Zoning Ordinances and Religious Men and Women
Zoning Ordinances and Religious Men and Women
Bernadet e Kenny
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BERNADETTE KENNY, RSHM*
While municipal zoning ordinances may subject churches to
reasonable regulations respecting location,' setbacks and off-street parking,2 they
may not preclude completely the existence of a church. 3 Although this
* B.A., Marymount College, M.A., Manhattan College, J.D., Fordham University School of
Law. Sister Bernadette is a member of the New York Bar and of the Religious of the Sacred
Heart of Mary. As an attorney, she is concentrating on the legal problems of religious
The author gratefully acknowledges the direction of Reverend Charles M. Whelan, S.J.,
Professor of Law, Fordham University School of Law, on this research project.
See Note, Churches and Zoning, 70 HARV. L. REV. 1428, 1436 (1957).
2 See, e.g., Garden Grove Congregation of Jehovah's Witnesses v. City of Garden Grove, 176
Cal. App. 2d 136, 142, 1 Cal. Rptr. 65, 69-70 (1959) (denying building permit for failure to
provide proper off-street parking); Board of Zoning Appeals v. Company of Jehovah's
Witnesses, 233 Ind. 83, 89, 117 N.E.2d 115, 118 (1954) (only restriction on setback requirements
is reasonableness); Allendale Congregation v. Grosman, 30 N.J. 273, 277-78, 152 A.2d 569,
571 (1959), cert. denied, 361 U.S. 536 (1960) (sustaining requirement of one parking space
for each three seats in church building); Kurman v. Zoning Bd. of Adjustment, 351 Pa. 247,
249-51, 40 A.2d 381, 382-83 (1945) (sustaining denial of permit for in-home synagogue for
refusal to comply with setback requirement). But see Jewish Reconstructionist Synagogue v.
Incorporated Village of Roslyn Harbor, 38 N.Y.2d 283, 289, 342 N.E.2d 534, 539, 379
N.Y.S.2d 747, 753-54 (1975) (setback ordinance not containing any substantial requirements
for accommodating or mitigating detrimental effects of proposed rule held unconstitutional).
3 See, e.g., Mooney v. Village of Orchard Lake, 333 Mich. 389, 394, 53 N.W.2d 308, 310
(1952) (ordinance excluding churches and parochial schools from 90% of village is not
legitimate exercise of police power); North Shore Unitarian Soc'y, Inc. v. Village of Plandome,
200 Misc. 524, 525, 109 N.Y.S.2d 803, 804 (Sup. Ct. Nassau County 1951) (churches not
constitutionally excludable from entire village when other non-residential uses permitted);
Simms v. City of Sherman, 181 S.W.2d 100, 103 (Tex. Civ. App.) (unconstitutional to
exclude churches as a class without substantial relation to health, safety or welfare), aff'd, 143
Tex. 115, 119-20, 183 S.W.2d 415, 417 (1944); see 44 FORDHAM L. REV. 1245, 1250 (1976).
The free exercise clause of the first amendment often has precipitated a finding that a
particular zoning ordinance has violated the protected realm of religious belief. Walker,
What Constitutes a Religious Use for Zoning Purposes?,27 CATH. LAW. 129, 130 n.2 (1982);
principle is fairly well established, the courts have not defined clearly
what constitutes a church or church use of property for purposes of
municipal zoning ordinances.4 Thus, when groups claiming a religious bond
among the members attempt to move into an area zoned for single-family
residence, the question arises as to whether these groups meet either the
statutory definition or the popular understanding of either church or
Among the groups that find themselves caught between the
definitions of church and family when attempting to rent or purchase a home
in a single-family area are the men and women of Roman Catholic
relisee Church of Christ v. Metropolitan Bd. of Zoning Appeals, 175 Ind. App. 346, 349, 371*
N.E.2d 1331, 1333 (1978); City of Sherman v. Simms, 143 Tex. 115, 119, 183 S.W.2d 415, 417
(1944). Because a zoning ordinance, if effective, would disallow the use of property, the
ordinance may also be attacked as a deprivation of property without due process of law. Note,
supra note 1, at 1428; 44 Fordham L. Rev., supra, at 601; see Berger v. State, 71 N.J. 206,
223, 364 A.2d 993, 1002 (1976); Diocese of Rochester, v. Planning Bd., 1 N.Y.2d 508, 521,
136 N.E.2d 827, 833-34, 154 N.Y.S.2d 849, 858 (1956). A due process attack would allege
that the zoning ordinance had no reasonable relationship to the protection of public health,
safety or general welfare. J.D. Constr. Corp. v. Zoning Bd. of Adjustment, 119 N.J. Super.
140, 145, 290 A.2d 452, 455 (1972).
4 See, e.g., Association for Educ. Dev. v. Hayward, 533 S.W.2d 579, 586 (Mo. 1976) (en
banc) ("rectory" is a residence for unrelated persons with religious vocations); Sexton v.
Bates, 17 N.J. Super. 246, 255, 85 A.2d 833, 837-38 (1951) (ritualistic bathing place for
Hebrew females held not to be a "place where persons regularly assemble for worship"), aff'd
sub nom. Sexton v. Essex County Ritualarium, 21 N.J. Super. 329, 329, 91 A.2d 162, 162
(1952); In re Russian Orthodox Church, 397 Pa. 126, 129, 152 A.2d 489, 491 (1959)
(cemetery is not a religious use and is subject to ordinance); Gallagher v. Zoning Bd. of
Adjustment, 32 Pa. D. & C. 669, 673-74 (1963) (radio church for profit is not religious use). See
generally Curry, Zoning and Religion in Connecticut, 40 CONN. B.J. 1, 6 (1966) (courts are
not well adapted to balancing the theological aspects of religious zoning); Walker, supra
note 3, at 182 (noting wide range of judicial opinion as to what constitutes "religious use");
Vernon, Zoning for Churches, 13 HASTINGS L.J. 367, 373 (1962) (reasonable minds may
differ when balancing physical undesirability against social value).
' The difficulties encountered by a group of nuns in northern New Jersey illustrate the
problem. See N.Y. Times, Jan. 24, 1976, at A31, col. 6. On New Year's Eve, 1975, the
Borough Council of Glen Ridge, New Jersey, filed charges against five Roman Catholic nuns for
violations of the single-family zoning ordinance. The ordinance permitted only families
related by blood, marriage or adoption to live in the district. The charges carried a potential
fine of $20,000 for each sister. Two days before the nuns were due to appear in court, the
Borough Council decided to drop the charges and review its zoning ordinance, which dated
from 1921. N.Y. Times, Feb. 16, 1976, at A23, col. 7.
