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Sunday, October 23, 2016

Little-known law will force many cities to change ordinances

Posted 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.

Showing comments in chronological order
[Show most recent comments first]

Thank this so called church, they certainty don't love thy neighbor. This church is indicative of racist victims that believe people owe them. I just hope the cops are out giving tickets to all the jay walkers trying to cross three lanes of traffic instead of walking all the way to the corner to use the crosswalk. Just wait it will take someone getting killed or seriously hurt when they are playing frogger through traffic from the pawn shop to the church of hate.

-- Posted by Trouble2011 on Wed, Jun 8, 2011, at 1:43 PM

There is NO law here about jaywalking, but if you want to do that then you take your life in your own hands. For those that haven't looked there is a cross walk from Alberstons to the so called church but none form Airmens Pawn to Alberstons. Guess have to paint more cross walks so those do goers can use everyone else's parking to get to their so called church. NOthing like crossing 3 lanes of traffic, may as well be like the saying going play in traffic.

-- Posted by Eagle_eye on Wed, Jun 8, 2011, at 2:17 PM

How about impeding traffic? Public endangerment? There has to be a law for stopping traffic of some sort. The closest crosswalk I have seen is from Albertsons to the strip mall area near Taco Johns, if there was a crosswalk from the Albertsons parking lot to the Salvation Army building it is all worn off and can't imagine it would be that close to the merging of the three traffic lanes. That is trouble waiting to happen.

-- Posted by Trouble2011 on Wed, Jun 8, 2011, at 3:25 PM


You have got to be kidding me !!!!!!!!!!!! I am going to suggest that both of you go back and read what you have written.Then ask yourself how would I respond to what I have just read???????

I would like to think that we are better than what I read but Im starting to wonder.Please remember that ANY PLACE CAN BE YOUR CHURCH TO INCLUDE YOUR BACK YARD OR WERE YOU STAND OR SIT AT THIS MOMENT,YOUR GOD HEARS YOU WHEREVER.....THIS IS ALMOST BEYOND BELIEFE !!!!!!!

-- Posted by lamont on Wed, Jun 8, 2011, at 3:50 PM

Yea that what I said so called church and stand by it. I didn't think there was a cross walk from Albertsons over to that building but there is I drove by there a couple of days ago just to check.

Lamont, you seem to think only your opinion is the one that counts Got some bad news for ya, everyone has an opinion like it or not.

Trouble your right there is a cross walk from the Mall behind Alberstons and another behind Alberstons across to Taco Johns. My comment was all sacrasim to start with.

This outfit wasn't so clear about what they was up to when it all started, now its all out and its going to be a Church and they still have to deal with parking for it by city rules.

-- Posted by Eagle_eye on Wed, Jun 8, 2011, at 4:06 PM

EAGLE EYE I DONT CARE what you are glouting about..........the so called church has rights just like you, that are governed by laws just like you, so the law has settled the question for the most part.........i wonder what so called church do you attend??????? I WONDER BECAUSE YOU ARE QUICK TO PASS JUDGEMENT AND MOST RELIGIONS TEACH DIFFERENT .....JUST WONDERING?????????? DID YOU INVESTIGATE EVERY CHURCH IN TOWN OR JUST THIS ONE???????????? remember those are questions not opinions.........just wondering ???????????

-- Posted by lamont on Wed, Jun 8, 2011, at 8:29 PM

Not every church (insert laugh here) sues the citizens of the city they are setting up shop in. On that note I think everyone should start a church.

-- Posted by Trouble2011 on Wed, Jun 8, 2011, at 10:08 PM

this is an excellent summary of this contentious and unnecessary law.

it gets worse.

the reason that individuals were sued is that if the city defaults (which appears possible in this case), then the individuals become liable for damages. in any case, the church bringing the suit gets the loser to pay all damages for both sides, but if the church loses, they are not liable for the other parties damages.

not necessarily a Christian impulse, but an effective tactic to force their way upon others, which is what this is all about.

there is hope however.

