The Merrimack Congregation of Jehovah’s Witnesses sought and was denied a permit to build a “Kingdom Hall” in a residential zoning district. The Town zoning ordinance allowed churches as of right in the general commercial district and in the two industrial districts, and permits churches in residential districts subject to special exception. According to the zoning ordinance, when reviewing a special exception permit request, the following conditions are to be met when considering church applications:
a) The specific site is an appropriate location for such use or uses in terms of overall community development.
b) The use as developed will not adversely affect the neighborhood and shall produce no diminution of real estate values in the neighboring area.
c) There will be no nuisance or serious hazard to vehicles or pedestrians.
d) That an adequate parking area is provided for motor vehicles on the premises.
e) A buffer shall be erected and maintained to screen existing residential uses. Buffers may be fence screens, dense planting of suitable trees and shrubbery, or naturally occurring shrubs and trees.
f) The use as developed will be restricted for church purposes only. No commercial use of a church within the residential zone will be allowed.
Following a denial of their request for a rehearing, the Congregation filed a lawsuit for a preliminary injunction in federal court, and following a hearing, the magistrate judge denied the motion because the Congregation had not shown a likelihood of success on the merits of its constitutional challenge to the zoning ordinance. On appeal to the district court, with respect to the freedom of expression claim, the Court noted that other “Courts have held that absent other expressive conduct, limitations on the geographical location of a religious institution do not implicate the right to free expression under the First Amendment.” Acknowledging that there was some contrary authority, the District Court nonetheless was persuaded that the location of the church in this case, absent other expressive issues, does not implicate the right to free expression.
As to the Congregation’s right to association claim, the Court found it to be undeveloped, noting that it was not properly raised in the first instance and the Congregation simply argued that it has rights to both free speech and free exercise of religion by citing to the congressional intent in passing the Religious Land Use and Institutionalized Persons Act.
Lastly, with respect to the Congregation’s free exercise claim, the Court found that the Congregation failed to show that the zoning restriction burdens the free exercise of religion. In the context of a facial challenge, explained the court, the restriction imposed that requires a special exception for a church in a residential district does not burden free exercise.
Merrimack Congregation of Jehovah’s Witnesses v Town of Merrimack, 2011 DNH 54, 2011 U.S. Dist. LEXIS 36090 (Dist. NH 3/31/2011)
