Opposition Brief — Boyajian v. Gatzunis
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No
Supreme Court, U.8.
FILED
@ NOV 22 2900
. 00-452 : |
Jn the Supreme Court of the Gaited ts
MARGARET BOYAJIAN, ET AL., PETITIONERS,
v.
THOMAS GATZUNIS, ET AL., RESPONDENTS.
On Petition For A Writ Of Certiorari To The
United States Court Of Appeals For The First Circuit
BRIEF FOR RESPONDENTS IN OPPOSITION
VON G. KEETCH
ALEXANDER DUSHKU
Kirton & McConkie
1800 Eagle Gate Tower
60 East South Temple
Salt Lake City, Utah 84111
(801) 328-3600
MICHAEL W. MCCONNELL
Counsel of Record
STEFFEN N. JOHNSON
Mayer, Brown & Platt
190 South La Salle Street
Chicago, Illinois 60603
(312) 782-0600
PAUL KILLEEN DAVID C. HAWKINS
EDWARD J. NAUGHTON PAUL R. MORDARSKI
Holland & Knight LLP Morrissey, Hawkins & Lynch
One Beacon Street Two International Place
Boston, Massachusetts 02108 Suite 3500
(617) 523-2700 Boston, Massachusetts 02110
(617) 345-4500
Counsel for Respondents
“Yu2eC
QUESTION PRESENTED
Whether the Establishment Clause permits a State to enact a
law protecting a variety of sometimes unpopular land uses —
including schools, agriculture, child care centers, homes for the
disabled, solar energy facilities, certain antennae, and houses of
religious worship — from exclusionary zoning by local officials.
i
RULES 29.6 AND 14.1 STATEMENT
Respondent Corporation of the Presiding Bishop of The
Church of Jesus Christ of Latter-day Saints has no parent
corporation and issues no stock.
Petitioners are Margaret Boyajian, Charles Counselman, and
Jean Dickinson.
Respondents are:
Corporation of the Presiding Bishop of The Church of Jesus
Christ of Latter-day Saints;
Thomas Gatzunis
John W. Gahan III
William D. Chin
Thomas P. Callahan, Jr.
Carlo Tagariello
Anthony Leccese
James D. Harrington
Charles H. Reardon
Karl Tobiason
eee
TABLE OF CONTENTS
RPUebe RUAPUN WWRUSIIUEEUEEEEP cc ee wee ctw nsss
RULES 29.6 AND 14.1 STATEMENT ............
SiAtomens OF tre CASE... ri eu,
A. | The Church Seeks Approval To Build A
Temple In The Town Of Belmont .........
B. — The Construction Of The Temple And The
Subsequent Filing Of This Lawsuit ........
C. TheDover Amendmem.................
ae
E. eee eee eee
REASONS FOR DENYING THE PETITION ......
A. The Petition Rests On A Fundamental
Mischaracterization Of The Statutes .......
B. The Petition Amounts To A Request For An
ER ee te ere
C. ‘The Petition Fails To Satisfy Any Of The
Traditional Criteria For Certiorari Review ...
D. The Dover Amendment And The Bylaw Do
Not Violate The Establishment Clause..... .
I As Gi eee SS Br
Iv
TABLE OF AUTHORITIES
Page
Cases:
Attorney General v. Dover, 100 N.E.2d 1 (Mass. 1951) .. 28
Beal v. Building Comm’r, 234 N.E.2d 299 (Mass. 1968) ... 20
The Bible Speaks v. Board of Appeals, 391 N.E.2d 279
Ce: FG Te Oo AR OE cee 19
Board of Appeals v. Housing Appeals Committee, 294
Mo.ae seo cree rae. ocak eee SS 28
Bowen v. Kendrick, 487 U.S. 589 (1988) .............. 23
City of Worcester v. New England Institute,140 N.E.2d
re Ce SOE cw ok ee wees See 6, 14
Cohen v. City of Des Plaines, 8 F.3d 484 (7th Cir. 1993) ... 22
Commomeealth v. Gagnon, 443 N.E.2d 407 (Mass. 1982) .. 19
Community of Jesus, Inc.v. Cape Cod Comm'n, Civ. A. No.
92-341 (Barnstable Super. Ct. Feb. 11, 1993) .... 7, 16
Corporation of Presiding Bishop v. Amos, 483 U.S. 327
(Ly See Orr ee er eray: 10, 12, 21, 25
Cross v. Planning Bd., 189 N.E.2d 189 (Mass. 1963) .... 20
Davenport v. Broadhurst, 406 N.E.2d 1030 (Mass. App.
CR, SRS Foe She Se eee as 18
East Bay Asian Local Dev. Corp. v. State, 81 Cal. Rptr.
2d 908 (Ct. App.), review granted, 977 P.2d 692
ah. PS ch et eo ee a ee eae 22
Ehlers-Renzi v. Connelly Sch. of the Holy Child, Inc.,
224 F 36 203 CGM. FOO ok ok eek es 22
Vv
TABLE OF AUTHORITIES—Continued
Page
Everson v. Board of Educ., 330 U.S. 1 (1947).......... 23
Forest Hills Early Learning Center, Inc. v. Grace
Baptist Church, 846 F.2d 260 (4th Cir. 1988) .... 21
Gillette v. United States, 401 U.S. 437 (1971).......... 24
Green v. Richmond, 29 N.E. 770 (Mass. 1892) ......... 17
Hewitt v. Helms, 482 U.S. 755 (1987) ................ 20
Hunter v. Pittsburgh, 207 U.S. 161 (1907) ............ 28
Lemon v. Kurtzman, 403 U.S. 602 (1971) ......... 8, 18, 24
Lemon v. Kurtzman, 411 U.S. 192 (1973) .......... 18, 19
Levi v. Worcester C.S. Ry., 78 N.E. 853 (Mass. 1906) ..... 18
Loughlin v. Wright Mach. Co., 173 N.E. 534 (Mass.
ey ROO, PO TE ND i NM NEE amy 17
Lubavitch Chabad House, Inc. v. City of Evanston, 445
ke oe ee Re 7) res 26
Lynch v. Union Inst. for Sav., 34 N.E. 364 (Mass. 1893) ... 18
Michigan v. Long, 463 U.S. 1032 (1983) ............. 20
Mitchell v. Board of Selectmen, 190 N.E.2d 681 (Mass.
eo og OE OE AE a Oe CAE aN ener 20
Mueller v. Allen, 463 U.S. 388 (1983) ............. 23, 24
Opinion of the Justices, 168 N.E. 536 (Mass. 1929) ....... 19
Peters vy. Archambault, 278 N.E.2d 729 (Mass. 1972) .... 19
vi
TABLE OF AUTHORITIES—Continued
Page
Petrucci v. Board of Appeals, 702 N.E.2d 47 (Mass.
WO: GE FOO 3.3 ok ean ees 14
Radcliffe College v. City of Cambridge, 215 N.E.2d 892
SN: SOEs i565 PERS es 7, 16
Rector, Wardens, & Members of Vestry of St.
Bartholomew’s Church v. City of New York, 914
Pe re Cae GG. Be bss hese osc ee 21
Rogers v. Town of Norfolk, 734 N.E.2d 1143 (Mass.
