Agenda - Planning Commission - 10/07/1997

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government but to use his land in ways the government would not otherwise permit." A TDR "relates not to taking but to compensation" and has no bearing on whether there had been a '''final decision' concerning the extent to which plaintiffs land use has been constrained." Despite the hopes of property rights advocates and the fears of the many governmental entities that supported TRPA, the decision's impact may be minimal. "I believe the case is of limited precedential value," says Daniel Mandelker, Stamper Professor of Law at Washington University School of Law in St. Louis and the co-author with Boston attorney Brian Blaesser of the APA amicus curiae brief supporting TRPA. "The TDR system (in Lake Tahoe) was nondiscretionary. It was automatic," and led to the Court's ruling that the case was ripe, says Mandelker, adding that "99 percent of all local zoning approval procedures are discretionary. This case applies to only one percent." Stuart Meck, AICP Meck is principal investigator for APA S GROWlING SMAR~ project, a multiyear initiative to draft the next generation of model planning and zoning statutes for the U.S. Storefront Churches Challenged In a growing number of communities nationwide, storefront churches are becoming the newest battleground over zoning for religious uses, in a contest with municipal administrators who see their tax-exempt status as a drain on commercial districts. The issue pits First Amendment rights against fiscally sound zoning, religion against government, and, in some cases, the powerful against the seemingly powerless. Zoning News examines rwo recent cases for insights into this dispute. Officials in Aurora, Colorado, have been questioning conventional planning policies for religious establishments. The city council discussed but failed to approve a proposal decreasing from four to one the number of business districts permitting strip mall church congregations. Some municipal administrators in this working-class Denver suburb argue that these congregations overlook the surplus of Aurora's "more appropriate" real-estate stock in favor of low-rent strip malls. The Evanston, Illinois, city council recently rejected a church's request for occupancy of an office district building. Protests came from several directions. Evanston Inventure, an economic development partnership consisting of the city's largest taxpayers, argued that the community's severe space constraints have already driven away businesses that need to expand. Evanston school officials expressed concern when they discovered that the property in question brings the city $120,000 in annual real-estate taxes. In Aurora, council members and other city officials argued that providing churches with commercial space in already depressed districts further deteriorates the economic and, ultimately, the social value of the community. They suggest that, without taxes to support city services, local businesses vacate, the job pool declines, neighborhoods deteriorate, and problems associated with poverty and crime perpetuate themselves. Aurora city planner Robert Delgadillo says the storefront church opponents are concerned about the area's vulnerable IO~ {:..,. -Ii ". ", .~~ initiative to revitalize troubled East Colfax Avenue. Delgadillo says stricter regulations on storefront churches might complement the plan's objective of strengthening the economic and aesthetic fabric of the area. If that plan succeeds, he says, neighborhood and homeowners associations would probably become more tolerant toward such churches. Despite municipal opposition to the growing number of permit requests for storefront churches, an outcry from various civil rights, libertarian, and religious organizations prompted an Aurora city council committee to terminate the controversial regulatory proposal. Religious administrators from the East Colfax Avenue neighborhoods say the churches, which are often minority-operated, deliver a well- needed spiritual element to an underserved area. A strip mall that houses the Divine Love Christian Center, for example, sits on a corner frequented by drug and alcohol abusers. The church's proximity entices some of them off the street and into its services and ceremonies. The recent U.S. Supreme Court ruling in City ofBoerne v. Flores overturned the 1993 Religious Freedom_Restoration Act (RFRA), which granted churches relative exemption from many municipal policies, including some pertaining to planning and zoning. The likely result is to give municipal officials greater legal authority to impose nondiscriminatory regulations. The article below discusses that case. Michael S. Davidson Court Nixes Religious Freedom Act The Religious Freedom Restoration Act (RFRA) of 1993 is unconstitutional, the U.S. Supreme Court decided in City of Boerne v. Flores (No. 95-2074), in a decision handed down on June 25. The case involved the planned expansion of a historic Roman Catholic church in a San Antonio suburb. The archbishop of San Antonio challenged the city's denial of an expansion permit under its historic preservation ordinance as a violation ofRFRA, and the city then challenged the law's validity. The federal trial court held that Congress had exceeded its powers in passing RFRA,- but the Fifth Ci-rcuit Court of Appeals reversed. In a 6-3 ruling, the Court overturned the law that specifically aimed to overturn its own previous ruling, Employment Division v. Smith, 494 U.S. 872 (1990). In that case, the Court held that an Oregon law that resulted in the denial of unemployment benefits to rwo members of the Native American Church fired for the ritual smoking of peyote involved a permissible infringement on their religious freedom because it did not target a particular faith. According to the Court, the infringement was merely an incidental byproduct of a generally applicable statute. Dismay within the religious community over that outcome led to the passage ofRFRA, which restored the constitutional standard enunciated in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), which required that government show a compelling interest to justify a burden on the free exercise of religion and use the narrowest means possible to further that interest. Writing for the majority, Justice Anthony Kennedy said little about the specific circumstances in Boerne but cited a great deal of constitutional history concerning the First and Fourteenth amendments. Describing RFRA's "sweeping coverage" as 5