First Covenant Church v. City of Seattle , 114 Wash. 2d 392 ( 1990 )

Utter, J.

(concurring) — I agree with the majority's conclusion that this declaratory judgment action is ripe for decision and that the landmark preservation ordinance cannot be applied to the First Covenant Church. I write separately to emphasize the facts which require this decision in this case and to indicate the legal standards which should govern such cases in the future.

I

As the majority points out, the landmark designation has reduced the value of the church's property, its most valuable asset. Since the landmark designation is complete and has had an impact on the church, consideration of this case is not premature.

The dissent argues correctly that we should dispose of the question of whether state regulation of the church's building modifications violates the church's free exercise rights by adopting the defendant's interpretation of the ordinance. This would make any changes to the church's structure for religious purposes exempt from the ordinance's review procedures.

In order to do that, however, we have to reach the issue. Because the case presents a ripe justiciable controversy, we should reach this issue.

The dissent cites two cases to support its view that this case is neither ripe nor justiciable. See dissenting opinion, at 418. In both these cases the court found that the matter before it was justiciable. See Spokane v. Taxpayers, 111 Wn.2d 91, 96, 758 P.2d 480 (1988) (controversy justiciable); Abbott Labs. v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967) (controversy ripe). Therefore, the dissent's reliance on these cases is misplaced.

A justiciable controversy requires (1) an existing dispute; (2) parties having genuine opposing interests; (3) direct and substantial interests at stake; and (4) a controversy amenable to conclusive judicial resolution. Spokane, 111 Wn.2d at 96. This case involves an existing dispute about whether this specific church may be designated a landmark. The State has an interest in preserving First Covenant and the church has an interest in operating it without state interference and without diminution in value. The judiciary can conclusively decide this case, as the dissent has demonstrated, with respect to the liturgy exemption.

The dissent complicates the inquiry into justiciability greatly by introducing the concept of ripeness as articulated by the United States Supreme Court in Abbott Labs. v. Gardner, supra at 148-49. None of our prior cases have cited Gardner or approved of its characterization of the ripeness doctrine.

More importantly, Gardner supports finding that this case is ripe. Gardner involved a preenforcement challenge to Food and Drug Administration regulations. Gardner, 387 U.S. at 138-39. The Gardner Court held that the challenge was ripe and remanded to the Court of Appeals for the Third Circuit for a ruling on the merits. 387 U.S. at 156. Although the government had not yet enforced the regulations against the drug companies, the Court held that the impact of the regulations "is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage." Gardner, 387 U.S. at 152. The Court noted that the purpose of the declaratory judgment act required judicial review. See Gardner, 387 U.S. at 152. Similarly, the church has been designated a landmark; like the drug companies, it must obey the_challenged law if constitutional. It need not await the application of each individual restriction of the act before challenging its constitutionality. It has a right to the declaratory judgment it seeks.

Washington precedent on ripeness in land-use cases does not allow us to delay a decision just because the litigant has not suffered enough injury to satisfy the court. In our previous cases we have decided whether claims were ripe on the basis of whether the administrative action was final, not on the intensity of the litigant's complaint. See Estate of Friedman v. Pierce Cy., 112 Wn.2d 68, 768 P.2d 462 (1989) (holding that a litigant's taking claim was not ripe because of a failure to exhaust administrative remedies); Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987) (litigant's taking claim ripe because further administrative appeals would be futile), cert. denied, 486 U.S. 1022 (1988); Department of Ecology v. Kirkland, 84 Wn.2d 25, 523 P.2d 1181 (1974) (issue ripe for review because administrative action was final). It seems that the dissent has confused the issue of ripeness with the question of whether the church's claim is meritorious.

II

The majority's conclusion that application of this ordinance to this church constitutes a free exercise violation is correct because the church has shown that application of the ordinance to it greatly diminishes the value of its principal asset. As the dissent states, adopting the City's construction of its own ordinance will avoid the necessity of deciding the question of whether state approval of the church's modification of its building violates the First Amendment. But the issue of whether the ordinance violates the constitution because of its impact on church finances requires a constitutional decision.

