Know your land use rights

By Daniel P. Dalton

Imagine that your executive leadership team decides to launch a new campus  in another city. The leader of the church plant finds a clean, large parcel of land located in an easily accessible part of town. It’s off a busy road, with adequate parking and a large, empty building that can be easily converted to a worship facility. Better yet, the bank owns the property through foreclosure, so the church can purchase it for pennies on the dollar.

After a time of prayer and discernment, an offer to purchase is submitted and accepted. The church is the proud owner of a new site and building. Plans are drawn up for the new facility, a celebration is planned, and dignitaries are invited for the grand opening.

Then, one morning, the team leader arrives at the building to find a large, red sticker on the door.  It reads: “Closed.” The ominous sticker cites the church’s failure to secure approved zoning.

A call to the local building office confirms the church leader’s worst fear: The community has concluded that the property is located in a zoning district that doesn’t allow religious uses as a right, or by special land use approval.

What’s going on here?
Zoning — the legal authority granted to local governments from a state through its constitution, and to local government through enabling legislation — gives local communities the ability to regulate the use of land within its boundaries. Through the years, Congress found that religious entities have too often been treated unequally in comparison with secular counterparts with regard to municipalities enforcing local land use ordinances. This unequal treatment arises for a variety of reasons, ranging from a municipality’s preference for a secular entity that pays property taxes over a tax-exempt religious entity, to blatant and intentional discrimination against a religious institution.

In response to this, in 2000, Congress unanimously passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), in an effort to level the playing field. Since RLUIPA was adopted 13 years ago, litigation surrounding the statute has been ever-evolving. Congress provided for five separate causes of action, damages and injunctive relief as a remedy for violation of RLUIPA, along with the ability of the Department of Justice to intervene to remedy religious discrimination. Congress further mandated a broad interpretation of the Act and added that the “use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.”

The ins and outs of RLUIPA
While RLUIPA is a relatively new law, it has had a positive impact for religious entities throughout the United States. One of the most frequently litigated provisions of RLUIPA is what’s known as the “equal terms” clause. A recent case demonstrates the breadth of the clause.

In Opulent Life Church v. City of Holly Springs, MS, a congregation found a suitable facility in the city’s main business district. The church executed a lease agreement for the facility and then applied for a renovation permit with the city’s planning commission. In response to the city denying its application, the church filed suit, alleging the provisions of the zoning ordinance that only applied to churches were violations of RLUIPA.

The night before oral argument was scheduled before the Court of Appeals, the city amended its zoning ordinance and replaced the language that barred only “churches” from the courthouse district to now exclude “churches, temples, synagogues, mosques and other religious facilities.” The appellate court determined the church had established an equal-terms case by differentiating between religious and nonreligious land uses in its zoning ordinance.

Another important (and often litigated) RLUIPA provision is known as the “substantial burden” clause. It 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….” The clause also provides a narrow exception: A government’s imposition of a burden is permissible if it “is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.”

A recent case litigated by this author in the southern district of California construed whether the City of San Diego imposed a substantial burden on a Catholic school when it denied the school permits to construct new facilities on its campus. In Academy of Our Lady of Peace v. City of San Diego, the facts established that the school is the oldest high school and the only all-girls Catholic school operating in San Diego County. The last classroom constructed on campus was built in 1965. And, for the last several decades, Our Lady of Peace (OLP) had felt constrained in its limited facilities. To reduce crowding, the school’s consultants prepared a plan that met all the zoning and planning requirements of the City of San Diego and the State of California. Accordingly, the plan was approved by the City Development Services and unanimously approved by the planning commission. The politically active neighbors who opposed OLP’s plan appealed the planning commission’s decision to the city council.

The city council held a hearing on the appeal in January 2009, but withheld its decision. Soon after, one council member — whose district included the school and was elected to office merely weeks before the decision was made — met with a city staff planning member and requested that he reverse his earlier findings which supported OLP’s plan. The staff member felt obligated to change his decision, even though he’d never before been asked to make reverse findings based on political pressure. Once the staff recommendation changed, the city council met and voted to deny the modernization plan. The neighbors then hosted a fundraiser and paid off the councilmember’s campaign debt.

OLP filed suit, alleging the city’s March 2009 decision substantially burdened OLP’s religious exercise. After nearly four years of litigation, the case proceeded to trial in October 2013. The city denied any improper conduct, and instead contended that the city council’s actions were required under the California Environmental Quality Act (CEQA). On Oct.19, 2012, the jury disagreed with the cty and found in favor of OLP, awarding it more than $1.1 million in damages — the largest jury verdict to date. The case later settled, in February 2013.

Not a dead end
So, what should a church do when faced with a “zoning denial” after finding and purchasing the ideal worship facility and/or parcel of land? If the zoning doesn’t permit religious use, it should employ an experienced RLUIPA attorney to determine if the denial of religious use can be legally challenged.

Then, it should move forward in pursuit of its dream of a new church home.

Headquartered in Bloomfield Hills, MI, Daniel Dalton is co-founder and partner of Dalton & Tomich, plc, representing religious entities throughout the United States in land use and zoning matters. He can be contacted via the organization’s website: www.daltontomich.com.

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