Petition for Writ of Certiorari — Boyajian v. Gatzunis

Supreme Court brief2001

Ask Donna

What actually matters in this document.

Text

( LJ ree L E D :

00 459 SEP 2 9 ong

No. 00-__

has?

In The

Supreme Court of the United States

MARGARET BOYAJIAN, CHARLES COUNSELMAN,

AND JEAN DICKINSON,

Petitioners,

versus

THOMAS GATZUNIS, BUILDING INSPECTOR OF THE

TOWN OF BELMONT, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

PETITION FOR A WRIT OF CERTIORARI

Mark A. Wutrtez, Esa. *Marci A. HamItton, Esq.

O’Brien & Wuite, P.C. 40 Washington Square

50 Congress Street South

Boston, Massachusetts 02109 New York, New York

(617) 248-2345 10012

(212) 992-8824

G. MIcHAEL Peirce, Esa. (212) 995-4659 (fax)

MoFENSON & NICOLETTI

Three Newton Executive Park

Newton, Massachusetts 02162 *Counsel of Record

(617) 964-4900

hamilton02@aol.com

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the Massachusetts Dover Amendment,

Mass. Gen. Laws ch. 40A § 3 (1997), which forbids local

communities from applying zoning ordinances or by-laws

that “prohibit, regulate, or restrict the use of land or

structures for religious purposes,” is not a permissible

accommodation of religion, but rather a direct benefit for

religion that violates the Establishment Clause of the First

Amendment.

2. Whether the Belmont Zoning By-Law, which car- -

ries out the mandate of the Dover Amendment, violates

the Establishment Clause.

TABLE OF CONTENTS

Page

COURS UAIUD PIRMOOGINEME? 0 osciecccccesenseseaensvn i

re IIs xs cawankesaskentdanapeawaadances 1

JURISDICTION ..... (andes PROBS ARS RENO TS Oe a ee 1

STATUTES AND CONSTITUTIONAL PROVISIONS

ey | Ber riper som pr cere Ae ey 1

SEATEOAEINE GOP THEE GIGI <a snc cst npc a cdainaxs 1

REASONS FOR GRANTING THE WRIT ........... 9

I. THE REACH OF PERMISSIBLE ACCOMMODA-

TION IN THE ZONING CONTEXT PRESENTS

AN IMPORTANT FEDERAL QUESTION OF

PRESSING NATIONAL CONCERN ............ 9

II. THE DOVER AMENDMENT IS AN IMPERMIS-

SIBLE ACCOMMODATION OF RELIGION..... 16

me Et | SETS re ee ree 19

INDEX TO APPENDICES

Appendix A Decision of the First Circuit Court

OF POU eo. ovis chain ae eae la

Appendix B_ Decision of the District Court for

the District of Massachusetts......... 30a

Appendix C Order Denying the Petition for

eer ree 49a

Appendix D Decision of the Town of Belmont,

SOE GF AMUOND . . .6-- senicensnveiss Sla |

Appendix E Constitution of the United States of |

America, First Amendment.......... 106a |

vane

lil

TABLE OF CONTENTS - Continued

Page

Appendix F Massachusetts General Laws

Chapter 40, Section 25 (1950).....-... 107a

Chapter 40A, Section 3 (1997) ....... 107a

Appendix G Town of Belmont, Zoning By-Law ... 108a

TABLE OF AUTHORITIES

Page

Cases

Agostini v. Felton, 521 U.S. 203 (1997) ............... 10

Boyajian v. Gatzunis, 1999 U.S. Dist. LEXIS 15610

(D. Mass. May 24, 1999), aff'd, Boyajian v. Gatz-

a, Fee Bae Se Gee Ge Dn cada cennacenens passim

City of Boerne v. Flores, 521 U.S. 507 (1997)....... 11, 18

Cohen v. City of Des Plaines, 8 F.3d 484 (7th Cir.

1993), cert. denied, 512 U.S. 1236 (1994)..... 12, 13, 14

Committee to Oppose Sale of Si. Bartholomew’s

Church, Inc. v. Rector, Wardens, and Members of

Vestry of St. Bartholomew's Church, 499 U.S. 905

ts) OPURTEEV ETT TE ere Creer ee eer tee 12

Corporation of Presiding Bishop of Church of Jesus

Christ of Latter-Day Saints v. Amos, 483 U.S. 327

b SPBTT PERT TTT eee ere Teer ete ES 14, 15, 16, 17

East Bay Asian Local Development Corp. v. State, 81

Cal. Rptr. 2d 908 (Cal. Ct. App. 1999), review

granted and opinion superceded, 977 P.2d 692 (Cal.

BPPEES 6is 6 ined sk bce b Ne SUDROPCENEKERAESOADN ORR EROS 12

Ehlers-Renzi v. Connelly School of The Holy Child,

Inc., __ F.3d __, U.S. App. LEXIS 19840 (4th

ee Perret eee 12, 14

Employment Div., Dept. of Human Resources v.

Smith, 494 U.S. 872 (1990) ......... 6. cece cece eee 16

Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) ..... 6

Everson v. Board of Ed., 330 U.S. 1 (1947)............ 10

Forest Hills Early Learning Center, Inc. v. Grace Bap-

tist Church, 846 F.2d 260 (4th Cir. 1988), cert.

denied sub nom. Forest Hills Early Learning Center,

Inc., 486 US. 1629 (1909) .... fe ccccccccses 12, 13, 14

TABLE OF AUTHORITIES - Continued

Page

Hobbie v. Unemployment Appeals Comm'n of Florida,

480 U.S. 136 (1987) ........- cee ee cece recccccceeee 16

Jackson v. Forest Hills Early Learning Center, Inc.,

488 U.S. 1029 (1989) ......... 2c cece r cence eee eeee 12

Lemon v. Kurtzman, 403 U.S. 602 (1971)........------- 6

Martin v. Board of Appeals of the Town of Belmont,

No. 97 Civ. 2596 (Feb. 22, 2000) .....---. eee Tee 5

Mitchell v. Helms, 120 S. Ct. 2530 (2000)... 3, 10, 15, 16

Rector, Wardens, and Members of Vestry of St. Bar-

tholomew’s Church v. City of New York, 914 F.2d

348 (2nd Cir. 1990), cert. denied, 499 U.S. 905

a | See error re errr. Tere ee 12

Texas Monthly, Inc. v. Bullock, 489 if Se... ee 16

Wallace v. Jaffree, 472 U.S. 2. | nr ere 18

Walz v. Tax Comm'n of City of New York, 397 U.S.

7 Fy) nn ner eee re 8, 10, 14, 15, 17

Zobrest v. Catalina Foothills School Dist., 509 U.S. 1

Pg: ET OER e Teeter aS 10

STATUTES

28 U.S.C. § 1254 (2000) ......-- eee e cece renee ete 1

42-U.S.C. § 1983 (1994) (amended 1996)........----- 10

42 U.S.C. § 1988 (1994) (amended 1996)........-.--- 10

Cal. Gov’t Code § 25373(d) (West 1999).........---- 13

Cal. Gov’t Code § 25373(e) (West 1999) ........-.--- 13

Mass. Gen. Laws ch. 40A § 3 (1997) .....- i, 2, 3, 4 18

TABLE OF AUTHORITIES - Continued

Religious Land Use and Institutionalized Persons

Act of 21000, 106 S. 2869 (July 27, 2000)........... 13

U.S. Const., amend. I, cl. 1 see e cece eee e cece eeeees iL, i

~ RuLes |

ae erevererareer ey cre rrr rrr re re ry 9

JOURNALS

Mark Chaves and William Tsitsos, Are Congrega-

tions Constrained by Government? Empirical

Results from the National Congregations Study, 42

5. Coven aaa Shade SOW Cases ose cccasecewnsvaas 11

_ Von G. Keetch & Matthew K. Richards, The Need

for Legislation to Enshrine Free Exercise in the Land

Use Context, 32 U.C. Davis L. Rev. 725 (1999) ..... 11

Douglas Laycock, State RFRAs and Land Use Regu- .

lation, 32 U.C. Davis L. Rev. 755 (1999) ......... 6, 11

Patrick J. Skelley II, Note, Defending the Frontier

(Again): Rural Communities, Leap-Frog Develop-

ment, and Reverse Exclusionary Zoning, 16 Va.

es ads OE ROOFED 4 045 6 ckes nena ewaos cheese en's 17

James H. Wickersham, Note, The Quiet Revolution

Continues: The Emerging New Model for Growth

Management Statutes, 18 Harv. Envtl. L. Rev. 489

CRUE CAs i sin wi pwd 4b dive Anh eek Dee Oa bea tks 17

Vii

TABLE OF AUTHORITIES - Continued

MISCELLANEOUS

Elsa Brenner, Harrison Opposition, N.Y. Times, July

4, 1999, § 14 (Westchester Weekly), at 5.......-.

Caroline Louise Cole, Mormon Temple Opens,

Braces for Rush of Tours, Boston Globe, Aug. 30,

I HE Os 5 oc sia kn cae kebeescutb stand eceedssue

David W. Dunlap, God, Caesar and Zoning, N.Y.

Times, Aug. 27, 2000, § 11 (Real Estate), at 1..

Carey Goldberg, Neighbors Opposing Temple Say

Law Favors Religions, N.Y. Times, Dec. 31, 1999,

Se Ree ers Ver err a Te eee ee Te ee

James Madison, Memorial and Remonstrance { 3....

Anne Miller, Castle Hills Church Feud Heats Up

Again; Council Rejects Proposed Settlement, San

Antonio Express-News, June 15, 2000, at 7B....

More on the Homeless, Editorial, Richmond Times-

Dispatch, Oct. 18, 1997, at Al0..........-.----

Sylvia Moreno, Neighbors Battling Cathedral School

Gym; “Rich and Powerful” Oppose Big Project,

Wash. Post, June 2, 1999, at BO..............-.

L. Anne Newell, ‘God’s Work’ Runs Afoul of Zoning

Officials; Neighbors Complain, Soup Kitchen

Closed, Arizona Republic, July 26, 1999, at B1..

Steve Slain, Unsure of the Unknown: Planned Islamic

Prayer Center Worries Some Watauga Residents,

Fort Worth Star-Telegram, Sept. 18, 2000, at 6..

Amalie Young, Oregon City’s Zoning Laws Interfere

with God’s Work, Pastor Charges, Seattle Times,

Feb. 19, 2000, at AD... 2. ccc ccccccncecnvcccvene

Page

OPINIONS BELOW

Boyajian v. Gatzunis, No. 98-11763-DPW, 1999 U.S.

Dist. LEXIS 15610 (D. Mass. May 24, 1999), reprinted in

the Appendix, infra, at 31a-50a; Boyajian v. Gatzunis, 212

F.3d 1 (1st Cir. 2000) reprinted in the Appendix, infra, at

la-30a; Order Denying the Petition for Rehearing En

Banc, June 22, 2000, reprinted in the Appendix, infra, at

Sla-52a.

JURISDICTION

The First Circuit Court of Appeals decision was

reached on May 2, 2000; the petition for rehearing en

banc was denied on June 22, 2000. This Court has juris-

diction of this appeal under 28 U.S.C. § 1254 (2000).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The Dover Amendment, Mass. Gen. Laws ch. 40A § 3

(1997), reprinted in the Appendix, infra, at 107a. The

Establishment Clause of the First Amendment, U.S.

Const. amend. I, cl. 1, reprinted in the Appendix, infra, at

106a.

STATEMENT OF THE CASE

This case arises out of a Massachusetts law that was

enacted in 1950 for the purpose of redressing an instance

of discrimination against religious schools in Dover, Mas-

sachusetts. For the purpose of excluding Catholic paro-

chial schools from its residential neighborhoods, in 1946,

the town of Dover enacted a zoning by-law prohibiting

the construction of such schools in residential areas. See

Mass. Gen. Laws ch. 40A § 3 (1997). The Massachusetts

legislature responded swiftly, not by making discrimina-

tion against religious uses illegal, but rather by enacting

“An Act Prohibiting Discriminatory Zoning By-Laws and

Ordinances,” commonly referred to as the “Dover

Amendment,” which forbids the application of zoning

laws to “the use of land or structures for religious pur-

poses.” Mass. Gen. Laws ch. 40A § 3 (1997).

Massachusetts thus responded to the plainly uncon-

stitutional religious discrimination in the town of Dover

by creating a statewide exemption that granted those

using land or structures for religious purposes unilateral

power to determine where they would locate in any

municipality. As a result, every neighbor of religious

property or structures in Massachusetts was deprived of

a legal means of challenging the negative secondary

effects, including noise, traffic congestion, and lighting,

that are generated by large structures employed in multi-

ple ways, including worship, education, marriage and

funeral ceremonies, drug and alcohol rehabilitation, feed-

ing the poor, homeless shelter, and senior or child day

care. The power to determine whether a neighborhood

was livable was taken out of the hands of the neighbors

and placed in the hands of the churches.

Since 1950, the Dover Amendment has grown to

serve as the catch-all provision encompassing any

instance in which the state legislature has decided to

exempt a particular land use, for whatever reason,

including “agriculture, horticulture, floriculture, and

viticulture,” solar panels, antenna structures, and day

care facilities.1 Mass. Gen. Laws ch. 40A, § 3. It also has

1 There is no rhyme or reason to the policy decisions of the

Massachusetts legislature that can explain this grab bag of

exemptions, and certainly no neutral and secular criterion that

can encompass or explain all uses on the list. See, e.g., Mitchell v.

Helms, 120 S. Ct. 2530, 2541 (2000) (Thomas, J., plurality opinion)

(“if the government, seeking to further some legitimate secular

purpose, offers aid on the same terms, without regard to

religion, to all who adequately further that purpose, then it is

fair to say that any aid going to a religious recipient only has the

effect of furthering that secular purpose.”) (citation omitted), id.

at 2557 (O’Connor, J., concurring in the judgment) (“I do not

quarrel with the plurality’s recognition that neutrality is an

important reason for upholding government-aid programs

against Establishment Clause challenges. Our cases have

described neutrality in precisely this manner, and we have

emphasized a program’s neutrality repeatedly in our decisions

approving various forms of school aid. Nevertheless, we have

never held that a government-aid program passes constitutional

muster solely because of the neutral criteria it employs as a

basis for distributing aid.”) (citations omitted). If the criterion is

simply to exempt those uses neighbors tend to oppose, the

categorical exemption of all “religious purposes” is

dramatically over-inclusive. While the evil of the town of

Dover’s discrimination in 1946 was plainly unconstitutional

and unacceptable, it does not justify the sweeping benefit for all

religious purposes provided by the Dover Amendment. In this

case, neighbors oppose the negative secondary effects of large

buildings, whether or not they are used for religious purposes.

Religious uses could reap the benefit of neutral, secular

exemptions along with other nonreligious uses covered by the

same exemption, but that is not the law under review in this

case.

been amended to permit the “reasonable” regulation of

religious uses in a small number of categories:

No zoning ordinance or by-law shall regulate or

restrict the interior area of a single family resi-

dential building nor shall such ordinance or by-

law prohibit, regulate, or restrict the use of land

or structures for religious purposes or for edu-

cational purposes on land owned or leased by

the Commonwealth or any of its agencies, sub-

divisions or bodies politic or by a religious sect

or denomination, or by a non-profit educational

corporation; provided, however, that such land

or structures may be subject to reasonable regu-

lations concerning the bulk and height of struc-

tures and determining yard sizes, lot area,

setback, open space, parking, and building cov--

erage requirements.

Id.

Since 1979, the Corporation of Presiding Bishop of

the Church of Jesus Christ of Latter-Day Saints

(“Church”) has owned a parcel of property in Belmont,

Massachusetts bordering a residential neighborhood. The

Church built a meeting house on that property in the

mid-1980s, and peacefully coexisted with its neighbors

for many years.

On May 28, 1996, the Church applied for a special

permit to exceed the City’s height limitations for six

steeples on a building of 94,000 square feet on the same

parcel of property in the residential district.2 On March

2 The final plan covered 68,000 square feet and featured one

steeple. Appendix at 54a.

24, 1997, the Board approved the special permit applica-

tion. See Appendix at 55a. Two disputes between the

church and neighbors ensued flowing from the neigh-

bors’ belief that the temple would have negative second-

ary effects on their residential neighborhood. See Carey

Goldberg, Neighbors Opposing Temple Say Law Favors Reli-

gions, N.Y. Times, Dec. 31, 1999, at A12 (Mormon Bishop

Grant Bennett stated that he was convinced there was no

prejudice among the residents, adding “I think the feeling

would be equally strong if this were a school or elderly

housing.”).

First, a legal action was filed challenging the Board’s

decision regarding the height of the steeple in state court.

Martin v. Board of Appeals of the Town of Belmont, No. 97

Civ. 2596 (Feb. 22, 2000). Second, on August 25, 1998, this

action was filed in federal court by neighbors Margaret

Boyajian, Charles Counselman, and Jean Dickinson, chal-

lenging the Dover Amendment, including its constitu-

tionality under the Establishment Clause.?

Throughout the pendency of this lawsuit, the Church

moved expeditiously to complete the temple, which was

opened to the public recently, with 100,000 people

expected to visit it in its first month. See Caroline Louise

Cole, Mormon Temple Opens, Braces for Rush of Tours, Bos-

ton Globe, Aug. 30, 2000, at B14.

3 Petitioners also raised a challenge to the town of

Belmont’s zoning by-law that was passed for the purpose of

conforming Belmont law to the Dover Amendment. See Boyajian,

212 F.3d at 3. If this Court were to find the Dover Amendment

unconstitutional, the by-law would be invalid as well.

The District Court ruled that the Dover Amendment

was constitutional under this Court’s factors set out in

Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The

lynchpin of the district court’s analysis was a conviction

that the Dover Amendment is a statute aimed at religious

discrimination. The Court reasoned that: (1) the statute’s

legitimate secular purpose was the elimination of dis-

crimination, (2) the primary effect of the law “is to reduce

discrimination by local governments against entities

which use land for religious purposes,” and (3) the law

does not effect an excessive entanglement between

church and state. Boyajian, 1999 U.S. Dist. LEXIS 15610, at

*19, aff'd, 212 F.3d 1 (1st Cir. 2000).