Prior to the United States Supreme Court's decision in Jimmy Swaggart Ministries v. Board of Equalization,_ U.S__, 107 L. Ed. 2d 796, 110 S. Ct. 688 (1990), Supreme Court precedent seemed to prohibit the imposition of a financial burden on the practice of religion. The Supreme Court had struck down a license tax on Jehovah's Witnesses and a tax on the sale of religious materials because these taxes burdened the free exercise of religion. See Murdock v. Pennsylvania, 319 U.S. 105, 319 U.S. 166, 87 L. Ed. 1292, 87 L. Ed. 1330, 63 S. Ct. 870, 63 S. Ct. 882, 63 S. Ct. 891, 146 A.L.R. 81 (1943); Follett v. McCormick, 321 U.S. 573, 88 L. Ed. 938, 64 S. Ct. 717 (1944). Because of this it appeared that a land use restriction imposed specifically on a church causing gross diminution in the value of its principal asset might violate the free exercise clause.⁹

The Supreme Court's decision in Swaggart, handed down after this case was argued, shows that a financial burden does not constitute a per se free exercise violation. The Court upheld the application of a tax on the distribution of literature to the sales operations of the Swaggart ministry. It distinguished Murdock and Follett on the grounds that the taxes struck down in those cases constituted prior restraints on religious activities.¹⁰

It went on to limit its decision by leaving open the argument that a more onerous tax imposed upon a church could interfere with religious activity and constitute a free exercise violation. It had to leave this argument open because in Murdock the Court had indicated that the sheer weight of a flat tax could unconstitutionally crush evangelicalism. Mur-dock, 319 U.S. at 115.

Our precedent and the precedent of the New York Court of Appeals provides useful guidance to the proper evaluation of the effects of financial burdens imposed by land-use restrictions on the free exercise of religion. This topic necessarily requires development by state courts because the United States Supreme Court has never decided a land-use case involving a church's free exercise claim.¹¹ Indeed, until recently the Court had decided few cases involving burdens upon churches as institutions as opposed to burdens on individuals. See Sumner v. First Baptist Church, 97 Wn.2d 1, 16-17, 639 P.2d 1358 (1982) (Dolliver, J., dissenting) (describing the inapplicability of Supreme Court precedents cited by the majority).

In Sumner v. First Baptist Church, supra, this court held that the application of a building code ordinance to a church school presented a free exercise claim. The plurality stated that the practical effect of uncompromising application of the building code would be to close down the church operated school. Sumner, 97 Wn.2d at 7. The dissent pointed out that it might not have this effect; instead, the defendant might choose to come up to code. Sumner, at 20. The court remanded the case to see if the church's needs might be accommodated with the need for safety. Sumner, at 8-10.

Sumner supports the proposition, implicit in Murdock and Follett, that regulations imposing financial burdens on churches can create a free exercise claim. Because the burden created in this case is so much greater than the burden imposed in Sumner, we must sustain the church's challenge in this case.

Land-use restrictions interfere with religious practice, not religious belief. See Comment, Zoning Ordinances Affecting Churches: A Proposal for Expanded Free Exercise Protection, 132 U. Pa. L. Rev. 1131, 1149 (1984). But religion is to some extent a communal matter. Ritual in some religions is inseparable from the spiritual experience of faith. An assembly of adherents is essential to creation of a unified community with a shared spiritual life. See Comment, at 1149-50. The free exercise clause protects religious practice as well as belief.

For these reasons, the law protects a church's ability to function as an institution. To some extent, it necessarily protects a church's finances. As the Supreme Court said in Murdock, "It is plain that a religious organization needs funds to remain a going concern." Murdock, 319 U.S. at 111. If a land-use restriction interferes markedly with a church's ability to perform its mission, the restriction may have to yield. See Sumner (land use regulation must allow church school to function at its present location); State ex rel. Wenatchee Congregation of Jehovah's Witnesses v. Wenatchee, 50 Wn.2d 378, 312 P.2d 195 (1957) (requiring special use permit for a church zoned out of a residential area); 82 Am. Jur. 2d Zoning and Planning § 154 (1976) (showing that most states have held zoning ordinances severely restricting church construction unconstitutional).

