|
REFERENCES
<br />Barr v. City of Sinton, 295 S.W.3d 287 (Tex. 2oo9).
<br />Centro Familiar Cristiana Buenas Nuevas v. City of Yuma, 615
<br />F.Supp.zd 980 (D.Ariz. 2oo9).
<br />Christian Methodist Episcopal Church v. Montgomery, 2007 WL
<br />172496 (D.S.C. 2oo7).
<br />Giaimo, Michael 5. and Lora A. Lucero, eds. 2009. RLUIPA
<br />Reader -Religious Land Uses, Zoning, and the Courts. Chicago:
<br />American BarAssociation and American Planning Association.
<br />Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d
<br />978 (9th Cir. 2oo6).
<br />Konikovv. Orange County, Florida, 4to F.3d 1327 (nth Cir. zoos).
<br />Leffler, Jesse Ryan. zoio. "Hands Off the Scales: Rebalancing
<br />Religious Liberty and the Rule of Law." Planning &
<br />Environmental Law, Vol. 62, No. 6 (June).
<br />Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009).
<br />Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (nth Cir.
<br />2oo4); Cert Denied, 543 U.S. tt46 (Feb. 22, 2005).
<br />North Pacific Union Conference Association of Seventh Day
<br />. Adventists v. Clark County, 74 P.3d 14o (Wash. App.2003).
<br />Petra Presbyterian Church v. Village of Northbrook, 489 F.3d 846
<br />(7th Cir. 2007).
<br />Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward
<br />County, 45o F.3d 1295 (nth Cir. 2006).
<br />The district court ruled that the nega-
<br />tive declaration had not been properly re-
<br />scinded and was still in effect. The ZBA held
<br />a public hearing in May 2003 and denied
<br />the apptication fora special permit.
<br />The stated reasons for the rejection included
<br />the effect the project would have on traffic
<br />and concerns with respect to parking and the
<br />intensity of the use. Many of these grounds
<br />were conceived after the ZBA closed its hear-
<br />ing process, giving the school no opportunity
<br />to respond.... [The district court] surmised
<br />that the application was in fact denied be-
<br />cause the ZBA gave undue deference to the
<br />public opposition of the small but influential
<br />group of neighbors who were against the
<br />school's expansion plans (Westchester Day
<br />School v. Village of Mamaroneck).
<br />Nearly three years later, in November
<br />zoos, the district court ruled in favor of WDS
<br />and ordered the village to issue a permit. The
<br />Second Circuit affirmed in October zoo7.The
<br />court found "the record convincingly demon-
<br />strates that the zoning decision in this case
<br />was characterized not simply by the occa-
<br />sional errors that can attend the task of gov-
<br />ernment but by an arbitrary btindness to the
<br />facts." In addition, the court considered two
<br />factors to determine whether WDS had been
<br />substantially burdened: (i) whether there are
<br />quick, reliable, and financially feasible alter-
<br />natives WDS might utilize to meet its religious
<br />Rocky Mountain Christian Church v. Board of County Commissioners of
<br />Boulder County, --- F.3d ----, 2010 WL 28o2757 (loth Cir. (Coto.) July
<br />19, zoio).
<br />Rosenthal, Deborah and Brenna Moorhead. "Brief ofAmicus Curiae
<br />in Support of Appetlant for Reversal." Rocky Mountain Christian
<br />Church v. Board of County Commissioners of Boulder County, ---
<br />F.3d ----, 2010 WL 2802757 (loth Cir. (Colo.)). Available at www.
<br />planning.org/amicus/pdf/rockymountainchurch.pdf.
<br />San Jose Christian College v. Cityof Morgan Hill, 36o F.3d 11224 (9th Cir.
<br />zoo4).
<br />Sts. Constantine and Helen Greek Orthodox Church, Inc. v. City of New
<br />Berlin, 396 F.3d 895 (7th Cir. 2005).
