Opposition Brief — Wilson v. Area Plan Commission of Evansville & Vanderburgh County

No. 99-368

IN THE

Supreme Court of the United States

KEVIN J. WILSON,

Petitioner,

AREA PLAN COMMISSION OF EVANSVILLE AND

VANDERBURGH COUNTY AND CITY OF EVANSVILLE,

Respondents.

On PETITION FOR A Writ OF CERTIORARI

TO THE INDIANA COURT OF APPEALS

BRIEF IN OPPOSITION FOR RESPONDENT

AREA PLAN COMMISSION OF EVANSVILLE

AND VANDERBURGH COUNTY

D. TimotHy Born

Counsel of Record

SHAWN M. SULLIVAN

Attorneys for Respondent

Area Plan Commission

of Evansville and

Vanderburgh County

5011 Washington Avenue

Evansville, Indiana 47715

(812) 479-8721

155690 @J Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 * (800) 359-6859

COUNTERSTATEMENT OF

QUESTIONS PRESENTED

The Respondent, Area Plan Commission of Evansville

and Vanderburgh County (hereinafter “APC”), would restate

the questions presented by the Petition for Writ of Certiorari

as follows:

A. Whether the Zoning Code of Evansville, Indiana, as

interpreted by the Indiana Court of Appeals, is facially

invalid under the Free Exercise Clause of the First

Amendment to the United States Constitution.’

B. Whether Zoning Code of Evansville, Indiana,

impermissibly discriminates against “Christian oriented

institutions”.

1. While Wilson also seeks to challenge the Special Use

Ordinance’s facial validity under the Establishment Clause, he failed

to properly raise and present this issue in the state court. The Indiana

Court of Appeals, therefore, held that Wilson waived the issue. Area

Plan Commission of Evansville and Vanderburgh County v. Wilson,

701 N.E.2d 856, 863- note 6 (Ind. Ct. App. 1998). Accordingly,

review of this issue by this Court is not warranted. See Bankers Life

and Casualty Co. v. Crenshaw, 486 U.S. 71, 76 (1988).

7

TABLE OF CONTENTS

Page

Counterstatement of Questions Presented ........ I

Tae OF CD oko isk eee eee i

Table of Cited Authorities ................000. i

TORe0 OF ABDORINIOEE 3. vécaecssxetiseee ee Vi

I. Counterstatement of Case .................. I

Il. Reasons for Denying the Writ .............. 3

A. The exercise of certiorari jurisdiction in this

case will require the Supreme Court to review

and overturn a state appellate court's

interpretation of the meaning of a local

GUGURENOS. 6. sos css ae tee 4

B. The Indiana Court of Appeals correctly

followed and applied the precedents of this

SPP EeePC TR See Sire eo 9

C. The Special Use Ordinance does not

impermissibly discriminate against

“Christian oriented institutions”. ......... 15

an. SOOO Cg.o kook nee 17

il

TABLE OF CITED AUTHORITIES

Page

Cases:

Bankers Life and Casualty Co. v. Crenshaw, 486

SO Pe CUD Gcevibbevevdscesestectores

Board of Zoning Appeals v. Schulte, 241 Ind. 339

i & hk li |) eee even 6

Board of Zoning Appeals of Decatur v. Decatur,

Indiana Company of Jehovah's Witnesses, 233

Ind. 83, 117 N.E.2d 115 (1954) ............. 6

Christian Gospel Church, Inc. v. San Francisco, 896

F.2d 1221 (9th Cir. 1990), cert. denied, 498 U.S.

DP CUD RUD cccccccccccererenscccvceveses | 14

Church of Christ v. Metropolitan Board of Zoning

Appeals of Marion County, 175 Ind. App. 346,

371 N.E.2d 1331 (1978) ...... ry rere es 14

Cochise County v. Broken Arrow Baptist Church,

778 P.2d 1302 (Ariz. App. 1989) ......... 14

Eddy v. McGinnis, 523 N.E.2d 737 (Ind. 1988) .. 16

Employment Div., Dept. of Human Resources of

Oregon v. Smith, 494 U.S. 872 (1990) ........ 9, 15

First Assembly of God of Naples v. Collier County,

20 F.3d 419 (11th Cir. 1994) ..... | , 13

iv

Cited Authorities

Holy Spirit for the Unification of the World

Christianity v. Town of Newcastle, 480 F. Supp.

