Thursday, February 4, 2010

May the bells toll . . . in Phoenix?

There seems to be a big church-state land use battle brewing in Arizona.  From the Arizona Republic story Court hears arguments over church bell in Phoenix:

The arguing over the silencing of church bells grew louder in two Phoenix courtrooms on Monday. 
 
The legal conflict centers on a church in north Phoenix. In 2008, it started to ring its bells 13 times a day, seven days a week, to  the annoyance of its neighbors. 
 
In May 2009 Phoenix Municipal Court Judge Lori Metcalf told the church, Cathedral of Christ the King, to pipe down. 
 
The bells could ring, she said, but only once a week on Sunday morning.
 
She also found the church's leader, Bishop Rick Painter, guilty on two counts of  disturbing the peace. He received a 10-day suspended sentence and three years' probation. 
 
On Monday morning, a national Christian legal group, the Alliance Defense Fund, argued in U.S. District Court that the Phoenix noise ordinance is overly vague and unconstitutional. 

The legal conflict centers around a city noise ordinance.  The language of the Phoenix noise ordinance isn't at all uncommon, and is based on nuisance theory.  In the "Nuisance and Noise" section, the Phoenix City Code sec. 23-12 reads:

"Subject to the provisions of this article the creating of any unreasonably loud, disturbing and unnecessary noise within the limits of the City is hereby prohibited." 

Is the ordinance unconstitutionally vague?  Does targeting church bells infringe on First Amendment free exercise, or RLUIPA?  It's a generally-applicable rule, but the text certainly gives a wide berth of discretion to local government officials to make enforcement decisions under the "reasonableness" standard.  Too much discretion, or necessary flexibility?  That's the classic land use regulation debate, and the religious land use cases tend to bring this point out.

Either way, though, sentencing a bishop to (suspended) jail time in pursuit of nuisance code enforcement is pretty hard core.  The battle is joined and it looks to be an interesting federal case.

UPDATE: Erik Stanley, the ADF attorney for the churches cited in the article, has a post in the comments section.

Matt Festa

http://lawprofessors.typepad.com/land_use/2010/02/may-the-bells-toll-in-phoenix.html

First Amendment, Local Government, Nuisance, RLUIPA, Sun Belt | Permalink

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Comments

Matt - Very interesting! We've been working on noise regulation over the last couple of years, and we see that sort of vague language in all sorts of noise ordinances. The courts here in Georgia have invalidated it in at least one case. We're advising clients to go to specific numerical standards that are easily quantifiable with readily available equipment that police or code enforcement officers can use.

Posted by: Jamie Baker Roskie | Feb 4, 2010 8:17:27 AM

As the attorney litigating this case, I want to make clear that the noise ordinance is not neutral or generally applicable. Sections 23-15(c) and (d) of the noise ordinance specifically exempt certain noises from the ordinance. Those exemptions take the noise ordinance out of the neutral and generally applicable context. Despite all that, though, the most unconstitutional part of the noise ordinance is its vagueness. The Virginia Supreme Court just struck down this identical noise ordinance last October in City of Virginia Beach v. Tanner and the US Supreme Couirt denied cert on that case on January 19. The worst part of this whole situation is the fact that the Bishop was sentenced to jail for doing something that churches have done peacefully for centuries. No pastor should fear jail time in America for peacefully exercising his religion.

Posted by: Erik Stanley | Feb 4, 2010 11:12:27 AM