Agenda - Planning Commission - 05/02/2013

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March 25, 2013 I Volume 7 I Issue 6 Zoning Bulletin standard when ruling on Bethel's substantial burden provision violation claim. The Fourth Circuit explained that, in the land use context, a plaintiff can suc- ceed on a substantial burden claim by establishing that a government regula- tion put substantial pressure on it to modify its behavior. However, the plaintiff need not show that the land use regulation targeted the plaintiff since the substantial burden provision protects against both nondiscriminatory and discriminatory conduct that imposes a substantial burden on religion. Here, the court found that Bethel had, at the very least, offered evidence raising a question of material fact as to whether it had a reasonable expecta- tion of being able to build a church. The court also found it significant that: Bethel had shown that its current facilities were inadequate and the construc- tion of even a small church on the Property would alleviate that burden; and the County had completely prevented Bethel from building any church on its Property, rather than simply imposing limitations on a new building. Still, the Ordinance would violate RLUIPA by imposing a substantial burden on religious exercise only if the Ordinance failed to satisfy strict scrutiny. That is, the Ordinance would not be in violation of RLUIPA if the County could show that it had used the least restrictive means of furthering a compelling governmental interest. The court assumed, without deciding, that the County's claimed interests of preserving agricultural land, water quality, and open space and managing traffic and noise in the rural density transfer zone were "compelling." The court also found that the County had failed to demonstrate that, as a matter of law, the Ordinance was the least restrictive means of furthering that interest. The County had presented no evidence that its interest in preserving the integrity of the rural density transfer zone could not be served by less restrictive means, "like a minimum lot -size requirement or an individualized review process." The court therefore reversed the district court's grant of summary judgment to the County on Bethel's substantial burden claim, and remanded the matter. Bethel had also claimed that the Ordinance violated RLUIPA's nondis- crimination provision. That provision provides: "No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination." (42 U.S.C.A. § 2000cc(b)(2).) Here, the court found the Ordinance was facially neutral, ap- plying to all private institutional facilities. Moreover, the court could find no evidence that Bethel was prohibited from constructing its church on the basis of religion; rather the court found that the County had expressed concern with the size of the proposed facility. The court affirmed the district court's grant of summary judgment to the County on this claim. The court also rejected Bethel's claim that the Ordinance violated RLU- IPA's unreasonable limitation provision. That provision provides that govern- ment shall not impose or implement a land use regulation that "unreasonably limits religious assemblies, institutions, or structures within a jurisdiction." (42 U.S.C.A. § 2000cc(b)(3)(B).) In other words, the provision prevents government from adopting policies that make it difficult for religious institu- tions to locate anywhere within the jurisdiction. Here, the court found that the Ordinance merely prohibited religious as- semblies, along with other institutional uses, on properties in the rural density 10 ©2013 Thomson Reuters