In complaining about the resulting negative publicity accorded the Borough Council,
the mayor noted that he was simply enforcing the law. No one, he said, would have
complained if he had enforced the law against a group of hippies who regularly conducted wild
parties. By the mayor's own admission, the nuns did not fit the category of people that
zoning ordinances based on relationship are designed to exclude. Although the nuns argued
that they were related by their religious vows, they did not fit the literal terms of the
ordinance. N.Y. Times, Jan. 24, 1976, at A31, col. 6.
gious congregations.' Because of the great external changes that have
taken place in religious congregations since Vatican II-particularly, the
movement from large institutional accommodations to small group living
in apartments or one-family homes-traditional definitions now appear
inadequate.' This Article will examine some of the cases dealing with
Roman Catholic and other religious groups that have come into conflict with
local zoning ordinances and will examine how the courts define members
of religious congregations for purposes of zoning ordinances.
ZONING TO FOSTER "FAMILY" VALUES
Zoning ordinances are municipal regulations that restrict the use of
land in order to promote the health, welfare, and morals of those who live
and work within the municipality.' Such regulations, implemented under
the police power of the state, are outgrowths of the common law of
nuisance.' During the age of rapid industrialization of urban areas,
homeowners were surrounded by plants and factories that produced caustic
6 See, e.g., Holy Name Hospital v. Montroy, 153 N.J. Super. 181, 182-83, 379 A.2d 299, 300
(1977) (group of nuns charged with violation of ordinance prohibiting more than three
unrelated individuals from living together).
Of the 711 residences of religious in the Archdiocese of New York, 42.5% are apartments
in multiple dwellings or one or two-family homes. The remaining 57.5% are traditional
convents (57.4%) and institutional-type residences (.1%). Statistics from Vicar for Religious,
Archdiocese of New York.
8 Rarely do courts hold that an ordinance operating against a church has a substantial
relation to the health, welfare, and morals of the community. Zoning and the Exclusion of
Churches, 5 CATH. LAW. 252, 253 (1959); see Board of Zoning Appeals v. Company of
Jehovah's Witnesses, 233 Ind. 83, 88-89, 117 N.E.2d 115, 118 (1954) (building of churches subject
to regulations that promote public health, safety, or the general welfare); Mooney v. Village
of Orchard Lake, 333 Mich. 389, 393, 53 N.W.2d 308, 309 (1952) (test of legitimacy is
substantial relationship to public health, safety and morals); Simms v. City of Sherman, 181
S.W.2d 100, 103 (Tex. Civ. App.) (exclusion of church as a class was unreasonable as it bore
no substantial relation to the health, welfare, and morals of the residents), aff'd, 143 Tex.
115, 183 S.W.2d 415 (1944); see also 1 R. ANDERSON, AMERICAN LAW OF ZONING 2D § 1.14
(1976) (purpose of zoning is to provide a comprehensive public scheme to avoid injurious
misuse of land). In the event that the court is caught in the battle between the right to free
exercise of religion and the need to protect the public health and welfare, the court must
accommodate both interests. See Walker, supra note 3, at 181.
' While zoning originated in the law of nuisance, it is not restricted to harmful uses of
property. See Jones v. City of Los Angeles, 211 Cal. 304, 307, 295 P. 14, 16 (1931). The first
zoning ordinances were enacted in this country in New York and the District of Columbia
prior to 1921. See P. ROHAN, ZONING AND LAND USE CONTROLS, § 1.02[a], at 1-8. In 1926,
the Supreme Court decided the landmark case of City of Euclid v. Ambler Realty Co., 272
U.S. 365 (1926), and held that comprehensive zoning ordinances are satisfactory exercises of
the police power of the state and are not unlawful deprivations of property under the
Constitution. Id. at 388-89; see McMahon v. City of Dubuque, 255 F.2d 154, 160 (8th Cir.), cert.
denied, 358 U.S. 833 (1958); New York Inst. of Technology, Inc. v. LeBoutillier, 33 N.Y.2d
125, 130, 305 N.E.2d 754, 757, 350 N.Y.S.2d 623, 628 (1973).
and noxious fumes, excessive noise, traffic, and structures that cut off all
access to light."0 Zoning ordinances were an attempt to alleviate this
problem." By limiting what a landowner can do with his property in a
particular section of town, the ordinances, in effect, designated what
constitutes a nuisance in that particular sector. 2 Thus, for the greater good
of all, the state determined which uses of property had priority in a given
The single-family zoning ordinance is the restriction most often
utilized to preserve an environment that is conducive to the development of
the family within the community."3 This view was articulated by the
Supreme Court in Village of Belle Terre v. Boraas1,4 in which the Court
held that a state may, through its police power, place reasonable
restraints upon the number of unrelated individuals living together in the
same household.' 5 Recognizing the importance of an environment that is
conducive to the development of the individual and the family, the Belle
Terre Court acknowledged the power of the state affirmatively to protect
such interests.'" As a result, many subsequent zoning cases involving
reli10 See E. BASSETT, ZONING: THE LAWS, ADMINISTRATION, AND COURT DECISIONS DURING THE
FIRST TWENTY YEARS 23-26 (1936). The rapid growth of New York City called for the
imposition of zoning ordinances on height, area, building use, and land use. Id.; see 1 N.
WILLIAMS, AMERICAN LAND PLANNING LAW §§ 35.01-.05 (1974). For a discussion of the
specific zoning purposes of adequate light and air, limited land use density, fire hazards and
street congestion, see 5 P. ROHAN, supra note 9, §§ 34.0211][a], [b], 34.02[a].
" See T. CURRY, PUBLIC REGULATION OF THE RELIGIOUS USE OF LAND 5 (1964). While the
wealthy landowner could join with his neighbors in a restrictive covenant to protect his
property against the invasion of industrialization, the poor were without such recourse. Id.
The restrictive covenant, however, could only act on singularized plots rather than on a
whole area, making it difficult to provide the benefits of land-use control to the entire
community. See 5 N. WILLIAMS, supra note 10, § 154.13, at 253. In order to alleviate this
problem, as the zoning ordinance developed, local governments attempted to use the principles
of the restrictive covenant on a broader base. See Note, Restrictive Covenants as a Device
to Control Religious Issues, 12 SYRACUSE L. REV. 347, 347 (1961). One author has suggested
a return to the use of restrictive covenants in dealing with religious questions. Id. at 351-52.
