (mercantile) or A (assembly). "Use group" classification for purposes of the Code is an entirely separate matter from the concept of "use" as contained in zoning and planning laws, although procedurally an application for "change in use group" can trigger a new site plan requirement and possible zoning "use" review, as described below.
The Construction Code provides that if a building undergoes a "change in use group", a new certificate of occupancy must be obtained. N.J.A.C. 5:23-2.6. The Construction Code also requires a new certificate of occupancy if a building undergoes any significant structural alteration or expansion. N.J.A.C. 5:23-2.23. The Construction Code further requires that for a certificate of occupancy to be issued the property must comply with all other relevant statutes and regulations and have all needed approvals. N.J.A.C. 5:23-2.23. It is this latter requirement which provides the procedural link between the certificate of occupancy process and the site plan application process.
In sum, under the Construction Act and related regulations, in order to do any significant construction on a building, or to "change the use group" of that building, a new certificate of occupancy must be obtained. Further, either of those changes can trigger the necessity of applying to other official bodies such as planning or zoning adjustment boards which must pass upon certain aspects of those changes. Thus, the issuance of a certificate of occupancy is normally the culmination or "perfection" of the various applications processes before various public officials. The commencement of that process may begin with the application for a construction permit or a "change in use group" permit from the Construction Official.
Defendants contend, through counsel, that in this case, under the statutory scheme, Mr. Hubbs, the Township Construction Official at the time, should not have issued the various construction permits which plaintiffs initially obtained in 1988 and 1989, but rather should have directed plaintiffs to apply for issuance of a new site plan, or a new waiver of site plan, before construction commenced, despite the fact that plaintiffs had a site plan waiver on file. Defendants similarly contend that Mr. Hubbs should not have issued Permit 91-131, which was issued on plaintiffs' application for "change in use group" from M to A-4, in October 1991, without referring plaintiffs to the Planning Board for new action with respect to a site plan. Defendants acknowledge through counsel that this constituted a lapse or failure of enforcement by the Construction Official at that time. Defendants assert, however, that given the extent of the renovations to the building, a new site plan was required under the applicable land use statutes and ordinances; and that the requested "change in use group" should also have triggered the site plan process.
The Land Use Act authorizes the creation of municipal planning boards and sets forth the general powers afforded to planning boards. N.J.S.A. 40:55D-23 to 40:55D-27. The Land Use Act also authorizes the creation of municipal zoning boards of adjustment and sets forth the general powers of these such boards. N.J.S.A. 40:55D-69 to 40:55D-76.
The Land Use Act also defines "site plan." N.J.S.A. 40:55D-7. Chapter 81 of the Delanco Code (Hearing Ex. D-13), which governs site plan approval in the Township, provides in relevant part:
Except as hereinafter provided, no . . . building permit [shall] be issued or construction commenced unless a site development plan is first submitted and approved by the Planning Board of the Township of Delanco; and no certificate of occupancy shall be issued, nor shall occupancy take place until and unless all construction and required improvements shall be completed in conformity with the approved site plan.
Delanco Code, § 81-1.
Subsequent sections of Chapter 81 of the Delanco Code detail the requirements for a site plan application and provide for waiver of any of the requirements under certain conditions. One of the listed requirements is that "[a] site plan . . . shall contain . . . such other information . . . as may be required . . . in order to determine that the details of the site plan are in accord with the standards of the Zoning Ordinance." Delanco Code, § 81-3.V. Chapter 81 of the Delanco Code also provides that "after a site plan, including all requirements, has been submitted, the Planning Board shall, within sixty (60) days from that submission, either approve or disapprove the site plan," giving reasons for rejection in the event of a disapproval. Delanco Code, § 81-5. Upon approval a site plan may be submitted to the Construction Official. Id. The Land Use Act also provides for public hearings on site plan applications. N.J.S.A. 40:55-D-46.
The planning board is responsible under the Land Use Act for investigating all proposed changes, revisions or amendments to the master plan and the zoning map which establishes the zoning districts in a municipality. The planning board submits a report and recommendation to the governing body on all proposals within 35 days of referral to the planning board. The governing body either adopts the report and recommendation, in whole or part, by ordinance, or rejects the report and recommendation. N.J.S.A. 40:55D-26.