Se Gs ENEUD <cenctvetwcuubersutass

Kunz v. New York, 340 U.S. 290 (1951) 2.0000...

Lakewood, Ohio Congregation of Jehovah's

Witnesses, Inc. v. City of Lakewood, 699 F.2d 303

(Oth Cir. 1983), cert. denied, 464 U.S. 815

SUE cviecheeeek eens eueeeeeennabeeern aan

Love Church v. City of Evanston, 671 F. Supp. 508

(N. Dist. Ill. 1987), vacated on other grounds,

Love Church v. City of Evanston, 896 F.2d 1082

CRIN TUTE ds i: a ov'ae area eater ee te aad ae eo

Metromedia, Inc. v. City of San Diego, 453 U.S. 490

SE eke Cedar t ie en tatioehindee eae Ts

Milharcic v. Metropolitan Board of Zoning Appeals

of Marion County, 489 N.E.2d 634 (Ind. Ct. App.

1986)

Miller v. State, 517 N.E.2d 64 (Ind. 1987) .......

Province of Meribah Society of Mary, Inc. v.

Muttontown, 148 App. Div. 2d 512, 538 N.Y.2d

850 (A.D.2d 1989)

R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377

to) ow

Page

8

4.8

1S

8,9

4.15

6

14,15

4

Cited Authorities

Page

Shuttlesworth v. City of Birmingham, 394 U.S. 147

(oD Ro a, 4,8

St. Bartholomew's Church v. City of New York, 914

F.2d 348 (2nd Cir. 1990) ....... 60 eee ee ee ees 12, 13

Town of Merrillville v. Public Storage, Inc., 568

N.E.2d 1092 (Ind. Ct. App. 1991) .....------. 5

Statutes:

Ind. Code § 36-7-4-918.2 22... 6: ee eee ee eres »

Zoning Code, § 15.153.08, ef seq... 6. ++. eee ees l

Zoning Code, § 15.153.08.130 .........-+++5: 1,9, 10

Zoning Code, § 15.153.08.132 «2... 6... eee eee 2

Zoning Code, § 15.153.08.132(B) .......-++++>: 2, 6

Zoning Code, § 5S 069 Oe USED cicvcsivecnwes 3

Zoning Code, § 15.153.08.134 ...--- 6. ee eee es hoe

Zoning Code, § 15.153.08.136 ......-- scenes: 2,12

United States Constitution:

First Amendment .........ceecccccceeercccees a

vi

Cited Authorities

Page

Rule:

United States Supreme Court Rule 10 ........... 9

Other Authorities:

2 Young, Anderson's American Law of Zoning,

ge FR re rer errr eee 7

2 Zielgler, Rathkopf{'s The Law of Zoning and

Planning, § 20.04 (1997) .......c cece ee eee 7,13, 14

3 Ziegler, Rathkopf's The Law of Zoning and

Poe, S GS ire CUED cos ckec kw ee eee ean 1]

3 Ziegler, Rathkopf{'s The Law of Zoning and

Pee BEEBE ocecerccbddetvesesetn ee |

oe SS Me fT reer er errr e, 14

8 OD OE rrr ee a |

83 Am. Jur. 2d $959 2.0 ccc es 10

TABLE OF APPENDICES

Appendix — Special Use Ordinance ...... awe la

]

I. COUNTERSTATEMENT OF CASE

This case involves a lawsuit brought by a property owner,

Kevin J. Wilson (hereinafter “Wilson”), to challenge the

facial validity of the Zoning Code of Evansville, Indiana,

under the Free Exercise Clause of the First Amendment to

the United States Constitution. The property owned by

Wilson has been, and continues to be, used by Wilson as a

“Church and/or church-operated incidental/accessory

facility”, as that term is defined at § 15.153.08.134 of the

Zoning Code of Evansville, Indiana. At no time has Wilson

ever been prevented from using his property for that purpose.