Under a restrictive covenant analysis, however, courts would be bound to exclude churches
under certain restrictions without even addressing the relation to the general welfare. See
id. at 348-49, (citing Evangelical Lutheran Church of the Ascension v. Sahlem, 254 N.Y. 161,
168-69, 172 N.E. 455, 457-58 (1930)); Cromwell v. American Bible Soc'y, 202 App. Div. 625,
632-35, 195 N.Y.S. 217, 224-25 (1st Dep't 1922).
II See Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 391 (1926).
" See 1 A. RATHKOPF & D. RATHKOPF, THE LAW OF ZONING AND PLANNING § 1.01[z], at 1-8 to
', 416 U.S. 1, 9 (1974).
"6Id. at 8-10.
1" The Court stated that it would not question the appropriateness of the ability of the
Legislature to designate particular zones. Id. at 8. Indeed, the Court noted:
A quiet place where yards are wide, people few, and motor vehicles restricted are
legitimate guidelines in a land-use project addressed to family needs. This goal is a
gious groups have turned upon the interpretation of the term "family.' 7
Canon Law Definition
Before analyzing the judicial interpretation of the terms "family"
and "single household unit" as they relate to ordinances, it is appropriate
to consider the Church's attitude toward the religious who live in
communal settings. Canon law defines the religious as those who live "a fixed or
stable manner of life, in common, [where] the evangelical councils are
observed by means of the vows of obedience, chastity and poverty."' 8
Underlying this definition are several assumptions. The religious who live in
apostolic, as contrasted with monastic, congregations exist within a
"publicly oriented" community. They are not recluses; they are subject to
religious authority and are bound by vows to a permanent relationship with
the congregation.' 9 While the constitutions of each congregation define,
more or less specifically, how these underlying assumptions are to be
carpermissible one . . . . The police power [of the state includes the authority] . . . to
lay out zones where family values, youth values, and the blessing of quiet seclusion
and clean air make the area a sanctuary for people.
Id. at 9.
17 See, e.g., State v. Baker, 81 N.J. 99, 103-05, 405 A.2d 368, 370 (1979) (nine persons from
two or three biological families constitute a single housekeeping unit); Holy Name Hosp. v.
Montroy, 153 N.J. Super. 181, 187, 379 A.2d 299, 302 (1977) (nuns included in exception to
exclusion as harmless voluntary family); Taxpayer's Ass'n v. Weymouth Township, 71 N.J.
249, 270, 364 A.2d 1016, 1027 (1976) (elderly entitled to live together despite single-family
restrictions). For the definition of family in municipal zoning ordinances, see generally,
Jensen, From Belle Terre to East Cleveland, Zoning, Family and the Right to Privacy, 13 FAM.
L.Q. 1, 4 (1979); Note, Group House of Port Washington v. Board of Zoning and Appeals,
Encroachmentof Community Residences into Single-Family Districts,43 ALB. L. REV. 539,
543 (1979); Comment, Moore v. City of East Cleveland-Zoning: Due Process and
Restrictive Definitions of "Family",6 HOFSTRA L. REV. 1087, 1099-1100 (1978). Municipal zoning
ordinances typically define "family" in terms of either a relationship based upon marriage,
blood or adoption, or in the broader sense of a single housekeeping unit. See 2 A. RATHKOPF
& D. RATHKOPF, supra note 13, at § 17A.03[a] (discussion of "family" defined by reference
to biological relationship among household members); see also Moore v. City of East
Cleveland, 431 U.S. 494, 496 n.2, 499 (1977) (ordinance defining "family" in terms of a single
housekeeping unit held invalid because it based its definition on degree of affiliation among
particular members of a family). The Moore Court stated that the Legislature cannot
intrude into family decision-making without strong governmental interest. Id. at 499. As the
restrictive single-family ordinance under consideration bore little relation to the
government's interest in minimizing crowding in the city, it was held invalid. Id. at 499-500.
18 THE CODE OF CANON LAW, Canon 487 (1917), 1918, reprinted in T. BOUSCAREN, A. ELLIS,
& F. KORTH, CANON LAW, A TEXT AND COMMENTARY 233 (1966) [hereinafter cited as CANON
LAW]; see S. WOYWOD, A PRACTicAL COMMENTARY ON THE CODE OF CANON LAW 204 (1952).
The 1983 Code in C. 607, § 2 defines religious as those who "pronounce public vows and live
a life in common."
'9 See CANON LAW, supra note 18, at 233-35.
ried out in each congregation," communal living is, for the most part, an
integral part of religious life. 1
Prior to the Second Vatican Council, the majority of religious were
required to live in residences that were located in the same general area,
if not the same building, as their workplace. 2 These institutions were
owned and staffed by a particular religious order and individual members
were engaged in the same occupation as their religious counterparts.
Since Vatican II, however, a growing number of religious are living in
small group arrangements.2 3 As a result, members of these institutions
often have occupations independent of one another, and their residences,
usually located some distance from the actual work place, are not owned
by the religious order but are rented by the individual members of the
congregation. It is evident, therefore, both that these events radically
have redefined the concept of communal living among the religious, and
that the present lifestyle of the religious more closely resembles that of a
traditional family than a monastic or religious institutional lifestyle.
Because zoning ordinances do not specifically address the current
trend among the religious to live within restricted areas as a single family,
a conflict stems from the tendency of the community to characterize such
living arrangements as inconsistent with traditional family lifestyles and
from the erroneous presumption that the mere presence of a group of
unrelated religious residing within the same structure transforms a
singlefamily dwelling into an institution. The remainder of this Article will
address judicial interpretations of these ordinances and the effect that such
determinations have had upon arrangements of unrelated religious living
in community within restricted areas.
20 See id. at 236; 12 NEW CATHOLIC ENCYCLOPEDIA 275 (1967) (constitutions of institutions
mold obligations of the religious). Rules that conflicted with the Canons at the time of its
passage were abolished by the enactment of the Code. See S. WOYWOD, supra note 18, at
21 It is the communal living aspect of religious life, however, not living in a "convent" or
building attached to place of work, that is integral. When the Code of Canon Law speaks of
religious houses, it means a place of ministry or apostolate rather than a place of residence.
1983 CODE Cc. 608-16.
22 See CANON LAW, supra note 18, at 300. Canon 606 of the 1916 Code forbade superiors to
allow subjects to live outside the religious house for more than six months, unless it was for
the purpose of study. Id.; see S. WOYWOD, supra note 18, at 292.
23 Until the mid 1960's, members of the Eastern American Province of this writer's
congregation, residing in the United States lived exclusively in convents attached to places of
work. Student religious living on a university campus in a residence with nuns from other
congregations were living outside the community. Today, in this same congregation,
approximately 58% of those not retired live in apartments or houses apart from places of work.
