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<br />
<br />ensuring "intrusion at almost every level of government,"
<br />Kennedy noted that Section 5 of the Fourteenth Amendment
<br />grants Congress the power only to provide remedies for the
<br />infringement of constitutional rights. RFRA, the opinion held,
<br />exceeded that authority by seeking to redefine those rights, a
<br />function reserved for the courts.
<br />In a concurring opinion, Justice Antonin Scalia defended the
<br />holding in Smith and sought to refute a dissent by Justice
<br />Sandra Day O'Connor. Justices David Souter and Stephen
<br />Breyer also dissenred, the former joining most of O'Connor's
<br />dissent, with both in separate opinions also advocating a
<br />rehearing to consider overturning Smith. O'Connor, in an
<br />extensive display of historical scholarship, maintained that the
<br />public debate and state legislation that preceded and followed
<br />the ratification of the Bill of Rights demonstrated an intent to
<br />foster and accommodate religious practice wherever possible and
<br />not merely to avoid discrimination. Scalia read that history
<br />differently and excoriated the lack of any recent history of
<br />religious discrimination to justify RFRA's far-reaching
<br />implications and impact.
<br />RFRA has produced dozens of decisions in federal courts and
<br />a far larger number oflawsuits, many from prisoners seeking
<br />various freedoms denied by corrections officials (see "Zoning
<br />and Big Box Religion," November 1996). A number of state
<br />attorneys general have complained about this spate of litigation,
<br />even as religious leaders and congressional sponsors have
<br />vigorously defended the law. Although the number of RFRA-
<br />related suits involving land-use regulations was relatively small,
<br />City of Boerne v. Flores was the first case testing the law's
<br />constitutionality to reach the U.S. Supreme Court.
<br />The case is likely to have lasting implications for local zoning
<br />of religious uses, mostly by making local government
<br />regulations affecting religious uses subject to a less stringent
<br />constitutional test than that required under RFRA. Zoning
<br />ordinances that impinge on some aspect of religious freedom
<br />largely as an incidental byproduct of an otherwise valid public
<br />purpose are more likely to withstand scrutiny, as in the case of
<br />the historic preservation ordinance in question in Boerne,
<br />Texas. On the other hand, zoning that specifically focuses on
<br />restricting certain religious uses without a compelling public
<br />purpose are still likely to face stiff First Amendment challenges
<br />in court.
<br />"I just hope local governments don't feel their oats now and
<br />go too far," says Christopher J. Duerksen, a land-use attorney
<br />and vice-president of Clarion Associates in Denver, who has
<br />written on religious use and historic preservation topics,
<br />including the treatise, A Handbook on Historic Preservation Law
<br />(Washington, D.C.: Conservation Foundation, 1983). "They
<br />have got it about it as good as they can get it."
<br />
<br />uning N~WJ is a monthl}' newsletter published by the American Planning Association.
<br />Subscriptions arc ,,'ailablc for 550 (U.S.) and 565 (forcign). Frank S. So. Executive Director;
<br />WiUiun R. Klein. Direccor of Research.
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<br />z"ning N<ws is ptoduced at APA. Jim Schwab, Editor; Sh.nnon Armstrong. Lynette Bowden,
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<br />Roupe. Jason Winenberg. Reponers; Cynthia Cheski. Assistant Editor; Lis~ B~rton. Design and
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<br />Copyright @1997byAmeric.n Planning Association, 122 S. Michig.n Ave., Suite 1600.
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<br />
<br />Duerksen, however, says the Court, in repudiating what it
<br />viewed as an infringement on its right to "set the rules" for
<br />interpreting the Bill of Rights, may also have established a much
<br />wider precedent affecting other land-use issues, such as takings
<br />legislation. "Would the same reasoning apply?" Duerksen asks.
<br />"If the Court has set forth remedies and rules, can Congress set
<br />its own rules concerning diminution of value to establish
<br />takings? And if not, does that mean that takings legislation will
<br />focus more on the state level?" If so, he wonders, will state
<br />supreme courts, most of them interpreting state constitutional
<br />provisions similar to that in the U.S. Constitution, invoke the
<br />same privileges as the U.S. Supreme Court?
<br />"This case," Duerksen conqlu'des, "could have some very
<br />significant fallout in that regara.~' Jim Schwab
<br />
<br />ZOIY/HGRf!12orts
<br />
<br />The Florida Keys Traditional
<br />Villages: A Design Handbook
<br />
<br />Correa Valle Valle, Inc., Town Planners, 1390 South Dixie
<br />Highway, Suite 1302, Coral Gables, FL 33146. 1997. Handbook
<br />33 pp. 11" x 1 r Ordinance 33 pp. $10 plus $3 shipping and
<br />handlingfor handbook and accompanying ordinance.
<br />The Florida Keys face a special problem and a daunting task
<br />in preserving the local environment. According to Erick Valle, a
<br />partner in the design firm that produced this volume for Monroe
<br />County with funding from the Florida Keys Sensible Planning
<br />Alliance, the county contains some 14,000 lots in anriquated
<br />subdivisions. If fully built out, the handbook shows, the result
<br />would be certain environmental devastation, but this scenario
<br />need not happen. The new code, awaiting approval this summer
<br />pending some comprehensive plan amendments, aims to
<br />rechannel the vested development rights tied to these lots into
<br />new traditional villages while preserving much of the sensitive
<br />marine and island landscape. Despite the specifics related to the
<br />Florida Keys, this material contains useful recommendations for
<br />most environmentally sensitive coastal areas. Particularly
<br />interesting are the housing design suggestions dealing with the
<br />challenge of marrying the elevation requirements of the Federal
<br />Emergency Management Agency with those of the Americans
<br />with Disabilities Act, among other considerations.
<br />
<br />A . Comprehensive Parks and
<br />Open Space Plan; Parkland
<br />Dedication Ordinance
<br />
<br />City of El Paso, Texas, Department of Planning, Research and
<br />Development. Order (with check to City of El Paso) ftom Leslie
<br />Smyth, #2 Civic Center Plaza-8th Floor, El Paso, TX 79901.
<br />August 1996. 105 pp. (plan); 18 pp. (ordinance). $15 for both.
<br />The rationale for parkland dedication requirements and the
<br />calculation of citywide park needs has always been a somewhat
<br />elusive subject, but EI Paso has done a particularly
<br />commendable job. Of special interest to many planners in ocher
<br />growing communities will be the illustrated examples of park
<br />designs related to various types ofJandscape features in EI Paso's
<br />arid southwestern environment, including dual park/drainage
<br />uses of arroyos, adaptations of alluvial fans for softball and
<br />soccer parks, desert plateau designs, and wildlife sanctuaries.
<br />
<br />ler
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