The powers of the zoning board of adjustment include the granting of so-called "use" or "D" variances. N.J.S.A. 40:55D-70(d). The zoning board of adjustment is also empowered to "hear and decide requests for interpretation of the zoning map or ordinance." N.J.S.A. 40:55D-70(b). As previously noted, Chapter 102 of the Delanco Code (Compl. Ex. O) permits various uses in a C Commercial District, including variously, ". . . office, studio . . . theater or other place of amusement . . . [and] open-air parking lot." Delanco Code, § 102-26. All uses not expressly permitted in a C Commercial District are prohibited. Churches, which are not defined by the Delanco Code, are not a permitted use in a C Commercial District but are permitted in an R-2 Residence District. Delanco Code, § 102-18. The Delanco Code sets forth procedures for applying to the zoning board of adjustment for determinations under its authority.
Under this regulatory scheme the available procedure in a case such as this, where there was significant construction involved, and at least arguably some change in use for purposes of the zoning ordinance, would be to apply to the Township Planning Board for site plan approval or waiver with respect to the renovations, and if directed by the Planning Board, to seek from the Township Zoning Board of Adjustment a use variance or an interpretation that no variance was required under the zoning ordinance. During or after those determinations were made, the Construction Official could determine "use group" classification, arrange for necessary inspections, and ultimately issue a certificate of occupancy.
The position of Construction Official is mandated by the Construction Act and is regulated for licensing purposes by the New Jersey Department of Community Affairs. N.J.S.A. 52:27D-126. A grant or denial of a certificate of occupancy, or a notice of violation or similar notice issued by the Construction Official, is reviewable within a stated number of days by the Construction Board of Appeals for the county. The decisions of that Board may be appealed directly to the Superior Court in an action in lieu of prerogative writ. N.J.S.A. 52:27D-127.
A decision of either the Planning Board or the Zoning Board of Adjustment of the Township may be appealed directly to the Superior Court in an action in lieu of prerogative writ under Rule 46 of the N.J. Rules of Civil Procedure. Enforcement against violations of the planning and zoning ordinances can be initiated only by the Township, by bringing an action in the Municipal Court or the Superior Court. N.J.S.A. 52:27D-138. An action seeking collection of fines for violations of the Construction Act or rules promulgated thereunder can be initiated only by the Township or the State of New Jersey in a municipal or county court, N.J.S.A. 52:27D-138, but in cases of emergency the Construction Official is empowered to declare a property unsafe and order it vacated. N.J.A.C. 5:23-2.32(b) (where unsafe structure endangers life). Such orders are enforceable by the Township through its police. N.J.A.C. 5:23-2.31.
III. CONCLUSIONS OF LAW
The Court has jurisdiction of this case under 28 U.S.C. Section 1331 and 28 U.S.C. Section 1343(a)(3). The action is brought pursuant to 42 U.S.C. Section 1983 and 1985 against defendants acting under color of state law.
A threshold issue which is clearly presented in this case is whether a justiciable controversy exists at this time. Stated another way, the issue is whether the matter is ripe for judicial intervention. This question must be addressed even where as here, a case is before the court on application for preliminary injunction. Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967); Acierno v. Mitchell, 6 F.3d 970 (3d Cir. 1993).
Defendants maintain that since there has been no completed application process and final decision at the local level by the Planning Board and/or Zoning Board, and therefore no grant or denial of a certificate of occupancy by the Construction Official, the filing of this action is premature because the issues are not ripe for judicial review. Plaintiffs argue that because this action is brought under 42 U.S.C. § 1983, they are not required to exhaust their administrative remedies. (Pls.' Reply Br. at 3).
It is correct that exhaustion of administrative remedies is not always required prior to commencing a § 1983 action, particularly where First Amendment rights are involved. See, e.g., Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 73 L. Ed. 2d 172, 102 S. Ct. 2557 (1982); Steffel v. Thompson, 415 U.S. 452, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974); McNeese v. Board of Education of Community Unit School District 187, 373 U.S. 668, 10 L. Ed. 2d 622, 83 S. Ct. 1433 (1963); Hochman v. Board of Education of City of Newark, 534 F.2d 1094 (3d Cir. 1976).
However, this Court notes that
the doctrines of ripeness for adjudication and of exhaustion of administrative remedies are distinct and not interchangeable. While exhaustion is sometimes a jurisdictional prerequisite to a civil suit in a district court, ripeness is a product of the concept of justiciability. Ripeness concerns whether the legal issue at the time presented in a court is sufficiently concrete for decision.
United States v. Lightcap, 567 F.2d 1226, 1232 (3d Cir. 1977) (citations omitted); accord, Taylor Investment, Ltd. v. Upper Darby Township, 983 F.2d 1285, 1290 n.10 (3d Cir. 1993).
