Agenda - Planning Commission - 11/03/2011

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September 10, 2011 I Volume 5 I No. 17 Zoning Bulletin The court next analyzed the "equal terms" provision of RLUIPA against the language of the City Code. The statutory text of the equal terms provision says: No government shall impose or implement a land use regula- tion in a manner that treats a religious assembly or institu- tion on less than equal terms with a nonreligious assembly or institution. The City Code said that "religious organizations" were permitted only upon the granting of a CUP. Meanwhile, numerous other uses were permitted as of right and did not need a CUP. Among the uses not re- quiring a CUP were "membership organizations (except religious orga- nization)." The court found it "hard to see how an express exclusion of `religious organizations' from uses permitted as of right by other 'mem- bership organizations' could be other than 'less than equal terms' for re- ligious organizations." In reaching its conclusion, the court noted a municipality cannot treat a religious organization "on less than equal terms with a nonreligious as- sembly" based on a compelling government interest. The language of the equal terms provision does not allow for it. Moreover, Congress man- dated that the RLUIPA be interpreted "in favor of a broad protection of religious exercise." The court made clear that a municipality would be found to have vio- lated the equal terms provision only if it treated a church on a less than equal basis with a secular comparator that was similarly situated with respect to an accepted zoning criteria. In other words, a city ordinance that, on its face, treated a church on "less than equal terms" would not be in violation of RLUIPA only if the distinction was based on "accepted zoning criteria" —such as parking, vehicular traffic, or generation of tax revenue. Thus, a city "may be able to justify some distinctions drawn with respect to churches, if it can demonstrate that the less -than -equal - terms are on account of a legitimate regulatory purpose, not the fact that the institution is religious in nature." Here, the court found that the City Code's exclusion of religious or- ganizations was "not reasonably adapted to the zoning criteria it [was] purported to serve" (i.e., preventing a damper on liquor license issuanc- es). The court found that the "300-foot restriction on liquor [did] not vitiate the inequality" because: (1) the language of the City Code said "religious organizations," not "uses which would impair issuance of li- quor licenses"; (2) the Code's exception was "too broad to be explained away by a liquor license restriction," as it excluded not only churches and K-12 schools (which affected liquor licenses), but also "religious or- ganizations that were not churches" (and thus did not affect liquor li- censes); and (3) "many of the uses permitted as of right [—such as a post 4 © 2011 Thomson Reuters