Agenda - Planning Commission - 05/03/2018

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April 10, 2018 I Volume 12 I Issue 7 Zoning Bulletin Pursuant to the County's zoning ordinance, the BZA, when determining whether to issue the special exception, was required to, among other things: (1) conclude that the special exception would not adversely affect the public interest; (2) consider the impact on other property owners; and (3) properly consider setback require- ments, including a one -mile setback of CAFO's from schools. Con- trary to House of Prayer's assertions, the appellate court determined that the BZA had properly applied those considerations when it is- sued the special exception to Milco. Specifically, the court concluded that: (1) the BZA had properly considered the affect of the CAFO on the public interest, and had applied conditions on the special excep- tion approval to ensure that the CAFO would not adversely affect the public interest; (2) the BZA had properly considered the impact on other property owners, and had determined that the CAFO use was compatible with the adjacent properties in the agricultural zon- ing district; and (3) the BZA did not err when it permitted Milco's CAFO to be located one-half mile, rather than one full mile, from House of Prayer's property because the BZA's determination that the House of Prayer's youth summer camp was not a "school" within the ordinance was not an interpretation that was inconsistent with or contrary to the ordinance itself. In rejecting House of Prayer's claims that the BZA's grant of the special exception violated House of Prayer's religious rights under federal and state laws, the appellate court addressed each of those laws in turn. The court explained that the federal RLUIPA provides that "[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden" is both "in furtherance of a compelling government interest" and "the least re- strictive means of furthering that compelling government interest." (42 U.S.C.A. § 2000cc(a)(1).) RLUIPA further provides that "[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." (42 U.S.C.A. § 2000cc(b)(1).) RLUIPA defines a "land use regulation" in relevant part as "a zoning . . . law, or the application of such a law, that limits or restricts a claimant's use . . . of land . . . , if the claimant has . . . [a] property interest in the regulated land . . . ." (42 U.S.C.A. § 2000cc-5(5).) House of Prayer had asserted that the BZA's decision to grant the special exception to Milco was a "substantial burden" on House of 10 ©2018 Thomson Reuters