The Court of Appeals affirmed the District Court’s

decision over a dissent by Chief Judge Torruella. The

majority reasoned that the Dover Amendment was “fully

in line with the Court’s approval of government actions

aimed at lifting burdens from the exercise of religion.”

Boyajian, 212 F.3d at 8. The majority relied heavily on two

law review articles that have pointed to a “phenomenon

of churches being unwanted either in residential areas -

because of increased traffic or noise, or impact on aes-

thetics — or in business zones — because tax-exempt

churches dampen the vibrancy of commercial develop-

ments.” Id. (citing Douglas Laycock, State RFRAs and Land

Use Regulation, 32 U.C. Davis L. Rev. 755, 761-62, 774-75

(1999)). The majority reasoned that an “” ‘objective

observer would perceive [the Dover Amendment] as an

anti-discrimination law rather than an endorsement of

religion or a particular religious practice.’ ” Id. at 9 (quot-

ing Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 712

ee a SE as

(1985) (O’Connor, J., concurring)). The majority con-

cluded:

Id.

The favorable attitude toward religion reflected

in the Dover Amendment does not constitute a

fostering of, or favoritism toward, religion over

non-religion, but represents a secular judgment

that religious institutions, by their nature, are

compatible with every other type of land use

and thus will not detract from the quality of life

in any neighborhood

Chief Judge Torruella flatly rejected the majority's

characterization of the statute as an anti-discrimination

statute:

Had the Commonwealth of Massachusetts

intended to prohibit discrimination against reli-

gion and religious land uses, it easily could have

enacted a law saying “No municipality may dis-

criminate against a proposed use of land on the .

basis of the religious nature of the use or the

religious beliefs or affiliation of the user.” Such

a genuine anti-discrimination law would be

plainly permissible under the Establishment

Clause. However, Massachusetts has instead

prohibited any zoning ordinance that “prohibits,

regulates, or restricts” religious uses. The effect

of this broader language goes far beyond pro-

hibiting religious intolerance, by exempting reli-

gious users from the ordinary zoning process

and by granting them a “free pass” with regard

to perhaps the most important issue in zoning

regulation - location. In my view, either the

Dover Amendment responds to a purpose sub-

stantially broader than merely preventing reli-

gious intolerance or the statute is substantially

broader than its purpose. Either way, the statute

should not receive a “free pass” of its own as if

it were merely an anti-discrimination measure.

‘ Id. at 11-12 (Torruella, C.J., dissenting).

Chief Judge Torruella also rejected the notion that the

Dover Amendment is the sort of “benevolent neutrality”

permitted in Walz v. Tax Comm'n of City of New York. Id. at

12 (citing Walz v. Tax Comm'n of City of New York, 397 U.S.

664, 669 (1970). “A ‘neutral’ statute, in any ordinary sense

of that word, would permit (and require) religious uses

and religious users to operate on an even playing field

with other uses and users, without special hindrances

and without special advantage. The Dover Amendment,

in contrast, eschews neutrality to place religion in an

exalted position, exempt from the ordinary land-use deci-

sion making process.” Id. at 12. The Chief Judge also

found unpersuasive the majority’s acceptance of the two

law review articles’ claims that local land use laws

impose constitutionally significant burdens on the free

exercise of religion.

Other than outright discrimination, which I

heartedly agree could be properly prohibited

(by an appropriate anti-discrimination statute),

the majority can only suggest vaguely that reli-

gious uses might be excluded based on a “gen-

eral aversion to change in the neighborhood.”

More telling, however, are the motivations

noted by the majority in another section of its

opinion - increased traffic and noise, aesthetic

considerations, and impact on commercial

development. These concerns, of course, are

directly related to the compatibility of a particu-

lar use or user with the essential nature of the

— TT

————————$—————————————————

existing community. In fact, far from evidencing

some kind of religious intolerance (none of

which is alleged in this case, by the way), these

are precisely the kinds of secular concerns

which form the basis for all zoning regulation.

Id. (citations to majority opinion omitted).

The Court of Appeals denied the petition for rehear-

ing and rehearing en banc. Order Denying the Petition for

Rehearing En Banc, June 22, 2000. The petitioners now

petition this Court to grant certiorari for the purpose of

reversing the decision below and declaring the Dover

Amendment an impermissible accommodation of religion

in violation of the Establishment Clause.

REASONS FOR GRANTING THE WRIT

This case squarely presents an important federal

question of pressing national concern that has been per-

colating in the lower courts for many years and therefore

requires this Court’s guidance.

I. The Reach of Permissible Accommodation in the

Zoning Context Presents an Important Federal Ques-

tion of Pressing National Concern

This case poses an important federal question of

pressing national concern: May a government exempt all

religious organizations and individuals from zoning

restrictions? Sup. Ct. R. 10. Zoning laws and their rela-

tionship to religious entities pose a set of issues that are

of vital importance to thousands of cities, religious orga-

nizations, citizens, and neighbors every day, and guid-

ance from this Court on the constitutionality of such laws

under the Establishment Clause is sorely needed. While

this Court frequently has visited the question of aid to

religious entities, and especially school aid, see, e.g., Mit-

chell v. Helms, 120 S. Ct. 2530 (2000); Agostini v. Felton, 521

U.S. 203 (1997); Zobrest v. Catalina Foothills School Dist.,

509 U.S. 1 (1993); Everson v. Board of Ed. of Ewing Tp., 330

U.S. 1 (1947), this Court never has addressed the question

of the role of the Establishment Clause in the zoning or

land use context, except to uphold the longstanding prac-

tice of property tax exemptions in Walz. See Walz, 397 U.S.

at 679-80.

Without question, the instance of invidious discrimi-

nation intended to be redressed by the Dover Amend-

ment was unconstitutional and deserving of legislative

rebuke and action. In addition to constitutional protec-

tions, a law outlawing such discrimination, which distrib-

uted the burdens of proof and persuasion fairly, and

which allowed damages, injunctive relief, and attorney’s

fees would have been appropriate under the Establish-

ment Clause. See, e.g., 42 U.S.C. § 1983 (1994) (amended

1996) (allowing causes of action based on constitutional

violations and allowing damages, and, upon violation of

declaratory decree or unavailability of declaratory relief,

injunctive relief); 42 U.S.C. § 1988 (1994) (amended 1996)

(allowing attorney’s fees to the prevailing party in actions

brought under 42 U.S.C. § 1983).

The Massachusetts legislature did not consider such

an option, but rather hastily overreacted to the Dover

situation. It ensured that the Dover scenario never would

happen again, not by enforcing the right to be free from

religious discrimination,4 but rather by giving religious

uses a privilege that would permit them to trump local

community zoning laws any time land or buildings were

to be used for religious purposes.

The issue squarely presented in this case - whether

exemption of religious purposes from zoning laws is an

impermissible accommodation of religion — will not go

away. Conflicts between land use laws and religious enti-

ties long have been with us, but have become more

pressing today as rapidly expanding church communities

4 The majority opinion relied heavily on two law review

articles to reach the conclusion that discrimination against

religious entities is sufficiently pervasive to afford all “religious

purposes” a free hand in choosing their location in any city,

town, or municipality. See Boyajian, 212 F.3d at 8 (citing Laycock,

supra; Von G. Keetch & Matthew K. Richards, The Need for

Legislation to Enshrine Free Exercise in the Land Use Context, 32

U.C. Davis L. Rev. 725, 729-30 (1999)). The dissent rightly

criticized the majority for resting on such claims, Boyajian, 212

F.3d at 13 (Torruella, J., dissenting), especially in this case where

there is no evidence of any discriminatory intent on the part of

petitioners, only a deep concern with the negative secondary

effects that arise from a huge building in the midst of single-

family residences, whether that building be an office building, a

church, or a stadium. See Goldberg, supra. The only study to

date done with any scientific rigor undermines the assertions of

the two law review articles on which the Court of Appeals

majority rested by concluding that “the activity of religious

congregations is hardly constrained under current law and

practice.” See Mark Chaves and William Tsitsos, Are

Congregations Constrained by Government? Empirical Results from

the National Congregations Study, 42 J. Church and State 335, 344

(2000). See also City of Boerne v. Flores, 521 U.S. 507, 531 (1997)

(noting lack of evidence of religious discrimination).

that are aiming to employ their buildings for multiple

purposes throughout the week regularly generate nega-

tive secondary effects in residential neighborhoods, in the

form of noise, intrusive lighting, traffic congestion, and

drainage problems, to name only a few. See, e.g., Ehlers-

Renzi v. Conneily School of The Holy Child, Inc.,___ F.3d __,

2000 U.S. App. LEXIS 19840 (4th Cir. Aug. 14, 2000)

(parochial school); Cohen v. City of Des Plaines, 8 F.3d 484

(7th Cir. 1993), cert. denied, 512 U.S. 1236 (1994) (daycare

centers); Rector, Wardens, and Members of Vestry of St.

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

Cir. 1990), cert. denied, 499 U.S. 905 (1991), and cert. denied

sub nom. Committee to Oppose Sale of St. Bartholomew's

Church Inc. v. Rector, Wardens, and Members of Vestry of St.

Bartholomew's Church, 499 U.S. 905 (1991) (landmarking);

Forest Hills Early Learning Center, Inc. v. Grace Baptist

Church, 846 F.2d 260 (4th Cir. 1988), cert. denied sub nom.

Forest Hills Early Learning Center, Inc. v. Jackson, 488 U.S.

1029 (1989), and cert. denied sub nom. Jackson v. Forest Hills

Early Learning Center, Inc., 488 U.S. 1029 (1989) (child care

centers); East Bay Asian Local Development Corp. v. State, 81

Cal. Rptr. 2d 908 (Cal. Ct. App. 1999), review granted and

opinion superceded, 977 P.2d 692 (Cal. 1999) (historical

preservation); see also Elsa Brenner, Harrison Opposition,

N.Y. Times, July 4, 1999, § 14 (Westchester Weekly), at 5

(Mormon temple); David W. Dunlap, God, Caesar and Zon-

ing, N.Y. Times, Aug. 27, 2000, § 11 (Real Estate), at 1

(discussing phenomenon of expanded uses of church

property); Anne Miller, Castle Hills Church Feud Heats Up

Again; Council Rejects Proposed Settlement, San Antonio

Express-News, June 15, 2000, at 7B (parking lot); More on

the Homeless, Editorial, Richmond Times-Dispatch, Oct.

18, 1997, at A10 (soup kitchen); Sylvia Moreno, Neighbors

Battling Cathedral School Gym; ‘Rich and Powerful’ Oppose

Big Project, Wash. Post, June 2, 1999, at B9 (girls’ school

gym); L. Anne Newell, ‘God’s Work’ Runs Afoul of Zoning

Officials; Neighbors Complain, Soup Kitchen Closed, Arizona

Republic, July 26, 1999, at B1 (soup kitchen); Steve Slain,

Unsure of the Unknown: Planned Islamic Prayer Center Wor-

ries Some Watauga Residents, Fort Worth Star-Telegram,

Sept. 18, 2000, at 6 (Islamic prayer and community cen-

ter); Amalie Young, Oregon City’s Zoning Laws Interfere

with God's Work, Pastor Charges, Seattle Times, Feb. 19,

2000, at A9 (Presbyterian church).

As the recent appellate cases addressing these issues

should make clear, religious entities have been successful

in obtaining exemptions from a wide range of land use

regulations, from zoning exemptions of day care centers

being run by religious entities, see, e.g., Cohen, 8 F.3d at

495, to exemptions from historical preservation laws, Cal.

Gov’t Code § 25373(d), (e) (West 1999), and, in this case,

unilateral power to choose location for any “religious

purpose.” In addition, the power of religious entities to

trump local self-determination in the land use context

was supplemented in late July when Congress passed the

Religious Land Use and Institutionalized Persons Act,

which imposes strict scrutiny on all local government

zoning regulations. Religious Land Use and Institu-

tionalized Persons Act of 2000, 106 S. 2869 (July 27, 2000).

This federal constitutional issue of pressing national

concern has been percolating in the lower courts for years

and requires this Court's attention. See, e.g., Cohen v. City

of Des Plaines, 8 F.3d 484 (7th Cir. 1993); Forest Hills Edrly

Learning Center, Inc. v. Grace Baptist Church, 846 F.2d 260

(4th Cir. 1988). While the recent decisions in these cases

have fractured the Courts of Appeals, see, e.g., Boyajian v.

Gatzunis, 212 F.3d 1 (1st Cir. 2000); Ehlers-Renzi v. Connelly

School of The Holy Child, Inc., __ F.3d __, 2000 U.S. App.

LEXIS 19840 (4th Cir. Aug. 14, 2000), there is no split

between the circuits, and it makes little sense for this

Court to await such a split. A split is unlikely to develop

in this context, because the lower courts have read this

Court’s decisions upholding the longstanding practice of

property tax exemption, see Walz, 397 U.S. at 680, and

upholding the religious exemption for religious entities

from the anti-discrimination employment laws, see Corpo-

ration of Presiding Bishop of Church of Jesus Christ of Latter-

Day Saints v. Amos, 483 U.S. 327 (1987), as carte blanche for

governments to give churches land use and zoning pref-

erences. Ehlers-Renzi, __ F.3d at __, 2000 U.S. App.

LEXIS 19840, at *27 (exemption for private schools

located on premises owned or leased by a religious orga-

nization or public entity is constitutional under Amos and

Walz); Boyajian, 212 F.3d at 7-8, 10 (total exemption from

zoning requirements constitutional under Amos and

Walz); Cohen, 8 F.3d at 487, 489-494 (upholding exemption

for not-for-profit nursery schools operated in “churches,

temples, religious reading rooms, rectories, and parish

houses” under Amos and Walz); Forest Hills, 846 F.2d at

261-264 (exemption from licensing requirements for reli-

giously affiliated child care centers upheld under Amos).

If the decision in Boyajian to uphold a statewide

exemption from zoning requirements is permitted to

stand without Supreme Court review, especially in light

of the Court’s denial of certiorari in the Cohen and Forest |

Hills cases, the message to states and local government

aera arian lel

will be that they have a free hand to benefit religious

organizations and individuals in the land use context.

The lower courts’ expansive reading of this Court's

decisions in Walz and Amos are deeply at odds with the

Establishment Clause’s intent to ensure that government

does not endorse or underwrite religious practice or

belief. See Mitchell, 120 S. Ct. at 2556 (O’Connor, J., con-

curring in the judgment). James Madison drafted the First

Amendment's Establishment Clause with the belief that

religion and the state would thrive most where the state

did not financially support the church: “[T]he same

authority which can force a citizen to contribute three

pence only of his property for the support of any one

establishment, may force him to conform to any other

establishment.” Memorial and Remonstrance 3, cited in

Mitchell, 120 S. Ct. at 2574 (Souter, J., dissenting). Yet, in

this case and others, local and state governments are

piling on top of property tax exemption zoning exemp-

tions, in effect permitting religious purposes to dominate

how and whether tax proceeds will flow from the uses of

land within a particular jurisdiction and whether residen-

tial neighborhoods will be livable. The Dover Amend-

ment subjugates community self-determination to the

unchecked desires of religious owners and renters, a bal-

ance of power that offends the delicate balance between

the free exercise of religion and disestablishment princi-

ples embodied in the First Amendment.

II. The Dover Amendment Is an Impermissible

Accommodation of Religion

At some point - and petitioners would argue that the

line decidedly has been crossed with the Dover Amend-

ment - the layering of exemptions for religious entities

must amount to a benefit to religious entities that exceeds

the scope of permissible accommodation. See Employment

Div., Dept. of Human Resources v. Smith, 494 U.S. 872, 890

(1990); Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 5 (1989).

As this Court stated in Amos, “accommodation may

devolve into ‘an unlawful fostering of religion.’ ” 483 U.S.

at 334-35 (quoting Nobbie v. Linemployment Appeals

Comm'n of Florida, 480 U.S. 136, 145 (1987)). Protecting

churches from religious persecution and discrimination is

certainly permissible and laudable, but the remedy must

be tailored to the substantial burden imposed. See Texas

Monthly, 489 U.S. at 15. The Dover Amendment goes far

beyond lifting the burden imposed by the 1946 Dover law

to become a special and unconstitutional benefit for reli-

gion.

The Dover Amendment further violates the core prin-

ciple on which the plurality, the concurrence, and the

dissent in this Court’s decision in Mitchell v. Helms

agreed: Laws that aid religion may not define their

“recipients by reference to religion.” 120 S. Ct. at 2543

(Thomas, J., plurality), at 2560 (O’Connor, J., concurring),

at 2580-81 (Souter, J., dissenting). While a law explicitly

prohibiting “religious discrimination” would be permiss-

ible, because it is carrying out a constitutional mandate, a

inl — = PS ee eee ee ee ee

ee a

sui generis law aiding religion may not be defined by

reference to religion.

This Court has permitted governments to support

churches through property tax exemptions on the ground

that such exemptions have been in place since the fram-

ing. See Walz, 397 U.S. at 673 (“Grants of exemption

historically reflect the concern of authors of constitutions

and statutes as to the latent dangers inherent in the

imposition of property taxes; exemption constitutes a rea-

sonable and balanced attempt to guard against those

dangers. The limits of permissible state accommodation

to religion are by no means co-extensive with the nonin-

terference mandated by the Free Exercise Clause. To

equate the two would be to deny a national heritage with

roots in the Revolution itself.”) Zoning laws, however, are

a more recent product of the mid-twentieth century, with

many arising from the explosion in building that fol-

lowed World War II and the perceived need by commu-

nities and citizens to control sprawl, overdevelopment,

and residential environments. See Patrick J. Skelley II,

Note, Defending the Frontier (Again): Rural Communities,

Leap-Frog Development, and Reverse Exclusionary Zoning, 16

Va. Envtl. L.J. 273, 277 (1997); James H. Wickersham,

Note, The Quiet Revolution Continues: The Emerging New

Model for Growth Management Statutes, 18 Harv. Envtl. L.

