Agenda - Planning Commission - 01/05/1999

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Page 2 -- December 24, 1998 Z.B. First Amendment -- Owner challenges ordinance requiring special use permit for churches Citation: Area Plan Commission of Evansville and Vanderburgh Cou~ty v. Wilson, Court of Appeals of b~diana, 1st Dist., No. 82AO1-9712-CV-429 (1998) Wilson owned commercially zoned property in Evansville, Ind. He wanted to operate a church on his property. The town's special use ordinance listed 31 special uses, including churches, that were necessary to the community but had characteristics that didn't allow them to be easily classified in the usual residential, commercial, or industrial districts. Churches were allowed in any district with a special permit. The procedures for getting a special permit included providing the names and tax codes of neighbors, paying a fee, submitting a site plan, notifying neigh- bors, attending a hearing, and getting the zoning board's approval. The ordi- nance required the board to consider the following: whether the site was appro- priate; whether the use would adversely affect the area; whether the use would be a nuisance or a hazard to vehicles, pedestrians, or residents; whether there were adequate and appropriate.facilities; whether the use was in harmony with the town and county's comprehensive plan; and whether the use was essential or desirable to the public convenience and welfare. Wilson applied for a special permit. After a hearing, the zoning board granted him a one-year permit. The board's standard practice was to grant a one-year permit, followed by a more permanent permit upon reapplication. In 1995 the planning commission told Wilson his permit would soon expire. Instead of reapplying for a new permit, Wilson sued the planning com- mission. He sought a declaration that the special use ordinance was an uncon- stitutional restraint on the free exercise of religion because churches needed a special use permit to operate in commercial districts while other uses, such as meeting halls and lodges, did not. He also claimed the ordinance was an constitutional prior restraint on religious speech because it gave town officials the power to control citizens' right to speak on matters of religion. The court held the town's special use ordinance was unconstitutional, find- ing the special permit procedures placed an unreasonable burden on Wilson's free exercise of religion. The court also held the ordinance was an unconstitu- tional prior restraint on religious speech, because the criteria for approving a special permit gave the board too much discretion. The planning commission appealed. DECISION: Reversed. The town's special use ordinance was constitutional. It was meant to regu- late land use, not speech. The ordinance didn't unduly burden/Wilson's free exercise of religion. It was designed to accommodate desirat~le land uses that didn't fit the rigid tradi- tional classification of zoning distrids. It didn't mean the town intended to regulate religious beliefs. The procedures for accommodating special uses ap-