Land use restrictions usually describe either permissible buildings or
permissible uses in a particular area. Thus, cases applying zoning
ordinances to religious communities have turned either on the nature of the
group or on the nature and use of the building in which the group lives.
The nature and use of the structure was a crucial issue in two cases
involving restrictive covenants.2 '
In Boston-Edison Protective Association v. Paulist Fathers, Inc.,25
the plaintiff corporation sought to enforce a restrictive covenant that
limited building use to residential purposes2. A group of Paulist priests
purchased and repaired a six-bedroom house located in a restricted area,
which, the court noted, was "built up with residences of extremely high
character and considerable value."2 Five Paulist priests occupied the
building as a residence and all worked outside of the zoned area.28 The
plaintiff property-owners' association objected to a group of unrelated
individuals living together, and argued that the covenant should be
interpreted to allow only single-family residences in the restricted area.29
The court, however, refused to restrict the meaning of either
"singlefamily dwelling house" or "single-family dwelling" to mean housing for a
single family related by blood or marriage2. 0 To so restrict the meaning,
the court noted, ironically would require that the homeowners in this
affluent area could employ only live-in servants related to the homeowner
by blood or marriage.31 The court affirmed the decision of the lower court,
and held that occupancy of the building-a structure similar to other
buildings in the area-by a group of priests was within the definition of
occupancy of a single dwelling for residential purposes.2
24 See 1 A. RATHKOPF & D. RATHKOPF, supra note 13, § 1.01 (restrictions on land use
accomplished by covenants running with the land); Note, supra note 11, at 347. For
purposes of this article, no distinction will be made between restrictive covenants and zoning
28 306 Mich. 253, 10 N.W.2d 847 (1943).
8 See id. at 256, 10 N.W.2d at 848. The covenant was as follows: "The said party of the
second part . . . shall not use or occupy said lots except for a single dwelling house and
dwelling house purposes only." Id.. The definition of "family" was based on blood relation,
marriage or adoption. Id.
27 Id. at 255, 10 N.W.2d at 847-48.
8 Id. at 255, 10 N.W.2d at 847. No business matters, religious services lectures, or meetings
were conducted on the premises. Id. The only use attributed to the building was use as a
residence for the religious. Id.
" Id. at 256. 10 N.W.2d at 848. The plaintiffs argued that "single family" referred only to
persons related by blood or marriage, and that allowance of a violation in this situation
would lead to further violations of a more serious nature. Id.
2 Id. at 256, 10 N.W.2d at 848. In doing so, the Michigan Supreme Court noted that the
An earlier Washington case involved a similar set of facts as applied
to a group of sisters. In Hunter Tract Improvement Company v.
Corporation of the Catholic Bishop of Nisqually3,3 fifteen Ursuline sisters took
possession of a single-family residence in an area subject to a restrictive
covenant.3" Neighboring property owners argued that occupancy by the
sisters rendered the building an institution rather than a single-family
residence.3 5 The Hunter Tract court found that none of the sisters'
activities rendered their presence in the building inconsistent with the
restrictions that allowed single detached structures for residential purposes
only.3" In addition, the court observed that, in compliance with
community preference, the sisters made no external changes on the building3. 7
The court likened the activities of the sisters to those of a family and
found that daily mass did not render a house an institution any more
than a clergyman's visit to a family turned its residence into an
The court noted that if the sisters regularly used the house as a
training center for novices, the building might lose its character as a
residence.39 However, the sisters' invitation to the public to attend a single
clothing ceremony was indistinguishable from a single family's invitation
to a large number of friends to attend a gathering4. The court concluded
that although the popular conception of a sisters' residence is a convent,
and convents are deemed institutions, not every such residence is a
The aforementioned cases exemplify religious compliance with
restrictions in areas zoned for single-family homes when the particular
structure and the activities performed therein comport with those of a
normal family lifestyle. However, when a structure does not comport with
the surrounding environment, courts normally will enforce the ordinance.
In Cash v. Catholic Diocese of Kansas City-St. Joseph,"' the diocese
proposed to construct a convent building consisting of 6,000 square feet
of floor space in an area restricted to single-family dwellings by a
property owner's agreement.43 A neighboring property owner sought to enjoin
construction of the building." Although the court discussed both the
activities of the nuns and the supervisory position of the Mother Superior,4 5
this case actually turned upon the nature of the proposed building. The
two-story building, composed of thirteen bedrooms, an office, a chapel, a
community room, a parlor, a dining room, kitchen, pantry storage
facilities, and a large central bath, simply did not fit the common
understanding of a single-family dwelling."'
It should be noted that the court most likely objected to the overall
size and style of the building rather than to the individual rooms within.
With the probable exception of a chapel, most single-family homes have
rooms similar to those found in the house in this case. It is doubtful,
however, that the mere presence of a chapel would change the nature of
the building for zoning purposes.""
Nature of the Group
Zoning ordinances that affect area residents normally fall into two
4 414 S.W.2d 346 (Mo. Ct. App. 1967).
"' Id. at 347-48.
" Id. at 347. The parties stipulated that the church planned to erect a building that would
be used as a residence for nine to eleven nuns and that the residents would teach
elementary school on premises separate from that on which the faculty residence was to be located.
" Id. at 348. Residence in the convent required submission to the supervisory and
managerial authority of the Mother Superior who set the usual hours for meals, religious devotion
and recreation within and without the convent. Id. She also assigned various household
tasks such as cooking, shopping and cleaning. Id. One can hardly argue, however, that
obedience to authority, performance of household chores, and praying together, when practiced
by an ordinary family, would turn their home into something other than a single-family
6 Id. at 348-49. The Cash court relied primarily on the reasoning of the trial court in
affirming the enforcement of the injunction. See id. The court noted that it was bound to
construe "single-family dwelling" in its "ordinary and popular meaning." See id. at 348
(quoting Cleaver v. Central States Life Ins., 346 Mo. 548, 554, 142 S.W.2d 474, 477 (1940)).
Because other words, such as "convent," describe the proposed structure, the trial court
found that the nuns' residence was not a "family dwelling" and that the residents did not
attain family status. Id. at 349.
" See infra note 123 and accompanying text.
categories: area restrictions that prohibit all buildings but single family
dwellings and restrictions that limit residences in an area to single
families but allow religious institutions such as churches, monasteries,
convents, and rectories. The definitions of "family" contained in these
ordinances either limit the number of individuals unrelated by marriage or
blood, who may reside together, or provide for single housekeeping units.
Both definitions of family have as their purpose the exclusion of multiple
dwelling arrangements such as boarding houses, fraternity houses, and
apartment houses.48 While the Supreme Court has upheld the validity of
ordinances based on numerical limitations on unrelated cohabitants, 49
several states have narrowed the authority of municipalities to
circumscribe the definition of family.