Rev. 489, 494-95 (1994). Zoning exemptions, therefore,

cannot be grandfathered into the Constitution by a tradi-

tion in place at the time of the framing, but rather need to

be examined in light of the Constitution’s explicit prohi-

bition on the establishment of religion by government

through “sponsorship” or “financial support.” Amos, 483

U.S. at 337 (quoting Walz, 397 U.S. at 668).

The Dover Amendment is a classic instance of the

government preferring “religion over irreligion.” City of

Boerne, 521 U.S. at 537 (Stevens, J., concurring); see also

Wallace v. Jaffree, 472 U.S. 38, 52-55 (1985). A philosophical

bookstore would not be able to avoid the zoning laws of

Massachusetts communities, but any religious purpose,

including a Bible reading, would be eligible. It is unde-

niable that zoning exemptions, especially when layered

on top of property tax exemptions, provide enormous

power and privilege to religious individuals and institu-

tions to determine the characteristics of neighborhoods

and the use to which property will be put, whether it has

been designated by the community as commercial, resi-

dential, or some other use.

The Dover Amendment in this case permitted a resi-

dential neighborhood ringed with forest to be trans-

formed into a set of low-lying structures at the base of a

hill on which a 68,000 square-foot building of formidable

proportions presides appended to a parking lot for over

200 cars. It is a building that is intended to attract 100,000

visitors to this neighborhood in the first month alone.

Because the Dover Amendment permits a limited

number of “reasonable” regulations to be applied to reli-

gious purposes, the neighbors had the capacity to chal-

lenge the height of steeples, but little else. See Dover

Amendment, Mass. Gen. Laws ch. 40A, § 3 (1997); Appen-

dix at 68a, 75a. Neighboring property owners had no

capacity to dispute the Church’s unilateral decision to

locate in this residential neighborhood.

This Court bears the constitutional responsibility to

clarify for the lower courts the strictures imposed by the

ee ee a ee ee

Establishment Clause in the context of zoning exemp-

tions, and, especially, in the context of the Dover Amend-

ment’s capacious grant of power to religious entities to

impose their preferences on residential neighborhoods

which must suffer such impositions without recourse.

CONCLUSION

For the reasons stated above, this Court should grant

the petition for a writ of certiorari to the United States

Court of Appeals for the First Circuit.

Respectfully submitted,

Marci A. HaAmMILTon, Eso.*

40 Washington Square South

New York, NY 10012

(212) 992-8824

(212) 995-4659 (fax)

hamilton02@aol.com

Mark A. Wumre, Esa.

O’Brien & Wut, P.C.

50 Congress Street

Boston, MA 02109

(617) 248-2345

G. MicuHaet Peirce, Esa.

MorFENSON & NICOLETTI

Three Newton Executive Park

Newton, MA 02162

(617) 964-4900

*Counsel of Record

Dated: September 20, 2000

EE ~~ Ul - — —

”

APPENDIX A

UNITED STATES COURT OF APPEALS,

FIRST CIRCUIT.

No. 99-1760.

Heard Jan. 3, 2000.

Decided May 2, 2000.

Margaret BOYAJIAN, Charles Counselman

and Jean Dickinson, Plaintiffs,

Appellants,

Thomas GATZUNIS, Building Inspector of the Town of

Belmont; John W. Gahan III; as Member of the Zoning

Board of Appeals of the Town of Belmont; William D.

Chin, as Member of the Zoning Board of Appeals of

the Town of Belmont; Thomas P. Callahan, Jr., as

Member of the Zoning Board of Appeals of the Town

of Belmont; Carlo Tagariello, as Member of the Zoning

Board of Appeals of the Town of Belmont; Anthony

Leccese, as Member of the Zoning Board of Appeals

of the Town of Belmont; James D. Harrington, as

Member of the Zoning Board of Appeals of the Town

of Belmont; Charles H. Reardon, as Member of the

Zoning Board of Appeals of the Town of Belmont;

Karl Tobiason, as Member of the Zoning Board of

Appeals of the Town of Belmont; Corporation of the

Presiding Bishop of the Church of Latter Day Saints;

Defendants, Appellees.

Before TORRUELLA, Chief Judge, COFFIN, Senior

Circuit Judge, and BOUDIN, Circuit Judge.

COFFIN, Senior Circuit Judge.

This case involves a constitutional challenge under

the Establishment Clause of the First Amendment to a

state law and a town ordinance that prohibit municipal

authorities from excluding religious uses of property

from any zoning area. It is brought by a group of resi-

dents of Belmont, Massachusetts, against Belmont offi-

cials and the Church of Jesus Christ of Latter-Day Saints,

challenging the construction of a large temple on the edge

of a residential district in the town. The district court

upheld both provisions of law, granting summary judg-

ment for defendants and allowing construction to pro-

ceed. We affirm.

si tia

I. Background

The essential facts of this case are undisputed and

_ were submitted to the district court with cross-motions

for summary judgment. We draw our summary primarily

from the district court’s opinion, supplementing with

details from the decision of the Belmont Zoning Board of

Appeals and other pertinent record materials.

Defendant Corporation of the Presiding Bishop of the

Church of Jesus Christ of Latter-Day Saints (the “Church”

or “LDS”) acquired an 8.9-acre parcel of land in the Town -

of Belmont in 1979. It constructed a meeting house on the

property, which is located entirely in a single residential

district, and has conducted religious services there since

the mid-1980s.

The Church later decided to build a temple on the

site. An LDS temple is a large facility, of which there are

fewer than 100 worldwide, that is used solely for the

Church’s most sacred ceremonies. Although Belmont’s

zoning by-law permits religious uses as of right in resi-

dential districts, see By-law § 3.3, the Church filed an

application for a special permit, as required, because it

sought to exceed the allowable height limit.

After a series of public hearings in which opponents

raised a variety of concerns, the Zoning Board of Appeals

in 1997 approved the special permit. The Church volun-

tarily made numerous design changes in response to

neighborhood concerns and obtained unanimous

approval of its new design from the Board before it began

construction. The final plans call for the temple to occupy

some 69,000 square feet and to include one 139-foot-tall

spire and several smaller towers.! The temple will be set

back from abutters by at least 165 feet, and in most

locations more than that, although plaintiffs are quick to

point out that the setback will consist largely of a parking

lot for over two hundred vehicles.

The Belmont by-law allowing religious uses by right

in the residential zone where the Church’s property is

located is in accordance with Mass. Gen. Laws ch. 40A,

§ 3, known as the “Dover Amendment.” That law pro-

vides, in part, that a zoning regulation may not restrict

the use of land for religious or educational purposes

when the property is owned by the Commonwealth, a

religious organization, or a nonprofit educational corpo-

ration, except that “reasonable regulations” are permitted

concerning such characteristics as the bulk and height of

structures, open space, and parking.

1 The original plan called for six spires exceeding the

standard permissible height limitation and a surface area of

94,100 square feet.

Plaintiffs brought this suit challenging both Bel-

mont’s by-law and the Dover Amendment, claiming that

they violate the Establishment Clause of the First Amend-

ment by favoring religious uses of property without a

secular purpose. The district court granted summary

judgment for the defendants in May 1999, finding that

neither of the laws constitutes an impermissible “estab-

lishment” of religion. Plaintiffs then filed this timely

appeal.

II. Discussion

The First Amendment to the United States Constitu-

tion states that “Congress shall make no law respecting

an establishment of religion, or prohibiting the free exer-

cise thereof,” a proscription that has been extended to the

States by virtue of the Fourteenth Amendment. As the

Supreme Court long has recognized, “tension inevitably

exists between the Free Exercise and the Establishment

Clauses,” Committee for Pub. Educ. & Religious Liberty v.

Nyquist, 413 U.S. 756, 788, 93 S.Ct. 2955, 37 L.Ed.2d 948

(1973) (citing Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct.

504, 91 L.Ed. 711 (1947) and Walz v. Tax Comm'n of City of

New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697

(1970)), and the Court has “struggled to find a neutral

course between [them],” Walz, 397 U.S. at 668, 90 S.Ct.

1409. While the Free Exercise Clause admonishes the

government against impinging on the religious beliefs

and expression of its citizens, the Establishment Clause

cautions that the government may not adopt the cause of

religion as its own. The Seventh Circuit has noted the

challenge of reconciling the two Religion Clauses:

The juxtaposition of the two clauses, and the

internal tension they create, makes total separa-

tion between religion and government impossi-

ble. Lynch [v. Donnelly, 465 U.S. 668, 673, 104

S.Ct. 1355, 79 L.Ed.2d 604 (1984) ]; Lemon [v.

Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 29

L.Ed.2d 745 (1971) ]. Indeed, “[i]t has never been

thought either possible or desirable to enforce a

regime of total separation” between religion and

government. [Committee for Pub. Educ. & Reli-

gious Liberty v. Nyquist, 413 U.S. 756, 760, 93

S.Ct. 2955, 37 L.Ed.2d 948 (1973).] Thus the

Court has recognized that the First Amendment

“affirmatively mandates accommodation,”

Lynch, 465 U.S. at 673, 104 S.Ct. 1355, and “that

the government may (and sometimes must)

accommodate religious practices and that it may

do so without violating the Establishment

Clause.” Hobbie v. Unemployment Appeals Comm.

of Florida, 480 U.S. 136, 144-45, 107 S.Ct. 1046, 94

L.Ed.2d 190 (1987) (footnote omitted).

Cohen v. City of Des Plaines, 8 F.3d 484, 491 (7th

Cir.1993); see Corporation of Presiding Bishop of Church of

Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 334,

107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (quoting Hobbie, 480

U.S. at 144-45, 107 S.Ct. 1046); Zorach v. Clauson, 343 U.S.

306, 312, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (“The First

Amendment . . . does not say that in every and all

respects there shall be a separation of Church and

State.”). Our task in navigating the course between the

opposing mandates of the Religion Clauses is thus to

strike that appropriate balance referred to by the Court as

a “benevolent neutrality,” Walz, 397 U.S. at 669, 90 S.Ct.

1409; see also Amos, 483 U.S. at 334, 107 S.Ct. 2862.

EEE Eee

As a practical framework for analysis in cases such as

this, the Supreme Court has adopted the three-part test

articulated'in Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91

S.Ct. 2105, 29 L.Ed.2d 745 (1971), which states that a law

does not violate the Establishment Clause if (1) it has a

secular legislative purpose, (2) its principal or primary

effect neither advances nor inhibits religion, and (3) the

statute does not foster excessive government entangle-

ment with religion. See, e.g., Amos, 483 U.S. at 335-39, 107

S.Ct. 2862; Rojas v. Fitch, 127 F.3d 184, 187 (1st Cir.1997).

The parties generally agree that the third requirement is

satisfied in this case, so we will focus, as the parties have

done, on the purpose and effects inquiries. Because the

state statute (the Dover Amendment) effectively requires

municipalities to enact by-laws like that adopted by Bel-

mont, our conclusion that the Dover Amendment is con-

stitutionally permissible largely resolves the lawfulness

of the ordinance as well. We therefore discuss the ordi-

nance only briefly in section B, infra.

A. The Dover Amendment

Section 3 of Chapter 40A of the Massachusetts Gen-

eral Laws limits the zoning regulations that can be

imposed on certain types of land uses, including agricul-

ture, religious use of property owned by either the Com-

monwealth or a religious group, nonprofit educational

uses, child care facilities, access for physically hand-

icapped persons to private property, solar energy sys-

tems, and antennas for federally licensed amateur radio

operators. The zoning of religious/and educational uses is

addressed in the second paragraph of the section and

reads, in pertinent part, as follows:

No zoning ordinance or by-law shall

... prohibit, regulate or restrict the use of land

or structures for religious purposes or for edu-

cational purposes on land owned or leased by

the commonwealth or any of its agencies, subdi-

visions or bodies politic or by a religious sect or

denomination, or by a nonprofit educational

corporation; provided, however, that such land

or structures may be subject to reasonable regu-

lations concerning the bulk and height of struc-

tures and determining yard sizes, lot area,

setbacks, open space, parking and building cov-

erage requirements.

Mass. Gen. Laws ch. 40A, § 3.2 This provision is com-

monly known as the Dover Amendment because its reli-

gion-focused component was enacted in 1950 in response

to a zoning by-law passed by the town of Dover, Massa-

chusetts, prohibiting religious schools within that town’s

residential neighborhoods. See Trustees of Tufts College v.

City of Medford, 415 Mass. 753, 757-58, 616 N.E.2d 433,

2 Other paragraphs of section 3 detail similar limitations on

the zoning of other types of uses. The first paragraph, for

example, bars unreasonable regulation of the use of land “for

the primary purpose of agriculture, horticulture, floriculture, or

viticulture.” The third paragraph prohibits local laws limiting

the use of land or structures for child care facilities, except for

the same types of “reasonable regulations” permissible with

respect to religious and educational uses. Also included in

section 3 is a provision protecting congregate homes for the

disabled from discriminatory health and safety laws or land-use

requirements and a prohibition against unreasonable regulation

of solar energy systems. See Mass. Gen. Laws ch. 40A, § 3.

437-38 (1993); Attorney General v. Dover, 327 Mass. 601,

603-04, 100 N.E.2d 1 (1951); The Bible Speaks v. Board of

Appeals of Lenox, 8 Mass.App.Ct. 19, 28, 391 N.E.2d 279,

284 (1979).3 The protections for other types of uses were

added in later years.

Plaintiffs maintain that giving religious organizations

the advantage of preferred zoning status constitutes an

impermissible endorsement of religion, in violation of the

Establishment Clause. Under Lemon, our first step in eval-

uating the Dover Amendment’s constitutionality is to

ascertain whether it serves a “secular legislative pur-

pose.” See Lemon, 403 U.S. at 612, 91 S.Ct. 2105.

This does not mean that the law’s purpose must

be unrelated to religion — that would amount to

a requirement “that the government show a cal-

lous indifference to religious groups,” Zorach v.

Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 96 L.Ed.

954 (1952).

Amos, 483 U.S. at 335, 107 S.Ct. 2862. We think the pur-

pose of the Dover Amendment fits easily within the

established boundaries of “benevolent neutrality,” see id.

at 334, 107 S.Ct. 2862, in which religious exercise is sup-

ported but not promoted.

3 In 1950, the Massachusetts Legislature inserted the

following language into Mass. Gen. Laws ch. 40, § 25, a

predecessor of the current ch. 40A, § 3:

No by-law or ordinance which prohibits or limits the

use of land for any church or other religious purpose

or which prohibits or limits the use of land for any

religious, sectarian or denominational educational

purpose shall be valid.

There is no dispute that the law was enacted to

prevent religious discrimination of the sort embodied in

the Dover by-law, which allowed secular educational

institutions but barred sectarian ones in the town’s resi-

dential areas. Indeed, the provision was originally titled

“An Act Prohibiting Discriminatory Zoning By-laws and

Ordinances.” See Tufts College, 415 Mass. at 757, 616

N.E.2d at 437-38 (purpose of the Amendment was “to

strike a balance between preventing local discrimination

against an educational [or religious] use . . . and honoring

legitimate municipal concerns that typically find expres-

sion in local zoning laws”). Prohibition of religious dis-

crimination is unquestionably an appropriate, secular

legislative purpose. See, e.g., Church of The Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S.Ct.

2217, 124 L.Ed.2d 472 (1993) (“Indeed, it was ‘historical

instances of religious persecution and intolerance that

gave concern to those who drafted the Free Exercise

Clause.’ ”); cf. Walz, 397 U.S. at 673, 90 S.Ct. 1409 (noting,

in case challenging property tax exemption for religious

uses of property, that “[glovernments have not always

been tolerant of religious activity” and that “[g]rants of

exemption historically reflect the concern of authors of

constitutions and statutes as to the latent dangers inher-

ent in the imposition of property taxes”).

Appellants do not dispute the legitimacy of protect-

ing religious entities from discrimination, but they argue

that the Dover Amendment goes unconstitutionally

beyond such a purpose to endorse and benefit religious

uses by removing “any type of real local zoning control of

10a

religious sites” (emphasis in appellants’ brief). This argu-

ment brings us to the second Lemon prong, which exam-

ines whether, irrespective of the government's actual

purpose, the practice under review has the “principal or

primary effect” of endorsing or disapproving religion,

Wallace v. Jaffree, 472 U.S. 38, 55, 105 S.Ct. 2479, 86 L.Ed.2d

29 (1985) (quoting Lemon, 403 U.S. at 612, 91 S.Ct. 2105).

Appellants maintain that the statute provides such a sub-

stantial advantage to religious institutions that, in effect,

it constitutes an advancement of religion in violation of

the Establishment Clause.

We note as an initial matter that a law that simply

protects religious organizations from unfair treatment

certainly cannot be impermissible as an unconstitutional

endorsement of religious activity. See generally Wisconsin

v. Yoder, 406 U.S. 205, 220-21, 92 S.Ct. 1526, 32 L.Ed.2d 15

(1972) (The Establishment Clause “cannot be allowed to

prevent any exception” to laws of general applicability

which fosters the free exercise of religion.). Yet, it is

possible for government to extend itself so far in prevent-

ing unfairness that it crosses the line from acceptable

accommodation to impermissible favoritism. See Amos,

483 U.S. at 334-35, 107 S.Ct. 2862 (“At some point, accom-

modation may devolve into ‘an unlawful fostering of

religion. ...’ ”) (quoting Hobbie, 480 U.S. at 145, 107 5.Ct.

1046); Yoder, 406 U.S. at 220-21, 92 S.Ct. 1526.