SET eee hr Pe A PE OE 6, 14
Sisters of Holy Cross v. Town of Brookline, 198 N.E.2d
Cp4 Ghems. 1966). oo 05 Ai Ree een 19
Southern New England Conference Ass’n of Seventh-
Day Adventists v. Town of Burlington, 490
N.E.2d 451 (Mass. App. Ct. 1986)........... 7, 16
Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) ...... 23
Trustees of Tufts College v. City of Medford, 616 N.E.2d
ee . ) pees pate mer rare Cau e ch 7, 16
Walz v. Tax Comm'n, 397 U.S. 664 (1970) ... 8, 10, 12, 21, 23
Watros v. Greater Lynn Mental Health & Retardation
Ass'n, Inc., 653 N.E.2d 589 (Mass. 1995) ..... 6, 14
Statutes:
ge UL Oe SS ree errr 28
Mass. Gem. Laws ch. 40 § 25 (1950) .................. 5
Vil
TABLE OF AUTHORITIES—Continued
Page
Mass. Gen. Laws ch. 40A 63 ............... 5, 6, 14, 15
Miscellaneous:
oe AL RSR Cre G4 Cee i. 28 we eee
TRAGER TEA 6 ooiicd 166s Eo SS 8
2 WILLIAM W. BASSETT, RELIGIOUS ORGANIZATIONS
AND THE LAW § 10:15 (1997) .................. 7
DAN B. DoBBs, REMEDIES (1973) ................... 18
Douglas Laycock, State RFRAs and Land Use
Regulation, 32 U.C. DAvis L. REV. 755 (1999) ... 26
Lisa Lipman, Mormons Face Tempest in a Temple: Angry
Suburban Boston Neighbors Want $30 Million
Structure Razed, CHI. TRIB., Sept. 29, 2000, at8 .... 5
Brian MacQuarrie, Old Rivals Tour Mormon Temple:
Kennedy, Romney Offer Warm Praise, BOSTON
ce ee) ee ere 4
Michael Paulson, A Visible Faith for Mormon Church,
Opening of Temple on Hill in Belmont Is
Fulfillment of Dream, ‘Reminder to the World,’
BOSTON GLOBE, Aug. 27, 2000, at Al ........... 4
2 KENNETH H. YOUNG, ANDERSON’S AMERICAN LAW
OF ZONING § 12.22 (4th ed. 1996) ........... 8, 27
BRIEF FOR RESPONDENTS IN OPPOSITION
This case involves an Establishment Clause chalienge to a
provision of Massachusetts law that protects a variety of
sometimes unpopular land uses from exclusionary zoning, and
to a local zoning ordinance that permits religious uses within
residential zones. The District Court and the Court of Appeals
upheld these provisions. Respondents believe those decisions
should not be disturbed and thus respectfully request that the
Court deny the petition for certiorari.
STATEMENT OF THE CASE
A. The Church Seeks Approval To Build A Temple In
The Town Of Belmont
In 1979, respondent Corporation of the Presiding Bishop of
The Church of Jesus Christ of Latter-day Saints (“Church” or
“LDS Church”)' acquired an 8.9-acre lot ina residentially-zoned
area in the Town of Belmont, Massachusetts. The lot borders a
residential neighborhood on the south and the frontage road of
Massachusetts Route 2 — one of Boston’s major highways —
on the north. See http://www.bostontemple.org/directions/
index.html; Pet. App. 53a. The Church has conducted religious
services at a meetinghouse on the property since the mid-1980s.
In 1995, the President of the Church announced a decision
to construct a temple on the property (hereinafter, “the Boston
Temple” or “the Temple”). In LDS religious doctrine, temples
are distinct in structure and function from more typical Church
meetinghouses. For instance, there are roughly 100 temples
worldwide, compared with more than 11,000 Church meeting-
houses. Pet. App. 2a, 68a. In addition, temples and their grounds
' Corporation of the Presiding Bishop of The Church of Jesus Christ
of Latter-day Saints is a religious corporation sole organized under
the laws of the State of Utah for the purpose of holding assets and
conducting the temporal affairs of The Church of Jesus Christ of
Latter-day Saints, an unincorporated religious association. For pur-
poses of this brief, we will not distinguish between these two entities.
2
are not used for conventions, revivals, day care, fund-raisers,
parties, sporting events, or even Sunday congregational worship.
Id. at 68a. They are constructed exclusively for the performance
of the most sacred ceremonies in the LDS faith by the Church’s
most devout members. /d. at 2a, 68a. Thus, unlike cathedrals
and comparably large houses of worship in other denominations,
LDS temples typically are not used for large-scale services for
multitudes of worshipers and the general public, but rather for
smaller sacramental services, conducted in separate rooms and
limited to faithful Church members. /d. at 68a-69a. Church
members believe that the design and location of temples are
revealed by God to the presidency of the Church, whom
members sustain as prophets and apostles. /d. at 68a-70a. The
Boston Temple is intended to serve LDS believers from all over
New England.
Under the governing Massachusetts law (known as “the Do-
ver Amendment”), as well as both the Belmont, Massachusetts
Zoning Bylaw (“Bylaw’) and its predecessor, religious uses are
permitted in areas zoned for residential uses without need for
case-by-case authorization by zoning officials. Such buildings
must comply with all generally applicable land-use restrictions
governing the size, placement, and height of structures, as well
as health and safety, noise, historic preservation, environmental,
parking, lighting, nuisance, fire, and other regulations and laws.
Pet. App. 11a, 44a, 72a. It is undisputed that the Temple, both
as originally proposed and as ultimately constructed, is in com-
pliance with all such laws, with the exception of the height of its
proposed steeple, discussec below. /@. at 9la. As originally
proposed, the Temple would ave had a surface area of 94,100
square feet. Because of the unusually large size of the lot, any
landowner would have had an “absolute right,” under unchal-
lenged portions of the Bylaw, to build a house (or any number
of other buildings) of that size on the property. /d. at 92a.
In May 1996, the Church applied to the Town’s Board of
Appeals (“Board”) for a special permit to exceed the height limit
3
for the construction of six spires or steeples. From the outset, a
few individuals — including but not limited to residents of the
neighborhood — vigorously opposed the Temple on every
conceivable ground at numerous public hearings. Pet. App. 55a,
58a, 66a-67a, 72a-74a, 81a-82a.
The Board ultimately rejected their arguments and voted to
approve the special permit. Pet. App. 57a. Ina gesture of good
will, however, the Church asked the Board to postpone issuance
of its written decision while it considered ways that it might
accommodate some of the opponents’ concerns. /d. at 3a, 52a,
86a-88a.
In February 1997, the Church filed an amended plan for the
Temple that reduced its surface area by 30%, from 94,100 to
68,000 square feet, and eliminated five of its six spires. Pet.
App. 3a, 52a, 92a. As before, the proposal complied with the
Bylaw’s requirements in every respect except for the proposed
height of the single remaining steeple. /d. at 91a. The Church
made numerous other voluntary concessions, including the
routing of all temple traffic through a single frontage road
entrance, eliminating any entry through the abutting residential
neighborhood. /d. at 3a, 87a-88a, 98a. The plan further
contemplated that the Temple would be set back from abutters
by more than 300 feet, except in one instance where the setback
would be 165 feet. /d. at 3a, 74a, 77a, 95a. These distances are
well in excess of the setback required by the Bylaw.
Although a few individuals (including petitioners) remained
opposed to the Temple’s construction, in March 1997 the Board,
acting unanimously, granted a special permit for construction of
a steeple that would exceed the height limit. Pet. App. 95a-96a.