In Holy Name Hospital v. Montroy,0 the New Jersey Superior Court
struck down a Teaneck town ordinance that limited the number of
unrelated residents of a single-family dwelling to three, unless the dwelling
was owner occupied. 51 Holy Name Hospital owned three separate houses
within the area affected by the ordinance. Seven Roman Catholic sisters
lived in one of the houses and four in each of the other two.5 All the
sisters worked either at Holy Name Hospital or in nearby institutions or
parochial schools.5" After the Teaneck Building Inspector filed a
complaint against the hospital for violating the zoning ordinance, the hospital
sued for a 5d4eclaratory judgment that the ordinance was
The Superior Court held the Teaneck zoning ordinance void in that
it was unduly restrictive and "legally unreasonable." 55 The court noted
that the ordinance was particularly unreasonable because the numerical
limitation imposed bore no relationship to the habitable floor space or
sleeping and bathroom facilities.56 The court chided the township for its
attempts at exclusivity at a time when the State of New Jersey faced
severe housing shortages: "the Township of Teaneck [through the
enforcement of the ordinance] is converted into a private club, and
application for admission must be accompanied by a validated marriage
certificate. 8 57
The court did not state that the Township lacked the authority to
exclude a group living arrangement. 58 However, the court held that in its
attempt to promote a family-type environment, the Township may not
exclude family-type substitutes.59 The sisters qualified as "voluntary
families" because they did not have a negative impact on a family-type
environment. Without discussing the life style of the sisters, the court said:
"[t]he nuns in this case, as well as other members of recognized religious
orders, must be included in this partial list of harmless voluntary
The court did not define what rendered such voluntary groups
harmless to a family-type environment. However, early in the opinion, the
court noted the absence of annoying or disruptive behavior."' In addition,
by acknowledging that all the nuns who resided in the three houses
worked nearby and that the religious congregation paid maintenance and
upkeep expenses to the hospital for the use of the houses, the court
implied that some degree of financial reliability was indicative of a harmless
voluntary family.62 Finally, by emphasizing the shared financial
arrangements in the named family-type substitutes and referring to the
excludability of boarding houses or dormitories, the court indicated that some
degree of permanence was required. 3
An additional factor in the nuns' favor was their membership in a
56 Id. at 189, 379 A.2d at 303.
Id. at 187, 379 A.2d at 302.
" Id. at 188-89, 379 A.2d at 303. The court noted that whereas Teaneck may impose
restrictions to promote a family-type environment, the Township may keep Holy Name Hospital
from using the properties as "boarding houses or dormitories for transient hospital
5 Id. at 186-87, 379 A.2d at 302. The court took note of several "harmless voluntary
families" that were becoming more common: couples living together out of wedlock, unmarried,
low-income individuals living together to share costs, and small groups of the elderly living
together for both financial and companionship purposes. Id.
60 Id. at 187, 379 A.2d at 302.
Id. at 183, 379 A.2d at 300. The Township of Teaneck originally filed the complaint
against Holy Name Hospital because of concern for the municipal tax base and fear of
hospital expansion. N.Y. Times, March 24, 1977, at B23, col. 3.
62 153 N.J. Super. at 183, 379 A.2d at 300.
' Id. at 188, 379 A.2d at 303.
recognized religious congregation." Presumably, in observing this, the
court was not distinguishing between good and bad religious groups.
Rather, the sisters, by virtue of their membership in a known religious
order, established a claim to a religious bond among them. This bond
helped to make them a voluntary family or a single non-profit
housekeeping unit. According to the New Jersey Superior Court, the changing
nature of 6s5ocial structures requires such a reasonable definition of
Use of a building by a recognized religious group, in one
circumstance, enabled the inhabitants to change its nature. In La Porte u. City
of New Rochelle," use of a four-story brick building to house more than
sixty student members of the Christian Brothers of Ireland was held to
constitute a one-family dwelling within the meaning of the New Rochelle,
New York, zoning ordinance. Under the terms of the ordinance,
singlefamily dwellings required smaller side yard setbacks than did accessory
buildings. The building that the brothers proposed to build met the
setback requirements of a single-family dwelling, but not the setback
requirements of a building accessory to the college that the student
brothers attended. 7
Because the zoning ordinance had no limitation on the number of
persons that constituted a family, or on the size of the structure that
constituted a single dwelling unit," the court held that sixty student
brothers were a single family and the four-story building was a one-family
dwelling rather than a dormitory."6 The majority opinion did not mention
the ties that bound the brothers together, since the terms of the
ordi" Id. at 187, 379 A.2d at 302. The court used language that evinced a desire to limit the
holding to "recognized" religious orders. Id.
" See id. Changes in fundamental family lifestyle and marriage were deemed relevant
factors in considering the reasonableness of a zoning ordinance restricting the term "family."
Id. While the state may act to preserve a family style of living, it may not use zoning
ordinances to regulate the "internal composition of housekeeping units," State v. Baker, 81 N.J.
99, 106, 405 A.2d 317, 320 (1979) (citations omitted); see City of Des Plaines v. Trottner, 34
Ill.2d 368, 371 (1966), nor to control internal family life, Taxpayers' Ass'n v. Weymouth
Township, 80 N.J. 6, 33, 364 A.2d 1016, 1031 (1976); City of White Plains v. Ferraioli, 34
N.Y.2d 300, 305, 313 N.E.2d 756, 758, 357 N.Y.S.2d 449, 452 (1974).
66 2 App. Div. 2d 710, 152 N.Y.S.2d 916 (2d Dep't 1956), aff'd mem., 2 N.Y.2d 921, 141
N.E.2d 917, 161 N.Y.S.2d 886 (1957).
"72 App. Div. 2d at 710, 152 N.Y.S.2d at 917. Under the terms of the ordinance,
singlefamily dwellings required shorter side yard setbacks than did accessory buildings. The
setbacks of the proposed building were too small for anything but a single-family dwellings. Id.
68 Id. at 710-11, 152 N.Y.S.2d at 918. The zoning ordinance defined a "family" as "one or
more persons occupying a dwelling unit as a single, non-profit housekeeping unit." Id. at
710, 152 N.Y.S.2d at 918.