Like almost every other municipality in the United

States, the City of Evansville designates certain uses of

property under its Zoning Code as “special exceptions” or

“special uses”.* Section 15.153.08, et seg. of the Code of

Ordinances of Evansville (hereinafter “Special Use

Ordinance”) is the portion of the Zoning Code that regulates

“special exceptions.” and its purpose is expressly stated in

the ordinance:

15.153.08.130. Objectives.

Certain uses are necessary to the life and

economic health of the community, but have

2. The terms “special exception”, “special use” and

“conditional use” are used interchangeably throughout cases and

ordinances. 3 Ziegler, Rathkopf's The Law of Zoning and Planning,

§ 41.02, pp. 6-8; see also 83 Am. Jur. 2d § 958, Zoning and Planning,

p. 802.

3. The Special Use Ordinance was not included in the Appendix

to Wilson’s Petition for Writ of Certiorari. APC has attached hereto

as Appendix “A” a copy of the Special Use Ordinance in question.

2

characteristics of operation that do not readily

permit classification in the usual residential,

commercial, or industrial districts. Because of the

various types of uses and locations requiring this

special consideration, the specific conditions

under which each use may be permitted must be

considered. These uses are specifically listed in

Section 15.153.08.134. Conditions for the

approval of a special use are enumerated in

Section 15.153.08.132.

The Special Use Ordinance goes on to classify some thirty-

four different uses of property as “special uses’, and a

“Church and church-operated, incidental/accessory facility”

is one of the “special use” classifications. See Zoning Code

§ 15.153.08.134. The Special Use Ordinance specifies the

zoning districts wherein each “special use” may be

established. See Zoning Code § 15.153.08.136, Table A. In

Evansville, “Church[{es] and church-operated, incidental/

accessory facilit{ies]” are permitted as a “special use” in

every residential, commercial and industrial zoning district

within the City. See Zoning Code § 15.153.08.136, Table A.

By both statute and ordinance, those seeking to establish

on their property any use of property designated as a “special

use” must apply for and obtain a special use permit

from the Board of Zoning Appeals of Evansville and

Vanderburgh County (hereinafter “BZA”’). See Zoning Code

§ 15.153.08.132; See also Ind. Code § 36-7-4-918.2. After

public hearing on any request for a “special use” permit, the

BZA may approve or grant the application upon a showing

of compliance with certain criteria specified in the ordinance.

See Zoning Code, § 15.153.08.132(B). Likewise, the BZA

may condition its approval of any special use permit upon a

a

3

property owner’s compliance with conditions “necessary for

the protection of the public interest.” See Zoning Code,

§ 15.153.08.132(C); See also Ind. Code § 36-7-4-918.2.

On July 28, 1994, Wilson made application with the BZA

to obtain a special use permit for Special Use Classification

No. 2 (SU-2), “Church and church-operated, incidental/

accessory facility” for property he owns. Ata public hearing,

the BZA granted Wilson’s Application for Special Use

Permit, over the objections of several remonstrators. The

special use permit was effective for a period of one year

from the date of issuance. The imposition of such a one-

year time period for a new applicant was the standard practice

for the BZA which typically granted permanent approval

upon a renewed application at the end of the first year.

On August 3, 1995, a staff member of the APC notified

Wilson that the special use permit issued on September 15,

1994, would soon expire, and that he should make application

for a new special use permit so as to preserve the property’s

status as a Special Use Classification No. 2 (SU-2), “Church

and church-operated, incidental/accessory facility.”

Thereafter, Wilson elected not to file an application for a

new permit, but instead instituted this action claiming that

the Special Use Ordinance was unconstitutional.

Il. REASONS FOR DENYING THE WRIT

This Court should not exercise its certiorari jurisdiction,

because the Indiana Court of Appeals’ decision does not

contravene any ruling precedent of this Court. Moreover,

the exercise of certiorari jurisdiction in this case will require

that this Court review and overturn a state court’s

interpretation of the meaning of a local ordinance — a

4

function or responsibility not exercised by the Supreme Court

of the United States when reviewing state court decisions,

especially where, as here, the municipal code has been

interpreted so as not to implicate the very constitutional

concerns or questions asserted in the Petition for W:.t of

Certiorari.