The Board expressly found that the Church’s proposal
“complie[d] with both the letter and the spirit of the Bylaw.” Jd.
at 94a. Respondent Thomas Gatzunis, the Town’s building
inspector, subsequently issued the Church a building permit.
Pet. App. 33a.
4
B. The Construction Of The Temple And The Subse-
quent Filing Of This Lawsuit
Construction of the Temple began in July 1997. C.A. App.
77. In August 1998 — seventeen months after final approval of
the amended plan, thirteen months after construction had begun,
and well after significant progress had been made — petitioners
filed his suit in federal court, challenging the facial constitution-
ality of the state and local zoning laws under which the Temple
was authorized. They did not seek to enjoin further construction
of the Temple pending resolution of their claims, and the legality
of the Church’s building permit has never been challenged.
Accordingly, construction of the Temple, without a spire,’ was
completed in the summer of 2000. See Michael Paulson, A
Visible Faith for Mormon Church, Opening of Temple on Hill in
Belmont Is Fulfillment of Dream, ‘Reminder to the World,’
BOSTON GLOBE, Aug. 27, 2000, at Al.
After a month-long open house in September 2000, when
thousands of visitors toured its interior, the Boston Temple was
dedicated to God by the President of the Church and reserved
solely for the quiet worship of faithful Church members.* After
touring the facility, Senator Edward Kennedy described it as
“magnificent.” See Bran MacQuarrie, Old Rivals Tour Mormon
> In separate state court litigation, petitioner Margaret Boyajian and
other opponents of the Temple have challenged the Board's decision
to grant a special permit for construction of the steeple. See Martin
v. Board of Appeals of Town of Belmont, No. SJC-08398 (pending
before Massachusetts Supreme Judicial Court). Pending resolution
of that litigation, the Temple remains without a spire. That issue is
not raised here.
> The suggestion (Pet. 5) that 100,000 people will visit the Temple
annually is false. The open house attracted tens of thousands of
visitors interested in touring the Temple before it closed to the public.
The Temple is now open only to faithful members.
ee
5
Temple: Kennedy, Romney Offer Warm Praise, BOSTON GLOBE,
Sept. 9, 2000, at B1. Counsel for petitioners has announced that
in the event the Court grants review and overturns the decision
below, they will seek to have the Temple torn down. See Lisa
Lipman, Mormons Face Tempest ina Temple: Angry Suburban
Boston Neighbors Want $30 Million Structure Razed, CHI.
TRIB., Sept. 29, 2000, at 8.
C. The Dover Amendment
The Dover Amendment (Mass. Gen. Laws ch. 40A § 3)*
declares, as a matter of state law, that certain land uses that are
important to the people of the Commonwealth — but potentially
unpopular in certain areas “because of local prejudice unrelated
to their compatibility with the essential nature of the existing
community” — must be treated as permitted uses by local
zoning ordinances. Pet. App. 12a. The Amendment was enacted
in response to a notorious incident of religious discrimination in
1946, in which the Town of Dover, Massachusetts adopted a
bylaw that banned religious schools from all residential
neighborhoods. Four years later, the Massachusetts legislature
passed “An Act Prohibiting Discriminatory Zoning By-Laws
and Ordinances.” See Mass. Gen. Laws ch. 40 § 25 (1950). The
original version of the Amendment represented the legislature’ s
judgment that the best way to combat religious discrimination in
zoning, which frequently is difficult to prove, is to eliminate
case-by-case discretionary zoning decisions regarding religious
land use, and to substitute a state-wide zoning law declaring
religious uses permissible in every district. Pet. App. 17a.
Since 1950, the Dover Amendment has been broadened
many times to withhold local zoning authority over vulnerable
land uses. Pet. App. 6a, 38a. The Amendment now precludes
* For the convenience of the Court, we have reproduced the relevant
state law provision, Mass. Gen. Laws ch. 40A § 3, in its entirety. See
App., infra, la-4a.
6
or limits zoning laws that ban not only religious uses, but also
nonprofit educational uses (whether secular or religious); child
care centers; accommodations for physically handicapped
people; agricultural, horticultural, floricultural, and viticultural
ives; “facilities for the sale of produce, and wine and dairy
products”; “solar energy systems or the building of structures
that facilitate the collection of solar energy”; and antenna
structures, to name a few. Mass. Gen. Laws ch. 40A § 3; Pet.
App. 6a, 7an.2. Thus, while the Dover Amendment “originally
provided anti-discrimination protection only for uses of land for
religious purposes,” it “currently includes protection for a
number of nonreligious uses * * * as well.” Pet. App. 38a. See
also id. at 40a (“the Dover Amendment currently provides the
exemption to a broad class of land uses”). Numerous parties
who use their property for nonreligious purposes have
successfully invoked the Dover Amendment’s protections. °
The Dover Amendment does not preempt most forms of land
use regulation, but only shields protected uses from categorical
exclusion by local authorities. Such uses remain subject to
“reasonable [local] regulations concerning the bulk and height
of structures and determining yard sizes, lot area, setbacks, open
space, parking and building coverage requirements.” Mass.
Gen. Laws ch. 40A § 3. Nor does the Amendment preempt state
nuisance law. Thus, contrary to petitioners (Pet. 2), those who
seek to use their property for a protected use cannot simply build
whatever they want regardless of the impact on neighbors. The
Amendment prevents outright exclusion of various uses from
municipal zones, but as the Court of Appeals observed, it “does
not exempt religious property uses from substantial standard
* See, e.g., Rogers v. Town of Norfolk, 734 N.E.2d 1143 (Mass. 2000)
(child care center); Watros v. Greater Lynn Mental Health &
Retardation Ass'n, Inc., 653 N.E.2d 589 (Mass. 1995) (shelter for
mentally handicapped persons); City of Worcester v. New England
Institute, 140 N.E.2d 470 (Mass. 1957) (business school).
7
zoning requirements that are designed to ensure compatible uses
of land.” Pet. App. lla. See also id. at 44a (rejecting claims
that the Amendment “‘removes any type of real local zoning
control of religious sites” and “‘prevents municipalities from
imposing any conditions other than those permitted by [the
Amendment]’”). Massachusetts courts have repeatedly upheld
the application of local land-use requirements to property that is
otherwise entitled to the Dover Amendment's protections. See,
e.g., Trustees of Tufts College v. City of Medford, 616 N.E.2d
433 (Mass. 1993) (dimensional, setback, and loading space
requirements); Radcliffe College v. City of Cambridge, 215
N.E.2d 892 (Mass. 1966) (parking); Southern New England
Conference Ass'n of Seventh-Day Adventists v. Town of
Burlington, 490 N.E.2d 451 (Mass. App. Ct. 1986) (wetland
protection); cf. Community of Jesus, Inc. v. Cape Cod Comm'n,
Civ. A. No. 92-341 (Barnstable Super. Ct. Feb. 11, 1993)
(sustaining application of architectural preservation laws).°
D. The Belmont Bylaw
Petitioners also challenge Belmont’s Zoning Bylaw, which
allows religious and educational uses in all town zones, subject
to a series of generally applicable land-use regulations. Ever
since 1925, when Belmont enacted its first zoning ordinance,
schools and religious uses have been permitted to locate in areas
zoned for residential use. Pet. App. 21a. In this respect,
Belmonit’s Bylaw has always resembled local land-use policies
nationwide, which commonly treat religious uses as compatible
with residential areas. See 2 WILLIAM W. BASSETT, RELIGIOUS
* The Supreme Judicial Court of Massachusetts has interpreted the
Dover Amendment’s preservation of “reasonable regulations” to
mean that a local land-use provision “may be enforced, so long as the
provision is shown to be related to a legitimate municipal concern.”