Although the precise location of that threshold can be

difficult to detect, we are confident that it has not been

reached here. Appellants’ depiction of the statute as an

impermissible legal hammer wielded in favor of religion

both grossly exaggerates the reach of the statute and

understates the recognition that religion may be given

lla

consistent with the Establishment Clause. As for the stat-

ute’s scope, it does not exempt religious property uses

from substantial standard zoning requirements that are

designed to ensure compatible uses of land. As earlier

noted, the statute explicitly states in a proviso that limita-

tions imposed on other property owners concerning such

specific features as the bulk and height of structures, lot

area, setbacks and required parking also may be imposed

on religious organizations. See ch. 40A, § 3. Thus, a reli-

gious institution, no less than any other group, must

comply with reasonable regulations designed to preserve

a comfortable, desirable community. See Tufts College, 415

Mass. at 760, 616 N.E.2d at 439 (“[T]he Dover Amend-

ment is intended to encourage ‘a degree of accommoda-

tion between the protected use . . . and matters of critical

municipal concern... . ’”).4

As for the statute’s assertedly improper focus on

religion, plaintiffs err in two respects: the statute does not

benefit only religious uses and, even if it did, such unique

treatment can withstand constitutional scrutiny.

4 We recognize that facially neutral restrictions imposed

under the proviso may be subject to challenge as

“unreasonable” if they effectively would nullify a religious or

other permitted use. See Trustees of Tufts College v. City of

Medford, 415 Mass. 753, 757-58 & n. 6, 616 N.E.2d 433, 437-38 &

n. 6 (1993). The Massachusetts Supreme Judicial Court has

stated that the question of reasonableness will depend on the

particular facts of each case, see 415 Mass. at 759, 616 N.E.2d at

438, with the burden on the institution to “prov[e] that the local

requirements are unreasonable as applied to its proposed

project,” 415 Mass. at 759, 616 N.E.2d at 439.

12a

We look first at the statute’s coverage. While the

original Dover Amendment was directed solely at reli-

gious uses of property, the provision now includes a

variety of uses linked together by the legislature’s appar-

ent judgment that these uses, though important to all

communities, would be at risk of exclusion from certain

zoning areas because of local prejudice unrelated to their

compatibility with the essential nature of the existing

community. Our task is to consider the validity of the

- statute before us, not the one enacted fifty years ago. See

generally Walz, 397 U.S. at 688 n. 8, 90 S.Ct. 1409 (“The

only governmental purposes germane to the present

inquiry . . . are those that now exist.”).

It has long been accepted that religious entities may

be the beneficiaries of laws that, for secular reasons,

provide benefits to a variety of groups. See Texas Monthly,

Inc. v. Bullock, 489 U.S. 1, 10-13, 109 S.Ct. 890, 103 L.Ed.2d

1 (1989) (plurality opinion); Rojas, 127 F.3d at 188-89.

Among the most prominent examples are the exemption

from property taxes upheld by the Supreme Court in

Walz, 397 U.S. at 664, 90 S.Ct. 1409, and the tax deduction :

for the expenses of religious education allowed in Mueller

v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721

(1983). In his concurrence in Walz, Justice Brennan

observed that New York included churches within the

exempted class “not because it champions religion per se

but because it values religion among a variety of private,

nonprofit enterprises that contribute to the diversity of

the Nation.” Walz, 397 U.S. at 693, 90 S.Ct. 1409.

We think an equivalent description applies to the

state’s judgment here. In protecting religious, educa-

tional, agricultural and the other listed uses of property

13a

from exclusion — whether resulting from discrimination

or simply from a general aversion to change in the neigh-

borhood - Massachusetts evidences “an affirmative pol-

icy that considers these groups as beneficial and

stabilizing influences in community life,” wherever they

are located, see id. at 673, 90 S.Ct. 1409. The Supreme

Court has time and again made it clear that to include

religion in such a category is not to advance religion in

contravention of the Establishment Clause. The collection

of favored uses in the Dover Amendment is amply div-

erse in the context of zoning to support such a determina-

tion. See Texas Monthly, 489 U.S. at 15, 109 S.Ct. 890 (“How

expansive the class of exempt organizations or activities

must be to withstand constitutional assault depends upon

the State’s secular aim in granting a tax exemption.”).

Turning to our second point regarding the statute's

focus on religion, we note that even a special status

granted exclusively to religious organizations is not

always impermissible. This conclusion is inevitably

drawn from our analysis of three of the Supreme Court’s

more recent Establishment Clause cases. All address ben-

efits that were granted only to religious groups or solely

on the basis of religion. One upholds the benefit granted,

while the other two invalidate the statutes at issue. Their

holdings are instructive, for we see this case as governed

by the former and easily distinguishable from the latter.

In Amos, the Supreme Court upheld section 702 of the

Civil Rights Act of 1964, which exempted religious orga-

nizations from Title VI!’s prohibition against discrimina-

tion in employment on the basis of religion. See 483 U.S.

at 327, 107 S.Ct. 2862. Noting the Court’s longstanding

recognition that “ ‘government may (and sometimes

l4a

must) accommodate religious practices and that it may do

so without violating the Establishment Clause,’ ” id. at

334, 107 S.Ct. 2862 (quoting Hobbie, 480 U.S. at 144-45, 107

S.Ct. 1046), the Court endorsed state efforts “to alleviate

significant governmental interference with the ability of

religious organizations to define and carry out their reli-

gious missions,” id. at 335, 107 S.Ct. 2862. The Court

declined to invalidate the exemption on the basis that it

singled out religious groups for a benefit, stating that

where “government acts with the proper purpose of lift-

ing a regulation that burdens the exercise of religion, we

see no reason to require that the exemption comes pack-

aged with benefits to secular entities.” Id. at 338, 107 S.Ct.

2862.

Massachusetts’ effort to eliminate local zoning dis-

crimination is fully in line with the Court’s approval of

government actions aimed at lifting burdens from the

exercise of religion. Not only was the Dover Amendment

at its origin a defensible response to an actual incident of

discrimination, but protections against land use bias con-

tinue to be supportable fifty years later. Two recént law

review articles canvassing discrimination against religion

in the land use context report numerous instances of

zoning actions that reflect local sentiments ranging from

outright hostility to indifference to the needs of religious

organizations, with minority religions particularly hard

hit. See Douglas Laycock, “State RFRAs [Religious Free-

dom Restoration Acts] and Land Use Regulation,” 32 U.C.

Davis L.Rev. 755, 771, 778-80 (1999) [hereinafter “State

15a

RFRAs”]5; Von G. Keetch & Matthew K. Richards, “The

Need for Legislation to Enshrine Free Exercise in the

Land Use Context,” 32 U.C. Davis L.Rev. 725, 729-30

(1999).

Of particular note is the phenomenon of churches

being unwanted either in residential areas — because of

increased traffic or noise, or impact on aesthetics —- or in

business zones — because tax-exempt churches dampen

the vibrancy of commercial developments. See “State

RFRAs,” 32 U.C. Davis L.Rev. at 761-62, 774-75; see also,

e.g., Christian Gospel Church v. City & County of San Fran-

cisco, 896 F.2d 1221, 1224 (9th Cir.1990) (upholding denial

of permit for church to hold worship services in residen-

tial neighborhood, noting that zoning “protects the zones’

inhabitants from problems of traffic, noise and litter”)

(citation omitted); Cornerstone Bible Church v. City of Hast-

ings, 948 F.2d 464, 467 (8th Cir.1991) (quoting city council

resolution excluding churches from the town’s central

business district because “no business or retail contribu-

tion or activity is generated”). Certainly in the face of

such evidence, the state’s decision to give religion an

assist in the local land-use planning process is consistent

with the Supreme Court’s holding in Amos that legislation

isolating religious groups for special treatment is permis-

sible when done for the “proper purpose” of alleviating a

burden on the exercise of religion. See Amos, 483 U.S. at

337-38, 107 S.Ct. 2862.

5 Indeed, Professor Laycock notes that churches are now

facing more difficulty in the land use context than in the past.

See “State RFRAs,” 32 U.C. Davis L.Rev. at 764.

16a

Neither of the Court’s two other cases, both of which

struck down benefits given exclusively for religious rea-

sons, points to a contrary result in this case. In Estate of

Thornton v. Caldor, 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d

557 (1985), the Court invalidated a Connecticut statute

guaranteeing employees the right to take their chosen

Sabbath day off from work. The Court noted that the

“absolute and unqualified right” given to Sabbath

observers required employers to conform their business

practices to an employee’s religious practices without any

“consideration as to whether the employer has made

reasonable accommodation proposals,” see id. at 709-10,

105 S.Ct. 2914, conveying a message of “endorsement of a

particular religious belief, to the detriment of those who

do not share it,” id. at 711, 105 S.Ct. 2914 (O’Connor, J.,

concurring).

As we have observed, the Dover Amendment does

not give religious organizations an “absolute and unqual-

ified right” to build whatever structures they desire in

residential or other zones. The protection given religious

uses is moderated by the community’s countervailing

interest in minimizing adverse impacts to communities,

which is reflected in the requirement that religious uses

conform to the standard physical limitations imposed on

all buildings located in that zone. Moreover, in a further

distinction from the Connecticut statute, the Dover

Amendment does not protect one type of religious activ-

ity, but “extends . . . to all religious beliefs and practices,”

Thornton, 472 U.S. at 712, 105 S.Ct. 2914 (O’Connor, J.,

concurring). We think it clear, therefore, that “an objec-

tive observer would perceive it as an anti-discrimination

17a

law rather than an endorsement of religion or a particular

religious practice.” Id.

Finally, in Texas Monthly, 489 U.S. at 1, 109 S.Ct. 890,

five justices in two separate opinions struck down a Texas

statute exempting religious periodicals, and no other

publications, from state sales tax. In the view of this

combined majority of the court, the statute failed for lack

of a secular objective. See id. at 14-15, 28, 109 S.Ct. 890. In

his concurring opinion joined by Justice O’Connor, Justice

Blackmun observed that “[a] statutory preference for the

dissemination of religious ideas offends our most basic

understanding of what the Establishment Clause is all

about and hence is constitutionally intolerable.” Id. at 28,

109 S.Ct. 890. Here, by contrast, the statute both has an

express secular purpose and it embraces a variety of land

uses likely to encounter similar local opposition. As such,

it does not suffer from the Texas Monthly constitutional

flaws.

In our view, the favorable attitude toward religion

reflected in the Dover Amendment does not constitute a

fostering of, or favoritism toward, religion over non-

religion, but represents a secular judgment that religious

institutions, by their nature, are compatible with every

other type of land use and thus will not detract from the

quality of life in any neighborhood.

“dé

or distributed by a religious faith and that consist wholly of

writings promulgating the teaching of the faith and books that

consist wholly of writings sacred to a religious faith.’ ” Texas

Monthly, 489 U.S. at 5, 109 S.Ct. 890.

18a

An impressive body of case law and scholarly texts

and articles supports this conclusion. See Walz, 397 U.S. at

689, 90 S.Ct. 1409 (Brennan, J., concurring) (“[Gjovern-

ment grants exemptions to religious organizations

because they uniquely contribute to the pluralism of

American society by their religious activities.”); Concerned

Citizens of Carderock v. Hubbard, 84 F.Supp.2d 668, 674-75

(D.Md.2000) (“It is . . . reasonable to presume that

‘churches . . . and other places of worship’ . . . belong [in

the] category of uses [that are] wholly compatible with

single family home life.” (citing E.C. Yokley, Zoning Law

and Practice § 35-14, at 35 (4th ed.1980, Supp.1999)

(“ ‘Since the advent of zoning, churches have been held

proper in residence districts.’ ”))); Kenneth H. Young,

Anderson’s American Law of Zoning § 12.22 at 578 (4th

ed. 1996) (“[R]Jeligious uses contribute to the general wel-

fare of the community, and can contribute most when

located in residential districts. ... ”);7 Terry Rice, “Re-

Evaluating the Balance Between Zoning Regulations and

Religious and Educational Uses,” 8 Pace L.Rev. 1, 3 (1988)

(The “dominant status” of churches and schools “is based

7 The authors of this treatise note that there are “sound

reasons” for excluding churches from residential districts,

including the traffic associated with large numbers of people

attending services and meetings, see § 12.22 at 578. They

ultimately conclude, however, that “an ordinance which

excludes [religious] uses from residential zones does not further

the public health, safety, morals, or general welfare,” id.,

observing: Religious uses serve people best when they are

accessible to homes. Religious buildings provide convenient

meeting places for youth groups and civic associations. This

need can be filled best when the religious institution is

convenient to the residents who attend. Id.

19a

on a recognition that religious and educational institu-

tions are, by their very nature, beneficial to the public

welfare.”); cf. Texas Monthly, 489 U.S. at 12, 109 S.Ct. 890

(property tax exemption for churches “possessed the

legitimate secular purpose and effect of contributing to

the community’s moral and intellectual diversity”).

It is of some note, as well, that proximity to their

houses of worship is for some groups a significant com-

ponent of their religious practice. Orthodox Jews, for

example, believe they are prohibited by the Torah, the

Jewish Bible, from using automobiles on their Sabbath.

They therefore must live within walking distance of a

synagogue. See, e.g., LeBlanc-Sternberg v. Fletcher, 67 F.3d

412, 430 (2d Cir.1995); “State RFFAs,” 32 U.C. Davis

L.Rev. at 779-80. Although we do not suggest that the

Free Exercise Clause mandates the Dover Amendment,®

the fact that the law may serve to avoid a possible barrier

to participation in communal worship highlights its effect

as an accommodation, rather than a promotion, of reli-

gion. See Wallace v. Jaffree, 472 U.S. at 83, 105 S.Ct. 2479

(O’Connor, J., concurring) (“[I]n determining whether the

statute conveys the message of endorsement of religion

. courts should assume that the ‘objective observer’

. is acquainted with the Free Exercise Clause and the

8 “It is well established . . . that ‘[t]he limits of permissible

state accommodation to religion are by no means co-extensive

with the noninterference mandated by the Free Exercise

Clause.’ ” Amos, 483 U.S. at 334, 107 S.Ct. 2862 (quoting Walz,

397 U.S. at 673, 90 S.Ct. 1409). Some courts, however, have held

that it is unconstitutional to exclude churches from residential

areas. See 2 William W. Bassett, Religious Organizations and the

Law § 10:15 (1997).

20a

values it promotes.”); cf. Forest Hills Early Learning Ctr. v.

Grace Baptist Church, 846 F.2d 260, 263 (4th Cir.1988)

(exempting religious child care centers from state licens-

ing requirements should be perceived as “ ‘an accom-

modation of the exercise of religion rather than as a

government endorsement of religion’”) (quoting Amos,

483 U.S. at 349, 107 S.Ct. 2862 (O’Connor, J., concurring)).

In sum, the law does not take any of the paths

forbidden by the Establishment Clause. It does not

endorse an individual religious faith, it does not provide

a direct financial subsidy to any religious organization, it

does not inject religious activity into a nonreligious con-

text, and it does not “place [the state’s] prestige, coercive

authority, or resources” behind religious faith in general,

see Texas Monthly, 489 U.S. at 9, 109 S.Ct. 890, other than

to acknowledge its presence and value - as does the

Constitution - as “an element of our societal mosaic,”

Walz, 397 U.S. at 693, 90 S.Ct. 1409 (Brennan, J., concur-

ring). The concerns underlying the Establishment Clause

arise not when religion is allowed by government to exist

or even flourish, but when government sets a religious

agenda or becomes actively involved in religious activity.

See Amos, 483 U.S. at 337, 107 S.Ct. 2862. By protecting

religious uses of land among others that are favored by

communities generally, but that may encounter particular

neighborhood disfavor, the Dover Amendment does not

itself advance religion but clears the way so that churches

themselves may do so. This is a permissible effect under

Lemon. See Amos, 483 U.S. at 337, 107 S.Ct. 2862. (“A law is

not unconstitutional simply because it allows churches to

advance religion, which is their very purpose. For a law

to have forbidden ‘effects’ under Lemon, it must be fair to

2la

say that the government itself has advanced religion

through its own activities and influence.” (emphasis in

original)).

B. The Belmont By-law

As originally enacted in 1925, section 3 of Belmont’s

zoning by-law stated:

In a single residence district,

(a) No building or structure shall be erected,

altered or used for any other purpose than the

following, including customary incidental uses:

(1) Single-family detached dwelling;

(2) Clubhouse... ;

(3) Lodging or boarding house ... ;

(4) Educational or religious use... .

The by-law was later amended to reflect the require-

ments of the Dover Amendment, and the Schedule of Use

Regulations that now constitutes § 3.3 perrnits in all

zoning districts “Religious or educational use exempted

from prohibition by [the Dover Amendment].”

The Belmont by-law reflects the same benevolent atti-

tude toward religious uses of land that is implicit in the

Dover Amendment and, as discussed earlier, we think it a

passive preference that is consistent with constitutional

principles. Among the by-law’s stated purposes are “to

encourage water supply, drainage, sewerage, schools,

parks, open space and other public requirements ” and

“to encourage the most appropriate use of land through-

out the Town.” See Belmont Zoning By-law § 1.2

(emphasis added). A legislative judgment that religious

activities are suitable in all neighborhoods, whether made

22a

on the state or local level, does not by itself promote the

practice of religion. It simply recognizes the widely val-

ued role of religious entities within our communities by

guaranteeing them a physical place.

Although the by-law lacks the state statute’s explicit

anti-discrimination purpose, we do not consider that

additional rationale necessary to validate a zoning

scheme that gives wide range to religious uses of prop-

erty among other uses that are similarly important to all

communities. Moreover,. because the current version of

the by-law specifically incorporates the Dover Amend-

ment, we think it fair to view it as implicitly incorporat-

ing its anti-discrimination purpose.

In short, the Belmont by-law, like the Dover Amend-

ment, is sufficiently secular in purpose and effect to fall

within constitutional boundaries; it recognizes the value

of religion without impermissibly promoting its exercise.

II. Conclusion

We therefore conclude that both the state statute and

the town by-law pass constitutional scrutiny. Accord-

ingly, we affirm the district court’s grant of summary

judgment for appellees.

TORRUELLA, Chief Judge (Dissenting).

I am largely in agreement with the majority as to the

legal standards which - fuzzy as they may be - apply to

this case. However, my application of those standards

leads me to a different result than that reached by the

majority, and I must respectfully dissent.