A. The exercise of certiorari jurisdiction in this case will

require the Supreme Court to review and overturn a

state appellate court’s interpretation of the meaning

of a local ordinance.

Certiorari review in this case is not warranted because

it will necessarily require this Court to review and overturn

the Indiana Court of Appeals’ interpretation of both the

Special Use Ordinance, and its prior appellate opinions —

matters that should not be the subject of this Court’s certiorari

jurisdiction. See Metromedia, Inc. v. City of San Diego, 453

U.S. 490, 521 — note 26 (1981) (“[D]etermining the meaning

and application of that [ordinance] is properly the

responsibility of the state courts.”); R.A.V. v. City of St. Paul,

Minnesota, 505 U.S. 377, 381 (1992) (“In construing the

{local ordinance}, we are bound by the construction given to

it by the Minnesota court.””) Wilson maintains that the Special

Use Ordinance is unconstitutional under this Court’s holdings

in Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969)

and Kunz v. New York, 340 U.S. 290 (1951) because the

Special Use Ordinance, according to Wilson, vests the BZA

with unfettered or “significant” discretion to deny special

use approval for a “Church and church-operated, incidental/

accessory facility.” However, the Indiana Court of Appeals

held that, under its prior precedents, the Special Use

Ordinance was not susceptible to such an interpretation, and

that the BZA has little, if any, discretion to deny special use

approval for a “Church and church-operated, incidental/

5

accessory facility.” Area Plan Commission of Evansville and

Vanderburgh County v. Wilson, 701 N.E.2d 856, 861-862

(Ind. Ct. App. 1998).

Under Indiana law, a local board of zoning appeals’

review of an application for a special exception is distinct

and more limited than its review of variance applications.

Town of Merrillville v. Public Storage, Inc., 568 N.E.2d

1092, 1094 (Ind. Ct. App. 1991). In fact, applicable Indiana

law provides that a board of zoning appeals is under a legal

obligation to grant a special exception once one presents

evidence showing compliance with the respective special

exception criteria:

[A] Variance is a deviation from the legislated

zoning classification applicable to a given parcel

of land, while a special exception is a use

permitted under the zoning ordinance upon the

showing of certain statutory criteria. [citation

omitted] The granting of a variance is a matter

committed to the discretion of the Board of

Zoning Appeals, whereas the granting of a special

exception is mandatory once the petitioner shows

compliance with the relevant statutory criteria.

[emphasis added]

Town of Merrillville v. Public Storage, Inc., 568 N.E.2d

1092, 1094 (Ind. Ct. App. 1991).

More importantly, as a matter of Indiana state law, a

local board of zoning appeals enjoys little, if any, discretion

where one seeks special exception approval for a “Church

and church-operated, incidental/accessory facility.” As the

Indiana Court of Appeals held, any denial of special

6

exception approval by a local board of zoning appeals is

“subject to strict review.” Wilson, supra, 701 N.E.2d at 862;

See also Board of Zoning Appeals v. Schulte, 241 Ind. 339,

172 N.E.2d 39 (1961) (adverse effect on property values is

insufficient reason to deny special permit for “church”);

Board of Zoning Appeals of Decatur v. Decatur, Indiana

Company of Jehovah's Witnesses, 233 Ind. 83, 117 N.E.2d

115 (1954) (lack of off-street parking insufficient reason to

justify denial of building permit for “church’”). In fact, while

Zoning Code, § 15.153.08.132(B) sets forth general criteria

for the granting of a special use, any non-compliance with

those ordinance criteria would not be valid grounds for the

denial of special use approval for a “Church and church-

operated, incidental/accessory facility.” See, e.g., Milharcic

v. Metropolitan Board of Zoning Appeals of Marion County,

489 N.E.2d 634, 637 (Ind. Ct. App. 1986) (Criteria set forth

by statute for granting variance approval are, “totally

inapplicable to religious facilities seeking to use residential

property for religious purposes or seeking variance from non-

use restrictions applicable to the subject property.”) The

Indiana Court of Appeals’ interpretation of the Special Use

Ordinance is consistent with the interpretations which other

states have given to similar ordinances:

In those states which by virtue of the philosophy

that maintenance of a church is per se in

furtherance of the general welfare, where the

establishment of the church is dependent upon the

exercise of a local administrative body, the court’s

obligation is to scrutinize carefully the reasons

advanced for the denial of a permit. In these states,

the mere fact that a church is the subject of an

application changes the ordinary rule as to the

burden of proof and places the burden squarely

—

Pisa.

