This information appears in the October 2020 Religious Freedom in Focus newsletter from USDOJ.

On September 15, the Justice Department announced that it has reached an agreement with the Borough of Woodcliff Lake, New Jersey, to resolve allegations that the borough violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by denying zoning approval for an Orthodox Jewish congregation to construct a worship center on its property.

The proposed consent decree, which must still be approved by the court, would resolve a lawsuit filed by the United States against the borough alleging that it had prevented Valley Chabad, an Orthodox Jewish congregation that has worshiped in the borough for over 20 years, from constructing a new house of worship. A separate settlement agreement and proposed consent decree have resolved a related lawsuit filed by Valley Chabad against the borough. 

The United States’ complaint, filed in June 2018, alleged that Woodcliff Lake violated RLUIPA by imposing a substantial burden on Valley Chabad’s religious exercise. On three occasions between 2006 and 2013, Valley Chabad attempted to purchase parcels of property in the borough in order to construct a house of worship and meeting center, called a Chabad house, large enough to meet its needs. The complaint alleged that in each instance, the borough purchased or re-zoned the parcels, preventing development of a Chabad house.

As part of the consent decree, the borough will permit Valley Chabad to construct a new Chabad house on its property. The borough also agreed to establish a procedure for receiving and resolving RLUIPA complaints, train its employees on RLUIPA’s requirements, and submit regular reports to the United States and the court on its compliance. In the separate agreement that resolves the related private action, the borough agreed to pay Valley Chabad $1.5 million to resolve its claims for damages and attorney’s fees that arose from the borough’s conduct. 

“The United States is, and must always remain, committed to the right of all people to practice their faith and worship together,” Assistant Attorney General for the Civil Rights Division Eric Dreiband said on the say the settlement was filed. “The U.S. Department of Justice will continue to fight against any unlawful deprivation of the right of all people to practice their faith. Through this agreement, the Valley Chabad and its members will be able to build a house of worship and to exercise their right to practice their religion freely.”

Posted by: Patricia Salkin | October 27, 2020

DOJ Releases Report on 20th Anniversary of RLUIPA

Last month, the USDOJ released a report to mark the 20th anniversary of the Religious Land Use and Institutionalized Persons Act. The report is a treasure trove of information detailing the history of the Act, and summarizing key cases over the last 20 years. The report also contains informative demographic information.

Posted by: Patricia Salkin | October 26, 2020

RLUIPA Documentary Available on Amazon Prime

Anne McGregor’s documentary, America’s Holy War, about RLUIPA and land use challenges in Rockland County, NY is now available for streaming on Amazon Prime here – https://www.amazon.com/Americas-Holy-War-Annie-MacGregor/dp/B08LFWP33M/ref=sr_1_2?crid=2M7T1IXI9YBX2&dchild=1&keywords=americas+holy+war+documentary&qid=1603798672&sprefix=americas+holy+war+doc%2Caps%2C232&sr=8-2

This summary is reposted with permission from the RLUIPA Defense Blog.

The U.S. Court of Appeals for the First Circuit recently found in favor of the Town of Pembroke, New Hampshire regarding the Town’s denial of an application for an electronic sign permit for religious messages.  The Town’s Zoning Board of Adjustment (Board) denied the permit because it believed the sign would “detract from the rural character of the Route 3 corridor” and noted the Town’s interest in maintaining its “quaint little New England village” aesthetic.  Signs for Jesus and Hillside Baptist Church (collectively, the Church) sued the Town after the Board denied a permit to install an electronic sign on Hillside Baptist Church’s property which would transmit messages provided by Signs for Jesus.  According to the Church, the denial of the permit and the Town’s local sign code violated the First Amendment to the U.S. Constitution, RLUIPA’s equal terms and substantial burden provisions, and state law.  The First Circuit did not agree.  It affirmed the District Court’s decision granting summary judgment to the Town. 

The Church’s RLUIPA equal terms claim failed because the Church could not identify a similarly situated secular comparator.  It contended that a public school, Pembroke Academy, and the New Hampshire Department of Transportation (NHDOT) were comparators because they both had electronic signs in the same zoning district as the Church.  The First Circuit concluded otherwise.  The public school and NHDOT were governmental land uses regulated by the state.  The Town had no power to regulate land uses owned or occupied by the state or school district, so the public school and NHDOT were not valid comparators.  The Court found the Church’s equal protection claim failed for similar reasons.

