Agenda - Planning Commission - 11/03/2011

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Zoning Bulletin September 10, 2011 I Volume 5 I No. 17 In 2007, the Church bought a vacant building on Main Street in the city of Yuma, Arizona (the "City"). The City's zoning code (the "Code") required "religious organiza- tions" and "educational services" to obtain a conditional use permit ("CUP") to operate in the zoning district. Many other uses, including "membership organizations (except religious organization)" and enter- tainment venues, were permitted as of right (not requiring a CUP). Ap- parently, the reason for requiring the CUP for religions organizations and educational services was that the City had been attempting to revi- talize its Main Street into an "entertainment district." Under state law in effect in 2007, liquor licenses for bars, nightclubs and liquor stores were prohibited within 300 feet of a "church" or a K through 12 school. The Church applied for a CUP, which the City denied. That denial was based on the finding that the use of the building as a church would be inconsistent with a "24/7 downtown neighborhood involving retail, residential, office and entertainment." The liquor license problem was the "pivotal factor." The Church subsequently sued the City. It asked the district court to declare that the City Code provision subjecting religious organizations but not secular membership organizations to CUPs was invalid under RLUIPA. RLUIPA prohibits: (1) governments from implementing land use regulations that impose "a substantial burden" on religious exer- cise unless the government demonstrates that they further a "compel- ling government interest" by the "least restrictive means" (42 U.S.C.A. § 2000cc(a)); and (2) governments from imposing a land use restriction on a religious assembly "on less than equal terms" with a nonreligious assembly (42 U.S.C.A. § 2000cc(b)). The Church argued that the "equal terms" provision was violated by the City Code. The Church also asked the court to require the City to issue it a CUP, and the Church sued for damages for the financial consequences it suffered from the CUP denial. The district court concluded that the different treatment of churches did not violate RLUIPA. It entered judgment for the City. The Church appealed. Notably, while the appeal was pending: the church lost the property to foreclosure; and the state of Arizona passed a state version of RLUIPA which allowed for a waiver on the statutory ban on liquor licenses within 300 feet of a church. These subsequent events made moot the Church's claims for declaratory judgment and injunction. However, the Church's damages claims were not moot so the matter pro- ceeded on appeal. DECISION: Reversed, and matter remanded. The United States Court of Appeals, Ninth Circuit, held that the rel- evant City Code provision violated RLUIPA. In so holding, the court first concluded that monetary damages may be awarded against municipal entities under RLUIPA. © 2011 Thomson Reuters