" Id. at 711, 152 N.Y.S.2d at 918. Justice Beldock dissented, stating that sixty male
students could not constitute a family, no matter what ties might bind them together. Id.
nance rendered such discussion unnecessary. The ordinance required
complete housekeeping facilities for a single-family dwelling.7 Since the
proposed building, in addition to sleeping quarters, contained a kitchen
and dining hall facilities, it met the terms of the ordinance.7 1
It should be noted that there was probably much less at stake in
terms of the surrounding area in La Porte than in Cash. The New
Rochelle ordinance permitted colleges and dormitories in the zoned area,
but required that such buildings have a sixty foot side yard setback
rather than the twelve to fifteen feet required for single-family homes.7"
In Cash, the 6,000 square foot brick structure apparently would have
been the only building of its kind in the Sherwood Estates housing
development. 73 Arguably, in a judicial decision on the applicability of a zoning
ordinance, when a proposed building will have a drastic effect on the
surrounding area, the nature of the building will prevail; when the building
will have a minimal effect on the surrounding area, the nature of the
residents will prevail. Accordingly, the Appellate Division in La Porte simply
held that occupancy by "members of the order . . . as a single non-profit
housekeeping unit. . .[did] not deprive the building of its character as a
The nature of the group of occupants has also been determinative in
cases involving zoning ordinances and restrictive covenants that define
"family" in the broader sense of single housekeeping units rather than in
terms of narrow blood or marriage limitations. In Carrol v. City of Miami
Beach7 5 the Bishop of the Diocese of Miami proposed to house a group of
novices under the direction of a mother superior in a building owned by
the diocese. 76 The area was subject to a single-family zoning ordinance
that defined "family" as "[olne or more persons occupying premises and
living as a single housekeeping unit, as distinguished from a group
occupying a boarding house, a lodging house or hotel. '77
70 Id. at 710, 152 N.Y.S.2d at 918. Indeed, the ordinance defined a dwelling unit as:
a building or entirely self-contained portion thereof containing complete
housekeeping facilities for one family only, and having no enclosed space or cooking or sanitary
facilities in common with any other dwelling unit, except for vestibules, entrance
halls, porches or hallways.
See id. at 711, 152 N.Y.S.2d at 918.
See 2 N.Y.2d at 921, 141 N.E.2d at 917, 161 N.Y.S.2d at 886.
78See 414 S.W.2d at 347-48.
74 2 App. Div. 2d at 711, 152 N.Y.S.2d at 918.
70 198 So. 2d 643 (Fla. Dist. Ct. App. 1967).
7 Id. at 644.
7 Id. A single housekeeping unit is perhaps best defined in the negative. It is not a
dormitory, boarding house or hotel. Id. Whether a group occupation constitutes a single
housekeeping unit is normally to be decided upon the particular facts of the case. A decisive
factor would be that the individuals lived, cooked and ate together "under the same
The city denied the Bishop's request to use the property as a
novitiate on the ground that a group of novices was not a single family.78 On
appeal, the Bishop argued that the novices did indeed constitute a family
within the meaning of the Miami zoning ordinance, and that the only
noticeable difference between the group and any other family was the
religious habit worn by the novices.7 9
The court refused to imply a requirement of marriage or blood
relationship into the less restrictive definition of family used in the
ordinance.80 However, the court failed to articulate why this group of novices
constituted a family rather than boarders or lodgers. Apparently, the
presence of religious authority-the mother superior-was sufficient to
make the difference.
However, the presence of a superior has been deemed insufficient
when the ordinance narrowly defines "family" as blood relatives but
allows for convents, monasteries, parish houses, and rectories. In
Association for EducationalDevelopment v. Hayward,1" a group of Roman
Catholic laymen under the direction of a priest qualified neither as a single
family within the meaning of the ordinance, nor under the convent,
monastery or rectory exception.82 The Kirkwood, Missouri ordinance
defined "family" as any number of persons living together as a single
housekeeping unit, provided no more than two persons were unrelated by
blood, marriage, or adoption. 3 The eight men seeking an occupancy
permit in this case were members of a religious society of laymen known as
Opus Dei.84 Together with their spiritual director, an ordained priest, the
group proposed to live a family-type life in a three-story home that they
were about to purchase. 5
The eight laymen in Hayward all had a permanent commitment to
the secular life, yet dedicated themselves to the practice of an intense
spiritual life as well."6 Since neither the laymen nor the priest were
related to each other by blood, marriage, or adoption, the group did not
meet the statutory criteria for a family.87 Opus Dei argued, however, that
when the ordinance grouped together convents, monasteries, rectories,
and parish houses, it created a category of usage rather than a listing of
permitted individual uses, and that Opus Dei's proposed use fit this
Because the Kirkwood ordinance did not define religious dwelling,
the court looked to dictionary definitions8. 8 Each definition referred in
some way to religious occupants-priests, clergymen, nuns, monks, or
ministers.8 0 Therefore, the court concluded that by using such specific
references, the city intended to make occupancy by more than three
unrelated people dependent upon the "nature and extent of the occupants'
religious commitment.""1 While the court did not question the religious
commitment of the members of Opus Dei, it found their commitment to
be less than full time, that is, more in the nature of an avocation than a
vocation.2 Since the principal residents of rectories, convents, and parish
houses are persons with absolute religious commitments, the court
concluded that the intent of the ordinance was to limit single-family
occupancy to no more than three individuals who are not related by blood,
marriage, or absolute religious commitment8. 3
Opus Dei argued that the dictionary definitions of monasteries,
convents, rectories, and parish houses were archaic.94 They contended that
nuns were no longer recluses but rather were women with a religious
vocation who lived in community and taught or engaged in other secular
activities, often many miles from their convents. Thus, their lives were
no more religious nor less secular than were the lives of Opus Dei
members who devoted their lives to the Catholic Apostolate in the St. Louis
Archdiocese. 6 The court refused to accept the argument that any group
with intense religious beliefs and activities qualified for residence in a
monastery or convent. 97
In Hayward, the failure of the ordinance to prescribe the actual
structure of permissible buildings caused the nature of the occupants to
determine its character. Thus, whether a single-family dwelling was
characterized as a house or as a religious residence depended upon the extent
of religious commitment of its occupants.9" Lacking vows or ordination,
the laymen could not qualify as vocational religious no matter how ardent
or religious their beliefs and activities.99
In contrast to Hayward, the court in Missionaries of Our Lady of La
Salette v. Village of Whitefish Bay'00 adopted a broad definition of
convent as a place of seclusion and retirement, and held that a group of men
with a full-time religious commitment lived as a religious family rather
than as residents of a convent. 01 The zoning ordinance at issue in La
Salette divided the Village of Whitefish Bay into seven districts and
permitted convents in only three districts."2 The Missionaries of Our Lady
of La Salette owned and occupied a house in one of the districts zoned
only for single-family use. 10 3
The court found that the lifestyle of the three priests and two
brothers living in the house more closely resembled that of a family than that
of a convent. 0 4 It viewed the ministry as one of the learned professions,
'"See id. at 586. In response to Opus Dei's claim that the restriction violated their
constitutional right of freedom of religion, the court stated that the proposed use of the building was
neither "necessarily incidental" to that of a church, id. at 587, nor essential to the free
exercise of their religious beliefs, id. at 588; see Walker, supra note 3, at 158.