The Church’s substantial burden claim under RLUIPA fared no better.  The First Circuit reiterated the three factors it considers when analyzing substantial burden claims: (a) whether the regulation at issue appears to target religion based on hostility against religion; (b) whether the regulation was imposed on the religious institution arbitrarily, capriciously or unlawfully; and (c) whether local regulators have subjected the religious organization to a process that may appear neutral on its face but in practice is designed to reach a predetermined outcome contrary to the group’s requests.

The Church relied on the third factor and argued that the Board prejudged the application before actually denying it at the hearing.  It argued that its application was prejudged because some members of the Board colluded to deny the application after they met with an attorney in advance of the hearing to discuss the Church’s application.  At this meeting, the attorney provided the Board members with a draft motion to deny the application but did not provide an equivalent draft of a motion for approval.  However, a member of the Board testified that the purpose of drafting the motion to deny was to ensure that the Board “knew the motion that we had to make if we were going to deny,” and that he “didn’t know whether we were going to approve or deny [the request] until the end of the meeting.”  There was also evidence that the Board consulted with the lawyer because the Church hired “expensive counsel” who had raised issues of federal law.  The First Circuit sided with the Town: “[T]he fact that the Board had counsel ready is not a basis on which a jury could conclude that the Board improperly prejudged the decision.”  The reason that there was only a draft motion for denial was because a motion for approval would have been simple to draft.  By contrast, a draft motion for denial required the Board to state the reasons for the denial.

The First Circuit also found that provisions of the Town’s sign ordinance did not violate free speech protections.  It was not persuaded by the Church’s contention that certain elements of the sign ordinance were content-based, including an exemption for government signage.  The Church also argued that restricting electronic signs to just one zoning district reflected a preference for commercial speech and was therefore content-based.  The Court disagreed.  It concluded that there was nothing to support the Church’s argument that locational rules imposed on churches were a pretext for the Town to regulate the content of speech with respect to the use of electronic signs.  The Town’s sign code provisions satisfied intermediate scruinty.  The Court emphasized the Town’s interest in maintaining its “quaint little New England village” aesthetic.  Finally, the court was not convinced that the sign ordinance vested unbridled discretion in the Town to determine which signs are and are not permitted without narrow, objective and definite criteria.

The decision in Signs for Jesus v. Town of Pembroke (1st Cir. 2020) is available here: https://www.rluipa-defense.com/wp-content/uploads/sites/9/2020/10/Signs_for_Jesus_et_al_v._Pemb_33-002.pdf

Posted by: Patricia Salkin | October 9, 2020

APA Webinar: Sky’s the Limit: Drone Regulatory Implications

Sky’s the Limit: Drone Regulatory Implications


Thursday, October 22, 2020 
12:00 p.m. – 1:30 p.m. CT

CM I 1.50 I Law
CLE 1.50 through Illinois State Bar
 

Aerial drones (sometimes described as “UAS” or “UAV”), have a host of planning applications across urban, regional, rural, and agricultural geographies. From a general aerial surveying perspective, these applications frequently include site analysis and visualization, GIS mapping and modeling, and photosimulations. Sub-disciplines within the planning field such as transportation, environmental, and disaster planning already utilize small drones’ aerial sensors for real-time data collection, infrastructure inspection, project management, and project development. These technologies can facilitate new ways of practicing community engagement. Given the broad applications of this technology across multiple planning disciplines, there is a general need for planners to enhance their awareness of relevant federal regulations, administrative guidance published by the Federal Aviation Administration, and court cases that collectively define the legal operation of small drones. Essentially, if you plan to use this technology in your planning practice, you must know the rules. While acknowledging there are still significant gaps in the legal landscape for small drone operation, this program will discuss useful precedents to help you develop a use-case that is most likely to protect your planning practice and elected officials.. Even though state and federal legislatures continue to debate the regulatory environment to operate small drones, there is some present-day certainty regarding what state and local government can — and cannot — regulate. Our expert panelists will explain the ways in which your city or state planning department could use small drones to enhance your planning efforts, prepare you to navigate the risks in the grey area, and offer insight on how to avoid the pitfalls.  