Trustees of Tufts College, 616 N.E.2d at 438. In addition, the
challenger “bear[s] the burden of proving that the local requirements
are unreasonable as applied to its proposed project.” /d. at 438-439.
8
ORGANIZATIONS AND THE LAW § 10:15 (1997) (“The majority
of jurisdictions hold that Churches may not be excluded from
residential areas, either on First Amendment freedom of
religion and assembly grounds, or on grounds that municipalities
do not have authority under state enabling acts (ultra vires) to
exclude churches as contrary to community health, safety,
morals or general welfare”); accord 74 A.L.R.2d 377 § 2 (1960)
(noting the “[g]eneral rule that churches cannot be absolutely
excluded from residential area[s]”); KENNETH H. YOUNG,
ANDERSON’S AMERICAN LAW OF ZONING § 12.22, at 578 (4th
ed. 1996). In 1978, Belmont made a technical amendment to its
Bylaw to define religious and educational uses by reference to
state law. The Bylaw’s use table now notes that religious and
educational uses are “exempted from prohibition by [the Dover
Amend-ment].” C.A. App. 112.
E. Proceedings Below
On cross-motions for summary judgment, the District Court
applied the familiar analysis of Lemon v. Kurtzman, 403 U.S.
602 (1971), and held that the Dover Amendment and the Bylaw
do not violate the Establishment Clause. First, observing that
the Amendment protects “a broad class of land uses” that “have
historically generated discriminatory land use regulation,” the
court reasoned that it serves the “secular purpose” of shielding
such uses from “the prejudices of local governments and certain
of their constituencies.” Pet. App. 38a, 40a, 42a. Likewise, the
court explained, the Bylaw seeks both to advance secular land-
use planning interests and to bring local law into conformity
with state zoning provisions. /d. at 42a-43a.
Second, noting that the Dover Amendment and the Bylaw
“exempt religiou[s] as well as certain nonreligious land uses”
from exclusionary zoning, the court reasoned that the provisions
at issue do not “‘establis[h]’ religion within the meaning of the
First Amendment any more than * * * the property tax
exemption [upheld] in Walz [v. Tax Commission, 397 U.S. 664
9
(1970)].” Pet. App. 44a. Rather, the provisions merely have the
effect of “reduc[ing] discrimination by local governments.”
Ibid. The court also rejected claims that the Dover Amendment
“removes any type of real local zoning control of religious
sites,”” stating that it “plainly subjects religious land uses to
‘reasonable regulations.”” [bid.’
The Court of Appeals affirmed. Writing for the court, Judge
Coffin began by noting that it was undisputed that the Dover
Amendment was designed “to prevent religious discrirnination.”
Pet. App. 9a. “Prohibition of religious discrimination,” the court
explained, “is unquestionably an appropriate, secular legislative
purpose.” /bid. The court further found that the Amendment
and the Bylaw advance secular land use goals, observing that
both provisions reflect 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.” /d. at 17a.
Turning to Lemon’s effects prong, the court flatly rejected
petitioners’ “depiction of the statute as an impermissible legal
hammer wielded in favor of religion.” Pet. App. 10a. Given that
the Dover Amendment provides that “a religious institution, no
less than any other group, must comply with reasonable
regulations designed to preserve a comfortable, desirable
community,” the court held that such a characterization “grossly
exaggerates the reach of the statute.” /d. at 10a, lla.
The court went on to explain that the Dover Amendment fell
squarely within a long line of precedent holding “that religious
entities may be the beneficiaries of laws that, for secular
reasons, provide benefits to a variety of groups.” Pet. App. 12a.
“While the original Dover Amendment was directed solely at
religious uses of property,” the court stated, “the provision now
” Petitioners have never contended that the Dover Amendment
violates the “entanglement” prong of the Lemon test.
10
includes a variety of uses linked together by the legislature’s
apparent 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.” /d. at | la-
12a. As the court reasoned:
In protecting religious, educational, agricultural and the
other listed uses of property from exclusion — whether
resulting from discrimination or simply from a general
aversion to change in the neighborhood — Massachusetts
evidences “an affirmative policy that considers these groups
as beneficial and stabilizing influences in community life,”
wherever they are located. 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 diverse in the context of zoning
to support such a determination.
Pet. App. 12a-13a (quoting Walz, 397 U.S. at 673). The court
thus concluded that “[b]y 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.” /d. at 20a. In sum, the
Amendment “does not constitute a fostering of, or favoritism
toward, religion over non-religion.” /d. at 17a.*
* While unnecessary to its decision, the Court of Appeals went on to
state that it would uphold the challenged provisions even if they were
limited “exclusively to religious organizations.” Pet. App. 13a.
Quoting this Court’s holding in Corporation of Presiding Bishop v.
Amos, 483 U.S. 327, 338 (1987), that when “government acts with
the proper purpose of lifting a regulation that burdens the exercise of
religion, [there is] no reason to require that the exemption come
packaged with benefits to secular entities,” the court explained:
1]
Chief Judge Torruella dissented, but openly acknowledged
his basic “agreement with the majority as to the legal standards
which * * * apply to this case.” Pet. App. 22a. The majority
and dissent thus differed only in their view of the “application
of those standards” to the particular facts of this case. Ibid.
On June 22, 2000, the Court of Appeals unanimously denied
the petition for rehearing and rehearing en banc. Pet. App. 49a-
50a. This petition followed.
REASONS FOR DENYING THE PETITION
The petition for certiorari rests on the claim that the Dover
Amendment and Belmont Bylaw single out religious land use
for special and extraordinary treatment that is unavailable to
nonreligious land uses. Petitioners assert that the challenged
provisions provide “a special and unconstitutional benefit for
religion.” Pet. 16. Using various terminology, they claim that
the Dover Amendment is “a sui generis law aiding religion,” a
“sweeping benefit for all religious purposes,” and “a classic in-
stance of the government preferring ‘religion over nonreligion.””
Id. at 3 n.1, 16-17, 18. They further say that the law “subjugates
Massachusetts’ effort to eliminate local zoning discrimination is
fully in line with the [Supreme] 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 {in light of
evidence of ongoing problems of religious discrimination in
zoning] protections against land use bias continue to be
supportable fifty years later.
Id. at 14a. Contrary to petitioners’ implication (Pet. 6), however, the
Court of Appeals’ analysis of whether these provisions would
constitute a permissible accommodation if limited to religious uses
was not a necessary or principal part of its holding. Remarkably,
petitioners utterly fail to mention the Court’s analysis of the breadth
of the provisions at issue.
12
community self-determination” by “exempt[ing] all religious
organizations and individuals from zoning restrictions.” /d. at
9,15.
As the Court of Appeals observed, petitioners’ “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 consistent
with the Establishment Clause.” Pet. App. 10a-11a. “As for the
statute’s scope,” the court stated, “it does not exempt religious
property uses from substantial standard zoning requirements that
are designed to ensure compatible uses of land.” /d. at 1la. And
“{a]s 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.” /bid.
