Little-known law will force many cities to change ordinancesPosted Wednesday, June 8, 2011, at 8:34 AM
At the heart of the No Limits Ministry lawsuit against the city is a little-known law passed by Congress in 2000 known as the Religious Land Use and Institutionalized Persons Act, or RLUIPA.
City officials were totally unaware of the law, although the suit, filed by a high-priced law firm based in Chicago, contends they should have known about it.
The law says that "no 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..." unless the government (in this case the city) can show a "compelling governmental interest to do so and is the least restrictive means of furthering that compelling government interest."
When a lawsuit like this is filed, typically the plaintiff's attorneys throw the kitchen sink at those being sued, hoping something will stick. As a result, the suit also charges the city with trying to prevent the Constitutional rights of free expression of religion and due process of law.
For a lot of reasons, I don't see that. I don't believe either the city officials or the city council are, in any way, anti-church, nor was their intent at any time to prevent the free expression of religion.
For the city, it was a simple matter of following the city zoning ordinances, which, among other things, required an adequate sewer system to handle the potential maximum use of the building and enough parking spaces to meet the city code requirements that it imposes on all other permitted uses in the downtown area.
The city just got through wrangling with the Catholic Church's expansion plans over that very same parking issue, which is based on square footage of a building.
The city had little or no problems approving a conditional use permit for two other churches in the downtown area, Abundant Life and Calvary Chapel, which met the code criteria, and when the LDS Church built its new stake center off Airbase Road that church had done extensive "due diligence" in finding out what the code requirements were going to be, and designed their structure to meet those standards. Approval of the conditional use permit for that church sailed through city hall.
The city had asked No Limits to upgrade its sewer system and make arrangements for adequate parking at the old Salvation Army building. For reasons that no one seems to know -- it goes back so far -- the building last used by the Salvation Army (which is leasing it to No Limits) wasn't ever hooked up to the city sewer system. Instead, it used a septic tank system (and a parking lot for the building actually was built over the drain field).
But that posed a problem for the church. To hook up to the city sewer line, they'd have to either install a line through the Union Pacific right of way behind the church, which UP wasn't interested in allowing, or send a line across the state highway to link in with a city line under the Albertson's parking lot. The state didn't want to allow a trench to be cut through the road, however.
Eventually, the Salvation Army came up with the idea to bore a hole under the highway, which is not cheap, in order to link to the city line.
When the contractor showed up to do that work the day after the lawsuit was filed, a representative of the church tried to stop them, largely, I suspect, to "freeze" the facts of the case. But Salvation Army had the work done, anyway, which makes that issue sort of moot at this point.
The city also wanted the church to obtain letters of agreement from nearby parking lot owners that would allow the church to use their lots. The church did obtains letters of permission to use the lots from Airman Pawn and Stardust Plaza, but the city's request had involved a formal letter of agreement that would be filed with the courthouse and therefore binding on the owners of the lots. That wasn't done. Mere permission, the city contended, could be easily revoked, leaving the church back at square one with inadequate parking.
Ironically, the lawsuit itself says parking problems at the Odd Fellows Hall, where the current congregation meets, were inadequate, prompting them to find a new facility.
For the city, it was purely an issue of public health and safety. It had nothing to do with religion, other than the fact that all churches in the city, theoretically, must have a conditional use permit to be approved, under which conditions such as those sought by the city in this case can be imposed.
And therein lies the rub.
There is no zone in the city in which churches are automatically permitted. All churches must, theoretically, receive a conditional use permit. For the city, that seemed like an expansion of opportunities for religious expression, since it meant a church could be located in any zone in the city -- if it met certain basic, but special conditions, such as having adequate parking.
But under the RLUIPA law, that would almost certainly fall under the category of requiring "special conditions" for religious expression, which would be illegal. On that point alone, the city is likely to lose the lawsuit, at least based on the advice of Jerry Mason, one of the top government law attorneys in the state, whose services have been acquired by the city.
As a result, the city will have to rewrite its zoning ordinances. The easiest way is to simply make a church a permitted use in any zone. That solves more than just the No Limits problem. There's a tiny handful of small churches in the city, sometimes representing only a few families, that meet in private homes. The city probably isn't even aware of most of them. Their memberships are so small the city hasn't received any complaints about parking issues involving them.