7

upon the administrative officials to justify the

denial of the permit.

2 Zielgler, Rathkopf’s The Law of Zoning and Planning,

§ 20.04, p. 48 (1997); See also 2 Young, Anderson's

American Law of Zoning, § 12.24, pp. 585-587 (4th ed.

1996).4

Thus, as a matter of Indiana law, the Special Use

Ordinance confers little, if any, discretion upon a local board

of appeals reviewing applications of those seeking special

use approval for a “Church and church-operated, incidental/

accessory facility”:

To the extent that the special use ordinance has

an effect on Wilson’s right to free speech, we find

that it does not impermissibly imbue the BZA with

unfettered discretion. The ordinance itself Clearly

indicates that discretion given to the BZA is to

be used to help accommodate the special use.

Furthermore, we have previously held that a

zoning board’s denial of a special permit will be

subject to strict review. See Board of Zoning

Appeals v. Schulte, 241 Ind. 339, 172 N.E.2d 39,

43 (1961) (holding that the adverse effect on

property values is insufficient reason to deny a

special permit to a church); Milharcic v.

Metropolitan Board of Zoning Appeals of Marion

4. By interpreting local ordinances as conferring limited

discretion upon a local board of zoning appeals, the Indiana Supreme

Court and Court of Appeals adhere to that cardinal rule of Statutory

construction in Indiana, which provides that statutes or ordinances

should be interpreted to avoid constitutional questions and to support

the law’s validity. See Miller v. State, 517 N.E.2d 64, 71 (Ind. 1987).

8

County, 489 N.E.2d 634, 637 (Ind. Ct. App.1986)

(holding that restrictions upon religious facilities

are appropriate only where “the need or benefit

which occasions the exercise of police power

outweighs the restriction on the rights of freedom

of worship and assembly”); Board of Zoning

Appeals of Decatur v. Decatur, Indiana Company

of Jehovah's Witnesses, 233 Ind. 83, 117 N.E.2d

115, 120-21 (1954) (holding that lack of off-street

parking was an insufficient reason to justify denial

of a building permit to a church). Accordingly,

the BZA’s discretion to deny a special use to

Wilson is severely limited.

Wilson, supra, 701 N.E.2d at 862.

Accordingly, Wilson’s contention that the Special Use

Ordinance confers upon the BZA the kind of unfettered and

unlimited discretion that this Court found constitutionally

infirm in Kunz, supra, and Shuttlesworth, supra, is simply

contrary to the Indiana Court of Appeals’ interpretation of

the Special Use Ordinance — a matter which is not properly

the subject of this Court’s certiorari jurisdiction, especially

where, as here, the state court’s interpretation upholds the

ordinance’s constitutionality.°

5. It is also true that Special Use Ordinance does not constitute

a “prior restraint” because it does not restrain anyone from

worshiping or otherwise practicing their religious beliefs on their

property. See, e.g., Holy Spirit for the Unification of the World

Christianity v. Town of Newcastle, 480 F. Supp. 1212, 1215

(S.D.N.Y. 1979) (“Plaintiff is not being denied use or access to its

property for the exercise of its religious beliefs. There is no prior

restraint.”); Love Church v. City of Evanston, 671 F. Supp. 508,

(Cont'd)

9

B. The Indiana Court of Appeals correctly followed and

applied the precedents of this Court.

Wilson also contends that the Indiana Court of Appeals’

decision is in error because its application of this Court’s

holding in Employment Div.. Dept. of Human Resources of

Oregon v. Smith, 494 U.S. 872 (1990) to the facts of this

case is erroneous. See Petition for Writ of Certiorari,

pp. 14-17. However, it is fundamental that this Court does

not function to exercise its certiorari jurisdiction where the

petition merely alleges, “the misapplication of a properly

Stated rule of law.” Rule 10, Rules of the Supreme Court of

the United States. Moreover, there is no error in the Indiana

Court of Appeals’ application of this Court’s holding in

Smith, supra.