98533 S.W.2d at 586. A religious commitment characterized as professional in nature, e.g.,
priests and nuns, would qualify the building as a convent. Id. The nature of the
commitment was not to be determined by either group activities or number of hours spent in
100 267 Wis. 609, 66 N.W.2d 627 (1954).
Id. at 616-17, 66 N.W.2d at 631.
102 Id. at 614, 66 N.W.2d at 630. Convents were permitted in districts four, five and six. Id.
Section 14.07(b) of the zoning ordinance expressly provided that "churches including
accessory rectories, auditoriums and convents" were permitted in district four. Id. at 611, 66
N.W.2d at 628. The court did not state what authority permitted convents in districts five
and six, the apartment district and the business district, respectively. Id. at 614, 66 N.W.2d
Id. at 611-12, 66 N.W.2d at 629.
'" Id. at 619-29, 66 N.W.2d at 632-33. Section 14.02(11) of the zoning ordinance defines
"family" as "one or more individuals eating, sleeping, cooking or eating on premises as a
and the clergy as professional persons living as a religious family that
exercised their professional responsibilities apart from the premises. 0 5
There was no question that these men were not recluses living in
seclusion and retirement from the world. The court reasoned that not every
building is a convent or monastery simply because it houses people who
have made certain vows and live subject to a superior's decisions.
In La Salette, the difference between a family and a convent was
seclusion and retirement from the world and not religious vows or
prayer.10 6 Since American living includes the right to engage in religious
devotion in the home with other members of one's family, daily mass in
the Missionary chapel did not make a convent. The court saw no
distinction between a chapel and a family recreation room.' °7 The religious vows,
the presence of a superior, and communal prayer were all part of the
bonds that made the group a single housekeeping unit, and, therefore, a
family within the meaning of the village ordinance.
It is apparent that not all religious bonds, however, are sufficient to
create a "family," particularly in a situation involving an ordinance
employing a narrow definition of the term. In People v. Kalayjian,0'° a
zoning ordinance of the City of Rye, New York defined a family as "one or
more persons living together on the premises as a single housekeeping
unit in a domestic relationship based on birth, marriage or other domestic
bond." 0 9 The ordinance also permitted the-use of property for religious
purposes, such as places of worship, parish houses, and buildings for
religious instruction.110 Although the ordinance did not define "other
domestic bond," the arrangement established by the defendant fit neither the
single family nor religious use. " '
In Kalayjian, the defendant's household included twenty-five people
that comprised four separate families, two maids, and a monk; all were
single housekeeping unit." Id. at 618, 66 N.W.2d at 629. Since the ordinance failed to define
"convent," the court looked to the dictionary definition of convent which provided that a
convent was a "community of recluses devoted to a religious life under a superior." Id. at
618, 66 N.W.2d at 632. Because the court found that the occupants used the dwelling solely
for residential purposes and directed their "vocational activities ... to situations and places
away from the premises," the court held that the occupation was neither violative of the
definition of family nor consistent with the definition of convent. Id.
.105 Id. at 632.
107 267 Wis. 616, 66 N.W.2d at 631. The court opined that there is no "reasonable
distinction" between a room in a house set aside as a chapel and a room set apart as a "ballroom,
music room, conservatory or recreation room." Id.
o1 76 Misc. 2d 1097, 352 N.Y.S.2d 115 (Sup. Ct. App. T. 2d Dep't 1973).
,o' Id. at 1099, 352 N.Y.S.2d at 117.
"I Id. at 1099, 352 N.Y.S.2d at 117-18.
members of the American Orthodox Catholic Church.'1 2 The court
refrained from addressing either the religious bond among the inhabitants
or whether it was sufficient to comply with the "domestic bond" provision
of the ordinance."' In affirming Kalayjian's conviction for occupying a
one-family residence other than as a one-family dwelling, the court
focused on his failure to establish the religious uses enumerated in the
ordinance." 4 Although all occupants were members of the same
church-three were ordained deacons, and religious instruction was
available to the occupants-the court nevertheless found that the building was
neither owned nor used by the church. Therefore, the principal use of the
building was not a religious use but a prohibited use as a dwelling for
more than four families.1 5
Implicit in the Kalayjian decision is the idea that membership in a
recognized church does not qualify a group of unrelated individuals as a
religious family, nor does occupancy by ordained clergy necessarily
constitute a religious use of a building. The court noted that while there was
some religious instruction on the premises, no religious services were
conducted there."' The building was owned by an individual rather than by
a religious institution," 7 and the church did not maintain a place of
worship in the City of Rye. Arguably, a group of Roman Catholic religious
could fit under the religious-use exception in the Rye ordinance. While a
religious congregation is not identical to a church, there are many
situations in which particular orders are treated as churches under the law." 8
When religious rent or buy a house, they normally do so in the name
of the congregation. Even though many religious communities are no
longer adjacent to or recognized as part of the local parish complex,
residence by a group of religious is religious use in the same sense that
residence by a minister or priest in a parish house is religious use. Religious
today carry on the work of the church in places other than the church
building. If occupancy by those who work in the church building with a
l Id. at 1098, 352 N.Y.S.2d at 117.
Id. at 1098-1100, 352 N.Y.S.2d at 117-19.
Id. at 1100, 352 N.Y.S.2d at 118-19.
"' Id. at 1099, 352 N.Y.S.2d at 118. The court stated that the factual situation clearly
displayed that the building was not used for religious purposes and did not fit the standard
definition of a parish house. Id. (quoting WEBSTER's THIRD NEW INTERNATIONAL DICTIONARY
(unabr. ed. 1976)).
ir 76 Misc. 2d at 1098, 352 N.Y.S.2d at 117.
