Barr v. City of Sinton

295 S.W.3d 287

Pastor Rick BARR and Philemon Homes, Inc., Petitioners, v. CITY OF SINTON, Respondent.

No. 06-0074.

Supreme Court of Texas.

Argued March 22, 2007.

Decided June 19, 2009.

James C. Ho (argued), Mark Whitburn, Scott H. Mellon, Michael Sean Royall, Gibson Dunn & Crutcher LLP, Dallas, TX, Kelly J. Shackelford, Hiram S. Sasser III, Jonathan M. Saenz, Liberty Legal Institute, Plano, TX, Bradford M. Condit, Corpus Christi, TX, Michael Casey Matox, The Rutherford Institute, Charlottesville, VA, for Petitioners.

Carlos Villarreal (argued), James F. McKibben, Jr., Brian Charles Miller, Hermansen, McKibben, Woolsey & Villarreal, Corpus Christi, TX, for Respondent.

Allyson Newton Ho, Morgan, Lewis & Bockius LLP, Houston, TX, Jay Alan Sekulow, Erik M. Zimmerman, American Center for Law & Justice, Virginia Beach, VA, Loren Jacobson, Waters & Kraus, LLP, Dallas, TX, Douglas Laycock, University of Michigan Law School, Ann Arbor, MI, for Amicus Curiae.

Justice HECHT delivered the opinion of the Court.

The Texas Religious Freedom Restoration Act (TRFRA) provides that "a government agency may not substantially burden a person's free exercise of religion [unless it] demonstrates that the application of the burden to the person . . . is in furtherance of a compelling governmental interest [and] is the least restrictive means of furthering that interest."¹ TRFRA does not immunize religious conduct from government regulation; it requires the government to tread carefully and lightly when its actions substantially burden religious exercise.

In this case, a city resident, as part of a religious ministry, offered men recently released from prison free housing and religious instruction in two homes he owned. In response, the city passed a zoning ordinance that not only precluded the use of the homes for that purpose but effectively banned the ministry from the city. The trial court found that the city had not violated TRFRA, and the court of appeals affirmed.² We reverse and remand to the trial court for further proceedings.

I

In 1998, Pastor Richard Wayne Barr began a religious halfway house ministry through Philemon Restoration Homes, Inc., a nonprofit corporation he directed. The purpose of the ministry was to offer housing, biblical instruction, and counseling to low-level offenders released from prison on probation or parole in transition back into the community. For the most part, men accepted by the ministry had been convicted of drug-related crimes; the ministry would not accept men convicted of violent crimes or sex offenses. In application forms for would-be residents, Philemon described its function as "[c]reating bridges to enable the Christian inmate to go from prison to the local church through Biblical discipleship". Applicants were asked to respond in writing to several pages of questions inquiring about such things as family background, drug usage, mental health, and religious faith. Applicants were also required to sign a "statement of faith" in basic Christian beliefs³ and to agree to a long list of behavioral rules characterized as "biblical guidelines for Christian living".⁴ The guidelines emphasized to prospective residents that Philemon was "a biblical ministry, NOT a social service agency". Each morning began with group prayer and Bible study.

Barr lived and operated his ministry in the City of Sinton, a town 2.2 square miles in size with a population of 5,676 (2000 census), the county seat of San Patricio County, not far from Corpus Christi. Barr owned two homes besides his residence, both of them within a block of the church he attended, Grace Christian Fellowship, which appears to have been supportive of Barr's ministry. Barr housed and taught Philemon residents in those homes, which together could hold up to sixteen men at one time. Though the men were unsupervised, neither Barr nor the city manager was aware of any complaint of disturbance. Barr's commitment to the ministry was personal; he himself is an ex-con.

When Barr began his ministry, the City imposed no zoning or other restrictions on his use of the homes. In January 1999, Barr discussed his ministry with Sinton's mayor, city manager, and police chief, and a few weeks later he presented his ministry before the city council. In response to questions whether Philemon was in compliance with state law, Barr researched the matter and concluded that it was.⁵ In April, the city council held a public hearing at which a large number of people expressed both opposition to as well as support of Barr's ministry. A few days later, the city council passed Ordinance 1999-02, which added to the City Code a section that provided as follows:

A correctional or rehabilitation facility may not be located in the City of Sinton within 1000 feet of a residential area, a primary or secondary school, property designated as a public park or public recreation area by any governmental authority, or a church, synagogue, or other place of worship.

