The Covenant Christian Ministries (“Covenant”) and its pastor Frank Anderson initially challenged a Georgia city’s zoning ordinance under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Covenant purchased a parcel of land to build a new facility. They planned an 800-seat church and a 500-student school, but two weeks signing a contract, to purchase the land, the city amended its zoning laws to prohibit all religious institutions from building in residential districts though it permitted recreation centers and other such uses in those districts. Covenant was unaware of this change and the land sale was made final one year later. When Covenant attempted to secure a building permit, they were informed of the zoning law and, subsequently, filed a lawsuit against the city for violations of RLUIPA, Georgia Constitution and common law, and the United States Constitution.
The district court concluded that the zoning ordinance did in fact violate the terms of RLUIPA by not treating religious facilities on equal terms with non religious facilities. The City subsequently amended their zoning ordinance in 2008 so that all religious and non-religious assemblies were classified as special uses and required to obtain building approval. The City still refused to allow Covenant a special use permit. Covenant subsequently sought leave to amend its complaint to include claims relating to their permit application. The court denied leave as untimely because Covenant was on notice of the refusal long before seeking to amend.
The Court considered whether because of the superseding ordinance the claim was moot. The claimants argued that its building permit vested before the 2008 Ordinance so the changes would not affect the building permit. The Court pointed out, however, that the Covenant never actually applied for a permit, never received a building permit, and that no plan was approved or assured by the City. Thus, the Covenant did not reasonably rely on any assertions by the City and, therefore, the Court concluded that there was no actual vested right.
The Circuit Court concluded that the 2008 amendment to the zoning ordinance “fundamentally changed” the zoning laws and thus Covenant has no claim for injunctive relief. Although Covenant argued that if the court chose not to grant injunctive relief there would be nothing to stop the city from enacting a similar ordinance in the future, and the Court recognizes this as an exception to having a moot claim, they found that since the city was trying to avoid RLUIPA violations, evidence suggested the city would not reenact those provisions.
Covenant Christian Ministries, Inc. v. City of Marietta, Georgia, 654 F.3d 1231 (11th Cir. 09/07/2011).
This opinion can be accessed at: http://www.ca11.uscourts.gov/opinions/ops/201011966.pdf
In this situation, which is nearly identical to one I am working, which setback requirements would apply, those for a church or those for a school? Hard to believe, but Florida does not have a minimum acreage for a use of a school. It merely requires that a school have ample seating room, 35 sq. ft per student. It also allows a church to run a daycare totally free of inspections process, other than the fire department. In fact, this particular case involves a building erected in 1948, in the middle of a subdivision of one acre lots for a community house of worship. The one-room church is now part of the religious use only for the students and not the community. They act as an island unto themselves, with a 15′ buffer consisting of a 6′ fence and some small hedges. The church is owned by a private LLC whose president is employeed by the Growth Management Services of Volusia County, FL. Unfortunately this information was recently found out, and we are suing for injunctive relief and intentional infliction of emotional distress as both Plantiffs are disabled.
By: Patricia Moon on November 9, 2011
at 8:35 am