"7 Id. The court observed that the defendant's place of worship was not within the town of
"I See, e.g., I.R.C. § 6033(a)(2)(A) (1976) (churches and the exclusively religious activities
of any religious order are exempt from the requirement that organizations file a tax return);
26 C.F.R. § 1.511-2(a)(3)(ii) (1982) ("[tlhe term church includes a religious order or a
religious organization if [it] (a) is an integral part of a church, and (b) is engaged in carrying
out the functions of a church").
full-time commitment to the church is a religious use, occupancy by those
with the same commitment who participate in such work outside of the
church is likewise a religious use. " '
It is the religious commitment, rather than the type of work
performed, that makes the difference. In Board of Zoning Appeals
v.Wheaton,1 20 residents of Indianapolis argued that the proposed construction of
a convent as part of a parish complex violated the restriction in the
zoning ordinance that prohibited schools with "living quarters
maintained." 2 ' The archdiocese proposed to construct a church, a rectory, a
school and convent in the area. The convent was to house the sisters who
were to teach in the school. 1 2
The court refused to construe the ordinance so literally as to view the
convent as "living quarters maintained" in connection with a school.122
Rather, the court viewed the convent as the sisters' home and, as such, an
integral part of the church project, rather than a part of the school. The
court reasoned that any building used in connection with the faith of a
religious organization is a building for church purposes. 2 ' It was the
convent used as a sisters' home, however, and not the work performed in the
school that determined whether the building was part of the church or
part of the school.12 The sisters were an integral part of the church and
performed the church's work; the taking of vows and membership in a
religious order made them religious professionals. 2 ' It is the full-time
religious commitment of the residents, and not the proximity of the
residence to the church building itself or the work within the boundaries of
the church property that determines whether a house is being used for
religious purposes. 127
"' Cf. American Press v. Lewisohn, 74 Misc. 2d 562, 569, 345 N.Y.S.2d 396, 404 (Sup. Ct.
N.Y. County 1973), aff'd, 48 App. Div. 2d 798, 372 N.Y.S.2d 194 (1st Dep't 1975), appeal
denied, 38 N.Y.2d 708 (1976) (religious organizations that are "additional" to the church,
and that act independently of the church, may qualify as a religious function for tax
purposes). Arguably, non-religious activity could qualify as a religious use for zoning purposes,
especially since "the line which separates the secular from the sectarian in American life is
elusive." Abington School Dist. v. Schempp, 374 U.S. 203, 231 (1963) (Brennan, J.,
11 118 Ind. App. 38, 76 N.E.2d 597 (1948) (en banc).
121 Id. at 40-41, 76 N.E.2d at 598.
121 Id. at 47-48, 76 N.E.2d at 601.
124 Id. The court relied upon the case of Scott Co. v. Roman Catholic Archbishop, 83 Or. 97,
107, 163 P. 88, 91 (1917), to demonstrate that a building for church purposes is not limited
to use as a place for divine worship. 118 Ind.App. at 46, 76 N.E.2d at 601; see supra note 38
and accompanying text.
" 118 Ind. App. at 47, 76 N.E.2d at 601.
126 Id. (quoting Scott Co., 83 Or. at 109, 163 P. at 91).
7 118 Ind. App. at 47, 76 N.E.2d at 601.
Neither ordination, specific church work, nor adherence to a
particular church was necessary for the Illinois appellate court to find in
Diakonian Society v. City of Chicago Zoning Board of Appeals'28 that a
group of monks was a religious group and that their residence in a
singlefamily district was a permitted use within the meaning of a Chicago
zoning ordinance.'2 9 In Diakonian Society, the plaintiff was a religious
society with an ecumenical ministry. 3 ' The members adhered to various
religious traditions, including those of the Roman Catholic, Lutheran, and
Presbyterian faiths. They professed vows of poverty, chastity, and
obedience and lived under the direction of an ordained pryor who regulated
their daily activities according to the Rule of Saint Benedict.' In
addition to determining the prayer schedule of the house, the pryor assigned
or approved the employment activities of the members. 32
The zoning board argued that only the ordained pryor was a religious
professional because the other members pursued work outside the
premises. "3' 3 The court refused to accept this argument and distinguished the
religious society here from the Opus Dei society in Hayward."
Diakonian Society relied heavily on the Hayward court and found the
men to be full-time religious rather than laymen. 3 5 The factors
contributing to the court's conclusion were religious vows, regulation of most
activities by the rule of Saint Benedict, common life under the direction of
the pryor, and common prayer requirements.'36 In addition, the court
accepted the testimony of a Roman Catholic canon lawyer who stated that
as he understood the term, the men were monks. 3 ' The religious
commitment of the Diakonian Society members enabled them to qualify within
the religious use provisions of the ordinance. Thus, the court implicitly
recognized that the commitment of such individuals fosters a stable
envi'28 63 Ill. App. 3d 823, 380 N.E.2d 843 (1978).
"9 Id. at 827-28, 380 N.E.2d at 846-47.
130 Id. at 824, 380 N.E.2d at 844.
131 Id. at 824-25, 380 N.E.2d at 844-45.
"' Id. at 827, 380 N.E.2d at 846.
"34 Id.; see supra notes 84-93 and accompanying text.
"35 63 Ill. App.3d at 827, 380 N.E.2d at 846.
,17Id. The canon law expert testified that a monk is "one who has committed himself to a
religious way of life, is a member of a religious society, has taken the vows of poverty,
chastity and obedience and lives a common life with others who have taken similar vows." Id. at
825, 380 N.E.2d at 845. He testified that the fact that the members of the Diakonian Society
were not Catholic had no effect on their status as monks. Id.
ronment qualifying as a harmless family substitute.
The purpose of the land use restrictions that have been considered is
to preserve the values and environment of family life. The restrictions do
this either by limiting the size of buildings in order to promote outdoor
space or by limiting residence in an area to persons deemed beneficial, or
at least harmless, to the family atmosphere. The majority of cases
involving occupancy by a religious group turn on whether or not the group
qualifies under the restrictions enumerated in an ordinance. Those seeking to
enforce the ordinance against the religious do so not because of a specific
objection to the particular religious group, but because of the possibility
that other organizations will attempt to qualify under the ordinance, yet
will not be as conducive to a family environment as are the religious
organizations. Courts, therefore, look to the degree of commitment that
individual religious have to their particular organization and to the primary
purpose of their activities. Members of a recognized religious order often
qualify within religious exceptions to single-family zoning ordinances
because of this commitment.
It is apparent that difficulty exists in excluding religious men and
women by means of existing land use restrictions. Ordinances that limit
residences to families bonded by blood or marriage too narrowly restrict
the definition of family and bear too little relationship to the state's
purpose of promoting family values. When a broader definition of family as a
single housekeeping unit is employed in the ordinance, courts look to the
bonds among group members to distinguish a religious house from a
multiple dwelling. Acceptable bonds include religious vows, shared daily life,
the presence of religious authority in the group, and membership in a
recognized religious congregation.
Essentially, what matters for purposes of zoning is the extent to
which the religious blend in with their neighbors and the surrounding
community. Relatively stable, fairly quiet people who work outside the
home are not offensive to the purpose of single-family zoning ordinances.