Under this Court’s holding in Smith, supra, the Special

Use Ordinance is a neutral law of generally applicability

because it regulates land use, not religious beliefs, and is

equally applicable to similar uses of property. On its face,

the Special Use Ordinance has as its purpose, the

accommodation of certain desirable land uses that cannot be

subject to rigid and restrictive classification into the typical

residential, commercial or industrial districts:

15.153.08.130. Objectives.

Certain uses are necessary to the life and

economic health of the community, but have

(Cont'd)

$12 (N. Dist. Ill. 1987), vacated on other grounds, Love Church vy.

City of Evanston, 896 F.2d 1082 (7th Cir. 1990) (special use

ordinance is not a prior restraint “because it does not restrain

plaintiffs, or anyone, from worshiping”).

10

characteristics of operation that do not readily

permit classification in the usual residential,

commercial, or industrial districts. Because of the

various types of uses and locations requiring this

special consideration, the specific conditions

under which each use may be permitted must be

considered. These uses are specifically listed in

Section 15.153.08.134. Conditions for the

approval of a special use are enumerated in

Section 15.153.08.132.

Zoning Code § 15.153.08.130. The stated purpose of the

Special Use Ordinance has been recognized as a valid

objective of municipalities entrusted with the responsibility

of zoning and controlling land use:

The function of a special permit is to bring some

flexibility to the rigid restrictions of a zoning

ordinance. . . . Another function of the special use

classification is to provide for infrequent types

of land use which are necessary and desirable, but

which are potentially incompatible with uses

usually allowed in residential, commercial, and

industrial zones.

83 Am. Jur. 2d § 959, Zoning and Planning, p. 803. It is this

legislative accommodation of special uses which necessitates

an administrative review of the impact of the special use at a

particular location within a given zoning district:

It has been held that the technique of special

uses was developed as a means of providing for

types of land use which are necessary and

desirable, but which are potentially incompatible

1]

with uses usually allowed in the particular district;

they cannot be categorized as permissible as of

right in any given use district without the danger

that in some locations therein they would pose

serious problems.

The requirement of approval for certain types

of activity before they can be permitted in a

specified district recognizes that it is impossible

to deal in advance, when enacting a zoning

ordinance, with all of the problems surrounding

the uses which may later be proposed in a

particular district. Thus, the requirement for a use

permit is set out in the ordinance so that the body

entrusted with the task of reviewing the

application for a permit for such use can make

certain that it would not adversely affect the public

interest if placed in a particular location within

the permitted zone.

3 Ziegler, Rathkopf’s The Law of Zoning and Planning,

§ 41.01, pp. 3-4 (1981). Thus, the Special Use Ordinance

does not evidence any intent to regulate religious beliefs,

but instead represents Evansville’s legislative determination

to accommodate certain desirable land uses which do not

readily permit classification in the typical residential,

commercial and industrial zoning districts.

Moreover, contrary to Wilson’s contention, the Special

Use Ordinance does not evidence an intent to single out

“Church and church-operated, incidental/accessory

facilit{ies]” for more restrictive treatment or “additional

burdens”. First, the ordinance in no way restricts the use of

one’s property to exercise one’s religious beliefs or practices,

Te

12

and the ordinance specifically provides that a “Church and

church-operated, incidental/accessory facilit{ies]” is

permitted as a special use within every residential,

commercial, industrial and agricultural zoning district within

the City of Evansville. See Zoning Code, § 15.153.08.136,

Table A. in addition, the Special Use Ordinance does not

lose its neutrality merely because “Church and church-

operated, incidental/accessory facilit{ies]” happen to be

amongst that category of land uses affected by the Special

Use Ordinance. The Second Circuit's decicion in Sz.

Bartholomew's Church v. City of New York, 914 F.2d 348

(2nd Cir. 1990) is instructive on this point. In Sv.