# 1, I am not convinced from the description of your CUP that it would plainly discriminate, because it does not treat secular comparators better....it simply does not treat secular comparators at all. believe it or not, common sense does prevail in many RLUIPA cases, if you let the arguments play all the way out. what often occurs is that municipalities feel the public pressure and cave, which is of course what the religious activists want. out here in Massachusetts it is the Catholic church, of which I am a member, that has most egregiously pushed RLUIPA to get their way. however, they have lost many of these cases because we have many judges who refuse to knuckle under, and skillful lawyers to argue municipal cases. may your city be so lucky.

secondly, I recommend that city employees form a book club and get a group discount rate on Professor Marci Hamilton's excellent "God Vs. The Gavel", which dissects RLUIPA to see why and how it and other outrages have popped up in the last ten years or so.

-- Posted by rmkelly on Thu, Jun 9, 2011, at 4:45 AM

like this town needs another church.

-- Posted by shockwave on Thu, Jun 9, 2011, at 6:16 AM

I think I read some where that the NLM was already formed and holding meetings at the "Odd Fellows" building. They were wanting a bigger meeting place to hold their services....

-- Posted by MsMarylin on Thu, Jun 9, 2011, at 8:12 AM

MTN HOMMER POSSES A JUST QUESTION....SO WHO ARE THEY??????????? i can not and will not vouch for them emperically.I will say this it is a christian format,NOW WITH THAT SAID I HAVE TO AGREE THAT USUALLY THESE THINGS CAN BE WORKED OUT TO BOTH PARTY'S SATISFACTION......i said that already,are both sides willing to sit down and talk it out and make commitments that can be kept??? that is the question....or are we going to see who blinks first OR HAVE WE ALREADY WENT 1 STEP TO FAR?????????? I HOPE NOT.

-- Posted by lamont on Thu, Jun 9, 2011, at 11:01 AM

I can't find "sue thy neighbor" anywhere in my bible. I guess I don't have the new no limit version.

-- Posted by Trouble2011 on Thu, Jun 9, 2011, at 11:47 AM

I cant find a lot of things in my bible especially when it comes to the mistreatment of people,but it seems to get done.

ZOOK you are right,and that comes from this adversarial society we have today.It encourages litigation,and the poleticians ADVOCATE IT,BUT THERE ALL LAWYERS.

BACK a comment or two with"the church of hate" that was a very snide remark so let me ask ....WHAT DID YOU CALL THE REV BUTLERS CHURCH??????????? JUST WONDERING.....TROUBLE2011

-- Posted by lamont on Thu, Jun 9, 2011, at 1:50 PM

I don't recall rev Butler's church suing the citizens of Mountain Home; you can correct me if I'm wrong on that.

You should maybe open your bible to find mistreatment; the bible is full of stories about mistreatment. Does what the Egyptians did to Moses a nice thing? I don't believe the No Limits was mistreated in anyway. The city was looking out for the safety and health of all citizens of Mountain Home by requiring a plan to fix the toilet and parking issue. The requirements have nothing to do with race, mistreatment, or any other victim's mantra. They claim they are mistreated and use race as a weapon (they brought it up in their lawsuit). Now if that is hate or a way to make a quick buck at your neighbor's expense then nothing is.

-- Posted by Trouble2011 on Thu, Jun 9, 2011, at 2:08 PM


-- Posted by lamont on Thu, Jun 9, 2011, at 2:26 PM

WOW!that is all I'm gonna say!!

-- Posted by Brenda Fincher Publisher MHNews on Thu, Jun 9, 2011, at 2:52 PM

THANkyou HOMMER that is all iv been trying to say .....this is a comedy of errors here, what is so hard about that........none of this should have happened period.......IF anyone thinks I want to see us lose thousands of dollars your wrong. BOth sides could sit down and iron this out.

There is enough mistakes here to go around.I am as concerned as anyone about what happens in our town.



-- Posted by lamont on Thu, Jun 9, 2011, at 6:37 PM

Lamont if they don't drop the law suit even after the city caved then you know it was just for the money and HATE...yes HATE. This church (still laughing about that) must hate the average citizen of Mountain Home. They are not in it for faith they are in for the MONEY.

