Agenda - Planning Commission - 11/04/2010

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New Berlin). Again, the facts speak volumes. Over a period of two years, the church acquired a Go -acre tract in New Berlin zoned residential; it wanted to build a new church for its growing congregation to replace its existing church in a nearby community. The tract was bordered on one side by a Protestant church and on the other by a tract owned by another Protestant denomination. The city had already agreed to rezone that parcel to allow a church to be built. The Greek Orthodox church applied to rezone a tq-acre chunk of its larger qo-acre tract from residential to institutional so that it could build its church, at an estimated cost of $12 million. The city planners were concemed about the request; if the church was unable to raise the $12 million and decided to sell the property, a school or other nonreligious facility might be built on the property if itwas rezoned institutional -The church offered to couple the rezoningwith a "planned unit development" (PUD) ordinance that would limit the site to church -related uses. lithe Greek Orthodox Church decided to sell, the future owner would be subject to the PUD restrictions. The planners were satisfied but the city council denied the rezoning because they thought a purchaser of the property would not be bound by the PUD, which was actually incorrect. The mayor suggested that the Greek Orthodox Church either apply for a CUP, which would allow the church to be built without the rezoning, or apply fora PUD overlay with the existing residential zon- ing, rather than rezoning to institutional. Neither alternative worked for the church. A CUP would expire within one year unless construction was started, and the church didn't know whether it could secure the In million in time. The city maintained that the church could wait until it secured the fund- ing before applying for the CUP, but the court decided that was unrealistic because donors would be making contributions without hav- ing confidence that the building could actu- ally be built. The church rejected the second alternative because it appeared to be a delay tactic. A PUD over a residential zoning designation would have the same effect as a PUD over an institutional zoning designa- tion —both would bind future purchasers to the restrictions contained in the PUD. The church filed suit and argued that having to sell its land and find an alterna- tive parcel, or be subjected to unreasonable delay because city officials were requiring it to restart the application process, amounted to a substantial burden. The Seventh Circuit decided the delay, uncertainty, and expense in continuing to file applications with the city rose to a substantial burden and neces- sitated a remand to allow the city a chance to negotiate with the church. The court noted that a burden need not be found insu- perable to be held substantial. The lesson here is much the same as in Guru Nanak, with the additional warning that local officials are charged with knowing the legal impact of the provisions of their land -use code. When the mayor suggested that the Greek Orthodox Church file a PUD application overlaying the existing residen- on 25.75 acres in Mamaroneck. The school opened in 1948 and renovated two buildings from the late 29th century, a summer home and the stable, for classrooms. The school built Wolfson Hall in the 296os. In 1979 a separate entity built a two-story Hebrew high school on the property. The village zoning code allows private schools to operate in the district with a special permit. In October zoos, WDS sub- mitted its application to renovate Wolfson Hall and to construct a new building so that it could add 12 new classrooms; a learning center; small -group instructional rooms; a �TFJti113l tit!l1t61/irAlt, I Mira e&1M.la • .:All 11111 till 11 i L'WA. As A.IAfiFr, 3111L AAG. Y IJ,ra 11 di, iFha V h. Yf A/1 ild, 1/.. A 11ALu1NlaR! a.IJA Arleve,ennuo-. tart. s.ckp.Vr,. tzrwI,dvd fj4'lb\I len. IM R illgifi An MIUMPII(Aff /JA7i.o,r17L6"liff 8ir AtoL saketnip l agA,artq.,.xnfra -_- ___aQIWII t)6A(GbiLniJf i,,,W.. i. +/tiLSeu$$dfg -..-. As:alae,141ttr If A „SIC u ia1.5 -T0 When Sts. Constantine and Helen Greek Orthodox Church wanted to move from this location in Wauwatosa, Wisconsin, to nearby New Berlin, the city council's lack of understanding of the city's zoning ordinance seems to have played a key role in the Seventh Circuit Court's finding that the church had been substantially burdened. tial zoning designation, the process began to smell fishy. Ifa PUD with industrial zoning Would not satisfy city officials, the same fatal flaw would certainly exist with residen- tial zoning. The Seventh Circuit noted the inconsistency in the city's logic. Arbitrary blindness to the facts can be expensive. After five and one-half years of litigation, the Village of Mamaroneck in Westchester County, New York, agreed to pay $4-75 million to a Jewish day school in settlement of its RLUIPA claim. The school had challenged the denial of its application for a special permit to expand its facilities. The Westchester Day School (WDS) is located multipurpose room; therapy, counseling, art, and music rooms; and computer and science labs. The expansion project was expected to cost $12 million. In February zooz the zoning board of appeals (ZBA) ap- proved a negative declaration, finding that the projectwould not have a significant en- vironmental impact. After a "small but vocal group" opposed the expansion project, the ZBA rescinded the negative declaration in August zopz, requiring WDS to prepare a full environmental impact statement. Instead, WDS sued. The school contended that the decision to rescind the negative declaration violated RLUIPA. ZONINGPRACTICE ao-ao AMERICAN PLANNING ASSOCIATIONIpal ) 5