Following the granting of a conditional use permit to the United Methodist Church for the construction of a church building, a school building, and parking areas, protracted litigation ensued whereby the appeals court reversed the decision of the board and remanded with instructions. On remand, the Board again approved the permit, and now the appellants argue that the Board failed to follow the Court’s instructions. Specifically, the Court instructed the Board to make additional findings in accordance with KRS 100.11 which has been interpreted to require that “factual determinations made by the board should demonstrate that it had considered the effect of the proposed land use on the public health, safety and welfare in the zone affected, in adjoining zones and on the overall zoning scheme.” Furthermore, on remand, the court instructed the Board to make findings based on sufficient evidence rather than mere conclusory statements regarding the Church and the Religious Land Use and Institutionalized Persons Act (RLUIPA) as set for in 42 USC sec. 2000cc(a)(1). On remand, the Board met and unanimously determined that it did not want to change it decision and the board unanimously voted not to make any substantive changes in its previously approved findings.
Although the appellants argued that the Board failed to follow the applicable zoning ordinance by considering a “church” to include a school and gymnasium, the Appeals Court noted that the ordinance does authorize “churches and related facilities,” and that “church” is defined as “[a] facility used primarily for religious worship services of an assembly nature that may secondarily provide social or community services such as counseling, child care, senior services, and educational programs.” The Court determined that “Necessarily incident…are associated services that may include food preparation and service, offices for employees, parking, and the provision of other direct needs. Moreover, religious education and recreational activities have been a traditional hallmark of the service and proselytizing mission of religious organization.”
With respect to the allegation that the Board lacked substantial evidence to reach its conclusion that the conditional use permit should be approved, the Court agreed, noting that even the Board acknowledged that its supplemental findings do not directly address the requirement of findings that the Church’s use is essential or would promote public health, safety or welfare. Since the Board failed to follow the Court’s previous instructions, again reaching an arbitrary decision because it lacked substantial evidentiary support, the Court again reversed and remanded for additional findings by the Board. The Court again said that on remand, the Board must make appropriate findings under RLUIPA.
Arnold v. Versailles-Midway-Woodford County Board of Adjustment, 2008-CA-001850 (KY Ct of App., 2/26/2010)
The unpublished opinion can be accessed here
