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<br />AS I< TH E AUTH 0 R JOIN US ONLINE!
<br />
<br />Go online from February 8 to 19 to participate in our "Ask the Author" forum,
<br />an interactive feature of Zoning Practice. Margaret Wuerstle, AfCP, will be
<br />available to answer questions about this article. Go to the APA website at
<br />www.planning.org and follow the links to the Ask the Author section. From
<br />there, just submit your questions about the article using the e-mail link. The
<br />author will reply, and Zoning Practice will post the answers cumulatively on
<br />the website for the benefit of all subscribers. This feature will be available
<br />for selected issues of Zoning Practice at announced times. After each online
<br />discussion is closed, the answers will be saved in an online archive available
<br />through the APA Zoning Practice web pages.
<br />
<br />About the Author
<br />Margaret Wuerstle, AICP, is the chief planner and zoning hearing
<br />examiner for the City of Cincinnati. She has worked in various
<br />capacities in the planning field for over 30 years and is a former
<br />mayor of Dunkirk, New York. Wuerstle is a member of the Ameri-
<br />can Institute of Certified Planners and a Licensed Professional
<br />Planner in New Jersey. She is also an adjunct instructor at the
<br />University of Cincinnati, where she teaches courses in land-use
<br />controls and zoning. -
<br />
<br />son Act (RLUIPA) has significantly reduced
<br />the ability of loc?l governments to regulate_
<br />these land uses if they are provided by a
<br />religious institution. ,
<br />RLUIPA prohibits the government from
<br />treating a religious assembly or institution
<br />on "less than equai terms than a non-
<br />religious assembly; discriminating against
<br />any assembly or institution on the basis of
<br />religion; completely excluding religious as-
<br />semblies in a ju.risdiction; or placing unrea-
<br />sonable limits on the religious assemblies,
<br />institutions or structures within a jurisdic-
<br />tion" (Williams and Souchuns, 2003). How-
<br />ever, it does -not give a free pass to religious
<br />organizations. RLUlfYA was enacted to ad-
<br />dress congressional concerns about unfair
<br />treatment of religious landuses, not to pro-
<br />_ vide religious laDd uses with immunity from
<br />land-use regulations (Wein?tein, 2008).
<br />Many churches and synagogues that pro-
<br />vide shelt~rforthe homeless as part of their
<br />mission may claim that these activities are
<br />protected as a RrstAmendment expression of
<br />their faith _ and therefore are constitutiona-lly
<br />exempt from zoning regulations. This may be
<br />accurate depending on the circumstances of
<br />the case arid which court hears the case. State
<br />and federal courts have. not dealt with these
<br />claims consistently. Municipalities must be
<br />able to shpwthat any regulation thatinfringes
<br />on religious expression serves a compelling
<br />- public purpose that outweighs concerns about
<br />religious expression (Schwab, 2000).
<br />Title Vlll of the Civil Rights Act of 1968
<br />(the Fair Housing Act) as amended prohibits
<br />discriminatio'n because ofrace or color, reli-
<br />gion,sex, national origin, familial status, or
<br />disability. The Fair Housing Act (FHA) does
<br />not preempt local zoning laws, but it does
<br />prohibit lotal govemments from making zon-
<br />ing or land"use decisions or implementing
<br />land-use policiesthat exclude or otherwise
<br />discriminate~gainst protected individuals
<br />with disabilities.
<br />
<br />Persons with disabilities are individu"
<br />als with mental or physicaUmpairments that
<br />substantially limit one or more major life
<br />activities. The disability discrimination pro-
<br />visions of FHA do not protect persons who
<br />currently use illegal drugs, persons who have
<br />been convicted of manufacture or sale of
<br />illegal drugs, sex offenders, juvenile offend.
<br />ers, or persons with or without disabilities
<br />who present a direct threat to the persons or
<br />property of others. FHA does protect people
<br />who are recovering from substance abuse.
<br />In Massachusetts, the Worcester Regional
<br />Research 'Bureau released a study in response
<br />to civic concerns over the concentration of
<br />social service programs in certain areas of the
<br />City of Worcester that presented justification
<br />for using zoning regulations to preserVe the
<br />integrity of neighborhoods. More importantly,
<br />the-study confirmed that individuals actively
<br />using drugs and alcohol are not protected
<br />under FHA and further offered that individu"
<br />als must be "in recoveiy" for at least 30 days
<br />'-. before they are considered to have a disability
<br />that is protected under federal law (Worcester
<br />- Regional Research Bureau, 2005).
<br />
<br />CINCINNATI TAKES STOCK
<br />A 2007 court decision that upheld a zoning
<br />, approval for a 100,ooo-square-foot integrated
<br />social service facility, known as the CityLink -
<br />project, was the "tipping point" that forced
<br />(indnnati to pursue zoning text amendments
<br />for the regulation of social service facilities.
<br />Residents in the Over-the-Rhine (OTR)
<br />and the West End neighborhoods in Cincin"
<br />. nati are particularly fearful.ofthe impacts
<br />caused by the saturation of human servfce
<br />facilities and tried to prevent CityUnk from
<br />opening in their -neighborhoods. Once the
<br />court decision was issued, concemed citizens
<br />from OTR, West End, and other neighbor-
<br />hoods petitioned the city council to fake
<br />. action to address the concentration of contro-
<br />versialsocialservice facilities. .
<br />
<br />The city council and the planning commis-
<br />sion both felt that land uses should be sited
<br />only in those areas that the city determined
<br />to be appropriate and not as a result of unin-
<br />tended loopholes caused by a lack of clarity
<br />in the zoning code. To this end, city officials
<br />directed staff to amend the zoning code to
<br />include clear definitions for social service agen-
<br />cies and"to specify the zoning districts that
<br />would permit these uses. Additionally, on June
<br />25, 2008, the city council passed Resolution
<br />#41-2008 directing the city manager to use his
<br />authority, to the extent permitted by law, to ad-
<br />here to the policy "that social service agencies
<br />and programming shall not be concentrated in
<br />a single geographic area and shall not locate in
<br />an area that is deemed impacted."
<br />On September 10,2008,14 social .
<br />service agencies and individuals~led a com-
<br />plaint in U.s. District Court for the Southem
<br />District of Ohio in response to the resolution.
<br />The social service providers asserted that
<br />the resolution constituted a violation of the
<br />substantive due process rights secured by
<br />the :I4h Amendment of the U.S. Constitution
<br />because it failed to define what was meant
<br />by "an area that is deemed impacted," "con-
<br />centration" in a single geo'graphic ;'Irea,or
<br />"social service agency." Without definitions
<br />of the critical terms contained in the policy
<br />adopted by the resolution, the orders given
<br />to the city manager were considered to be
<br />vague and overbroad. The vagueness of the
<br />terms would deprive the social service provid-
<br />ers of their substantive due process rights
<br />to know what conduct was expected of them
<br />regarding social services and programming in
<br />neighborhoods (Greater Cincinnati Coalition
<br />for the Homeless, et al v. City of Cincinnati,
<br />1:08CV603, S.D. Ohio 2008).
<br />Additionally, the social service providers
<br />claimed that the resolution violated the Equal
<br />Protection clause of the U.s. Constitution also
<br />found in the 14th Amendment. The complaint
<br />argued that the city had no study or any other
<br />
<br />ZONINGPRACTlCE 1.10 i~_
<br />AMERICAN PLANNING ASSOCIATION Ipag/ " . ~/
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