Wednesday, August 24, 2005

Religious Land Use Protection Act Gets Better Defined by Courts

A few years ago, Sen. Orrin Hatch sponsored a bill that was designed to give reglious-related land uses protection, or even exemptions, from local land use regulations. The impetus behind the bill was that land use requirements sometimes seemed to be used to keep certain religious uses and activities out of some communities.

The first version of the law was struck down by the U.S. Supreme Court, and a second version was passed that so far has stood up, though there are challenges to it pending in the courts.

The concern of many planners was that the Act (called RLUIPA) gave religious land uses, like churches, exemptions from local regulations that really had nothing to do with exercise of religion.

In Utah, a bill was passed in the last session of the state legislature that in effect echoes the federal RLUIPA, prompted in part because of the objections of residents to the building of churches in residential neighborhoods.

This month's Planning magazine includes a short piece by Jim Lawlor on a RLUIPA case in Oregon that seems to define better what can and can't be done in regulating churches under such laws. Interestingly for us in Utah, the case involved a permit for an LDS chapel.

The case, decided in May, is Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. City of West Linn.

The LDS Church had applied for a conditional use permit to build a church on a 3.85-acre parcel in a residential area of West Linn. The structure and parking would cover 2.02 acres, leaving a buffer that would be 26 feet wide at its narrowest point.

The city council of West Linn denied the permit application, primarily because of inadequate buffering from the surrounding neighborhood. The Church filed a lawsuit on RLUIPA grounds, which went through to the intermediate appeals court. The intermediate appeals court upheld the city council's decision, holding that the buffer requirement did not amount to a substantial burden on the church's exercise of religion. The Church then appealed to the Oregon Supreme Court.

Reviewing U.S. Supreme Court precedents on substantial burden on exercise of religion and RLUIPA rulings by federal appeals courts, the Oregon Supreme Court concluded that a substantial burden is one that imposes pressure to forego or modify the expression of religious beliefs.

The court did not doubt that the city's denial of the conditional use permit was a burden. The Church would have to submit a new permit application, with either a larger lot or a smaller structure, and that would entail further delay and expense.

However, those hardships were not a substantial burden under RLUIPA, the court concluded. Siting a large structure often involves multiple applications and changes, along with related legal, architectural, and engineering costs, it observed. The city offered specific reasons for denying the permit, and nothing in the record suggested that it would not approve a revised application that addressed its concerns. Nor was there anything in the record to suggest that the permit denial was motivated by religious prejudice.

Thus, it may look like reasonable land use regulations may well be applicable to religious structures and uses, and they won't get a pass just because they are religious.

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