Pere

My first principal disagreement with the majority is

that I do not understand the Dover Amendment to be an

anti-discrimination statute. Had the Commonwealth of

Massachusetts intended to prohibit discrimination

against religion and religious land uses, it easily could

have enacted a law saying “No municipality may dis-

criminate against a proposed use of land on the basis of

the religious nature of the use or the religious beliefs or

affiliation of the user.” Such a genuine anti-discrimina-

tion law would be plainly permissible under the Estab-

lishment Clause. However, Massachusetts has instead

prohibited any zoning ordinance that “prohibits, regu-

lates or restricts” religious uses. The effect of this broader

language goes far beyond prohibiting religious intol-

erance, by exempting religious users from the ordinary

zoning process and by granting them a “free pass” with

regard to perhaps the most important issue in zoning

regulation — location.? In my view, either the Dover

Amendment responds to a purpose substantially broader

than merely preventing religious intolerance, or the stat-

ute is substantially broader than its purpose. Either way,

the statute should not receive a “free pass” of its own as

if it were merely an anti-discrimination measure.

Second, the Dover Amendment does not embody the

“benevolent neutrality” deigned by the Supreme Court to

be the proper balance between the competing mandates

9 While the Dover Amendment allows for “reasonable

regulation” of certain aspects of physical structures, there can

be no dispute that the statute requires that religious uses be

permitted on each and every parcel of land in every zoning

district in the Commonwealth.

24a

of the Religion Clauses. A “neutral” statute, in any ordi-

nary sense of that word, would permit (and require)

religious uses and religious users to operate on an even

playing field with other uses and users, without special

hindrances and without special advantage. The Dover

Amendment, in contrast, eschews neutrality to place reli-

gion in an exalted position, exempt from the ordinary

land-use decision making process.

The majority justifies this special treatment by hold-

ing that, here, religion is just one beneficiary of a law that

provides benefits to a variety of groups and that, even if

the benefit were restricted just to religion, the Dover

Amendment would be justified as an attempt to remove

an obstacle to the free exercise of religion. Although I

would agree with either justification in principle, neither

is applicable here.

The majority is of course correct to recognize that

religious entities may be the beneficiaries of laws that, for

secular reasons, benefit a variety of. groups. See Majority

Op. at 6 (citing Walz v. Tax Comm’n of City of New Yoi., 397

U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), and Mueller

v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721

(1983)). The lesson that I draw from cases such as Walz

and Mueller is that, when religion is logically a member of

some cohesive group to which a benefit is granted for a

secular purpose, the Constitution does not demand the

strange result of denying an otherwise available benefit

to a group solely because of the group’s religious nature.

However, the uses protected by the various provisions of

Chapter 40A, § 3, of the Massachusetts General Laws do

not comprise any cohesive scheme comparable to that in

Walz and Mueller. It is hard to imagine what common

25a

secular purpose unites such apparently divergent inter-

ests as religious land users, HAM radio operators, and

residents who choose to use solar power in their homes.

The only common scheme that the majority offers is that

“these uses, though important to all communities, would

be at risk of exclusion from certain zoning areas because

of local prejudice unrelated to their compatibility with

the essential nature of the existing community.” Majority

Op. at 6. Even assuming arguendo that these uses are in

fact “important to all communities” and that there is a

real “risk of exclusion,” I submit that neither the appel-

lees nor the majority have shown that such exclusion

would be “unrelated to compatibility with the essential

nature of the existing community.” Other than outright

discrimination, which I heartedly agree could be properly

prohibited (by an appropriate anti-discrimination stat-

ute), the majority can only suggest vaguely that religious

uses might be excluded based on a “general aversion to

change in the neighborhood.” See Majority Op. at 6. More

telling, however, are the motivations noted by the major-

ity in another section of its opinion — increased traffic and

noise, aesthetic considerations, and impact on commercial

development. See id. at 7. These concerns, of course, are

directly related to the compatibility of a particular use or

user with the essential nature of the existing community.

In fact, far from evidencing some kind of religious intol-

erance (none of which is alleged in this case, by the way),

these are precisely the kinds of secular concerns which

form the basis for all zoning regulation.

The Dover Amendment insulates religion, HAM

radio operators, solar energy users, et cetera, from these

typical zoning concerns for one simple reason, which the

26a

majority recognizes — the state considers these uses “ben-

eficial.” Although the state may generally be free to pro-

tect a use or activity solely on the basis that the state likes

it, the Establishment Clause prohibits such bare favori-

tism where the beneficiary is religion.

Nor do I think that the Dover Amendment can be

justified as a governmental action aimed at lifting bur-

dens on the free exercise of religion. See Maj. Op. at 6-7

(relying on Corporation of Presiding Bishop of Church of

Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 107

S.Ct. 2862, 97 L.Ed.2d 273 (1987)). The majority states

broadly that religious users face local sentiments “rang-

ing from outright hostility to indifference to the needs of

religious organizations.” Maj. Op. at 8. Apart from reli-

gious intolerance, however, (which, again, I fully agree

can and should be prohibited by a proper anti-discrimi-

nation measure), the majority points only to routine zon-

ing considerations such as concern with traffic, noise,

aesthetics, and commercial stimulus as presenting poten-

tial “burdens” on the free exercise of religion. It may be

true that religious users face these common obstacles in

the zoning context, but only to the extent that all land

users face them. Frankly, I cannot see that requiring reli-

gious users to participate in the ordinary process by

which local land-use decisions are made amounts to such

a burden on the exercise of religion as to justify a blanket

preference like the Dover Amendment. Cf. Amos, 483 U.S.

at 336, 107 S.Ct. 2862 (finding that uncertain threat of

liability imposed a “significant burden” on religious

groups). Nor can I agree that the Dover Amendment

merely “allows religious groups to advance their own

27a

cause” rather than constituting state promotion of reli-

gion. Through the Dover Amendment, Massachusetts has

enacted a bare preference for religious uses of land

and has placed the entire weight of the Commonwealth

behind that preference. “Benevoient neutrality” and

appropriate accommodation of religion are laudable and

constitutional objectives, but the Dover Amendment

simply goes too far, in my opinion. See Amos, 483

U.S. at 334-35, 107 S.Ct. 2862 (“At some point, accom-

modation may devolve into ‘an unlawful fostering of

religion... .’”).

Furthermore, just as I differ with the majority some-

what in my reading of Walz, Mueller, and Amos, I also

have difficulty accepting the majority’s distinction of

other Supreme Court precedents. Unlike the majority, I

find the Supreme Court’s decision in Estate of Thornton v.

Caldor, 472 U.S. 703, 105 S.Ct. 2914, 86 L.Ed.2d 557 (1985),

quite persuasive here. In the fundamental zoning consid-

eration of location, the Dover Amendment provides reli-

gious users with precisely the kind of “absolute and

unqualified right” rejected in Thornton. Id. at 709, 105

S.Ct. 2914. Just as in Thornton, the Dover Amendment

makes “no exception for special circumstances, . . . no

exception when honoring the dictates of [religious users]

would cause . . . substantial economic burdens or when

. compliance would require the imposition of signifi-

cant burdens on other[s, and] . . . no consideration as to

whether the [municipality] has made reasonable accom-

modation proposals.” Id. at 709-10, 105 S.Ct. 2914.

Likewise, I read the Supreme Court’s fractured deci-

sion in Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 109 S.Ct.

890, 103 L.Ed.2d 1 (1989), to support striking the Dover

28a

Amendment. As Justice Brennan stressed on behalf of

three justices:

[W]hen government directs a subsidy exclu-

sively to religious organizations that is not

required by the Free Exercise Clause and that

either burdens nonbeneficiaries markedly or

cannot reasonably be seen as removing a signifi-

cant state-imposed deterrent to the free exercise

of religion, . . . it “provides unjustifiable awards

of assistance to religious organizations” and

cannot but “convey a message of endorsement”

to slighted members of the community.

Texas Monthly, 489 U.S. at 15, 109 S.Ct. 890. Justices

Blackmun and O’Connor stated that “[a} statutory prefer-

ence for the dissemination of religious ideas offends our

most basic understanding of what the Establishment

Clause is all about,” id. at 28, 109 S.Ct. 890 (Blackmun, J.,

concurring), and I believe the same is true of a statutory

preference for religious users in zoning matters.

In summary, I cannot agree with the majority’s accep-

tance of the Dover Amendment as a tolerable -accom-

modation of religion. I would hold that the statute fails

both the purpose and effects prongs of the Lemon test,

and I would declare the Dover Amendment unconstitu-

tional.

I am slightly more troubled by the need to strike

down the Belmont bylaw. Unlike the majority, I am not

entirely persuaded that the Dover Amendment and the

Belmont bylaw must stand or fall together. After all, what

troubles me about the Dover Amendment is largely the

fact that it removes religious users from the ordinary

land-use decision making process and thus places them

29a

in a position of considerable advantage over nonreligious

uses and users. The Belmont bylaw would not necessarily

raise such concerns, because a local zoning bylaw merely

represents the product of precisely that ordinary local

decision making process which, if done on a “level play-

ing field,” properly determines local land-use issues.

However, because the Belmont bylaw is so closely tied to

the Dover Amendment, I would find that it is incurably

infected with the unconstitutionality of the state statute

and must be stricken. I do not suggest, however, that the

Establishment Clause would prohibit the Town of Bel-

mont from enacting a bylaw permitting religious uses in

any or all of its zoning districts, so long as such bylaw

were enacted through the ordinary land-use decision

making procedures.

30a

APPENDIX B

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 98-11763-DPW

Decided, May 24, 1999

MARGARET BOYAJIAN, CHARLES COUNSELMAN,

AND JEAN DICKINSON, Plaintiffs,

Vv.

THOMAS GATZUNIS, BUILDING INSPECTOR OF

THE TOWN OF BELMONT, JOHN W. GAHAN, III,

WILLIAM D. CHIN, THOMAS P. CALLAGHAN, JR.,

CARLO TAGARIELLO, ANTHONY LECCESE, JAMES

D. HARRINGTON, CHARLES REARDON, KARL

TOBIASON, AS THEY ARE MEMBERS OF THE

ZONING BOARD OF APPEALS OF THE TOWN OF

BELMONT, AND CORPORATION OF THE

PRESIDING BISHOP OF THE CHURCH OF JESUS

CHRIST OF LATTER-DAY SAINTS,

Defendants.

1999 U.S. Dist. LEXIS 15610

DOUGLAS P. WOODLOCK:

MEMORANDUM AND ORDER

At issue in this case is whether state and local regula-

tions that prohibit zoning restrictions on the use of prop-

erty for religious purposes are in violation of the

Establishment Clause of the First Amendment to the

United States Constitution. I conclude that they present

no constitutional violation and accordingly will grant

summary judgment against Plaintiffs’ claims.

| 3la

I. BACKGROUND

The facts of this case are undisputed. Defendant Cor-

poration of the Presiding Bishop of the Church of Jesus

Christ of Latter-day Saints (the “Church”) acquired an 8.9

acre parcel of land (the “Property”) on February 20, 1979,

located in the Town of Belmont, Massachusetts. (Joint

Statement of Agreed Facts “Joint Facts” PP 1, 10; Joint

Facts, Ex. 4.) Plaintiff Margaret Boyajian is an immediate

abutter to the Property, and Plaintiffs Charles Counsel-

man and Jean Dickinson are residents of the Town of

Belmont (the “Town”). (Id. P 1.)

The Property is located within a single residential

district. (Id. P 10.) Sections 1.3 and 3.3 of Belmont’s cur-

rent by-law, approved on August 6, 1996, generally

require property uses within districts to be in conformity

with by-law provisions, but exempt “certain aspects of

agricultural, educational and religious uses, as provided

at Section 3 of Chapter 40A, G.L.”! (Id., Ex. 3.)

* Originally, the town adopted a zoning by-law on January

19, 1925, amended from time to time, which provided,

In a single residence district.

(a) No building or structure shall be erected,

altered or used for any other purpose than the

following, including customary incidental uses:

(1) Single-family detached dwelling;

(2) Clubhouse... ;

(3) Lodging or boarding house . . . ;

(4) Educational or religious use;

(5) Farm, garden, nursery or greenhouse;

(6) Municipal recreational use;

. (Joint Facts, Ex. 1 at 153, 155.)

32a

Belmont’s by-law is in accordance with Mass. Gen.

Laws ch. 40A, § 3 (the “Dover Amendment”) which

states,

No zoning ordinance or by-law shall. . .

regulate or restrict the use of land or structures

for religious purposes or for educational pur-

poses on land owned or leased by the common-

wealth or any of its agencies, subdivisions or

bodies politic or by a religious sect or denomi-

nation, or by a nonprofit educational corpora-

tion; provided, however, that such land or

structures may be subject to reasonable regula-

tions concerning the bulk and height of struc-

tures and determining yard sizes, lot area,

setbacks, open space, parking and building cov-

erage requirements.”

A church meeting house is currently located on a

portion of the Property. (Joint Facts P 11.) On or about

2 As originally enacted by the Massachusetts legislature in

1950, the “Dover Amendment” (so-called apparently because it

was held to invalidate a zoning by-law enacted by the Town of

Dover to restrict sectarian educational uses, Attorney-General v.

Dover, 327 Mass. 601, 100 N.E.2d 1 (1951); see generally The Bible

Speaks v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 28 N.10,

391 N.E.2d 279 (1979)) provided,

No by-law or ordinance which prohibits or limits the

use of land for any church or other religious purpose

or which prohibits or limits the use of land for any

religious, sectarian or denominational educational

purpose shall be valid.

(Statement of Undisputed Facts (“Undisputed Facts”), Ex. 1.)

In 1975, the Legislature enacted a wholesale revision of the

zoning provisions in St. 1975, c. 808, the Zoning Act (“Chapter

808”) which is codified at Mass. Gen, Laws ch. 40A. (Joint Facts

P 8.) The “Dover Amendment” was essentially reenacted in § 3

of Ch. 40A.

33a

May 28, 1996, in connection with the proposed construc-

tion of a Temple to be used for religious purposes on the

remaining portion of the Property, the Church filed an

application with the town for a special permit to exceed

the height limitation allowed under the by-law. (Id. P 12.)

After a series of public hearings, on March 24, 1997, the

Zoning Board of Appeals of the Town of Belmont (the

“Board”) approved the special permit.? (Id. P 14.) The

Town has issued blasting, sitework, and building permits

to the Church, and construction of the Temple is proceed-

ing. (Id. PP 15-18).

Plaintiffs have filed a complaint with this court

against the Church, the Building Inspector of the Town,

and members of the Board, alleging that Section 3.3 of the

Zoning By-Law of the Town of Belmont and the Mass.

Gen. Laws ch. 40A, § 3, as applied to religious institu-

tions, are in violation of the First Amendment of the

United States Constitution (Count I).4 (2d Am. Compl. at

7.)

3 The Church initially proposed a temple of six spires

exceeding the height limit, with the temple covering an area of

94,100 square feet. This proposal was approved by the Board.

the Church amended its plan in order “to downsize the Temple

and thereby to lessen its impact on the neighborhood.” The

amended plan contains one spire with a height of 139 feet above

ground which still exceeds the height limit, and with the temple

covering an area of 68,000 spare feet. (Joint Facts, Ex. 4.)

4 Plaintiffs have agreed to dismiss Count II of their

complaint which had alleged violations of the Fifth and

Fourteenth Amendments of the United States Constitution.

(Pls.” Agreement Dismiss Count II at 1; 2d Am. Compl. at 8-9.)

34a

Before me are cross-motions for summary judgment.

II. STANDARD OF REVIEW

Summary judgment is appropriate when “the plead-

ings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits, if any show that

there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). A material fact is one which has

the “potential to affect the outcome of the suit under

applicable law.” Sanchez v. Alvarado, 101 F.3d 223, 227 (1st

Cir. 1996). A genuine issue is “one that must be decided

at trial because the evidence, viewed in the light most

flattering to the nonmovant, would permit a rational

factfinder to resolve the issue in favor of either party.”

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8

(1st Cir. 1990) (citations omitted). Because the parties

have filed cross-motions for summary judgment, I “must

evaluate each motion separately, being careful to draw

inferences against each movant in turn.” El Dia, Inc. v.

Colon, 963 F.2d 488, 492 (1st Cir. 1992).

IiI. DISCUSSION

The First Amendment provides that, “Congress shall

make no law respecting an establishment of religion, or

Prior to filing this lawsuit, in May 1997, Boyajian and other

parties filed a complaint with the Superior Court for Middlesex

County, seeking judicial review of the Board’s decision. (Joint

Facts, Ex. 5.)

ee ee eee ts ee

35a

prohibiting the free exercise thereof... . ” U.S. Const.

amend. I.

The general principle deducible from the First

Amendment and all that has been said by the [Supreme]

Court is this:

that [the Court] will not tolerate either govern-

mentally established religion or governmental

interference with religion. Short of those

expressly proscribed governmental acts there is

room for . . . benevolent neutrality which will

permit religious exercise to exist without spon-

sorship and without interference.

Walz v. Tax Comm'n of the City of New York, 397 U.S. 664,

669, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970).

“The language of the Religion Clauses of the First

Amendment is at best opaque. .. . ” Lemon v. Kurtzman,

403 U.S. 602, 612, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971). In

this area, the course of constitutional neutrality “cannot

be an absolutely straight line; rigidity could well defeat

the basic purpose of these provisions, which is to insure

that no religion be sponsored or favored, none com-

manded, and none inhibited.” Walz, 397 U.S. at 669. The

Establishment Clause prohibits the government from pro-

moting or affiliating with any religious doctrine or orga-

nization. County of Allegheny v. American Civil Liberties

Union, 492 U.S. 573, 590, 106 L. Ed. 2d 472, 109 S. Ct. 3086

(1989). Although, “no perfect or absolute separation is

really possible .. . ”, Walz, 397 U.S. at 670, courts must

prohibit governmental “sponsorship, financial support,

and active involvement of the sovereign in religious

activity.” Id. at 668.