"In this respect, the ripeness doctrine is closely related to the case or controversy requirement of Article III of the United States Constitution." United States v. Lightcap, 567 F.2d at 1232 n.6.
In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 87 L. Ed. 2d 126, 105 S. Ct. 3108 (1985), an analogous case brought under 42 U.S.C. § 1983, the plaintiff landowner challenged the application of zoning regulations to the owner's property under concepts of due process and unlawful taking. The United States Supreme Court articulated the distinction between the doctrines of ripeness for adjudication and of exhaustion of administrative remedies in that context as follows:
Respondent asserts that it should not be required to seek variances from the regulations because its suit is predicated upon 42 U.S.C. § 1983, and there is no requirement that a plaintiff exhaust administrative remedies before bringing a § 1983 action. The question whether administrative remedies must be exhausted is conceptually distinct, however, from the question whether an administrative action must be final before it is judicially reviewable. While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.
Williamson at 473 U.S. at 192-93 (citations omitted) (emphasis added); see also MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 106 S. Ct. 2561, 91 L. Ed. 2d 285, reh'g denied, 478 U.S. 1035, 92 L. Ed. 2d 773, 107 S. Ct. 22 (1986).
In Williamson, the Court set aside a jury verdict, a trial court judgment N.O.V., and an affirmance by the Court of Appeals -- which had all been decided on the merits of the takings claim -- and held that the District Court should not have allowed the claim to go forward because it was premature. There the property owner had received an adverse preliminary decision on its subdivision application from the Planning Commission but had refused to apply to the zoning board for variances which might have permitted the project to go forward. The Supreme Court held that there had been no conclusive determination by the Planning Commission because the possibility had been left open that the zoning variance would have been granted by the zoning board and the planning board might then have approved the subdivision. Id. at 193.
In the case at bar, plaintiffs' application to the Delanco Township Planning Board ("the Planning Board") is in its early stages, and it is not yet evident whether the Planning Board will identify a need to apply to the Zoning Board of Adjustment ("the Zoning Board") for one or more variances, or if that is required, what action the Zoning Board will take.
The Court of Appeals for the Third Circuit has had occasion to apply the ripeness doctrine in several recent cases which had aspects similar to the present case. See Acierno v. Mitchell, 6 F.3d 970 (3d Cir. 1993); Taylor Investment, Ltd. v. Upper Darby Township, 983 F.2d 1285 (3d Cir. 1993); Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667 (3d Cir. 1991), cert. denied, 118 L. Ed. 2d 389, U.S. , 112 S. Ct. 1668 (1992); and Felmeister v. Office of Attorney Ethics, 856 F.2d 529 (3d Cir. 1988).
The Felmeister case involved a § 1983 First Amendment challenge to attorney advertising regulations and a companion disciplinary rule issued by the New Jersey Supreme Court. The New Jersey Supreme Court had created an Advisory Committee to review all proposed advertisements by attorneys. The plaintiffs had prepared proposed advertisements which they contended were likely to run afoul of the rule and subject them to disciplinary action, but plaintiffs had not availed themselves of that procedure. The Court of Appeals for the Third Circuit upheld the dismissal of the complaint on ripeness grounds. In analyzing the issue, Judge Becker, writing for the court, first pointed out the importance of the ripeness doctrine.
The court emphasized that "with regard to administrative agency actions, considerations of ripeness reflect the need 'to protect those agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.'" Felmeister at 535 (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507). In sum, the Felmeister court stated, "judicial review is premature when an agency has yet to complete its work by arriving at a definite decision." Id. (citing Suburban Trails, Inc. v. New Jersey Transit Corp., 800 F.2d 361, 365 (3d Cir. 1986)).
The recent Third Circuit cases have followed the authority of Williamson and Felmeister in the context of § 1983 actions arising out of local land use disputes. In Midnight Sessions, the plaintiffs claimed that the City of Philadelphia violated their due process rights when it arbitrarily enforced its fire and building regulations by issuing violation notices. The Court of Appeals held inter alia that summary judgment should have been granted against the plaintiffs' due process claims because the violation notices were never appealed to the Review Board for "final administrative action." Midnight Sessions, 945 F.2d at 686-87.
In Taylor Investment, Ltd. v. Upper Darby Township, 983 F.2d 1285, the Court of Appeals for the Third Circuit held that the plaintiffs' procedural and substantive due process and equal protection claims should have been rejected as premature by the District Court on motion to dismiss, rather than on summary judgment, where plaintiffs challenged revocation of a use permit by the local zoning officer but had not appealed to, or sought a variance from, the Township zoning board. Id.
