Agenda - Planning Commission - 11/04/2010

Home

ASI< THE AUTHOR JOIN US ONLINE! Go online during the month of October to participate in our "Ask the Author" forum, an interactive feature of Zoning Practice. Lora A. Lucero will be available to answer questions about this article. Go to the APA website at www.planning.org and follow the links to the Ask the Author section. From there, just submit your questions about the article using -there -mail link.. The author will reply, and Zoning Practice will post the answers cumulatively on the website for the benefit of all subscribers. This feature will be available for selected issues of Zoning. Practice at announced times. After each online discussion is closed,: the answers will be saved in anonline archive available through the APA Zoning Practice web pages. About the Author Lora A. Lucero is a city planner and land -use attorney in Albuquerque, New Mexico. She is editor of Planning & Environmental Lawand, along. with. Michael S. Giaimo (Robinson and Cole LC), edited RLUIPA Reader: Religious Land Uses, Zoning, and. the Courts, published by. the American Bar Association and American Planning Association in April 2009. This article is adapted from an article that Lucero published in the January/February zolo issue of Municipal Lawyer magazine. NO SUBSTANTIAL BURDEN FOUND Local government officials and planners should take heart from the examples where courts have found the government did not substantially burden the religious land -use applicant. They generally fall into three broad categories: Affirmations that general zoning and land -use restrictions apply to everyone. In Primers Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, the court found that a minimum i,000-foot buffer requirement between nonagricultural, nonresidential uses in an agricultural district "to protect, preserve, and enhance the rural character and lifestyle of existing low -density areas and agricultural use" did not substantially burden the church. In Westgate Tabernacle, Inc. v. Palm Beach County, the court ruled that the coun- ty's land development code requirements on a homeless shelter operated by the taber- nacle do not constitute a substantial burden. In Trinity Assembly of God of Baltimore City, Inc. v. People's Counsel for Baltimore, the court found that the denial of a vari- ance for a 25-foot-high, 250-square-foot electronic changeable copy sign, which the church wished to erect, was not a substan- tial burden. In Williams Island Synagogue, Inc. v. City ofAventura, the court ruled that the denial ofa conditional use permit (CUP) did not substantially burden an Orthodox Jewish congregation's ability to worship according to their beliefs. Female con- gregants who arrive late to prayer services must pass through the section reserved for men in order to get to the side reserved for females; the Kiddush, or ceremonial bless- ing of the wine and meal, must be prepared in the prayer area while services are end- ing; and the north -by -northeast orientation of the building prevents congregants from worshiping while facing east as required by Orthodox Judaism. The rabbi was con- cerned about these distractions, but the city denied the CUP because the proposed In Midrash Sephardi, Inc. v. Town of Surfside, the court found that excluding churches and synagogues from the business district, which requires some people to watkfurtherto attend service, is not a substantial burden. Long Branch, Newjersey, does not allow churches to operate soup kitchens in redevel- opment zones. In the Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, the dis- Congress stacked the deck in favor of the religious land -use applicant because RLUIPA authorizes attorney fees for the prevailing land -use applicant but not for the local government. location did not have adequate parking and the walkway would not provide safe pedestrian access. Affirmations that churches maybe excluded framsome districts. The Petra Presbyterian Church in Northbrook, Illinois, purchased a warehouse in the industrial zone and began using it as a church. The village sought an injunctionagainst the church based on violations of the building code. The church countered with a RLUIPA claim that the zoning code substantially burdened its free exercise because no churches were allowed in the industrial zone. In Petra Presbyterian Church v. Village of Northbrook, the Seventh Circuit decided that "the ban on churches in the industrial zone cannot in itself constitute a substantial burden on religion, because then every zoning ordinance that didn't permit churches everywhere would be a prima facie violation of RLUIPA." trict court decided there is no substantial bur- den in requiring the church to relocate outside of the narrowly drawn redevelopment zone. In Centro Familiar Cristiana Buenas Nuevas v. City of Yuma, the court found that the denial of a CUP for newly acquired property on Main Street, where the city had been focusing its revitalization efforts —thus preventing the church from usingthe property for religious practices —did not create a substantial burden. In North Pacific Union Conference Association of Seventh DayAdventists v. Clark County, the court ruled that the denial of a permit to construct a po,000-square- foot church administrative office building in the county's agricultural district, where churches are allowed but office buildings are not, is not a substantial burden. Affirmations that general review processes apply to everyone. In Konikov v. Orange County, Florida, the nth Circuit held ZONINGPRACTICE ao.ao AMERICAN PLANNING ASSOCWnON !Pleb 3