36a

Plaintiffs allege that the Dover Amendment and the

zoning by-law are in violation of the Establishment

Clause because they favor religion over non-religion

without any secular purpose. (Pls.’ Br. at 3.)

The Amendment and zoning by-law must be

analyzed using the trilogy of tests developed by the

Supreme Court in Lemon. A law is not in violation of the

Establishment Clause if it (A) has a secular purpose; (B)

does not have the principal or primary effect of advancing

or inhibiting religion; and (C) does not foster excessive

government entanglement with religion.5 Lemon, 403 U.S.

at 612-13.

A. Purpose

“In applying the purpose test, it is appropriate to ask

whether government’s actual purpose is to endorse or

disapprove of religion.” Wallace v. Jaffree, 472 U.S. 38, 56,

86 L. Ed. 2d 29, 105 S. Ct. 2479 (1985) (internal quotations

and citation omitted). The law must serve a secular legis-

lative purpose in order to be constitutional under the

Establishment Clause. Corporation of the Presiding Bishop of

the Church of Jesus Christ of Latter-Day Saints v. Amos, 483

5 The Supreme Court in Agostini v. Felton, 521 U.S. 203, 117

S. Ct. 1997, 2015, 138 L. Ed. 2d 391 (1997) observed that the

entanglement prong is “an aspect of the inquiry into a [law’s

primary or principal] effect.” See also Rojas v. Fitch, 127 F.3d 184,

187-88 (1st Cir. 1997), cert. denied, 524 U.S. 937, 118 S. Ct. 2341,

141 L. Ed. 2d 713 (1998) (discussing Agostini’s incorporation of

entanglement into effects calculus). I will in this Memorandum

focus separately on the entanglement prong rather than

conflating the entanglement discussion into the effects

discussion. :

37a

U.S 327, 335, 97 L. Ed. 2d 273, 107 S. Ct. 2862 (1987). The

Supreme Court has explained,

This does not mean that the law’s purpose must

be unrelated to religion — that would amount to

a requirement that the government show a cal-

lous indifference to religious groups. . . . Rather,

Lemon’s purpose requirement aims at prevent-

ing the relevant governmental decisionmaker

... from abandoning neutrality and acting with

the intent of promoting a particular point of

view in religious matters.

Id. (internal quotations and citation omitted).

1. Massachusetts Statute: Dover Amendment

The bill which became the “Dover Amendment” was

entitled “An Act Prohibiting Discriminatory Zoning By-

Laws and Ordinances.” (See Undisputed Facts, Ex. 1.) The

statute addressed zoning regulations of the type passed

by the Town of Dover which had prohibited religious

denominations from establishing schools in residential

districts. See The Bible Speaks v. Board of Appeals of Lenox, 8

Mass. App. Ct. 19, 28 n.10, 391 N.E.2d 279 (1979). The

purpose of the Dover Amendment was to place limits on

a town’s ability to “exercise its preferences as to what

kind of . . . religious denomination it will welcome.” Id. at

33; see also Needham Pastoral Counseling Ctr., Inc. v. Board of

Appeals of Needham, 29 Mass. App. Ct. 31, 33, 557 N.E.2d

43 (1990), review denied, 408 Mass. 1103, 560 N.E.2d 121

(1990); Southern New England Conference Ass'n v. Town of

Burlington, 21 Mass. App. Ct. 701, 706, 490 N.E.2d 451

(1986), review denied, 397 Mass. 1103, 492 N.E.2d 98 (1986)

(same proposition).

38a

The statute, which originally provided anti-discrimi-

nation protection only for uses of land for religious pur-

poses, has been amended and currently includes

protection for a number of nonreligious uses - agricul-

ture, child care facilities, group homes for disabled per-

sons, and solar energy systems — as well. The defendants

state that “the statute prevents more than simply reli-

gious intolerance . . . Perhaps more often . . . local

opposition is [from] abutters and neighbors [who] oppose

any nonresidential use because they want neighborhoods

that are populated exclusively with single-family

homes.”® (Church Br. at 10 (emphasis in original).)

I find that the Dover Amendment has a permissible

purpose which passes muster under the Establishment

Clause. The statute’s evident purpose and the decisions

of Massachusetts state courts have demonstrated that the

Dover Amendment has a secular purpose of prohibiting

discrimination against certain land uses which prevents

churches and nonreligious activities from being subjected

to discrimination generated by the prejudices of local

governments and certain of their constituencies.

The plaintiffs counter by alleging that the Amend-

ment’s “clear purpose... . was to endorse and benefit

religious uses.” (Pls.’ Br. at 6.) To support this conterition,

Plaintiffs allege that the original statute was confined to

religious activities only, demonstrating that religious

6 Defendants have described this opposition as the “not in

my back yard,” or “NIMBY” phenomenon. See Inspector of Bldgs.

of Salem v. Salem State College, 28 Mass. App. Ct. 92, 98, 546

N.E.2d 388 (1989), review denied, 406 Mass. 1103, 548 N.E.2d 887

(1990). |

39a

sponsorship was the intent of the Amendment, and that

the current group of activities exempted has no rational

relationship. Plaintiffs’ arguments, however, are without

merit.

The Dover Amendment plainly stated that it

intended to prevent discrimination against land uses for

religious purposes, but nowhere did it state or suggest

that it was sponsoring or endorsing land use for religious

purposes. Cf. Wallace, 472 U.S. at 57-58 (voluntary prayer

in school statute ran afoul Establishment Clause where

state presented no evidence of any secular purpose and

legislative history showed a clear intent to sponsor reli-

gion). In the instant case, “there is no reason to believe

the [Legislature] meant anything else.” Lemon, 403 U.S. at

613. In the words of Lemon, “[I] find nothing here that

undermines the stated legislative intent; it must therefore

be accorded appropriate deference.” Id.

Plaintiffs allege that the Dover Amendment suffers

from the same defects as the statute stricken in Texas

Monthly, Inc. v. Bullock, 489 U.S 1, 103 L. Ed. 2d 1, 109 S.

Ct. 890 (1989), because the Amendment originally singled

out religious activities for the exemption from zoning by-

laws. In Texas Monthly, Texas had originally exempted

from its sales and use tax, a broad class of magazines

including those focusing on religion. Id. at 5. Texas

repealed the statute for a three-year period, but contin-

ued to exempt only religious magazines during that

period. Id. The Supreme Court found the statute uncon-

stitutional because the exemption for religious magazines

was not based on a valid nonreligious purpose.

40a

By invoking Texas Monthly, plaintiffs place much

reliance on the fact that the Dover Amendment had

originally provided an exemption only to religious orga-

nizations. But, the Supreme Court in Texas Monthly did

not hold that laws which single out religion are uncon-

stitutional. The Supreme Court “has never indicated that

statutes that give special consideration to religious

groups are per se invalid. That would run contrary to the

teaching of our cases that there is ample room for accom-

modation of religion under the Establishment Clause.”

Amos, 483 U.S. at 338 (citations omitted) (upholding fed-

eral statute which exempts religious organizations from

Title VII's prohibition against discrimination in employ-

ment on basis of religion). The Supreme Court in both

amos and Texas Monthly stated that laws may provide

exemption solely to religious activities under certain con-

ditions. “Where . . . government acts with the proper

purpose of lifting a regulation that burdens the exercise

of religion, we see no reason to require that the exemp-

tion comes packaged with benefits to secular entities.”

Id.; see also Texas Monthly, 489 U.S. at 15. Thus, the fact

that the original Dover amendment only included protec-

tion for religious activities in not fatal under the Estab-

lishment Clause. As stated in Amos, the Massachusetts

Legislature had the proper purpose of lifting a regulation

that burdened free exercise by religious organizations.

Such a purpose was not evident in Texas Monthly.

Moreover, the Dover Amendment currently provides

the exemption to a broad class of land uses. The purpose

of the current Amendment is plainly to protect certain

land uses - such as group homes for the disabled — from

potential prejudices of local communities, in a manner

4la

similar to the anti-discrimination protection originally

provided only to religious land uses. By contrast, the

Supreme Court in Texas Monthly was not persuaded by

the fact that Texas had also granted sales tax exemptions

for food, agricultural items, and property used in the

manufacture of articles for ultimate sale, because these

exemptions were provided for purposes completely dif-

ferent from the exemptions provided to the religious

magazines. 489 U.S. at 15 n.4.

Finally, Plaintiffs argue that there was no evidence of

discrimination against religion in the past. The Supreme

Court itself, however, has recognized that discrimination

-has occurred against religious undertakings. “Govern-

ments have not always been tolerant of religious activity,

and hostility toward religion has taken many shapes and

forms - economic, political, and sometimes harshly

oppressive.” Walz, 397 U.S. at 673. The Supreme Court

has found that “grants of exemption” such as the exemp-

tion from certain zoning restrictions in the present case,

have been a response to the intolerance and hostility

toward religion. See id. (upholding tax exemption for

churches and other nonprofit organizations).

Where such a secular purpose is determined, the

Supreme Court has directed that

It is not [a court’s] responsibility to specify

which permissible secular objectives . . . the

State should pursue to justify an .. . ex-

emption ... That charge rests with the . . . Legi-

slature. [This court’s] task . . . is rather to ensure

that any scheme of exemptions adopted by the

legislature does not have the purpose or effect

Lae

42a

of sponsoring certain religious tenets or reli-

gious belief in general.

Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 16-17, 103 L. Ed.

2d 1, 109 S. Ct. 890 (1989).

Thus, I find that the Dover Amendment serves a

secular legislative purpose which is to prevent local gov-

ernments from discriminating against uses of land for

religious and certain other purposes that have historically

generated discriminatory land use regulation.

2. Belmont Zoning By-Law

As with the Dover Amendment, Belmont’s zoning

bylaw, which has always exempted religious and non-

religious land uses, supports a secular purpose. Section |

1.2 of the zoning by-law states that its purpose includes,

to lessen congestion in the streets; to conserve

health; to secure safety from fire, flood, panic

and other dangers; to provide adequate light

and air; to prevent overcrowding of land; to

avoid undue concentration of population; to

encourage water supply, drainage, sewerage,

schools, parks, open space and other public

requirements; . . . to encourage the most appro-

priate use of land throughout the Town,

and .. . to fulfill these purposes under the

provisions of General Laws, Chapter 40A.

7 ee eee ee ee ee © a a a

(Joint Facts, Ex. 3.)

As a general proposition, a court “will defer to a

municipality’s sincere articulation of a secular purpose.

This is in keeping with the well settled maxim what

courts are ‘reluctant to attribute unconstitutional motives

43a

to the States, particularly when a plausible secular pur-

pose for the State’s program may be discerned from the

face of the statute.’ ” Cohen v. City of Des Plaines, 8 F.3d

484, 489 (7th Cir. 1993), cert. denied, 512 U.S. 1236, 129 L.

Ed. 2d 861, 114 S. Ct. 2741 (1994) (internal citation omit-

ted) (quoting Mueller v. Allen, 463 U.S. 388, 394-95, 77 L.

Ed. 2d 721, 103 S. Ct. 3062 (1983)). It is apparent that the

zoning by-law not only anticipated the nondiscriminatory

purposes of the Dover Amendment but also seeks to

incorporate the continuing purposes of the state zoning

provisions, Mass. Gen. Laws ch. 40A, as its own.

For essentially the reasons stated in reference to the

Dover Amendment, I find that Belmont’s zoning by-law

is not in violation of the Establishment Clause under this

prong of the Lemon test.

B. Effect”

In analyzing whether a law has a principal or pri-

mary effect that neither advances nor inhibits religion,

the Supreme Court has recognized that

[a] law is not unconstitutional simply because

it allows churches to advance religion, which is

their very purpose. For a law to have forbidden

“effects” under Lemon, it must be fair to say that

the government itself has advanced religion

through its own activities and influence.

Amos, 483 U.S. at 337.

7 The Amendment and zoning by-law will be discussed

together under the effects and entanglement requirements of

the Lemon test because there are no material differences under

these prongs.

44a

Under this test, I find that the primary or principal

effect of both the Amendment and the zoning by-law is

not the advancement of religion. Instead, the primary

effect of these laws is to reduce discrimination by local

governments against entities which use land for religious

purposes. Regulations that exempt religious, as well as

certain nonreligious land uses from zoning restrictions,

hardly place the Legislature and Town in the position of

“ ‘establishing’ religion within the meaning of the First

Amendment any more than .. . the property tax exemp-

tion in Walz. ...” See Cohen, 8 F.3d at 491-92 (upholding

zoning ordinance allowing nonprofit nurseries operated

in churches to be located, by right, in single family resi-

dential zones even though for-profit nurseries needed

special permits).

Plaintiffs allege that the effect of the Amendment is

that it “removes any type of real local zoning control of

religious sites.” (Pls.’ Br. at 5.) The plaintiffs further con-

tend that “the truth is that the Dover Amendment pre-

vents municipalities from imposing any conditions other

than those permitted by G.L.c. 40A, § 3.” (Id. at 14

(emphasis in original).) Both of these contentions lack

merit.

The Amendment plainly subjects religious land uses

to “reasonable regulations concerning the bulk and

height of structures and determining yard sizes, lot area,

setbacks, open space, parking and building coverage

requirements.” See Mass. Gen. Laws ch. 40A, § 3, Plain-

tiffs simply ignore such regulations, presumably because

they contradict the suggestion that towns are left unable

to impose conditions or limitations —- other than use -

under the Dover Amendment.

45a

Plaintiffs compare the Dover Amendment to the stat-

ute at issue in Board of Educ. of Kiryas Joel Village School

Dist. v. Grumet, 512 U.S. 687, 129 L. Ed. 2d 546, 114 S. Ct.

2481 (1994) by arguing that the accommodation of reli-

gion in the Amendment, like that in Kiryas Joel, “goes too

far.” (Pls.’ Br. at 15.) Kiryas Joel is wholly inapposite, as

Plaintiffs’, themselves intimate, by characterizing Kiryas

Joel as “an extreme example of religious favoritism.” (Id.)

In Kiryas Joel, the New York Legislature essentially cre-

ated a school district that followed the lines of a religious

community. The Supreme Court found the statute in vio-

lation of the Establishment Clause because the Legisla-

ture was not neutral in creating the district, but instead

created the district in a manner that was “counter to state

practice,” singling out a particular religious sect for spe-

cial treatment. Id. at 702. The Court found that an imper-

missible fusion of governmental and religious functions

had resulted. Id. These factors are absent here and thus,

Kiryas Joel is not relevant.

C. Entanglement

Under the third Lemon test, this court must ensure

that the end result of the Amendment and the by-law “is

not an excessive government entanglement with reli-

gion.” Walz, 397 U.S. at 674. Such a determination does

not mandate “total separation between church and state,”

Lemon, 403 U.S. at 614, but instead, “the test is inescapa-

bly one of degree.” Walz, 397 U.S. at 674.

In order to determine whether the government entan-

glement with religion is excessive, [courts] must examine

the character and purposes of the institutions that are

46a

benefited, the nature of the aid that the State provides,

and the resulting relationship between the government

and the religious authority. Lemon, 403 U.S. at 615.

It is difficult to conceive how the Amendment or the

by-law impermissibly entangles government and church.

Even the plaintiffs have not conjured up such an argu-

ment. Both the Amendment and the by-law “effectuate[ |

separation between the [government and church] and

avoid[ ] intrusive inquiry into religious belief and prac-

tice.” See Cohen, 8 F.3d at 493. By exempting religious land

uses from scrutiny by the government and monitoring

certain, essentially dimensional, aspects of the uses, the

Amendment and by-law “create[] only a minimal . . .

involvement between church and state and far less than

[allowing local governments to decide where religious

land uses can be located].” See Walz, 397 U.S. at 676.

“There is no genuine nexus between [this] exemption and

establishment of religion.” Id. at 675.

Thus, neither the Amendment nor the zoning by-law

“create[s] the kind of government surveillance of reli-

gious activities or cooperation between government and

religious officials that has been deemed an impermissible

administrative entanglement under Lemon.” Cohen, 8 F.3d

at 494.

D. Alternative Tests

Plaintiffs contend that the statute must meet a strict

scrutiny inquiry. (Pls.’ Br. at 18-21.) The Supreme Court,

however, has made clear that only laws which distinguish

among religions are subject to strict scrutiny. Amos, 483

U.S. at 339. Laws which provide a “uniform benefit to all

47a

religions should be analyzed under Lemon.” Id. (internal

quotations and citation omitted). Lemon is the appropriate

test here because neither the Amendment nor the zoning

by-law differentiates among religions.

Plaintiffs also argue that because there is no constitu-

tional provision prohibiting exclusion of religious institu-

tions, the Amendment and zoning by-law are

unconstitutional. In this, Plaintiffs attempt to find sup-

port in cases involving the Free Exercise Clause. Plaintiffs

cite to cases — Grosz v. City of Miami Beach, 721 F.2d 729,

740 (11th Cir. 1983), cert. denied, 469 U.S. 827, 83 L. Ed. 2d

52, 105 S. Ct. 108 (1984) and Lakewood, Ohio Congregation

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

309 (6th Cir. 1983), cert. denied, 464 U.S. 815, 78 L. Ed. 2d

85, 104 S. Ct. 72 (1983) — which have held that it is not

unconstitutional under the Free Exercise Clause to

exclude religious institutions from certain zoning dis-

tricts. These cases, however, are not relevant here. That a

law excluding religious institutions from certain zoning

areas is found constitutional under the Free Exercise

Clause, does not necessitate finding that another law

prohibiting exclusion of religious institutions from cer-

tain areas is unconstitutional under the Establishment

Clause. As the Supreme Court has explained, “It is well

established . . . that the limits of permissible state accom-

modation to religion are by no means co-extensive with

the noninterference mandated by the Free Exercise

Clause.” Amos, 483 U.S at 334 (quoting Walz, 397 U.S at

673) (internal quotations omitted.) The Supreme Court in

Walz further observed that “to equate the two [Clauses]

would be to deny a national heritage with roots in the

48a

Revolution itself.” Walz, 397 U.S. at 673. The Free Exercise

Clause cases are not relevant in this context.

