Agenda - Planning Commission - 10/02/2008

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Other cases are marked by municipal deci- sion making that can best be characterized as confused and contradictory, which, in turn, raises an inference of discriminatory intent (e.g., Sts. Constantine and Helen Greek Orthodox Church II. City of New Berlin, 396 F.3d 895 C7th Cir. 2005)). Alternately, some cases include a record that is long on complaints and accusa- tions by neighbors or members of the zoning board but short on actual facts. In one New York case, the court found that the zoning board's fac- tual conclusions regarding the evidence pre- sented with respectto a proposed expansion of religious day school were "characterized not sim- ply by the occasional errors that can attend the task of government but by an arbitrary blindness to the facts" (Westchester Day School II. Vii/age . ofMamaroneck, 504 F.3d 338 (2nd Cir. 2007)). When the municipality has discretion in re- viewing a zoning application, it's important for it to adhere to best practices. Indeed, when a mu- nicipality denies the zoning application of a reli- gious institution, that denial is subject to a greater degree of court scrutiny as compared to the denial of an application for commercial development. These best practices include: 1. Sensitivity on the part of zpning staff so as to avoid any comments that might be perceived as hostility or bias toward a particular religion or religious use in general 2. DeCision making on the basis of sophisti- cated, professional analyses of traffic, parking, property value, Or other impacts, rather than on the basis of assumptions, unfounded fears, or questionable data 3. Consistency in staff review and the applica- tion of various standards, so that the institution cannot point to a similar use that received pref- erential treatment 4. A process that is not only fair on paper, but fair, open, and not predetermined 5. Flexibility on the part of planning staff, evi- denced by a willingness to compromise and solve problems rather than a tendency to rely on bureaucratic responses Perhaps most important, if the municipality is likely to deny the application it should be pre- pared to offer meaningful suggestions and alter- natives to the applicant (e.g., ways for the appli- cation to improve its site plan to satisfy planning concerns or, if the site is simply not acceptable, the identification of other feasible locations). If the religious institution is intent on litigating over the site or plan in questions, it is important that the municipality give solid justifi- cations for its decision and be proactive in offer- ing reasonable alternatives to the institution. At the end of the day, the entire course of interaction should lead a neutral observerto conclude that the municipality was willing to be reasonable and accommodating and that the lack of approval was due to the religious institu- tion being unreasonable or obstinate; In the Long Grove case, for example, the vil- lage's code allowed for a 55,ooo-square-foot facility (the same that any other assembly use would be entitled to at that location). The church's own architectural expert testified that this was more than enough space for a congre- gation of approximately 200. The church, how- ever, demanded approval of a 100,ooo-square- foot complex to accommodate "future growth." The village denied this request. The court of appeals found no RLlUPA violation and observed that the village's planning decisions were. well thought out, while the church was overstretching. Planners cannot, of course, bind corporate authorities. Indeed, some of the adverse court decisions involve a positive recommen- dation by planners but an override at the political level. Nevertheless, planners should offer their expertise with respect to the loca- tions that are most appropriate and compati-. ble with. municipal planning goals, the condi- tions for approval that are most important and justifiable, and the evidence that does (or does not) support denial or modification of an application. In RLUIPA lawsuits, courts have been skeptical of rote or unfounded objections to religious institutions, but have shown a willingness to uphol(j the discre- tional denials when they are justified by rec- ognized planning principles. Vol. 25, NO.9 Zoning Practice is a monthly'publication of the American Planning Association. Subscriptions are availahle for $75 (U.S.) and $100 (foreign). W. Paul Farmer, FAIC?, Executive Director; William R. .Klein, AIC?, Director of Research. Zoning Practice (lSSN 1548-0135) is produced at APA. Jim Schwab, AIC?, and David Morley, Editors; Julie Von Bergen, Assistant Editor; Lisa Barton, Design and Production. Copyright (92008 by American Planning Association, 122 S. Michigan Ave., Suite 1600, Chicago, IL 60603. The American Planning Association also has offices at 1776 Massachusetts Ave., N.W., Washington, D.C. 20036; www.planning.org. All rights reserved. No part of this publication may he reproduced or utilized in any form or by any m~ans, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, with- out permission in writing from the American Planning Association. Printed on recycled paper, including 50-70% recyded fiber and 10% postconsumer waste. ZONINGPRACTlCE .9.08 AMERICAN PLANNING ASSOCIATION I page 7 . 91