Most recently, in Acierno v. Mitchell, 6 F.3d 970, the Court of Appeals for the Third Circuit vacated a preliminary injunction which had directed county officials to review plaintiffs' application for a building permit after the application had been denied by the county licensing officer. The court held that, although ripeness was not an issue raised below, plaintiffs' claims asserted under procedural and substantive due process and equal protection should have been dismissed without prejudice because, under the applicable statutory scheme, only the County Board of Adjustment had final authority to interpret the zoning regulations in relation to the issuance of a building permit, and until plaintiffs appealed to that Board, there could be no final justiciable decision on that issue. Id. at 976.
These three holdings did not, unlike Felmeister and the present case, directly involve claimed violations of First Amendment rights. However, the reasoning of these cases, in their analysis of the ripeness doctrine in the context of "as applied" challenges to land use regulation decisions, is instructive in the circumstances presented here.
The Court in Felmeister applied a two-part test, stating that "according to the Supreme Court, questions of ripeness implicate two competing concerns: the fitness of issues for judicial review and the hardship to the parties if judicial consideration is withheld." Id. (citing Abbott Laboratories, 387 U.S. at 149). That test must likewise be applied in this case.
The factors which are relevant to determining whether a question is fit for judicial review include:
whether the agency action is final; whether the issue presented for decision is one of law which requires no additional factual development; and whether further administrative action is needed to clarify the agency's position, for example, when the challenged prescription is discretionary so that it is unclear if, when or how the agency will employ it.
Felmeister at 535-36 (quoting Action Alliance of Senior Citizens v. Heckler, 252 U.S. App. D.C. 249, 789 F.2d 931, 940 (D.C. Cir. 1986)).
There are at least three interrelated agency processes which may produce final agency actions in this case. None of those processes have progressed to the point of any finality at this time. Those processes are: (1) the pending application to the Planning Board for a site plan [or possibly a waiver of the site plan requirement]; (2) the possible referral of aspects of the site plan to the Zoning Board for variances or an interpretation that no variance is needed; and (3) the pending application to the Construction Official for a certificate of occupancy.
Plaintiffs argue that they should not be required to go through the site plan application process, stating that "the threshold question of whether religious assemblies on the property changes the use classification for purpose of the Zoning Law must be decided in order to determine whether a site plan is required." (Pls.' Reply Br. at 3). This, plaintiffs contend, is an issue which is fit for judicial review at this time because defendants are insisting that plaintiffs cannot rely upon their original site plan waiver and must file a new site plan application with the Planning Board. Counsel for defendants does not dispute that the Township expects plaintiffs to apply for a new site plan (or a new waiver) from the Planning Board, and eventually to obtain a certificate of occupancy, which the building presently lacks. Also, plaintiffs are correct that the reasons expressed at various times in the past by various representatives of the Township have not always been clear or consistent. However, it is clear to this Court that Chapter 81 of the Delanco Code requires submission and approval of a site plan before any construction is commenced, and that requirement alone does compel plaintiffs to file a site plan with respect to the substantial renovations to the building which were constructed during 1988-90. Delanco Code, § 81-1. The fact that the Construction Official overlooked that requirement when he issued the original building permits does not obviate it as a requirement. See East Wind Realty, Ltd. v. Board of Adjustment of Township of Wall, 218 N.J. Super. 412, 417, 527 A.2d 956, 958 (App. Div. 1987) ("failure to enforce or apply the law by municipal authorities is not a waiver"). As to whether conducting religious assemblies on the property changes the zoning use classification, that is not a question that must be resolved before plaintiffs file their site plan application, but rather is a question which may arise and require an interpretation by the Zoning Board of Adjustment while the site plan application is pending. The statutory scheme squarely authorizes the Zoning Board to accomplish such purposes.
It is a routine and essential component of the site plan application process that the applicants must specify the actual intended uses of the property. Delanco Code, § 81-3.N. and V. This must be done so that the Planning Board, and if necessary the Zoning Board, can determine whether the plan conforms to the zoning code or may require variances. It must also be done so that the Construction Official can determine the "use group" of the buildings under the Uniform Construction Code. As previously noted, the "use group" classification will in turn determine the applicable construction safety requirements, which also must be complied with before a certificate of occupancy may issue.
Plaintiffs have stated both in their testimony and through counsel that they intend to comply in all respects with the generally applicable requirements of the Township ordinances pertaining to their property, and that is appropriate. See, e.g., Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990) (Free Exercise Clause does not apply to statutes of general applicability that are not specifically directed to religious practices); Salvation Army v. Dep't of Community Affairs of State of New Jersey, 919 F.2d 183 (applying Smith, 494 U.S. 872, in context of state statute regulating boarding houses). One of those requirements is that the intended uses be specified in the site plan application, without which the agencies cannot perform their review.