The petition thus reflects little more than petitioners’
disagreement with the two lower courts over their interpretation
of the Dover Amendment and the Belmont Bylaw. Even the
dissenting judge on the panel acknowledged that this case does
not raise any serious issue about the proper “legal standards”
applicable to zoning of religious uses, but is merely an argument
about the “application of those standards” to the particular facts
of this case. Pet. App. 22a (Torruella, C.J., dissenting). It would
thus be inappropriate to use this Court’s certiorari jurisdiction to
review the Court of Appeals’ interpretation of the scope of this
unique Massachusetts statute.
Petitioners candidly admit that “there is no split between the
circuits” (Pet. 14), and they cite three appellate decisions that are
in accord with the decision below. /d. at 12. They do not claim
that the decision below is in conflict with any decision of this
Court. Indeed, they acknowledge (at 14) that the lower courts
have uniformly concluded that laws of the sort challenged here
are valid under the authority of Walz v. Tax Commission, 397
U.S. 664 (1970), and Corporation of Presiding Bishop v. Amos,
13
483 U.S. 327 (1987). Although they attempt to portray the issues
as having recurring significance, they conceded below that “this
case is the first to address this type of zoning favoritism for
religious uses.” Rehearing Pet. 10 (emphasis added). Nor do
petitioners claim that the Massachusetts statute is typical of
legislation elsewhere (and it is not). The case thus fails to
satisfy any of the criteria for certiorari under Rule 10.
What is more, several justiciability and prudential concerns
make this case a poor vehicle for resolving the question
presented. Even if petitioners were correct about the validity of
the Dover Amendment and the Belmont Bylaw, it is far from
clear that their alleged injury would be redressible, in light of
several adequate and independent grounds for denying relief
under Massachusetts law. The challenge to the statutes was
brought late — 17 months after the decision under attack, and
more than a year after construction work had begun — and the
Temple is now complete and in use. Moreover, even if the case
had been timely filed, and even if the laws at issue were
invalidated, the same result would have occurred under the prior
law, which petitioners do not attempt to argue is invalid. The
Petition thus amounts to a request for an advisory opinion that
the Dover Amendment and Belmont Bylaw are facially
unconstitutional.
A. The Petition Rests On A Fundamental Mischaracteri-
zation Of The Statutes.
Petitioners’ central theme is that the Dover Amendment and
the Belmont Bylaw grant religion — and religion alone — a
“total exemption from zoning requirements.” Pet. 14. Indeed,
they say that these laws grant religious landowners “unilateral
power” to decide “whether a neighborhood [is] livable.” /d. at 2.
This argument badly misrepresents the statutory scheme in
two critical respects. First, it ignores the fact that the Dover
Amendment protects a wide range of nonreligious uses, as well
as religious uses, from exclusionary local zoning. For example,
aaa ii
14
the Amendment precludes or limits local zoning laws that
interfere with the use of land for “educational purposes,” for any
“child care facility,” for “congregate living arrangements among
non-related persons with disabilities,” for “agriculture,
horticulture, floriculture, or viticulture,” for “facilities for the
sale of produce, and wine and dairy products,” for “structures
that facilitate the collection of solar energy,” and for certain
“antenna structure[s].” Mass. Gen. Laws ch. 40A § 3. Thus, as
both of the courts below recognized, “[w]hile the original Dover
Amendment was directed solely at religious uses of property, the
provision now includes a variety of uses linked together by the
legislature’s apparent 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.” Pet. App. 12a; accord id. at 38a (the Dover
Amendment “currently includes protection for a number of
nonreligious uses”).
That the Dover Amendment protects various nonreligious as
well as religious land uses is confirmed by Massachusetts case
law. Earlier this year in Rogers v. Town of Norfolk, 734 N.E.2d
1143, 1150 (Mass. 2000), for example, a landowner successfully
invoked the Amendment against a municipality that attempted
to prevent her from adapting a residence for use as a secular
child care facility. Accord Petrucci v. Board of Appeals, 702
N.E.2d 47, 50 (Mass. App. Ct. 1998). Similarly, Watros v.
Greater Lynn Mental Health & Retardation Ass'n, Inc., 653
N.E.2d 589, 593 (Mass. 1995), held that the Amendment barred
a municipality from excluding shelters for mentally handicapped
adults. And City of Worcester v. New England Institute, 140
N.E.2d 470, 472 (Mass. 1957), extended the Amendment’s
protection of “public, religious, sectarian or denominational”
schools to private secular schools, reasoning that all schools
serve a public “educational purpose.” In sum, numerous parties
who use their land for secular purposes have succeeded in
a
aS]
15
invoking the Dover Amendment’s prohibition of exclusionary
zoning.
Moreover, when viewed together with the Bylaw, the
practical effect of the Dover Amendment is to place protected
uses on the same footing as other uses deemed appropriate for
particular zones under the local zoning plan. Agricultural uses,
detached single-family dwellings, municipal recreational uses
(e.g., parks, golf courses, baseball diamonds, swimming pools),
and accessory uses such as greenhouses and tennis courts, to
name a few, are permitted as of right to locate in residentially
zoned areas in Belmont. See C.A. App. 111-114 (Bylaw § 3.3).
The treatment accorded to churches, schools, and the other uses
listed in the Amendment is precisely the same as that accorded
these other permitted uses. This utterly refutes the notion that
religious uses are singled out for extraordinary benefit.”
Second, petitioners’ claim ignores the extent to which land
uses protected by the Dover Amendment are subject to generally
applicable land-use regulations. Petitioners assert that the
Amendment gives religious landowners the power “to trump
local community zoning laws” on issues like “noise, intrusive
lighting, traffic congestion, and drainage problems.” Pet. 11, 12.
But as the Amendment plainly states, “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, parking and building coverage require-
ments.”” Mass. Gen. Laws ch. 40A § 3. As the decision below
explains, the Amendment merely preempts exclusionary zoning
and “does not exempt religious property uses from substantial
standard zoning requirements that are designed to ensure
* Petitioners’ suggestion that a “philosophical bookstore” (Pet. 18)
would not be entitled to protection under the Dover Amendment is
not the least bit troubling. The zoning ordinances of virtually every
community distinguish noncommercial and commercial uses, and the
latter are frequently excluded from residential areas.
16
compatible uses of land.” Pet. App. lla. See also ibid. (“a
religious institution, no less than any other group, must comply
with reasonable regulations designed to preserve a comfortable,
desirable community).”
The First Circut’s interpretation of the law is confirmed by
numerous Massachusetts state court decisions. In /rustees of
lufts College, for example, the Supreme Judicial Court held that
a local land-use provision “may be enforced, so long as [it] is
shown to be related to a legitimate municipal concern,” and that
the challenger “bear[s}] the burden of proving that the local
requirements are unreasonable as applied to its proposed
project.” 616 N.E.2d at 438-439. Applying these standards, the
courts have required otherwise protected uses to satisfy an array
of local mandates, including dimensional, setback, and loading
space requirements (ibid.), parking regulations (Radcliffe
College v. City of Cambridge, 215 N.E.2d 892 (Mass. 1966)),
environmental provisions (Southern New England Conference
Ass'n of Seventh-Day Adventists v. Town of Burlington, 490
N.E.2d 451 (Mass. App. Ct. 1986)), and regulations designed to
preserve the architectural and historical character of the
community (Community of Jesus, Inc. v. Cape Cod Comm'n,
Civ. A. No. 92-341 (Barnstable Super. Ct. Feb. 11, 1993)). The
Amendment “strike[s] a balance between preventing local
discrimination against [a protected] use * * * and honoring
legitimate municipal concerns that typically find expression in
local zoning laws.” Trustees of Tufts College, 616 N.E.2d at
437-438. Asareview of the record attests, the Church here was
subject to an extensive array of land use regulations. Petitioners’
assertion that religious landowners are given “carte blanche” in
zoning (Pet. 14) is therefore without merit.