Information on speakers, cost and registration can be accessed here: https://learn.planning.org/local/catalog/view/product.php?productid=658


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This post was authored by Joseph Schaeffer, Esq.

For the first time in nearly 40 years, the Supreme Court of Appeals of West Virginia has affirmed a trial court’s decision in favor of the landowner on a substantive due process challenge to a municipal zoning ordinance. In the process, the Supreme Court of Appeals clarified the standard of review to be applied at both the trial court and the appellate level.

The case, City of Morgantown v. Calvary Baptist Church, No. 18-1134 (W. Va. Sept. 29, 2020), focused on an approximately ½ acre vacant parcel in the City of Morgantown—home to West Virginia University and about 30,000 full-time residents. The landowner, Calvary Baptist Church, had subdivided the parcel from a larger, neighboring parcel with the purpose of selling it to finance improvements to its sanctuary. The prospective buyer, however, conditioned the sale on a change in the zoning from single-family residential to commercial business.

The Church did not expect any obstacle to the rezoning. The vacant lot was wedged between a large mixed-use development and the Church building and fronted on a busy State road traveled by several thousand vehicles each day. And though there were other residential properties in the area, they were mostly set back from the road. Moreover, the City had recently rezoned neighboring properties from single-family residential to commercial business—on one occasion even finding that the property along the State road was unlikely to be used for residential purposes.

Since the neighboring properties had been rezoned, however, the City had adopted a new comprehensive plan. And it took the position that the plan designated the area in which the vacant lot was located for “limited growth” and “neighborhood conservation.” It therefore denied the rezoning, prompting the Church to file a petition for writ of mandamus to compel the City to adopt the desired change. The Church’s primary legal theory, and the one that ultimately prevailed at trial, was based in substantive due process.

To support its substantive due process claim, the Church expanded on the neighborhood character described above while also producing an appraiser who testified that the single-family residential classification reduced the vacant parcel’s value by more than half. The City, for its part, argued that its comprehensive plan represented the community’s desire to maintain the area around the vacant parcel as residential. The trial court weighed the evidence and sided with the Church, finding that the City had helped to create the current predicament through its prior rezonings and had looked for reasons to deny the Church’s request.

The City appealed and, as in the trial court, the parties’ arguments were defined by the Church’s reliance on neighborhood characteristics and diminished value and the City’s reliance on its comprehensive plan. Two parties also disputed, however, what standard of review applied: the City advocated for a de novo standard on appeal and the inclusion of a comprehensive plan as a specific prong in the substantive due process analysis, whereas the Church argued for a deferential standard that excluded any consideration of a comprehensive plan in favor of the six original LaSalle factors.

Although the COVID-19 pandemic delayed oral argument and, with it, a decision, in late September, the Supreme Court of Appeals issued a unanimous opinion affirming the trial court’s decision. Most interesting is that the Supreme Court of Appeals agreed with the City on the standard of review and consideration of the comprehensive plan. It held that a trial court should consider the comprehensive plan as part of a substantive due process zoning challenge and that it would review this and any future zoning challenges de novo. But it nonetheless held that the Church had met its burden of showing that single-family residential zoning was arbitrary and capricious as applied to its vacant parcel. This too is interesting because it marks the first time in nearly 40 years (and only the third time in the Court’s 70+ year substantive due process zoning jurisprudence) that a landowner has prevailed on this type of claim on appeal. A reasonable inference, then, is that the Supreme Court of Appeals will give municipalities deference on their zoning decisions, but not a rubber-stamp.

City of Morgantown v. Calvary Baptist Church, No. 18-1134 (W. Va. Sept. 29, 2020),

* Mr. Schaeffer was counsel to Calvary Baptist Church in the trial court and the Supreme Court of Appeals of West Virginia.