Although I think that our decision in Sumner compels us to rule in First Covenant's favor in the instant case, I write separately to urge that we apply a different approach in future cases. In light of Swaggart, we ought to require a very specific showing of hardship to justify exemption from land use restrictions in the future.

New York's courts require that landmark designation not prevent or seriously interfere with the carrying out of a church's religious and charitable purposes. See Lutheran Church in Am. v. New York, 35 N.Y.2d 121, 131, 316 N.E.2d 305, 359 N.Y.S.2d 7 (1974); Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 530, 496 N.E.2d 183, 505 N.Y.S.2d 24 (Meyer, J., dissenting), cert. denied, 479 U.S. 985 (1986).

We should adopt the New York test as the means of evaluating free exercise claims in land use. While imposition of a financial burden does not per se create a free exercise problem, the free exercise clause does not allow the state to impose financial burdens throttling religious practice. See Swaggart, 107 L. Ed. 2d at 811; Murdock, 319 U.S. at 111, 115.

The New York cases have not outlawed the application of land-use restrictions to churches. Instead, the cases permit relief from the strictures of ordinances when they genuinely interfere with a church's ability to perform its mission. For example, in Westchester Reform Temple v. Brown, 22 N.Y.2d 488, 239 N.E.2d 891, 293 N.Y.S.2d 297 (1968), the New York Court of Appeals required the zoning authorities to modify a setback requirement interfering with a needed expansion of a synagogue. The court relied heavily on the "undisputed fact. . . that the present facilities must be expanded to meet the increasing needs of the congregation. ” Westchester, at 492. It rested its opinion on First Amendment grounds. See also Jewish Reconstructionist Synagogue v. Roslyn Harbor, 38 N.Y.2d 283, 342 N.E.2d 534, 379 N.Y.S.2d 747 (1975), cert. denied, 426 U.S. 950 (1976) (requiring special use permit for synagogue in residential area).

On the other hand, the New York Court of Appeals rejected the argument that a decline in market value alone constituted a free exercise violation in Society for Ethical Culture v. Spatt, 51 N.Y.2d 449, 456, 415 N.E.2d 922, 434 N.Y.S.2d 932 (1980) ("there simply is no constitutional requirement that a landowner always be allowed his property's most beneficial use"). Nevertheless, a landmark ordinance cannot be applied to prohibit a church from realizing sufficient profits to move or replace its building if it becomes unsuitable to its needs. See Lutheran Church in Am. v. New York, 35 N.Y.2d at 132 (prohibiting landmark designation when church wished to demolish outmoded building and obtain a new one).

Our decision in Sumner and the uncontested gross diminution of the value of its property justify the majority's decision in this case. In light of Swaggart, we should apply the New York approach to future cases.

Durham, J., and Pearson, J. Pro Tem., concur with Utter, J.

9 The comments of Justices Scalia, Rehnquist and Kennedy in their dissent in Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 103 L. Ed. 2d 1, 109 S. Ct. 890 (1989) demonstrate this. The Texas Monthly Court invalidated a tax exemption for sales of religious periodicals as violating the establishment clause of the First Amendment. Texas Monthly, 109 S. Ct. at 894. The dissenters noted that Murdock and Follett might require a tax exemption for religious periodicals lest a free exercise violation occur. Texas Monthly, at 908. The same logic would require an exemption for land use controls upon churches which create a financial burden.

10 One of the decisions in Texas Monthly, Inc. v. Bullock, supra, anticipated this development. Justices Brennan, Marshall, and Stevens limited Murdock in much the same way as the Swaggart decision. Texas Monthly, 109 S. Ct. at 893. But their views on that point did not command a majority until the Swaggart decision.

11 The Court's decision in Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 99 L. Ed. 2d 534, 108 S. Ct. 1319 (1988) did not involve a church. In that case, the Supreme Court overturned a Ninth Circuit ruling forbidding upgrading a road and allowing a timber harvest which would interfere with Indian rituals linked to the land. The Court held that the free exercise clause does not restrain the government's use of government-owned land. It is thus of no use in deciding the case at bar.