In the end, it turns out that the question presented — whether
a state may “exempt all religious organizations and individuals
from zoning restrictions” (Pet. 9) — is not really presented at all.
As the courts below held, the protections of the Amendment
extend “to a broad class of land uses” (Pet. App. 40a), and those
Re tia ae
17
uses remain subject to reasonable land use regulation. But even
if petitioners’ “grossly exaggerate[d}” (Pet. App. 10a) depiction
of the statute were not belied by its plain language as well as
Massachusetts case law, it would make little sense for this Court
to review a decision where the real dispute is over the scope and
meaning of a unique state law.
B. The Petition Amounts To A Request For An Advisory
Opinion.
Quite apart from the fact that the question as framed by the
petitioners is not presented by these facts, several adequate and
independent state grounds make it doubtful that petitioners could
obtain any relief even if they succeeded on the merits of their
facial challenge to the provisions at issue. The petition is, in
effect, a request for an advisory opinion.
First, petitioners waited to file suit until 17 months after the
Board’s authorization of a building permit, which is the decision
under attack. By that time, construction on the Temple had been
underway for more than a year. But even at that late juncture,
petitioners never moved for interim relief. Accordingly, work
on the Temple proceeded, and the building is now complete, has
been dedicated, and is in use. Under Massachusetts doctrines of
estoppel and laches, therefore, relief is not available.
In the classic case of Green v. Richmond, 29 N.E. 770, 770
(Mass. 1892), the Supreme Judicial Court held that injunctive
relief “will not be issued * * * when it appears that there has
been unreasonable delay by the party seeking it” or when it
“would subject the other party to great inconvenience and loss.”
Even in cases where the defendant’s construction project has
physically encroached on the plaintiff's property, Massachusetts
courts have frequently denied injunctive relief to plaintiffs who
stood by without objecting while the defendant built the
offending structure, or where restoring the property to its prior
condition would impose a great hardship upon the defendant.
See, e.g., Loughlin v. Wright Mach. Co., 173 N.E. 534, 535
18
(Mass. 1930); Lynch v. Union Inst. for Sav., 34 N.E. 364, 365
(Mass. 1893); Levi v. Worcester C.S. Ry., 78 N.E. 853, 854
(Mass. 1906); see also Davenport v. Broadhurst, 406 N.E.2d
1030, 1034 (Mass. App. Ct. 1980) (doctrine of laches “may save
a defendant from the expense of removing a structure built on
another’s land”); 28 A.L.R.2d 679 § 11 (1953) (“The right of a
plaintiff to a mandatory injunction for the removal of an
encroachment by an adjoining landowner may be defeated by
acquiescence, delay, or laches”). As one leading commentator
illustrates:
X begins building a garage while N, a neighbor, stands by
watching. N makes no objection, but when X completes the
job, N says politely, “I think you have built the garage on
my land.” He then orders a survey and finds that it is indeed
so. N then sues in equity to force removal of the offending
structure. Almost certainly relief will be denied for one
reason or another.
DAN B. DosBs, REMEDIES § 2.3, at 42 (1973). See also id. § 5.7,
at 360 (“Certainly the plaintiff who stands by and makes no
protest as a large factory is built next door has the ‘equities’
against him and an injunction is apt to be denied in such cases
under doctrines of laches or estoppel”); id. § 2.3, at 42 n.12
(“Even if N never knew of the activity and could not be
estopped, courts might deny relief on a balancing of hardships”).
These cases are consistent with federal remedial principles
in Establishment Clause cases. Lemon v. Kurtzman, 411 U.S.
192 (1973) (“Lemon II’), is instructive in this regard. There the
Court addressed the validity of a lower court’s refusal to enjoin
payments to religious schools for educational services provided
prior to Lemon v. Kurtzman, 403 U.S. 602 (1971) (“Lemon I’),
which invalidated such payments. Noting that “reliance interests
weigh heavily in the shaping of an appropriate equitable
remedy,” the Court held that two main factors — “the expenses
incurred by the schools in reliance on the state statute,” and the
19
plaintiffs’ “choice not to press for interim injunctive [relief}” —
made it inequitable to enjoin payment for services provided prior
to the Court’s ruling in Lemon J. See 411 U.S. at 203, 204.
Although some modern Massachusetts cases have relaxed
the principle of laches in cases where construction encroached
on another person’s property,'° there is no authority for requiring
a landowner to raze a building that rests entirely on his own
property and complies with governing land-use rules. Such
relief would encourage vexatious and unreasonable litigation
tactics. The Church has incurred substantial expense in reliance
upon the statute, which has existed for 50 years and has been
enforced on behalf of other religious property owners. See, e.g.,
Sisters of Holy Cross v. Town of Brookline, 198 N.E.2d 624
(Mass. 1964); The Bible Speaks v. Board of Appeals, 391 N.E.2d
279 (Mass. App. Ct. 1979). To permit petitioners to have the
Temple torn down at this late stage would turn “the practical
realities of the situation” on their head (Lemon //, 411 US. at
205) and impose a great hardship on respondents.'' Such
inequitable relief is simply not available under Massachusetts
law.
Second, it is well settled under Massachusetts law that where
a court invalidates a statutory amendment such as the provisions
challenged here, the effect is to resurrect the law as it existed
prior to amendment. See Opinion of the Justices, 168 N.E. 536,
538 (Mass. 1929) (noting that “when a statute whereby an
attempt has been made to amend previously existing statutes has
been declared unconstitutional, the previously existing statutes
survive untarnished”); Commonwealth v. Gagnon, 443 N.E.2d
407, 408 & n2 (Mass. 1982) (invalidation of severable
'© See, e.g., Peters v. Archambault, 278 N.E.2d 729, 730 (Mass.
1972).
'' Other than removal of the offending structure, petitioners have not
specified any relief to which they might be entitled.
20
amendment to statute “serve[s] to validate the prior statute”).
Upon invalidating amendments to local zoning provisions,
several Massachusetts courts have invoked this principle and
enforced prior versions of those statutes. See Beal v. Building
Comm 'r, 234 N.E.2d 299, 300 (Mass. 1968) (enforcing zoning
ordinance “as it existed * * * prior to the amendment”); accord
Mitchell v. Board of Selectmen, 190 N.E.2d 681, 683 (Mass.
1963); Cross v. Planning Bd., 189 N.E.2d 189, 190-191 (Mass.
1963).
If this Court were to strike down the challenged provisions,
therefore, the applicable law would be the Belmont bylaw that
was in effect before it was “amended to reflect the requirements
of the Dover Amendment.” Pet. App. 2la. Like the zoning
ordinances of so many communities across the nation, the prior
bylaw permitted religious uses to locate in any residential zone.
Ibid. Petitioners do not claim that it is unconstitutional to allow
churches as permitted uses in residential areas. Accordingly,
even if this Court were to review and reverse the decision below,
the Church would still be entitled to a building permit, and
nothing would be changed.
