Agenda - Planning Commission - 02/02/2012

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Zoning Bulletin October 25, 2011 I Volume 51 No. 20 ates a private school. Covenant planned to build a larger church, a school, a gymnasium, and an activity field. In furtherance of those plans, in Octo- ber 2004, Covenant entered into a contract to purchase approximately eight acres of property in an R -2 residential zone in the City of Marietta, Geor- gia (the "City "). Covenant closed on the purchase of that land in Novem- ber 2005. It then sought a development permit from the City. At that time, the City informed Covenant that under a November 2004 zoning ordinance (the "2004 Ordinance" ), religious institutions were prohibited in R-2 zones. Covenant then applied for rezoning, which the City denied. Eventually, Covenant filed a lawsuit against the City. Among other things, Covenant alleged that the 2004 Ordinance, on its face, violated the equal terms provision of RLUIPA (42 U.S.C.A. § 2000cc(b)(1)). RLUIPA's equal terms provisions states that: "No government shall irn.- pose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assem- bly or institution." (42 U.S.C.A. § 2000cc(b)(1).) A finding of a violation of this provision requires: (1) the party challenging the ordinance must be a religious assembly or institution that is (2) subject to a land use regulation that (3) treats the religious assembly on less than equal terms with (4) a non- religious assembly or institution. Covenant argued that since the 2004 Ordinance prohibited religious insti- tutions in the R -2 zone but allowed private parks, playgrounds, and neigh- borhood recreation centers, the 2004 Ordinance facially differentiated be- tween religious and nonreligious assemblies or institutions. The district court agreed with Covenant. The City later appealed. DECISION: Affirmed. The United States Court of Appeals, Eleventh Circuit, held that the 2004 Ordinance violated the equal terms provision of RLUIPA. In so holding, the court rejected the City's contrary arguments. The City had first argued that the 2004 Ordinance did not violation RLU- IPA's equal terms provision because private parks, playgrounds, and neigh- borhood recreation centers did not qualify as "assemblies" under RLUIPA. The City argued they were not "assemblies" because those who attended such places were not assembling for a common purpose, but were there for differing reasons: some sought exercise, others sought relaxation or solitude. Thus, the City maintained it could treat those entities differently than reli- gious assemblies without violating RLUIPA. The court disagreed. It said: "That some individuals have different pur- poses for meeting in a particular place does not mean the place fails to qual- ify as an `assembly' under RLUIPA." Rather, the court found that private parks, playgrounds, and neighborhood recreation centers were "assemblies" within the meaning of RLUIPA. The court said this was because they were "places where `groups or individuals dedicated to similar purposes — whether © 2011 Thomson Reuters 3