Agenda - Planning Commission - 12/01/2016

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November 10, 2016 1 Volume 10 1 Issue 21 Zoning Bulletin religion by preventing the Church from purchasing the Theater Property; and (2) treated the Church on unequal terms by permitting movie theater uses but not religious assembly or church uses at the Theater Property." Among other things, the Church also challenged the City's former zoning ordinance(prohibiting church use in a B-1 district)under the First Amendment to the United States Constitution. The Church claimed that the City's zoning ordinance—prior to its amendment in April 2015—violated the Church's right to free speech and assembly to the extent that it"unjustifiably differentiated be- tween religious assembly uses and secular assembly uses." "The First Amend- ment generally prevents government from proscribing speech or even expres- sive conduct because of disapproval of the ideas expressed,"including religious ideas. The Church asked the court to find that there were no material issues of fact in dispute and to issue partial summary judgment in its favor(with respect to li- ability and not damages)—on two claims:(1)violation of RLUIPA's equal terms provision; and (2) violation of the right to free speech and assembly under the First Amendment.The City asked the court to issue summary judgment in its favors as to all claims against it. DECISION:Motions granted in part and denied in part. The United States District Court, District of Minnesota, first held that the Church's RLUIPA claims against the City were barred by RLUIPA's safe harbor provision. RLUIPA's "safe harbor"provision "allows a government to avoid RLUIPA's `preemptive force'by changing its policies and practices."The safe harbor provision specifically provides: "A government may avoid the preemp- tive force of any provision of[RLUIPA]by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise,by provid- ing exemptions from the policy or practice for applications that substantially burden religious exercise,or by any other means that eliminates the substantial burden."(42 U.S.C.A. §2000cc-3(e).) Here, in April 2015, the City had amended the zoning ordinance to allow "Assembly" uses—including movie theaters and places of worship—as conditional uses in the B-1 district,"and had issued a conditional use permit to the Church that allowed the Church to use the Theater Property for"Assembly" purposes.The court found that the April zoning amendment and the issuance of the conditional use permit to the Church,taken together,"permitted the Church to purchase the Theater Property for use as a place of worship'and placed the I Church on equal footing with secular assemblies, including movie theaters." Accordingly,the court concluded that the zoning amendment and the conditional use permit "eliminated any alleged substantial burden and any alleged discriminatory treatment imposed by the former zoning ordinance or by the City's denial of the Church's Planning Application."Thus, the court held that RLUIPA's safe harbor provision applied,and the Church's RLUTPA claims were barred.The Court granted summary judgment to the City on the RLUIPA claims. As to the Church's First Amendment claims,the court declined to issue sum- mary judgment on the free speech and assembly claims. The court first noted that the zoning ordinance was a content-neutral restriction on speech(since'the focus of the ordinance was on "genuine public health, safety, and general welfare issues"), still subject to intermediate judicial scrutiny, and therefore 4 ©2016 Thomson Reuters