In light of the obstacles to relief under state law, the petition
fails to present a justiciable controversy. As this Court stated in
Michigan v. Long, 463 U.S. 1032, 1042 (1983), where “the same
judgment would be rendered” after the Court “corrected [the
lower court’s decision],” review “amount[s] to nothing more
than an advisory opinion.” See Hewitt v. Helms, 482.U.S. 755,
761 (1987) (“The real value of the judicial pronouncement —
what makes it a proper judicial resolution of a ‘case or
controversy’ rather than an advisory opinion — is in the settling
of some dispute which affects the behavior of the defendant
towards the plaintiff’). Such is the case here.
If the issue of religious land use is worthy of this Court’s
consideration, there will be ample opportunity to address it in
the context of a real case or controversy. There is no need for
21
the Court to spend its time on a case that, upon full examination,
is likely to prove nonjusticiable.
C. The Petition Fails To Satisfy Any Of The Traditional
Criteria For Certiorari Review.
Even setting the foregoing problems aside, petitioners fail to
satisfy this Court’s criteria for granting review. They assert (at
13) that the issue presented “has been percolating in the lower
courts for years,” but concede that “there is no split between the
circuits.” Pet. 14. Nor do petitioners claim a conflict between the
decision below and any decision of this Court. To the contrary,
they candidly acknowledge (at 14) that the lower courts have
uniformly concluded that statutes of this sort are consistent with
the Court’s holdings in Walz v. Tax Commission, 397 U.S. 664
(1970), and Corporation of Presiding Bishop v. Amos, 483 U.S.
327 (1987)."* Citing a string of newspaper articles and inapposite
cases, petitioners endeavor to create the impression that factual
scenarios like this recur daily across the nation. But they
conceded below that “this case is the first to address this type of
zoning favoritism for religious uses.” Rehearing Pet. 10.
A review of the cases cited by petitioners verifies that this is
the first (and only) case of its kind. Forest Hills Early Learning
Center, Inc. v. Grace Baptist Church, 846 F.2d 260 (4th Cir.
1988), involved the validity of a state /icensing exemption for
religious child care facilities. Rector, Wardens, & Members of
Vestry of St. Bartholomew's Church v. City of New York, 914
F.2d 348 (2d Cir. 1990), involved a free exercise challenge to a
historic preservation law. And the three other cases petitioners
cite sustained laws that were far more targeted toward religion
'2 Petitioners argue that “it makes little sense for this Court to await
such a split [in the circuits}” because every lower court to consider
the issue has come to the same conclusion. Pet. 14. This is a new
idea: that uniformity among the circuits is a basis for granting
22
— and thus, under their theory, far more problematic — than the
laws at issue here. See Fhlers-Renzi v. Connelly Sch. of the
Holy Child, Inc., 224 F.3d 283 (4th Cir. 2000) (upholding
accommodation of religious schools); Cohen v. City of Des
Plaines, 8 F.3d 484 (7th Cir. 1993) (upholding accommodation
of religious day care centers); Kast Bay Asian Local Dev. Corp.
v. State, 81 Cal. Rptr. 2d 908 (Ct. App.), review granted, 977
P.2d 692 (Cal. 1999) (upholding accommodation in historic
preservation law). Thus, even crediting petitioners’ claim that
these are comparable decisions, they merely confirm the
correctness of the decision below.
The decision below lacks other hallmarks of certworthiness
as well. Petitioners make no claim that other states have laws
similar to the Dover Amendment, and they do not. No grave
injustice has been done, and no matter of national importance is
at stake. The Belmont Board of Appeals, which is the lawfully
appointed representative of the people most directly involved,
unanimously concluded that the Temple complies “with both the
letter and spirit” of the Town’s zoning laws. Pet. App. 94a. It is
time to put this neighborhood disagreement to rest.
D. The Dover Amendment And The Bylaw Do Not
Violate The Establishment Clause.
Finally, on the merits, there is no reason to disturb the
careful and well-reasoned decision of the First Circuit. Indeed,
beyond their rhetoric about giving “sweeping benefit[s]” to
religion (Pet. 3 n.1) and “subjugat[ing] community self-determi-
nation” (id. at 15), petitioners have not suggested any coherent
theory of the Establishment Clause under which the challenged
provisions are unconstitutional. Surely they do not suggest that
it is unconstitutional to treat religious uses as permitted uses in
residential zoning areas. That would fly in the face of standard
zoning practice and disrupt local zoning law all over the country.
But it is equally untenable to think that religious uses may be
permitted only on a discretionary case-by-case basis. That would
23
be an invitation to arbitrariness and unequal treatment. Nor do
petitioners seem to believe that religious uses may not be
addressed as such, or given special treatment, in land use law.
Again, that would upset the settled practice of practically every
jurisdiction in the country. In short, petitioners complain about
the Massachusetts law, but they offer no theory about what sort
of land use law would satisfy their understanding of the First
Amendment.
The Court of Appeals’ analysis, by contrast, is supported by
a long line of this Court’s precedents holding that government
benefits made available to a class including both secular and
religious beneficiaries do not violate the Establishment Clause.
In Walz, 397 U.S. at 673, the Court upheld a state property
tax exemption made available to “a broad class of property
owned by nonprofit, quasi-public corporations which include
hospitals, libraries, playgrounds, scientific, professional,
historical, and patriotic groups,” among others. Noting that the
state had not “singled out one particular church or religious
group or even churches as such,” the Court rejected the claim
that it was unconstitutional to permit religious organizations to
share in the benefit. /bid. Insofar as “hostility toward religion
has taken many shapes and forms,” the Court explained, the
challenged exemptions were “a reasonable and balanced
attempt” to combat “latent dangers inherent in the imposition of
property taxes.” /bid. Both before and since Walz, the Court
has repeatedly affirmed the validity of laws that, for secular
reasons, grant benefits to a range of religious and nonreligious
beneficiaries. E.g., Bowen v. Kendrick, 487 U.S. 589 (1988);
Mueller v. Allen, 463 U.S. 388 (1983); Texas Monthly, Inc. v.
Bullock, 489 U.S. 1 (1989); Everson v. Board of Educ., 330 U.S.
1 (1947).
The Dover Amendment and Belmont Bylaw fall squarely
within this line of precedents. They do not “single out” religious
groups for a benefit unavailable to others. Rather, religious land
24
use is merely one part of “a broad class of land uses” (Pet. App.
40a) — including schools, child care centers, accommodations
for the disabled, agriculture, and solar energy, to name a few —
that are protected from “latent dangers” of exclusionary zoning.
Petitioners would have no more (and no less) right to object to
the prospect of a farm, a noisy school playground, a municipal
basketball court or swimming pool, or a child care facility than
to the Temple (or any other church, synagogue, or mosque). See
C.A. App. 111-114. In short, there can be no claim that these
laws favor religion over nonreligion.
Petitioners say there is no “rhyme or reason” or “neutral and
secular criterion” that explains the “grab bag” of uses protected
by the Amendment. Pet. 3 n.1. But that is simply false. As the
Court of Appeals explained, this “variety of uses” is “linked
together by the legislature’s apparent 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.” Pet. App. 12a. The Amendment thus
serves to “preven[t] churches and nonreligious activities from
being subjected to discrimination generated by the prejudices of
local governments and certain of their constituencies.” /d. at
38a.
Even where a statutory accommodation is limited to religion,
it is well settled that “a claimant alleging ‘gerrymander’ must be
able to show the absence of a neutral, secular basis for the lines
government has drawn.” Gillette v. United States, 401 U.S. 437,
452 (1971) (emphasis added). Petitioners have plainly failed to
carry that burden here. The Amendment and Bylaw “represen[t]
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.” Pet. App.