The next factor to consider is whether the issue presented for decision is one of law which requires no additional factual development. That factor also weighs in favor of allowing the land use application process to take its course. If, as plaintiffs contend, the Township zoning ordinance is unconstitutional as applied to them because it impermissibly infringes on their religious freedom, then all relevant facts about the intended uses of the property need to be presented in the first instance to the Planning Board, and if an issue is raised there about the intended uses under the zoning ordinance, then to the Zoning Board. There may, for example, be zoning issues raised concerning only plaintiffs' non-religious uses of the property. Such issues would not be germane to the claims asserted in this case. If issues are raised concerning plaintiffs' religious uses of the property, as plaintiffs may reasonably foresee occurring based on past history, then the relevant facts must be presented in the first instance to the Zoning Board, which is the sole initial decision-maker under the statutory scheme. See Williamson, 473 U.S. at 192-93.
The Zoning Board may determine that plaintiffs are not operating as a "church" within the meaning of the zoning ordinance. Such an interpretation would render that constitutional challenge moot. The Zoning Board may instead take the view that the intended use of the building is as a "church", but grant a variance permitting it. That too, much as plaintiffs might disagree with such interpretation, would likely render the issue non-justiciable.
A justiciable issue would exist only if the Zoning Board, in a final adverse determination, rejects plaintiffs' arguments on the interpretation of the term "church" as it affects them under the zoning ordinance, and further fails to grant plaintiffs a variance for their religious use of the property. The Zoning Board would need the facts in order to make its determination.
While this Court necessarily takes no position as to the eventual outcome of the issues presented under the Township's local ordinances in this case, it appears that if the Zoning Board were to rule that plaintiffs' use of the building rendered the building a "church" within the meaning of the local ordinances, such a ruling might well be contrary to the views expressed by the New Jersey Supreme Court in the landmark case of State v. Cameron, 100 N.J. 586, 498 A.2d 1217 (1985). Cf. Farhi v. Commissioners of Borough of Deal, 204 N.J. Super. 575, 499 A.2d 559 (Law Div. 1985); Sexton v. Bates, 17 N.J. Super. 246, 85 A.2d 833 (Law Div. 1951), aff'd, 21 N.J. Super. 329, 91 A.2d 162 (App. Div. 1952); George v. Board of Excise of Elizabeth, 73 N.J.L. 366, 63 A. 870 (Sup. Ct. 1906), aff'd 74 N.J.L. 816, 67 A. 599 (E & A 1907). Although no New Jersey cases have been located which involved an alleged church use in a commercial zone as distinguished from a residential zone, the reasoning of the Cameron decision concerning the meaning of the word "church" in the context of zoning regulation would certainly be relevant.
The narrow holding on the facts in Cameron was that a zoning ordinance which excluded "churches and similar places of worship" from a residential district was unconstitutionally vague as applied to a minister who used his home to hold a one-hour religious service each week for his congregation. However, the majority opinion, written by Justice Handler, expressed a distinct disapproval of judicially creating a definition of "church" totally unrelated to the notion of a special building or structure. On this point, the Cameron court stated inter alia that "any enforcement of the ordinance based on the kind of religion that is being practiced . . . 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." Cameron, 498 A.2d at 1223 (citation omitted). The Court also observed in a footnote that:
We do not suggest that as matter of due process the term "church" requires some further definition whenever used in a zoning ordinance. As noted, the term "church" can have a sufficiently definite core meaning to withstand a facial attack on the grounds of vagueness. In this case, the Township applied the term to a set of facts lying well outside the definitional core. Further, the standard used in this case to determine vagueness is stringent because constitutional rights are involved, rights so important that a high level of scrutiny is required to assure they are not impermissibly restricted.
Id. at 1224 n.3.
Accordingly, the Cameron court concluded:
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 practices were intended to be governed by the ordinance. Nevertheless, it may be reasonable to ascribe a clear core meaning to the critical phrase used in the ordinance, one that avoids a determination that the ordinance is totally vague and void in its entirety. Such a core meaning would be more specific than one dependent solely upon the nature of the religious activity that occurs; it would involve an understanding of the term church in terms of both its architectural design and construction and its actual primary religious use. We nonetheless are satisfied that such a core meaning would not encompass a single-family house that is used for one hour, once each week as the temporary location to hold rather modest religious services of a small congregation.