For the purposes of this section distance is measured along the shortest straight line between the nearest property line of the correctional or rehabilitation facility and the nearest property line of the residential area, school, park, recreation area, or place of worship, as appropriate.

For the purposes of this section "Correctional or rehabilitation facility" means a residential facility that is not operated by the federal government, the state of Texas, nor San Patricio County, and that is operated for the purpose of housing persons who have been convicted of misdemeanors or felonies or children found to have engaged in delinquent conduct, regardless of whether the persons are housed

(i) while serving a sentence of confinement following conviction of an offense;

(ii) as a condition of probation, parole, or mandatory supervision; or

(iii) within one (1) year after having been released from confinement in any penal institution.

For the purposes of this section "residential area" means

(i) any area designated as a residential zoning district by this ordinance, and

(ii) any area in which the principal permitted land use by this ordinance is for private residences.

The City Council finds the requirements of this section are reasonably necessary to preserve the public safety, morals, and general welfare.

As the city manager later confirmed, Ordinance 1999-02 targeted Barr and Philemon.⁶ The halfway houses they operated were unquestionably within 1,000 feet of a church; indeed, they were across the street from the Grace Fellowship Church, which was helping to support the ministry. But the ordinance was broader, and was intended to be. Because Sinton is small, it would be difficult for a halfway house to be located anywhere within the city limits. The city manager later testified:

Q. Is there any property within the city limits of Sinton that you are aware of that would qualify not being 1000 feet from any church, school, park—right— or residential area?

A. I have not checked it out, but it would probably be minimal locations.

Q. In other words, probably pretty close to nonexistent?

A. Possibly.

Q. Would that be a fair statement?

A. A fair statement.

There was no evidence that any specific site within the city was available.⁷

Despite the ordinance, Barr continued to conduct his ministry as he had before. Though violations were punishable by a civil fine of $500 per day, neither Barr nor Philemon was ever cited. By the summer of 2000, Barr had taken in fifteen men altogether. Then in October 2000, the Sinton police chief complained to the Texas Board of Pardons and Paroles that Barr and Philemon were housing parolees in violation of a city ordinance, and for awhile parole officials refused to approve the arrangement. Philemon residents went to live with members of the Grace Fellowship Church.

In June 2001, Barr's attorney notified the City by letter that Barr claimed Ordinance 1999-02 violated TRFRA.⁸ The City did not respond, and in August, Barr and Philemon sued the City under TRFRA, seeking injunctive relief, a declaratory judgment, monetary damages, and attorney fees.⁹ In October, state officials withdrew objections to Philemon's halfway house operation, and parolees were again permitted to stay in the homes. But after the trial court denied Barr and Philemon's request for a temporary injunction in January 2002,¹⁰ the Texas Board of Pardons and Paroles for the second time stopped approving parolees to live in Barr's homes and had the residents removed. Since then, Barr and Philemon have been unable to continue their ministry.

The parties agreed to a bifurcated trial to the bench, reserving the issues of damages and attorney fees pending the court's ruling on whether Ordinance 1999-02 violated the TRFRA. In November 2003, the court rendered judgment for the City. The court found that Barr and Philemon had operated "a correctional or rehabilitation facility" in violation of Ordinance 1999-02's 1,000-foot restriction, and that the ordinance did not violate TRFRA in any respect: that is, the ordinance did not substantially burden Barr's and Philemon's free exercise of religion, it was in furtherance of a compelling governmental interest, and it was the least restrictive means of furthering that interest.¹¹ Given the court's ruling, the issues of damages and attorney fees were never reached.

The court of appeals affirmed, concluding that Ordinance 1999-02 does not violate TRFRA because

there is nothing in the ordinance that precludes [Barr] from providing his religious ministry to parolees and probationers, from providing instruction, counsel, and helpful assistance in other facilities in Sinton, or from housing these persons outside the City and providing his religious ministry to them there.

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Moreover, Texas courts have long applied zoning ordinances to church-operated schools and colleges, supporting the conclusion that zoning ordinances do not substantially burden such auxiliary religious...