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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1113%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 1019

## Text

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 : 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1113%3A2. Public record. Not legal advice.