Daily Development for Thursday, October 27, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
ZONING AND LAND USE; RELIGIOUS PRACTICES: Religious Land Use and Institutionalized Persons Act protects requires “least burdensome alternative” approach to achieving public land use goals that substantially interfere with sincere religious practices, even if those practices are not “fundamental” to religious beliefs.
Grace United Methodist Church v. City of Cheyenne, 2005 WL 2746701 (10/25/05)
Church sought a variance to open an expanded day care center (75 students) in the Church facility. The applicable zoning ordinance permitted day care facilities of no more than 12 children. The city refused the variance. The Church argued that its day care center was a religious activity entitled to protection under various elements of the United States Constitution and the relatively recent Religious Land Use and Institutionalized Persons Act. The city noted that the facility would admit children who were not affiliated with the Church and teachers also were not required to be associated with the Church.
The Church challenged the City’s action in federal court, and the trial court affirmed, following a jury trial on the RLUIPA claim as to whether the Church’s day care activities were based upon a sincerely held religious belief.
On appeal, the court had little problem in this case batting down the Constitutional arguments. It concluded that there was a neutral compelling state interest in enforcing zoning rules of the sort here, and that the burden religious practices was insubstantial, as the Church could open a day care center at another, lawful, location. The only discussion of note in this part of the case was the discussion of whether the existence of certain other available exceptions to the zoning requirements triggered special Constitutional scrutiny when the city refused to grant an exception to the Church. The ordinance permitted exceptions for “churches,” “schools” and “other uses similar to those permitted in this district.” The Church argued that the zoning ordinance therefore was not one of “general application,” and that the City’s refusal not to provide an exception for the Church constituted discrimination.
The court agreed that there was a doctrine permitting challenge to apparent “general application” policies when adopted exceptions permitted government to make special exceptions. It said, however, that there was not general agreement as to what number or nature of exceptions would trigger this doctrine, which it termed the “individualize exception” doctrine. And the few exceptions permitted in this ordinance did not, in court the court’s view, justify the conclusion that the policies behind the ordinance were not of “general application.” It concluded that there was no per se rule that the existence of any exception will put into question the neutral purpose of a public ordinance.
As the district court correctly observed, several "federal courts have held that land use regulations, i.e., zoning ordinances, are neutral and generally applicable notwithstanding that they may have individualized procedures for obtaining special use permits or variances." Indeed, in the land use context, the Sixth, Seventh, Eighth, and Eleventh Circuits have rejected a per se approach and instead apply a fact-specific inquiry to determine whether the regulation at issue was motivated by discriminatory animus, or whether the facts support an argument that the challenged rule is applied in a discriminatory fashion that disadvantages religious groups or organizations.”
The court concluded that a regulation that contains broad, objective exceptions does not set up a subjective system of individualized exceptions that triggers heightened scrutiny. This approach has been applied in the past even when zoning laws have been applied to prohibit the location of a Church building itself in contravention of zoning rules.
Of more interest in the decision was the court’s analysis of the federal statute specially protecting religious practices from zoning regulation beyond Constitutional minimum standards. RLUIPA sets up a strict scrutiny standard for the implementation of land use regulations. In essence, a land use regulation cannot "substantially burden" "religious exercise" unless the government can show the regulation furthers a compelling governmental interest and is the least restrictive means of furthering that interest.
The court instructed the jury, inter alia, that for protected religious exercise to enjoy protection under RLUIPA the activity must constitute "conduct or expression that manifests some tenet of the institution's belief" and curtails its "ability to express adherence to its faith," or denies it "reasonable opportunities to engage in those activities that are fundamental to the institution's religion." The church objected to the instruction and asked the court to substitute the word "important" for "fundamental." The court refused.
On appeal, the church contended that the instruction overstated its burden because RLUIPA does not require the religious activity that is substantially burdened by the land use regulation at issue to be "fundamental." The 10th Circuit Court of Appeals agreed. Although the requirement that a protectable religious belief had to be “fundamental” might have been the standard under prior law, the court concluded that the recent enactment of RLUIPA modified the requirement.
“In ruling [in a prior case] that the pastoral visits requested by [a] prisoner were protected activities under RFRA, we stated:
‘The term "exercise of religion" was previously defined in RFRA as "the exercise of religion under the First Amendment to the Constitution." See 42 U.S.C. 2000bb-2(4) (1999). RLUIPA amended RFRA, however, so that "exercise of religion" now means "religious exercise, as defined in [42 U.S.C. ] 2000cc-5." Id. 2000bb-2(4). "[R]eligious exercise" is defined in 42 U.S.C. 2000cc-5(7)(A) to include "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." Plaintiff does not claim the requested pastoral visits were required by his religious beliefs. Under the definition of "religious exercise" in 42 U.S.C. 2000cc-5(7)(A), however, a religious exercise need not be mandatory for it to be protected under RFRA. . . . .
In other words, whatever the substantial burden test required prior to the passage of RLUIPA, the statute substantially modified and relaxed the definition of "religious exercise."
Consequently, the challenged instruction was improper. Although other instructions were deemed to be more proper, the court agreed that this instruction might have misled jurors, but it nevertheless refused to reverse the trial court decision because the jury made a specific finding that the Church’s conduct was not based upon a “sincerely held religious belief,” and consequently the fact that the belief in question was fundamental or not was not at the root of the trial court decision.
An interesting, and ironic, feature of the case was that the trial court evidence included a letter from the local Methodist bishop to the Church’s pastor, in which he initially refused to provide financial support to assist the Church in its litigation over the day care center. The letter stated that the bishop viewed the day care proposal as a “secular” proposal and not entitled to support from the larger church resources. The bishop later changed his views, helped to finance the litigation, and explained his change of heart in court. But the letter, admitted as an admission, may have influenced the jury.
Comment 1: The case is a good source of case analysis on a number of church vs. zoning authorities issues. But of greatest interest to the Editor is the notion that if a religious organization does maintain a sincerely held belief that proposed conduct is based upon its religious views, it won’t matter that the proposed activity is not central to the liturgy or core beliefs of the organization. Sooner or later this will make a difference in a religious practices zoning dispute.
Comment 2: It’s not clear to the editor, however, that if the Church had established that it’s conduct was entitled to protection under RLUIPA. It still would have had to demonstrate that there was a “substantial” impact on its religious practices in order for the city to demonstrate that there was no reasonable alternative in achieving its zoning goals other than to prohibit that conduct. Close call. Does the day care center have to be at the Church to achieve its religious goals? Are economics to be taken into account (probably not - the editor guesses.)
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