Bartholomew's Church, supra, New York City’s Landmarks

Law sought to preserve and protect “[a]ny improvement, any

part of which ts thirty years old or older, which has a special

character or special historic or aesthetic interest or value,”

and New York City specifically designated “St.

Bartholomew's Church” as fitting within this category of

improvement. The Second Circuit found the law to be neutral

and generally applicable, and it reasoned:

The Landmark's Law its a facially neutral

regulation of general applicability within the

meaning of the Supreme Court's decisions.

It thus applies to “[a]ny improvement, any part

of which is thirty (30) years or older, which

has a special character or special historical or

aesthetic interest or value.” N.Y.C. Admin.Code

§ 25-302(n) (1986).

It is true that the Landmarks Law affects many

religious buildings. ... This, however, is not

evidence of an intent to discriminate against, or

impinge on, religious belief in the designation of

landmark sites.

at ae

13

St. Bartholomew's C hurch, supra, 914 F.2d at 354; See also

First Assembly of God of Naples v. Collier C. ounty, 20 F.3d

419, 423 (11th Cir. 1994) (“[the special use Ordinance]...

makes a special exception for churches. It is neutral on its

face and of general applicability.”) Thus, just as in

St. Bartholomew's C hurch, supra, the Special Use Ordinance

does not lose its neutrality merely because “Church[es] and

church-operated, incidental/accessory facilit[ies]” happen to

be amongst that category of land uses which the Zoning Code

seeks to accommodate.

If this Court were to exercise its certiorari Jurisdiction

and later hold that a municipality’s classification of a

“Church and church-operated, incidental/accessory facility”

as a special exception violates the Free Exercise Clause. it

would have the effect of not only preventing municipalities

from utilizing an effective, accommodating land use practice,

it would be invalidating a frequently utilized zoning

technique, the propriety of which has never been questioned.

In fact, it has long been the universally held view that the

Classification of a “Church and church-operated, incidental/

accessory facility” as a special exception is a proper excercise

of a municipality’s zoning and planning powers.

See 2 Zielgler, Rathkopf's The Law of Zoning and Planning,

§ 20.04, pp. 46-47 (1997). This well-settled view is

recognition of the fact that such ordinances permit a

municipality to accommodate religious uses of property

within all residential. commercial and industria] zoning

districts, while at the same time giving municipalities the

Power to impose conditions that may be necessary to miti gate

adverse land use impacts that may arise from the erection of

a “Church and church-operated, incidental/accessory facility”

at a specific location within any given zoning district:

14

The purpose of requiring a special permit for

a church is derived from a realization of the impact

that a church may have upon other property in

the district. Requiring a special permit to be

applied for and the consequent disclosure of site

plans, parking facilities and other features of the

particular property, affords an opportunity to

weigh the use in relation neighboring land uses

and to cushion any adverse impacts by the

imposition of conditions designed to mitigate

them.

Even in those states in which the church, as a

favored use, cannot be excluded either from the

community as a whole or from any residential

district therein, the requirement of approval of

location upon a particular site in accordance with

reasonable legislatively designed standards has

been held valid.

2 Zielgler, Rathkopf's The Law of Zoning and Planning,

§ 20.04, p. 48 (1997).° Accordingly, the validity of such

ordinances is well established. See, e.g., 83 Am. Jur. 2d,

Zoning and Planning, § 442 (“The right of a municipality to

require a special permit for religious uses seems to be firmly

established”); Cochise County v. Broken Arrow Baptist

Church, 778 P.2d 1302 (Ariz. App. 1989); Christian Gospel

Church, Inc. v. San Francisco, 896 F.2d 1221 (9th Cir. 1990),

cert. denied, 498 U.S. 999 (1990); Province of Meribah

6. Indiana, like several other states, precludes municipalities

from zoning “churches” out of specific zoning districts. See Church

of Christ v. Metropolitan Board of Zoning Appeals of Marion

County, 175 Ind. App. 346, 349-350, 371 N.E.2d 1331, 1333-1334

(1978).

15

Society of Mary, Inc. y. Muttontown, 148 App. Div. 2d 512,

538 N.Y.2d 850 (A.D.2d 1989): Lakewood, Ohio

Congregation of Jehovah's Witnesses, Inc. y. City of

Lakewood, 699 F.2d 303 (6th Cir. 1983), cert. denied, 464

U.S. 815 (1983).