Technically, under the current ordinance, they'd probably need a CUP, but then you get into the issue of what constitutes an actual church, as opposed to just a religious gathering, and you'd probably have to establish some kind of standard for the number of people in a congregation (who wants to draw that line?) and suddenly you're in some very muddy waters. So, just opening all zones up to allowing a church avoids those issues.
What it doesn't do, however, is address the parking issue. Theoretically, taking that route could potentially mean that a large church could be built in a residential area, without the city being able to require adequate parking or traffic flow, which could cause all kinds of problems, not the least being homeowners who find the on-street parking they often use in front of their own homes compromised. And you know that they're going to complain to the city and demand that the city do something about it. But the city won't be able to.
It's a lose-lose situation for the city.
Furthermore, although the city is likely to now allow No Limits to use the Salvation Army building for a church (the sewer problems have been solved and the parking issue at least has a temporary solution due to the permission slips the church got), that doesn't mean the lawsuit is likely to be dropped right away. It might, but the law firm handling the suit has a reputation for defending religious rights, and may want to proceed in order to establish a legal precedent.
I spent two days researching the RLUIPA law. There isn't a huge body of case law behind it -- and none that directly address the zoning issue of requiring a conditional use permit. Ironically, one of the cases cited in the lawsuit on behalf of the church, involved a zoning ordinance that restricted the First Amendment right (free speech/religious expression) of an adult book store to allow strippers to perform on its premises. Legal precedent can sometimes come in strange forms.
If this case proceeds to adjudication, it would set a precedent that could have national implications. It is not unusual, for example, for cities to require conditional use permits for churches. A lot of cities in Idaho, for example, have ordinances similar to those in Mountain Home. Across the country, those restrictions would be tossed if this case is adjudicated in favor of the plaintiffs. It would allow virtually unfettered siting of churches.
The case also is posing a number of other problems for the city.
In order to get a conditional use permit, certain fees must be paid, largely to cover administrative costs involved in checking the plans and making sure they're met. If the city ordinance is declared to be illegal, the city may have to refund the fees recently charged to churches such as the Catholic Church and the LDS church, and that could run into tens of thousands of dollars, a major bite in a city budget that is extremely tight right now.
The lawsuit seeks actual damages of approximately $10,000, both in costs associated in meeting the conditions of the CUP and in what it described as reduced revenue from offerings because they haven't been able to use the larger facility.
In addition, the lawsuit seeks payment of legal fees and that could easily run into tens of thousands of dollars. No one knows who is paying for this suit (the church certainly doesn't have the money to do so), but it is possible the lawyers handling the case are planning on winning and getting their fees paid that way.
The suit specifically names the city planner, Bonnie Harper, and the three city councilpersons who voted against approving the church's permit on May 9, Alain Isaac, Geoff Schroeder and Russ Anderson, as the respondents in the suit.
When a council takes an action, it can do so sometimes as a legislative action, sometimes as a quasi-judicial action, and sometimes as an administrative action, depending on the matter before it. The city's liability insurance carrier contends the May 9 vote was administrative and therefore not covered by its insurance.
That means the city will have to pay out of its general fund resources for any damages awarded or legal fees of the councilmen that might be incurred, since Idaho law makes cities liable for "money damages arising out of... wrongful acts or omissions and those of its employees" (including councilmen) who are "acting within the course and scope of their... duties."
They'll argue they were acting based on what they believed the law to be, and didn't know about RLUIPA, just what the city ordinances said, which they were trying to enforce evenly, but an "ignorance of the law" defense usually doesn't go very far.
Frankly, I'm not sure this case needed to be filed. The first the city even knew about the RLUIPA law was when they got handed the lawsuit. Had the church simply pointed out that law to the city, I'm reasonably confident the city would have responded appropriately to come into compliance with the law.
Monday night, the council functionally allowed the church to use its facility the way it wants to, subject only to basic safety and building code requirements. That was quicker than probably would have happened without the suit. The city would have probably put the church on hold until it could change its ordinances to comply with the RLUIPA law, then approved the church, a process of several weeks.
But it was filed, it will certainly set precedent, and it will cost the city several tens of thousands of dollars, which will force cuts in some city budgets, the least attractive of the options that might have been available.
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