Iv. CONCLUSION

For the reasons stated more fully above, IGRANT the

defendants’ motion for summary judgment, and DENY

the plaintiffs’ motion for summary judgment.

DOUGLAS P. WOODLOCK

UNITED STATES DISTRICT JUDGE

JUDGMENT

WOODLOCK, District Judge

In accordance with this Court’s Memorandum and

Order issued on May 24, 1999, granting the Defendant’s

Motion for Summary Judgment and denying Plaintiff's

Motion for Summary Judgment, it is hereby ORDERED,

ADJUDGED AND DECREED:

Judgment for the Defendant against the Plaintiff.

DATED: May 24, 1999

—_

49a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 99-1760

June 22, 2000

MARGARET BOYAJIAN; CHARLES COUNSELMAN,;

JEAN DICKINSON,

Plaintiffs, Appellants,

THOMAS GATZUNIS, ET AL.,

Defendants, Appellees.

ORDER OF THE COURT

Before

TORRUELLA, Chief Judge,

COFFIN, Senior Circuit Judge,

SELYA, BOUDIN, STAHL, LYNCH and LIPEZ,

Circuit Judges,

The panel of judges that rendered the decision in this

case having voted to deny the petition for rehearing and

the petition for rehearing en banc having been carefully

considered by the judges of the Court in regular active

service and a majority of said judges not having voted to

order that the appeal be heard or reheard by the Court en

banc,

50a

It is ordered that the petition for rehearing en banc,

be denied.

By the Court:

PHOEBE D. MORSE, Clerk

/s/ JANICE M. O’NEIL

Chief Deputy Clerk

Ss ee ee S -

5la

APPENDIX D

TOWN OF BELMONT

BOARD OF APPEALS

Filed Apr. 29, 1997

Case No.: 96-32

97-07

Applicant: Church of Jesus Christ of

Latter-day Saints

Property: Frontage Road

Dates of Public Hearings: July 8, 1996

July 22, 1996

August 7, 1996

August 12, 1996

September 18, 1996

October 3, 1996

October 8, 1996

October 23, 1996

December 3, 1996

March 10, 1996

March 13, 1996

March 24, 1996

Members Sitting: John W. Gahan Iil

William D. Chin

Thomas P. Callaghan Jr.

Carlo Tagariello

Anthony L. Leccese

A TRUE COPY ATTEST:

May 19, 1997 /s/ Catherine T. Stafford

Catherine T. Stafford

Town Clerk of Belmont

On May 28, 1996, the Corporation of the Presiding

Bishop of the Church of Jesus Christ of Latter-day Saints

52a

(herein, variously referred to as the “Church”, the “LDS

Church” or the “Mormon Church”) filed an application

(the “Original Application”) for zoning relief with the

Town of Belmont (“Town”) Zoning Board of Appeals

(“Board”) seeking a special permit to construct a religious

temple (“Temple”) having six uninhabited spires in

excess of the applicable height permitted by right under

Section 4.2.2 of the Town’s Zoning Bylaw (the “Bylaw”)

and, alternatively, for a determination by the Board of

Appeals that the application of the Bylaw height limita-

tion would contravene G.L. c. 40A, Section 3, second

paragraph. After public hearings were conducted on the

Original Application and after the Board had voted in

December 1996 to grant relief to the LDS Church as

herein set forth, the LDS Church asked the Board to

postpone the issuance of its written decision on the Origi-

nal Application while the Church considered whether to

make further modifications to its plan, to downsize the

Temple and thereby to lessen its impact on the neighbor-

hood.

On February 13, 1997, the LDS Church filed amended

plans which proposed a Temple containing but one spire,

rising to a height of 139 feet above ground and reducing

the gross area of the Temple from 94,100 square feet to

68,000 square feet.1 The amended plans (the “Amended

Application”) necessitated consideration at a public hear-

ing, which took place on March 10 and March 13, 1997.

1 There were a number of other design changes made, all as

more fully set forth herein.

SF EI

53a

Thereafter, on March 24, 1997 the Board voted to

approve the Amended Application, with conditions.?

This written decision of the Board sets forth the

Board’s decision relative to the Original Application as

well as the decision on the Amended Application. The

Board considers that, given the degree of public interest

in this case, it is important that the Board’s consideration

of and reasoning concerning all aspects presented to it,

and in particular why the Board granted relief on the

Original Application and grants relief on the Amended

Application be set forth in detail.

BACKGROUND

The Church seeks to build the Temple on property

owned by it located on Frontage Road (the Route 2 access

road) in Belmont. The proposed site (the “Property” or

“Site”) is approximately 8.9 acres and is in an SR-A

zoning district, a residential district under the Bylaw. The

LDS Church has been the subject of two prior zoning

decisions of the Board, both involving the construction of

parking facilities for the Church’s meetinghouse.*

2 In approving the Amended Application, the Board’s

decision is that the LDS Church be allowed to build in

accordance with the Amended Application and not in

accordance with the Original Application.

3 The meetinghouse is where the Church has conducted its

religious services since the mid 1980’s. Temples and

meetinghouses are different structures, serve different persons

and have different purposes.

54a

THE ORIGINAL APPLICATION - TEMPLE DESIGN

WITH SIX STEEPLES

As described in the Original Application, the Temple

would have contained six (6) spires. All of these spires

would be more than 12 feet above the Temple’s building

height. This created the need for Board consideration,

because the maximum building height allowed by right

under the Bylaw is 60 feet (according to the original

material submitted to the Board, the Temple height mea-

sured in accordance with the Bylaw was slightly more

than 58 feet - in the revised plans submitted in Septem-

ber, the building height was shown as 59 feet*) and the

Bylaw permits, by right, uninhabited projections like

steeples or spires to exceed the height of the building by

the greater of 10 feet or 20% of the building height.

As described in the Original Application, the spires

were designed in two groups of three, one group of three

on the east facade and the other group on the west

facade. The central spire on the east would be the highest,

its last 12 feet of which would be a religious symbol of

significance in Mormon theology, the Angel Moroni. The

west central spire would be the next highest and the

remaining four steeples would be the same height. Dur-

ing the hearing process on the Original Application, the

LDS Church downsized the proposal somewhat, reducing

the proposed height of the east central spire from 156 feet

4 Technically, if the building height were 59 feet, the

allowable by right height of an uninhabited projection thereon

would be 11.3 feet, not the 12 feet discussed throughout

hearings on the Original Application, resulting in the need for

relief at the height of 70.8 feet, not the 72 feet discussed

throughout such hearings.

gh ib we SIS AND tn te tr nis Ais” aS cy i eins eta ipa 8p ey uct le nlanaiaa

55a

to 139 feet and the proposed height of the four lowest

spires from 82 to 76 feet. The west central spire remained

at 92 feet.

PUBLIC HEARING PROCESS

A public hearing was scheduled for July 8, 1996 in

the Belmont High School auditorium. Public proceedings

on the Original Application were then conducted in fur-

ther public meetings on July 22, August 7 and 12, Septem-

ber 18, October 3, 8 and 23. Following the close of public

testimony, the record was kept open to allow submission

of public written comment until November 1, 1996.

Sitting for the Board and attending all hearings, both

on the Original Application and the Amended Applica-

tion, were Chairman John W. Gahan, III, William D. Chin,

Thomas P. Callaghan, Jr., Carlo Tagariello and Anthony

Leccese. The Church was represented by its legal counsel,

Philip J. Notopolous. Esq., its architect, Richard Kobus

and LDS Church Bishop, Grant Bennett. By the time the

public hearing process had started, a number of con-

cerned citizens from Belmont and Arlington (the “Neigh-

bors”), many of whom were either abutters to the

Property or parties in interest, had formed a group

opposed to the Temple proposal. The group (the “Neigh-

bors’ Opposition” or the “Opposition”) was represented

by attorneys Arthur P. Kreiger and Ruth H. Silman of

Anderson & Kreiger LLP.

From the outset, the Temple proposal was contested.

While the sole area in which the Church proposed some-

thing not fully compliant with the Bylaw was in the area

56a

of steeple height, the public record abounds with testi-

mony on subjects such as lighting, blasting, compliance

with state codes, Massachusetts Environmental Protection

Act, ownership of the Route 2 access road,> displacement

of animals, shadow studies, traffic analysis, and eccle-

siastical architecture.

Ultimately, the only issue to be decided by the Board

relative to the Original Application was whether to allow

the Church relief to permit the Church to build the Tem-

ple with six steeples, the heights of which would exceed

72 feet. Necessary to the Board’s consideration were the

extent of the Town’s reasonable regulation under G.L. c.

5 The question of who owns the access road (Frontage

Road) abutting the Church property was linked to the question

of a curb cut permit. If the Commonwealth owns the fee, the

curb cut permit would be issued by the state and the provisions

of MEPA might apply.

The material submitted to the Board by the Church suggests

that the Town owns the access road. Historically, the Town has

disputed that conclusion and the Neighbors raised the issue of

ownership at the public hearings. .

The Board is not a Land Court and is not empowered to

decide issues of ownership or boundary disputes. However,

based on the materials in the record of this proceeding, the

Board has determined that the Church is entitled to the relief it

has applied for and should be permitted to build the temple

according to the plans submitted to the Board. Provided the

final plans submitted to other Town officials with respect to

access to the Property are in accordance with the plans reviewed

and approved by the Board and in all other respects in

compliance with other municipal regulations, the Board sees no

reason that other Town permits, including curb cut permits,

shall not be issued. Someone wishing to challenge the Church’s

right to access its Property in the manner presented to the Board

must do so in another forum.

57a

40A, §3, which, as explained below, deals with the appli-

cation of zoning laws to religious uses, the interplay of

G.L. c. 40A, §3 with Section 7.4.2 of the Bylaw which

allows the Board to grant special permits for height of

projections like steeples, and the extent and exercise of

the Board’s authority to approve a specific steeple height

greater than the Bylaw dimensional norm.

On December 3, 1996, following the submission of

detailed memoranda from the LDS Church and the Oppo-

sition, the Board conducted its public deliberations. All

five members of the Board decided that limiting steeple

height to twelve feet above building height (the by-right

limit imposed by the Bylaw) would be unreasonable and

therefore that the LDS Church was entitled to relief from

the Bylaw. However, one member of the Board felt that

the specific relief sought in the Church’s Original Appli-

cation was excessive and voted against the specific relief

sought in the Church’s Original Application was exces-

sive and voted against the specific relief sought in the

Original Application. The remaining four members, a

sufficient number to grant relief, voted to approve the

Original Application with conditions.

What follows sets forth the Board’s findings and

reasoning with respect to the Original Application. Much

of the board’s reasoning applies to the Amended Applica-

tion as well as to the Original Application. The substance

of the Amended Application and the Board’s vote thereon

are set forth at pages 21 through 27.

58a

THE RELIEF REQUESTED

In both the Original and the Amended Applications,

the LDS Church has asked for two types of zoning relief:

(1) a special permit under Section 4.2.2 of the Bylaw to

permit the height of the uninhabited steeples to be in

excess of that permitted by right under the Bylaw and (2)

a determination that the height restriction in the Bylaw

should not be applied to the Temple under G.L. c. 40A,

§3. The Church and the Neighbors addressed both issues

at the public hearings. For reasons set forth below, the

Board feels the seminal issue involves G.L. c. 40A, §3 and

that this issue should be addressed first.

HEIGHT REGULATION UNDER THE BYLAW

The height of structures in Belmont is addressed in

the Intensity Regulations and the Schedule of Dimensional

Regulations (Section 4.2) (the “Schedule”) contained in the

Bylaw. Reference to the Schedule shows that the “Maxi-

mum Building Height” varies, both in feet and number of

stories, according to the district and is also affected by

the ability to set buildings farther back from street and lot

lines than the required minimums.

Section 4.2 of the Bylaw provides that, in an SR-A

district, building height is limited to 36 feet and 2 1/2

stories. Footnote 5 to the Schedule allows greater build-

ing height if a structure is set back from lot and street

lines more than ten (10) feet in excess of the Bylaw’s

setback requirements. However, Footnote 5 of the Sched-

ule also states that, even with greater setbacks, building

59a

set its Temple back sufficiently on an unusually large (for

the district) lot so as to make 60 feet the allowable build-

ing height for its building. Simply put, the Church needs

no zoning relief to build to a building height of 60 feet.

Footnote 1 to the Schedule says

Chimneys, towers and other projections not

used for human occupation may exceed the

height limitations herein provided that, . . . any

such projection above the building height

exceeding 10 feet or 20 percent of the building

height, whichever is greater, shall be allowed by

special permit only.”

permitted provided the building setback from each street and

lot line exceeds otherwise applicable requirements by 10 feet

plus one foot for each foot of excess height, but in no case shall

building height exceed 60 feet.”

7 The 10 feet or 20% limitation is the amount ABOVE THE

ACTUAL BUILDING HEIGHT (not above the maximum

permissible building height).

Prior to 1982, the Bylaw contained a specific exemption for

the height of spires and other projections; there was no 10 feet or

20% provision and there was no regulation whatsoever of the

height of steeples. The Board has found no evidence whatsoever

that, at the time of the change in the bylaw, there was any public

debate about regulating the height of religious structures and in

the absence of such, we will not assume a specific intent to

regulate steeple height. In fact, since the ward “spires” was

included in the specific exemption but not included in the

amendment which sought to regulate height of uninhabited

projections, one could conclude that there was no desire to

regulate the height of spires at all. Debate about the intent of

Town Meeting may be interesting; it is not critical to the Board’s

decision given the Board’s findings and conclusions.

60a

The steeples proposed by the Church are towers or other

projections not used for human occupation. The Church

would need no relief if it limited the height of the stee-

ples to 20% of the building height. With respect to the

Original Application, the projection height allowed by

right was 12 feet; in the Amended Application, because

building height had been reduced to 56 feet, the projec-

tion maximum was 11.2 feet.

Height regulations in Belmont are keyed to zoning

districts and use.§ The Bylaw does not mandate an abso-

lute maximum height (building plus uninhabitated pro-

jection thereon) which cannot be exceeded.?

THE DOVER AMENDMENT

In pertinent part. G.L. c. 40A, §3, second paragraph

States:

No zoning . . . by-law shall . . . prohibit, regulate

or restrict the use of land or structures for reli-

gious purposes or for educational purposes on

land owned or leased by the commonwealth or

any of its agencies, subdivisions or bodies poli-

tic or by a religious sect or denomination, or by

a nonprofit educational corporation; provided,

8 Height regulations in Belmont presumably were

determined in part by consideration of the allowable uses in a

district. For example, heights of buildings in business districts

are lower than in residential districts; heights in apartment

house districts are higher, reflecting the reality that apartment

houses are generally several stories tall.

° Even if the Bylaw did establish an absolute maximum,

G.L. c. 40A, § 3 would require a determination of the

reasonableness of a proposed height.

6la

however, that such land or structures may be

subject to reasonable regulations concerning the

bulk and height of structures and determining

yard sizes, lot area, setbacks, open space, park-

ing and building coverage requirements.

The purpose of this statute, especially the “reasonable

regulations” language, is to prohibit unreasonable regula-

tion of religion and education while, at the same time,

“honoring legitimate municipal concerns that typically

find expression in local zoning laws.” Trustees of Tufts

College v. Medford, 415 Mass. 753, 757 (1993). As stated in

Tufts, the key is to strike a “balance.”

Commonly known as the Dover Amendment (and in

this decision referred to as the “Dover Amendment” or

simply “Dover”), the cited sentence stands for two over-

arching principles. First, Towns may not prohibit or

restrict the use of land or structures for religious or

educational purposes. For example, a local bylaw cannot

say there shall be no churches or schools in a residential

zone. Second, municipalities are empowered to regulate

certain specified subjects. Implicit in the itemization of

what may be regulated is that other subjects may not be

regulated.

Most of the case law interpreting the Dover Amend-

ment focuses on the interplay between absolute zoning

requirements and the concept of reasonable regulation.

From an analysis of the case law, several points become

clear:

1. Facially neutral zoning laws do not automat-

ically survive examination;

2. Reasonable regulations can survive chal-

lenge;

62a

3. Questions of reasonableness are fact speci-

fic;

4. One challenging the reasonableness of a reg-

ulation, facially neutral, bears the burden of

proving the unreasonableness;

5. One challenging a regulation should be

required to show that the regulation as

applied would substantially diminish the

religious purpose of a proposal while at the

Same time not advancing in an appreciable

manner the legitimate municipal concerns in

regulating a particular subject.

The Church has requested relief pursuant to G.L. c.

40A, §3, seeking a determination that the Bylaw’s height

limitations are an unreasonable infringement and the

Board should not impose the Town’s Bylaw limitation on

the Church.

UNDER DOVER, THE BOARD MAY DO THE REGULAT-

ING

Dover does not say who should regulate or decide

“reasonableness”; the statute merely says municipalities

may regulate. Regulation in the zoning area is usually

done by 4 zoning bylaw, which establishes a standard, by

a building inspector who enforces the bylaw and by a

permit granting authority which reviews decisions and/

or grant exceptions or relief. The long, standing practice

in Belmont has led educational and religious institutions

to have their proposals, if not fully compliant with the

Bylaw, reviewed by the Board of Appeals. Churches and

Us APSO RGIAST RG IAS ele tad 2 \ Fas it SP ar Wi eric ae ia if le

63a

schools both have come to the Board for relief.!° Since the

Church submitted the matter to the Board, it is proper

that the Board decide the issue of reasonableness.1!

THE DOVER INQUIRY STARTS WITH THE BYLAW

The question of whether a Board should start its

inquiry as to reasonableness by looking to its general

regulations is a subject of prior court comment.!2 In an

10 In Belmont, issues arising under G.L. 40A, § 3

traditionally have been reviewed by the Board of Appeals, as

the building inspector, the enforcement officer under the Bylaw,

has referred the matters to the Board rather than making the

decision as to reasonableness himself.