Therefore, contrary to Wilson’s assertions, the Indiana

Court of Appeals correctly applied this Court’s holding in

Smith, supra.

C. The Special Use Ordinance does not impermissibly

discriminate against “Christian oriented

institutions”.

Finally, the Indiana Court of Appeals correctly

concluded that the Special Use Ordinance does not operate

to discriminate or differentiate between “Christian oriented

institutions” and “non-christian institutions”. The Indiana

Court of Appeals found that, as a matter of Indiana law, the

Special Use Ordinance was not susceptible to such an

interpretation. Again, the Indiana Court of Appeals’

interpretation of a municipal zoning code is not properly the

Subject of this Court’s certiorari jurisdiction.

See Metromedia, Inc., supra, 453 U.S. at 521 ~ note 26

(“[D]etermining the meaning and application of that

[ordinance] is properly the responsibility of the state courts.”’)

This prudential concern is especially applicable where, as

here, the municipal code has been interpreted by the state

court so that it does not implicate or raise constitutional

concerns or questions.

The trial court below found that the operative definition

of a “Church and church-operated, incidental/accessory

facility” is limited to “Christian oriented institutions”, and

therefore concluded that the Special Use Ordinance Operates

ts

16

to exempt “non-christian churches” from its provisions.

(Petitioner’s Appendix C - Findings of Fact No. 5,

Conclusions of Law No. 11, 12). While expressing its

incredulity that the definition of “Church and church-

operated, incidental/accessory facility” could actually be

subject to such a narrow definition’, the Indiana Court of

Appeals held that the Special Use Ordinance could not be

interpreted as exempting from its provisions “non-christian

churches”, and that the trial court’s conclusion to the contrary

was “clearly erroneous”. Wilson, supra, 701 N.E.2d at 862.

The Indiana Court of Appeals reasoned that, under the trial

court’s interpretation of the Special Use Ordinance, the

erection of a “Church and church-operated, incidental/

accessory facility” by a non-christian institution would not

be exempt, but rather prohibited and “forbidden” — an

interpretation which is constitutionally suspect and which

the Indiana Court of Appeals correctly rejected. Eddy v.

McGinnis, 523 N.E.2d 737, 738 (Ind. 1988) (“If there are

two possible interpretations of a statute, and by one

interpretation, the statute would be invalid, but by the other

7. The trial court’s finding in this regard was based solely on

the fact that a zoning enforcement officer sent to Wilson a Xerox

copy of Black’s Law Dictionary’s definition of “church”, in response

to Wilson’s inquiry regarding the legal definition of “Church and

church-operated, incident\accessory facility”. One of the definitions

of “church” set forth in Black’s Law Dictionary, is: “[I]n its most

general sense, the religious society founded and established by Jesus

Christ, to receive, preserve and propagate his doctrines and

ordinances.” The trial court did not find that the APC has failed or

refused to enforce the Special Use Ordinance as to any “non-

Christian church”, nor did it find that any “non-Christian church”

has ever been exempted from the terms and provisions of the Special

Use Ordinance. No such contention was urged by Wilson in the

trial court or the Indiana Court of Appeals, and there is absolutely

no evidence in the record that would support such a contention.

17

valid, the Court should adopt the interpretation which wil]

uphold the statute.”)

Accordingly, the Indiana Court of Appeals correctly held

that Special Use Ordinance cannot be interpreted as

exempting from its provisions “non-christian institutions”,

and its decision does not, as Wilson Suggests, “legalize

interdenominational discrimination.”

III. CONCLUSION

For all the reasons stated above, Respondent, Area Plan

Commission of Evansville and Vanderburgh County, by

counsel, respectfully requests that this Court deny the

Petition for Writ of Certiorari, and for all other just and proper

relief in the premises.

Respectfully submitted,

D. Timotuy Born

Counsel of Record

SHAWN M. SuLLivan

Attorneys for Respondent

Area Plan Commission

of Evansville and

Vanderburgh County

5011 Washington Avenue

Evansville, Indiana 47715

(812) 479-8721