Agenda - Planning Commission - 05/05/2011

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March 25, 2011 'Volume 51 No. 6 Zoning Bulletin The court explained that RLUIPA applies if "[the] burden is imposed in the implementation of a land use regulation ..., under which a govern- ment makes individualized assessments of the proposed uses for the property involved." The court noted that, in this case, the zoning scheme itself "may be facially neutral and generally applicable." However, it found that the individualized assessment that the city made to determine that ICFG's rezoning and CUP request should be denied was not. Here, further explained the court, ICFG bore the burden of proving that the city's Zoning Code or denial of the CUP imposed a substantial burden on ICFG's religious exercise, in violation of RLIUPA. To meet that burden, it had to show "more than inconvenience on religious exer- cise;" it had to show that city placed "substantial pressure" on ICFG "to modify [its] behavior and to violate [its] beliefs." If ICFG could demon- strate a substantial burden, the city would bear the burden of establish- ing that its action: "(A) [was] in furtherance of a compelling governmen- tal interest; and (B) [was] the least restrictive means of furthering that compelling government interest.? The court found that ICFG had presented evidence that "no other suitable sites exist[ed] in the [c]ity to house [ICFG]'s expanded opera- tions." ICFG had also asserted that its core religious beliefs required it to be able to meet in one place in communal worship with the entire congregation. As such, the court found that ICFG had presented enough evidence to raise a fact issue for trial (thus precluding summary judg- ment) as to whether the denial of space adequate to house all of ICFG's operations could be a substantial burden imposed by the city on ICFG. The court remanded the matter back to the district court for further pro- ceedings on the issue. Also, assuming, for the sake of argument, that ICFG proved a sub- stantial burden, the court noted that the burden would then shift to the city. The city maintained that it had a "compelling interest in preserving [ICFG's] [P]roperty for industrial use" because it "was located in [a fo- cus area] that [was] specifically targeted in the [c]ity's General Plan for preservation of industrial and certain commercial development needed to maintain the [c]ity's job base and economic welfare." The court held that "preservation of industrial lands for industrial uses [did] not by itself constitute a `compelling interest' for purposes of RLUIPA." Nor was "revenue generation" a compelling state inter- est "sufficient to justify denying a religious institution a CUP when such denial imposes a substantial burden." Even assuming the city's interest here was compelling, the court found that there was "a genuine issue of material fact as to whether the [c]ity used the least restrictive means to achieve its interest." The court noted that the city had not presented "ev- idence that it could not achieve the same goals by using other property within its jurisdiction for that purpose" (i.e., the purpose of preservation of industrial lands for industrial uses). 4 © 2011 Thomson Reuters