1) Campbell v. City Council of Lynn, 415 Mass. 772, decided

the same day as Tufts, addressed the issue of whether the statute

“conferred on the Lynn zoning officials discretion not to apply

provisions of (the local ordinance) concerning bulk,

dimensional and parking requirements that might otherwise

pertain.” The court concluded that some requirements could not

be applied and others “should be reconsidered by the board.”

Thus, in Campbell, the Supreme Judicial Court endorsed the

concept that the local board could be the arbiter of

“reasonableness” and, in its order of remand, sent the case back

to the local zoning board to determine if the building

commissioner’s decision was correct.

‘2 The problem of applying facially neutral regulations to

exempt use was one recognized when G.L. c. 40A, § 3 was being

amended. Report, 1972 House Doc. No. 5009 stated “The

proposed language (on reasonable regulations) would

specifically authorize the imposition of reasonable

regulations . . . Ideally, this should be accomplished by adopting

regulations specifically designed to apply to uses protected by

the Dover amendment . . . thus avoiding the problem of

attempting to apply the same regulations to the protected uses

as ordinarily apply to other permitted uses in the zone. For

64a

early case, decided under the law in effect before the

Dover proviso was added, the Supreme Judicial Court

(the “SJC”) stated “ ... it is unlikely that the Legislature

would exempt religious institutions from local regula-

tions of use and at the same time (require) that such

institutions construct their buildings on dimensions

applicable to single family houses.” Sisters of the Holy

Cross of Massachusetts v. Brookline, 347 Mass. 486, 494

(1964). Later, after the pr. viso was added, a trial court

judge quoted in Campbell v. City Council of Lynn, 415 Mass.

772 (1993) said to apply general regulations “is permis-

sive at best and suspect at worst.” The Appeals Court in

Campbell had said that a local board has the absolute right

to ignore the rules of general applicability. 32 Mass. App.

Ct. at 156-157. That statement went too far and the SJC

reversed, saying “local officials may not grant blanket

exemptions. .. . ” Campbell, 415 Mass. 772, 778. From the

Tufts and Campbell decisions, it is clear that, although

municipalities may establish separate regulations for

exempt users, they are not required to do so.}%

Nonetheless, the Board believes that, as it tries to

accomplish the balance cited in Tufts, a good place to start

is with the local bylaw. A town “may, through the mecha-

nism of its zoning bylaw, consistent with G.L. c. 40A,

example, instead of attempting to apply residential dimensional

regulations to churches or schools located in a residential zone,

the bylaw or ordinance should establish dimensional

regulations specifically applicable to churches or schools

located in such zones.”

13 “We reject the suggestion that only local zoning

requirements drafted specifically for application to (religious)

uses are reasonable with the Dover amendment.” Tufts, p. 760.

65a

§3 ... impose dimensional requirements.” The Bible Speaks

v. Board of Appeals of Lenox, 8 Mass. App. Ct. 19, 30 (1979)

(upholding dimensional regulations of the bylaw, while

invalidating the requirement that the applicant receive a

special permit for its use).

Before an applicant seeking relief under Dover can be

faced with the burden suggested in Tufts College v. Med-

ford, it must be faced with a regulation, a standard, an

obstacle where a Church’s plans for use of its property

run afoul of a local rule. The “rule” in Belmont which is

implicated in the case of the Mormon Temple is that all

uninhabited appendages on top of a building which

extend ten (10) feet or 20% of building height above the

actual building height, must go to the Board of Appeals,

regardless of the user, regardless of the use or purpose

and regardless of the total height achieved. The rule

applies equally to chimneys on single family residences

and steeples on churches. The Church’s desire to have

steeples higher than 12 feet above the building height is

what brings Dover and Section 7.4.2 of the Bylaw into

play.

THE APPLICATION OF DOVER

“The reasonableness of a local zoning requirement, as

applied to a proposed (religious) use, will depend on the

particular facts of each case.” Tufts, p. 759. So “a local

zoning provision . . . may be enforced, so long as the

provision is shown to be related to a legitimate municipal

66a

concern, and its application bears a reasonable relation-

ship to the perceived concern.”'4 How a municipality

chooses to regulate is in some sense a reflection of the

degree of local interest in a particular subject.

Building height is a legitimate municipal concern and

a proper subject of zoning regulation. The Bylaw reflects

that concern by establishing a maximum building height

of 60 feet. The Church does not ask to exceed that limit.

Footnote 1 of the Schedule suggests some municipal con-

cern with respect to projections above building height but

contemplates exceeding of the height and reflects a desire

that the board decide what height may be appropriate on

a case by case basis under the special permit sections of

that Bylaw. The Board questions, however, whether there

is any legitimate municipal concern involved in regulat-

ing the height of steeples on churches.

The Neighbors have repeatedly framed the question

they feel is the appropriate one: is it unreasonable for the

LDS Church to adhere to the Bylaw limitation on height?

Put differently, does adherence to the Bylaw height lim-

itation unreasonably impact the religious use of the struc-

ture by the Church?

Most of the objections have been to the total height,

i.e., the building height plus the steeple height. The

building height is allowed by right. The Board concludes

that the focus must be on steeple height.

'4“Facially neutral requirements cannot be applied to

(religious) uses without further inquiry into the outcome

produced by such an application.” Tufts, p. 759, n. 6.

67a

IS THERE RELIGIOUS PURPOSE ATTENDANT TO THE

STEEPLES?

The first test under the Dover Amendment is

whether the land or structure is being used for a religious

purpose. Not all uses of land or structures by a religious

group have a religious purpose. If there is no use of land

or structure for religious purpose, the protection of Dover

disappears and, with respect to this proposal, the Church

would be, like any other property owner in Town, subject

to zoning relief only by special permit granted in accor-

dance with Section 7.4.2 of the Bylaw.

During the hearings the Board asked whether, as part

of core Mormon religious principles, an LDS temple must

include steeples or spires of a specified height. The

answer rather obvious in light of the varied dimensions

of LDS temples worldwide, was “No.” Thereafter, at

every turn, the Opposition hastened to emphasize that

the steeples, their number and their height, were not

essential to the practice of the LDS religion and thus the

specific proposal in Belmont as it related to height was

not entitled to protection under Dover. Therefore they7

conclude that limiting the spire height would not nullify

the ability of Mormons to practice their religion and

hence the limit should be upheld. The law, however, does

not view religious purpose quite so narrowly.

Clearly, the specific height of the highest steeple is

not a matter of religious principle. This does not, how-

ever, mean there is no religious “use” or “purpose” atten-

dant to a steeple. The lack of human occupation in a spire

may mean no activity is conducted in the steeple itself;

but it cannot be said that no religious use is made thereof.

68a

G.L. c. 40A. § 3. after all, talks of the “use of structures for

religious purposes (emphasis supplied).” “Religious pur-

pose . .. means something in aid of a system of faith and

worship ...” “Religious activity . . . involve(s) more than

prayer and worship.” Needham Pastoral Counseling Cen-

ter, Inc. v. Board of Appeals of Needham, 29 Mass. App.

Ct. 31, 33, 37 (1990).

Mormons believe that the design of a temple is

revealed to those in Priesthood administration at a point

in time. The specific design of Morman temples varies

according to the influence and direction of the Presi-

dency. Revelation from their God to the earthly messen-

gers (the Mormon Priesthood) is a fundamental tenet of

the Mormon religion.!> To be sure, one need not elevate

the Mormons’ belief in revelation to the level of a direct

heavenly message of specific height. But neither may the

Board ignore the fact that the Mormons believe that their

Priesthood must decide what to build.

Temples, to Mormons, are very different from parish

churches, in structure as well as religious purpose, and

the function of a Temple is not fulfilled in a Mormon

meetinghouse. Temples are rarer than meetinghouses;

there are fewer than 100 temples worldwide, contrasted

with over 11,000 meetinghouses. Temples are buildings

specifically constructed for and limited to the practice of

the most sacred of Mormon ceremonies. Temples are built

because the Mormons have been instructed to do so.

15 The House of the Lord, p. 92, by James E. Talmage,

published by Deseret Book Company, Salt Lake City, Utah, 1969.

69a

It is clearly part of Mormon theology to reflect, in

their buildings, the belief of an ascension towards

heaven. In Mormon faith, temples are built vertically,

with ascending levels bringing the faithful practitioners

closer to their God. Baptism, in traditional Christian reli-

gions a rite of originating belief, occurs on a lower level.

The Celestial Room, representing heaven, is on the high-

est level. In the Amended Application, the assembly

Room which in the Original Application had been on the

same level as the Celestial Room has been moved below

grade; the Celestial Room remains the highest inhabited

area of the temple.

Steeples and spires point towards heaven; they raise

our eyes upward and, in most religions, looking upward

is looking towards God. Even if not all Belmontians

believe this, the important point is that members of the

Latter-day Saints Church do.

_ The spires serve the purpose of lifting Mormons’

eyes and thoughts towards heaven. In the Mormon faith,

the Angel Moroni, a heraldic figure whose likeness would

be atop the highest spire calls upon Mormon practitioners

heavens and the ground, where worshippers gather,

reminds Mormons that, as they look upward toward their

God, there will be a succession of God’s clarions calling

1¢ “The restoration of the Gospel is symbolized by the

Angel Moroni set atop the spire of the center tower of the cast

facade.” The Salt Lake Temple, A Monument To A People,

published by Deseret Book Company, Salt Lake City, p. 144.

Appendix B submitted to the Board by the Applicant on

November 15, 1996.

70a

them forward. The Angel is one. The six spires represent

the LDS Priesthoods, who are the human messengers of

God. The spires are emblematic of the Priesthood’s

authority on earth.

Temple building reflects a then current Priesthood’s

thinking as to how best to incorporate the principles of

their faith in a building to honor their God. With regard

to the six steeple Temple presented in the Original Appli-

cation, it was Brigham Young who said that there should

be six spires and further described their east/west orien-

tation and relative height.

The law suggests that there needs to be “a degree of

accommodation between the protected uses . . . and mat-

ters of critical municipal concern...” Trustees of Tufts, 33

Mass. App. Ct. 580 (1992) (cited with approval in Tufts,

415 Mass. 753 (emphasis supplied)). However, the Board

finds no critical municipal concern with steeple height.!7

It is hardly accommodating to a protected use to limit the

Church to a 12 foot projection.

In the Board’s judgment, steeples serve a religious

purpose, whether or not specific activities associated with

17 Until 1982, the Bylaw exempted spires (and other

projections) from the height limitations affixed to buildings.

When the Bylaw changed, there is no recorded indication that

the change resulted from a municipal concern with steeple

height. Indeed, the fact that the ward “spire” was eliminated in

1982 from the list of projections limited to 10 feet suggests, if

anything, that Town Meeting intended spires to be treated

differently from other projections. If the reason the Bylaw was

changed was in response to a new perceived municipal concern

with steeple height, it is quite doubtful that the word “spire”

would have been dropped from the text.

7la

religion are practiced therein. While the “use” may be

more symbolic than functional the symbolism is nonethe-

less real and, in the Board’s view, worthy of consideration

as part of a religion.'®

That LDS temples exist without spires does not mean

the spires are superfluous or devoid of religious meaning.

Nor can the Board ignore the religious symbolism of

spires just because temples exist without them. Can the

Mormon religion be practiced in a temple with fewer

than six spires, with steeple heights of less than 140 feet?

Yes. But that is not the question.

The Board finds that Steeples and spires, and the

religious symbols that adorn many of them, have reli-

gious purpose, whether or not specific activities associ-

ated with religion are practiced therein. That purpose

may be more symbolic than functional but symbolism is

part of religion and therefore worthy. of protection.

Therefore, the Board concludes that there is religious

significance and purpose in the design of the Temple and

that the specific design selected for Belmont is consistent

18 The symbolism attendant to high projections is not

limited to churches, Daniel Webster once said of the Bunker Hill

Monument,

“We wish that this column rising towards heaven

among the pointed spires of so many temples

dedicated to God, may contribute also to produce in

all minds a pious feeling of dependence and

gratitude. We wish finally that the last object to the

sight of him who leaves his native shore and the first

to gladden his who revisits it, may be something

which shall remind him of the liberty and the glory of

his country.”

72a

with Mormon tradition and theology. This finding applies

equally to the Original Application as well as to the

Amended Application.

HEIGHT AND THE EFFECTS OF HEIGHT

Height is a matter of allowable, reasonable regulation

under Dover. Height is also a subject regulated by the

town’s Bylaw, thereby evidencing a municipal concern

relative to the consequences of unrestrained height.

Finally, the height of uninhabited projections above a

building is a matter regulated by special permit in Bel-

mont, evidencing a perceived need to control on a case by

case basis but not necessarily to prohibit on an absolute

basis. :

As one matter of municipal concern, boards should

be concerned with safety. Cited throughout the hearing

process as a safety concern was the question of whether

fire fighting equipment could reach the height of the

proposed steeple. No ladder in Belmont could, but the

area of the temple above 60 feet is uninhabited so there

would not be a life safety issue. The Town’s Fire Depart-

ment confirmed that all habitable portions of the Temple

are accessible to life safety equipment. Questions were

also raised as to the effect of the Temple’s height on air

traffic in the vicinity of the Temple. The Church submit-

ted, and the Board accepts, a letter from the Federal

Aviation Administration that even at a height of 156 feet

(the original highest point of the spire) there was no

hazard to air navigation nor was there any need for

warning lights.

I SR Wi Bee

Oe ED BIOTA ASA CASES ot

eee

73a

Height also relates to visibility and to a lesser extent

aesthetics. The greater the height, the greater the visi-

bility. At night time, it is the lighting imposed by the

Church itself and other ambient light (cars passing on

Route 2, moonlight, etc.) which makes the Temple and

particularly its spire(s), visible. Churches should be visi-

ble and the identification of a structure as a church result-

ing from the adornment of the structure with a cross or

an angel is part of the religious belief which the Board

finds has religious purpose, protected under Dover.

The principle objections by the Neighbors with

regard to the steeples were visual consequences; lighting

and shadow effects. Much information was presented on

the visual consequences of the Temple and the steeples,

ranging from shadow studies to detailed analysis of light-

ing. The by-right building has visual consequences, many

of which Neighbors object to, and which could only be

“ameliorated” by the Church not building what it has an

absolute right to build, a massive sixty foot edifice atop a

hill with additional projections of some height. It is not

the spires, but the building, which is the root of most of

the Neighbors’ objections, but it is the height of the spires

not the building which is the only subject of the Board’s

jurisdiction.

Lighting on the Temple will comply with Town stan-

dards and the board cannot and will not require more of

this church than it requires of other churches in Town. All

nonsecurity lights will be turned off at 11:00 p.m., just

like other Belmont churches. Other churches are lighted

after dark, including ones in residential zones and includ-

ing ones which tower over their very close residential

neighbors. This church will be treated no differently. The

74a

Church is more than 300 feet from its closest residential

neighbor. Spillover lighting is not an issue — there will be

none or, if there is, the Bylaw limitation will be enforced.

As to surface brightness, the Church has said it will be

“like other Belmont churches.”

A public safety issue was raised as to “black ice” on

Route 2 by those who speculated that shadows cast by

the Church would promote more black ice on the hills of

Route 2 and lead to more accidents. The Board finds such

argument purely speculative and not supported by cred-

ible evidence of a scientific nature.

STEEPLE HEIGHT

The Board was presented with much detail compar-

ing the height, mass and lighting of the proposed Temple

to those of other religious structures, both in Belmont and

surrounding communities. Certain comparisons made by

the parties at the hearings were irrelevant. For example,

both parties focused on the LDS Temple in Washington,

D.C. It is taller than the proposed Temple by more than

100 feet, it is lighted at night, it has a visitor’s center, it

attracts tourists — it is exactly what the Neighbors’ Oppo-

sition do not want to see on Belmont Hill. On the other

hand, the Washington temple is much more visible from

the highway than it is from abutters’ properties. There

has been no discernible drop in property values in the

area around that temple and the traffic (much more than

is predicted for Belmont) does not create gridlock in the

abutting residential neighborhoods. But Washington D.C.

is not Belmont and the Church did not ask to replicate

that temple and place it on Belmont Hill.

75a

There was also a plethora of information submitted,

again by both sides, as to other Morman temples built in

the United States. LDS temples exist with no spires; many

have but a single spire. Temples built in the last twenty-

five years have had steeple height ranging from 90 feet to

nearly 300 feet, according to information supplied by the

church. Ten temples have been built in the United States

since 1983. The temple in San Diego has ten spires and is

in a commercial district. Five temples have six spires,

with average steeple height (we assume of the tallest

steeple) of 120 feet, ranging from 95 feet to 169 feet. Four

temples have one spire, ranging from 90 feet to 176 feet

and averaging 130+ feet.

The parties also compared the Temple to other

churches in Belmont and in the surrounding area. The

Mormons focused attention on churches built a long time

age which have building height and spire height in excess

of those proposed by the LDS. The Opposition focused

attention on the mass of the proposed Temple and on the

fact that, in their view, the Temple would be out of scale

with its surroundings.

While comparisons are often misleading, the Board

did find two comparisons helpful: steeple height relative

to occupied building height or “proportionality” and dis-

tance from abutters. In Belmont (as well as in many

surrounding communities), the heights of spires on

churches relative to the height of the occupied building

were in a broad range but it was not uncommon to find

ratios of 1:1. in other words, the height of the spire is the

same as the height of the building, thereby doubling the

total height of the structure measured from the ground to

its highest point. It is not unusual nor in the Board’s

76a

judgment unreasonable, for spire height to in effect dou-

bles the total height of the structure. This is true of some

Belmont churches which (a) abut residential property and

(b) have ground elevation higher than their residential

neighbors. These other Belmont churches generally are

not considered out of place, and the proportionality of

their steeple height to building height appears proper.

The conclusion drawn by the Board is that propor-

tionality of building height and steeple height should be

a factor to consider when deciding what is a reasonable

height regulation. With respect

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.