<br />The Lighthouse Institute for Evangelism, Inc. v. City of Long Branch,
<br />406 F.supp.zd 507 (D.N.J. zoos), affirmed in part, vacated in part,
<br />5to F.3d 253, 3rd Cir., N.J. (Nov. 27, 2007), cert.denied,i28 S.Ct.
<br />2503 (May 27, 2008).
<br />TrinityAssembly of God of Baltimore City, Inc. v. People's Counsel for
<br />Baltimore, 962 A.zd 404 (Md. 2008).
<br />Westchester DaySchool v. Village of Mamaroneck, 504 F.3d 338 (2nd
<br />Cir. 2007).
<br />Westgate Tabernacle, Inc. v. Palm Beach County, t4 So.3d t027 (Fla.
<br />App. 4 Dist. zoo9).
<br />The Williams Island Synagogue, Inc. v. City ofAventura, 358 F..Supp.zd
<br />1207 (S.D.Fla. 2005).
<br />needs without obtaining the special permit
<br />and (2) whether the denial was conditional.
<br />The Second Circuit decided WDS couldn't
<br />simply reallocate space within its existing
<br />buildings, and that the denial was absolute
<br />because the ZBA could have approved the
<br />school's application with conditions but de-
<br />nied it instead. Additionally, the village did
<br />not demonstrate it had used the least restric-
<br />tive means to further a compelling interest.
<br />The Westchester decision is a big wake-up
<br />call in several respects. First, it goes without
<br />saying that a decision must be based on the
<br />facts ascertained during the public hearing,
<br />not fabricated after the hearing has closed.
<br />Second, preparing strong findings forthe deci-
<br />sion is always important. Third, public opinion
<br />is important but must not overwhelm the facts.
<br />Basic fairness requires decision makers to
<br />weigh the evidence and make the decision
<br />based solely on the facts. Finally, RLUIPA litiga-
<br />tion can consume years and be very expensive.
<br />Texas Religious Freedom Restoration Act
<br />In addition to the federal taw, there are state re-
<br />ligious freedom restoration acts (RFRAs) that in-
<br />clude a "substantial burden" standard. At test
<br />count, 13 states have enacted an RFRA by ei-
<br />ther statute or amendment to their constitution
<br />(Loftier, zoto).Two courts in Texas have ruled
<br />that local ordinances have substantially bur-
<br />dened religious land -use applicants pursuant
<br />to the Texas Religious Freedom Restoration Act
<br />(Tex. Civ. Prac. & Rem. Code sec. tto.003(a)-
<br />(b)). In June 2o09, the Texas Supreme Court
<br />determined that the City of Sinton's ordinance
<br />effectively banned a religious ministry that
<br />offered men recently released from prison free
<br />housing and religious instruction (Barry. City
<br />of Sinton). A month later, the Fifth Circuit held
<br />that the City of Eutess's ordinance, which pro-
<br />hibited the keeping of animals for slaughter,
<br />substantially burdened a Santeria's religious
<br />practices (Merced v. Kasson). The lesson for
<br />planners to remember is that state RFRAs,
<br />apart from RLUIPA, can have a significant im-
<br />pact on local land -use decision making.
<br />IS RLUIPA CONSTITUTIONAL?
<br />Whether or not it was the intent of Congress, '
<br />the passage of RLUIPA io years ago undeni-
<br />ably elevated religious land -use applicants
<br />above other applicants in the development
<br />review process. Although some may argue that
<br />RLUIPA merely levels the playing field, a case
<br />from Boulder County, Colorado, illustrates the
<br />dilemma confronting local officials who must
<br />balance the community's goals with the inter-
<br />ests of the religious land -use applicant.
<br />As many planners know, Boulder has
<br />received national recognition and awards for
<br />its growth management initiatives. The com-
<br />106
<br />ZONINGPRACTICE ao.ao
<br />AMERICAN PLANNING ASSOCIATION Ipage 6
<br />
|