Agenda - Planning Commission - 01/07/1997

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but others are being tried. In Des Plaines, the location of a relatively small new church in a "country atmosphere" residential area with streets lacking curb and gutter improvements has attracted complaints from neighbors about the members' use of street parking. The village has upgraded its parking standards from just one space per 10 seats to one per four, according to community development director Michael Donofrio. Those, of course, are proactive solutions. More difficult controversies often emerge over applications for expansions and accessory uses, the latter cases often drawing communities into legally dangerous territory of determining what activities actually constitute religious expression. Reactions to megachurches are still far from universal. In Irving, Texas, the home of several megachurches, including the Fellowship of Las Colinas, community development manager Steve Reed says the city has found no need to revisit its regulations, which allow churches by right in all except industrial districts. However, Irving's parking regulations require one space for every 3.5 seats in a church's main auditorium, and some expanding downtown churches have had to find additional parking as a result. Others.along major freeways, including Las Colinas, have had ample land for such purposes, Reed adds. Newport Beach, California, is the home of Mariners Church and St. Andrew's Presbyterian, both large institutions. Mariners, says planning director Sharon Temple, "has raised no problems because it is on a relatively isolated site in an industrial area." But the city has placed all churches into the "governmental, educational, and institutional" general plan category and is limiting them to 2,500 square feet in commercial areas as part of a current comprehensive plan update. The reason, accord- ing to Temple, is to allow small storefront start-ups but then require them to find an appropriate site once they need a freestanding facility. There are limits to the kinds of land-use regulations communities can and should impose, regardless of size. For example, Kosin thinks design review can be highly problematic. He says recent developments have made him more aware of the ways in which faith dictates design for many religions, including those less familiar to most Americans, such as Hindu temples. Architectural features are to varying degrees symbolic statements of faith and pose an inherent conflict between church and state for any community trying to regulate them. Historic landmarking of older churches poses fewer legal problems but has nonetheless been the basis of more than a few legal battles. However, that issue is unlikely to affect the newer megachurches for some time to come. Constitutional Issues For zoning purposes, the constitutional guarantee of freedom of religion most clearly distinguishes religious from other institutional uses. The First Amendment places a greater burden on government to justify regulations that may interfere with the free exercise of religion than to justify other kinds of uses of the police power. As long as most communities permitted religious uses by right in residentifil districts, however, the potential for legal conflict was largely limited to discrimination against minority religions, which usually earned the offending governmental unit a rebuke in court. The most significant new development in this area was the passage in 1993 of the Religious Freedom Restoration Act (Public Law 103-14 I), which sought to reverse the impact of a decision by the U.S. Supreme Court on April 17, 1990, in Emtaloyment Division v. Smith, 494 U.S. 872 (1990). That case involved a member of the Native American Church who was denied unemployment benefits by the state of Oregon after being dismissed from his job for the sacramental use of peyote. Smith contended that the First Amendment protected this use. In the majority opinion, however, Justice Antonin Scaiia wrote that prohibiting the exercise of religion did not violate the First Amendment if it was merely the incidental effect of a generally applicable and otherwise valid law or regulation. The significance of that holding extended far beyond its effect on drug laws and moved a wide-ranging coalition of religious organizations into action. By November 1993, the Religious Freedom Restoration Act (RFRA) passed the Senate almost unanimously and was signed into law by President Clinton. RFRA's primary effect was to restore the compelling interest test regarding religious freedom established in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972). The law includes among its findings that: "laws 'neutral' toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise." Section 3(b) provides the new litmus test: Exception: Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person- (l) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. RFRA's impact was immediate, reversing the Supreme Court position that relied heavily on the issue of whether a violation of religious freedom had also violated the Fourteenth Amendment's equal protection clause. The Religious Freedom Home Page (http://www.northshore.shore.net/rlC), sponsored by the Boston-based Christian Science Committee on Publication, maintains an updated list of court decisions citing RFRA and summarizing their holdings. To date, according to this list, courts have cited RFRA in about 60 cases. The most frequently recurring conflicts occur in somewhat predictable areas: prisoners' rights, education, and employment discrimination. Relatively few, however, relate to zoning or other land-use controls. Kosin suggests that this is partly because few people have yet come to terms with the law's impact on the regulation of religious land uses. The cases so far involve a mixed track record for local land-use regulation. In Jesus Center v. Farmington Hills Zoning Board of Appeah, 544 N.W. 2d 698 (1996), 48 ZD 229, the court found under RFRA that a church's operation of a homeless shelter as an accessory use constitutes a religious exercise and that the community could only go so far as to establish guidelines for its operation, but could not ban it or force its relocation. But a federal district court in Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F.Supp. 1554 (1995), 48 ZD 2, found that the city could validly decide that such accessory uses were inappropriate. But in mid-October, the U.S. Supreme Court accepted what appears to be a test case of RFRA's constitutionality (Flores v. City of Boerne, 73 F.3d 1352 [5th Cir., 1996]). The issue is whether Congress overstepped its prerogatives by prescribing the standards for constitutional review. The city of Boerne, Texas, is making that claim in a zoning case where the Roman Catholic archdiocese of San Antonio is alleging that the city's denial of a permit to expand a historic church violates the act.