Agenda - Planning Commission - 08/04/1998

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Z.B. July 25, 1998 Page 3 I I I I I I I I I I I I I I I I I The city reasonably believed nudity, combined with alcohol in public places, "encouraged undesirable behavior" and wasn't in the interests of the public health, safety, and welfare. This conclusion was supported by the experiences of other cities, studies done in other cities, and common sense. see also: UnitedStates v. O'Brien, 391 U.S. 367, 20 L.Ed.2d 672, 88S. Ct. 173 (1968). see also: 44 Liquormart Inc. v. Rhode Island, 517 U.S. 484, 116 &Ct. 1495, 134 L.Ed. 2d 711 (1996). Religious Use-- Can county make church apply for conditional use permit? Citation: Open Door Baptist Church v. Clark County, Court of Appeals of Washington, Div. Two, No. 22285-0-II (1998) The Open Door Baptist Church was in a rural district in Clark County, Wash. Churches were a conditional use in the district, but Open Door had been 6perating for five years without a conditional use permit. The county learned of Open Door's nonconforming use and said it had to apply for a permit or be fined for continuing zoning violations. Open Door appealed to the county hearing examiner, who ordered Open Door to apply for a permit within 60 days or be fined. Open Door appealed to court, arguing the county violated its right to religious freedom. To establish that a government regulation violated the state constitution's right to the free exercise of religion, the church had to prove a government action had a coercive effect on the practice of religion. If it did, then the county had to show the restrictions served a compelling state interest and were the least restrictive means for achieving this interest. The court found the county violated Open Door's right to religious freedom by making it apply for a permit. Reversing the hearing examiner's order, the court returned the matter for the examiner to determine whether the county could show a compelling purpose for making Open Door apply for a permit. The court also ordered the county to show a compelling reason for charging Open Door the estimated $5,500 application fee. The county appealed, arguing Open Door didn't show that applying for a permit burdened the free exercise of religion. DECISION: Reversed in part. Open Door had to apply for a conditional use permit, but the county had to justify the $5,500 fee. Open Door failed to show how applying for a conditional use permit would burden its free exercise of religion. It admitted the only damage it would suffer would be the time and money spent applying for a permit. The county did have to show it used the least restrictive means of achieving the compelling purpose of protecting the public safety. Because Open Door neither applied for nor was denied a permit, there was no way to determine whether the county made every effort to accommodate the church. The county