-- Posted by Trouble2011 on Thu, Jun 9, 2011, at 10:37 PM

FOR ME HATE IS A VERY STRONG WORD AND I STILL CANNOT RECONCILE THAT......ANYHOW ......there is enough blame to go around.I dont know if they will drop the suit but I can tell you this....if its about the money then they have hidden that well........i know a few of these people and that has never once been the stated objective........ill say it again they have spent a lot of time,money and sweat equity.They made attempts to reconcile what they were told needed to be done and that is being done. THERE should have been better knowledge of the building and I think the salvation army knew that ,that is why they did what they did.NOW IF the parking is resolved it is done.

Im going out on a limb here ....but if the council member with the flippant answers had stopped and thought and not said "JUST GO RENT A PLACE IN STAR DUST PLAZA " we probally would not have gotten here .That is my take.THAT MEMBER AND SUPPORTING CAST WAS OUT OF PLACE AND THAT SET THE BALL ROLLING.tHAT IS NOT THE FIRST TIME THAT PERSON HAS SENT THINGS IN A TIZZY CK IT OUT FOR YOURSELF.

I dont understand why you have such a problem with this church.Churches such as these are nation wide so what is the beef,your comments and enuendos are demeaning i would no more do what your doing than anything.We HAVE SEVERAL CHURCHES IN TOWN WITH THE SAME BASIC FORMAT I DONT HEAR YOU DEMEANING THEM.Places of worship are places of worship and for me that becomes a hands off situation,i dont have to like them or paricipate it is not for me to judge. That is my faith and it applies for all religions to me because somebody needs what there faith gives them.I have been all around the world AND A FUNNY THING ALL RELIGIONS HAVE ONE THING IN COMMON THEY ALL PRAY TO ONE GOD.DIFFERENT NAMES BUT ONE GOD

THE DOG TAGS HANGING AROUND MY NECK ALWAYS SAID NO RELIGIOUS PREFERENCE,IF THERE ALL TALKING TO THE SAME THING AND IM GOING TO DIE IT MAKES NO DIFFERENCE WHO YOU CALL THEY WILL HEAR.That is me i dont expect anyone to accept that but it allows me not to judge something im not equiped to judge.HAD a catholic chaplain once in class, a col acknowledge that.

SO LETS hope they get pass this without a lot of money comming into play because it will not leave a good taste in anyones mouth......

-- Posted by lamont on Fri, Jun 10, 2011, at 7:16 AM

You ever see people try and cross the street over by Kurly's and the flea market corner? That can be a death defying feat. Drivers don't want to bother stopping for pedestrians even if you are ALREADY IN the crosswalk, let alone stop and let you cross with the big flourescent signs stating "yield!!!!" right in front of them.

-- Posted by UM1233 on Fri, Jun 10, 2011, at 1:11 PM

I agree there will be a problem crossing the street but you know it will depend a lot on the time and the day.For me that is a wait and see.

I DONT THINK THE COMMUNITY ACTED IN A DISCRIMINATORY WAY . I cant say the same for our representatives I should have said that in the singular it would be more appropriate.I think we should remember that the LAW sighted is the attorneys choice before we go pointing fingers.IKNOW IF MY ATTORNEY TOLD ME WE ARE GOING TO USE THIS BECAUSE IT IS OUR BEST CHANCE TO WIN.....THAT IS WHAT IS GOING TO HAPPEN AND I THINK MOST OF US WOULD AGREE.MIND YOU I DID NOT SAY THAT WOULD WIN YOU ANY FRIENDS. MOST LAWSUITES DONT.

I commented on star dust before. bermensolos heirs could care less that is all im going to say.The church already had a lease in hand,and the project started,you dont just walk away from the money they had alredy spent.So we will all be watching to see what happens..... I sincerly hope that this stops NOW

-- Posted by lamont on Fri, Jun 10, 2011, at 1:52 PM

The NLM church already violated city ordinances and held church services in the building before they were permitted to do so by the city. They held the services in the building to celebrate the anniversary of the church. This event last over three night and was attended by about 150 per night. I wonder if they mentioned that in the lawsuit I would guess not.

-- Posted by werborg on Tue, Jun 21, 2011, at 4:14 PM

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