17a. This judgment more than satisfies the “purpose” prong of
Lemon I, 403 U.S. at 612. See Mueller, 463 U.S. at 394-395
(noting the Court’s “reluctance to attribute unconstitutional
25
motives to the states” where some “plausible secular purpose”
explains their actions)."
Petitioners concede that the antidiscriminatory purpose of
the Dover Amendment was entirely legitimate. Pet. 10. They
argue, however, that it was improper for Massachusetts to
achieve this purpose by means of a ban on the exclusionary
zoning of religious uses. They suggest that it would have been
better to continue to allow discretionary case-by-case decisions
about religious land use, subject to a law prohibiting overt
discrimination. /bid. According to them, the legislature “hastily
Overreacted to the Dover situation,” and its chosen means of
addressing discrimination against religious land use is
“dramatically over-inclusive.” /d. at 10, 3 n.1.
This argument disregards the realities of the situation. A
governmental body faced with whether to allow religious uses
'* Even if the challenged provisions protected only religious uses,
they would nonetheless withstand constitutional scrutiny. As this
Court stated in Amos, 483 U.S. at 338, “[w]here * * * government
acts with the proper purpose of lifting a regulation that burdens the
exercise of religion, [there is] no reason to require that the exemption
come packaged with benefits to secular entities.” The provisions here
not only relieve the burden on religious exercise imposed by
discriminatory land use decisions; they avoid barriers to communal
worship by ensuring that religious houses of worship are able to serve
parishioners in every zone. As the Court of Appeals explained, “[b]y
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.” Pet. App. 20a. This is plainly consistent with the requirements
of the Establishment Clause. See Amos, 483 US. at 337 (“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”’).
26
in a residential area has limited options. It can forbid religious
uses outright — an exceedingly uncommon option that no one
(even petitioners) has advocated here. See pp. 7-8, supra. It can
permit such uses on a case-by-case, “special permit” basis, based
on the discretion of local zoning officials. Or it can permit them
as a matter of right."*
Viewed against this backdrop, the advantage of permitting
religious uses as a matter of right is obvious. Discretionary case-
by-case judgments by local officials about which religious uses
to permit are susceptible to unfairness as well as conscious or
unconscious bias. E.g., Lubavitch Chabad House, Inc. v. City of
Evanston, 445 N.E.2d 343, 346-347 (Ill. App. Ct. 1982); see also
Douglas Laycock. State RFRAs and Land Use Regulation, 32
U.C. DAVIS L. REY. 755, 776-777 (1999). Because virtually any
land use ruling can be justified on some ostensibly neutral
ground, discrimination is difficult to detect and even more
difficult to prove. It may not become clear that an adverse
zoning decision is motivated by anti-religious bias until a pattern
or practice has been revealed. By that time, a church may have
suffered two, three, or more denials, at significant cost and with
irreparable injury to its mission. Particularly in light of expert
opinion and experience, which shows that religious uses are
compatible with residential zones,'* the legislature is entitled to
'* Petitioners do no: suggest that governmental officials may not treat
religious use as an independent land use category, as does virtually
every municipality across the nation. It should go without saying that
there are ample secular reasons for such a classification, ranging from
aesthetic and architectural concerns to issues related to the assembly
of large congregations and the needs of parishioners for a proximate
place to worship.
'S As one leading authority has explained:
Usually. religious uses are specifically permitted in residential
districts, including those confined primarily to single-family
27
reach the conclusion that a categorical rule regarding religious
land use is the best solution to the problem.
Indeed, even apart from concerns about discrimination, a
legislature might reasonably conclude that uses of a religious
nature are generally compatible with the full range of zoning
classifications. Churches on the street corner are a familiar sight
in virtually every residential area, and steeples are a hallmark of
the New England landscape. Even apart from their spiritual
significance, houses of worship typically offer open space,
architectural interest, and services (religious and otherwise) that
are welcome to the local community.
Moreover, as a stroll past Trinity Church at Copley Square
demonstrates, houses of worship are as compatible with
Boston’s commercial district as with the many residential
neighborhoods across the state of Massachusetts. To the extent
that particular types of religious use (e.g., a religious convention
hall) are incompatible with a neighborhood, such cases can be
dealt with by application of generally applicable land-use
restrictions. Thus, the Dover Amendment strikes a balance: it
protects religious uses from arbitrary exclusion from any zone,
but “moderate[s]” this protection with “the requirement that
religious uses conform to the standard physical limitations
imposed on all buildings located in that zone.” Pet. App. 16a.
As the First Circuit observed, this is a perfectly sensible way “to
preserve a comfortable, desirable community.” /d. at 1 la.
dwellings. * * * 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. * * * The wide majority of courts hold
that religious uses may not be excluded from residential districts.
2 KENNETH H. YOUNG, ANDERSON’S AMERICAN LAW OF ZONING
§ 12.22 (4th ed. 1996) (footnotes and citations omitted).
28
Nor is there anything suspect about the legislature’s decision
to enact a statewide solution to the problem of exclusionary
zoning. Petitioners claim that the Dover Amendment interferes
with “local self-determination” (Pet. 13), but the zoning power
is, and always has been, constitutionally vested in the legislature
of the Commonwealth of Massachusetts, which has plenary
authority to delegate — or not to delegate — any portion of this
power to the iocal level. See Mass. Const. Amend. art. 2, § 6;
Board of Appeals v. Housing Appeals Committee, 294 N.E.2d
393, 409 (Mass. 1973) (holding that the legislature has “supreme
power in zoning matters” that overrides zoning regulations
“inconsistent with the constitution or laws enacted by the
general court [/.e., the legislature]’”). It is unquestionably lawful,
under state law, for the legislature to withhold “from all
municipalities all power to limit the use of land” (Astorney
General v. Dover, 100 N.E.2d 1, 3 (Mass. 1951) (upholding the
Dover Amendment under the Massachusetts Constitution)), and
the federal Constitution does not disturb this allocation of
power. See Hunter v. Pittsburgh, 207 U.S. 161, 178 (1907) (it
“rests in the absolute discretion of the State” to “modify or
withdraw” municipal powers).
In short, the judgment of the Court of Appeals was entirely
consistent with this Court’s interpretations of the Establishment
Clause. Petitioners’ preference for discretionary case-by-case
determinations regarding religious land use would be far more
injurious to the values of the First Amendment, by embroiling
local officials in decisions about the relative value of different
religious uses, with the attendant danger of bias and inequality.
29
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
VON G. KEETCH
ALEXANDER DUSHKU
Kirton & McConkie
1800 Eagle Gate Tower
60 East South Temple
Salt Lake City, Utah 84111
(801) 328-3600
PAUL KILLEEN
EDWARD J. NAUGHTON
Holland & Knight LLP
One Beacon Street
Boston, Massachusetts 02108
(617) 523-2700
MICHAEL W. MCCONNELL
Counsel of Record
STEFFEN N. JOHNSON
Mayer, Brown & Platt
190 South La Salle Street
Chicago, Illinois 60603
(312) 782-0600
DAVID C. HAWKINS
PAUL R. MORDARSKI
Morrissey, Hawkins & Lynch
Two International Place
Suite 3500
Boston, Massachusetts 02110
(617) 345-4500
Counsel for Respondents
NOVEMBER 2000
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.