This post was authored by Tyler Doan of Vermont Law School

Property owners wished to use their property as an Airbnb. The Town of Hamburg Zoning Board of Appeals and the Town of Hamburg Code Enforcement Officials interpreted the Code of the Town of Hamburg as not to allow a tourist home to be a permitted principal use in the R1 zoning district. The ZBA and CEO determined the property owners would need to apply for a use variance before applying for a special use permit to operate the Airbnb. The Appellate Court concluded that the Supreme Court failed to apply the language of the Town Code’s relevant provisions. The Court stated, “A plain reading of sections 280-24 and 280-31 … unambiguously demonstrates that special uses are permitted uses, subject to authorization by the Planning Board …” The Court concludes that the Town Code established that special uses are permitted uses in specific districts. The burden is on the applicant of a particular use permit to show it is allowable by establishing the requisite individual characteristics. If the Town Board had intended for special uses to be separate, they would have separated them.

Churchill v. Town of Hamburg, 2020 WL 5867695 (NYAD 4 Dept. 10/2/2020).

This post was authored by Tyler Doan of Vermont Law School

Petitioners, owners of a gravel mine, appealed a denial of an area variance by the Zoning Board of Appeals. The Court said that although a previous variance and previously amended variance for the same issue of access roads to the mine through a local residential area had been granted, the Board’s denial here should be upheld. In prior hearings, evidence was shown that the trucks would not generate much more noise than farming equipment, typical to the area, would generate. Upon the new hearing, the intervenor’s engineers considered the frequency which trucks would pass nearby residences. The engineer opined that the information previously given was not provided by a qualified person, nor was it up to accepted standards. The respondents denied the application due to the engineer’s new evidence that the trucks’ noise, estimated at every 6 minutes during the fifty-eight-hour work week, would interrupt the “quiet and serene neighborhood.” The Court determined that the respondents were within their discretion to do so as their prior determinations were vacated and thus have no precedential power and the new conclusion being supported by substantial evidence.

Circle T. Sterling, LLC v. Town of Sterling Zoning Board of Appeals, 2020 WL 5867650 (NYAD 4 Dept. 10/2/2020).

This post was authored by Matthew Loescher, Esq.

Kamps-Hughes owned real property in the Fairmount neighborhood of Eugene, zoned Low Density Residential (R-1), and was accessible only via an alleyway. This case related to Kamps-Hughes’ efforts to obtain verification from the city as to whether he could build a detached accessory dwelling unit (“ADU”) on his property. The city planner issued a zone-verification decision stating that a detached ADU was not permitted on the property because a Eugene Code provision prohibited ADUs on alley-access lots. Kamps-Hughes appealed to the Land Use Board of Appeals (“LUBA”), which agreed with Kamps-Hughes that four of the eleven standards the city planner addressed did not relate to “siting and design” and that their application to Kamps-Hughes’s ADU proposal was therefore inconsistent with ORS 197.312(5)(a).

On appeal, the city did not contest that LUBA’s interpretation was one meaning of “siting”; however, the city contended that LUBA erroneously relied solely on the common meaning of the word and failed to consider that “siting” had “a technical meaning in the land use arena” that must also be considered. Specifically, the city argued that the “technical meaning” of “siting” was “clear from its abundant use through the State’s land use laws,” and the city and amicus curiae League of Oregon Cities (“LOC”) cited various statutes that used the word “siting” to describe the placement of things within a larger area, rather than on an individual lot. The court found LUBA’s construction of ORS 197.312(5) (a) was relatively straightforward and easy to apply, as it required cities and counties to allow the development of at least one ADU per detached single-family dwelling in areas within the UGB zoned for detached single-family dwellings, subject only to reasonable local regulations as to where ADUs may be placed on individual lots and their design. The city’s interpretation of “siting” still gave effect to the allowance ratio, which sets forth that cities and counties must allow the development of at least one ADU per detached single-family dwelling in areas within the UGB zoned for detached single-family dwellings, but that they have broad discretion to decide where ADUs may be placed throughout those areas, as long as the ultimate ratio is one-to-one. The court found that this construction would be impractical to apply, especially with regard to ensuring compliance with the allowance ratio. The court further noted that while a modified version of the city’s proposed construction, in which the court adopted the city’s interpretation of “siting” but still gave effect to the one-to-one allowance ratio, would be consistent with the legislative purpose, its impracticality supported the court’s holding that the legislature did not intend that construction.

The court also upheld LUBA’s determination that reasonable local regulations “relating to siting” meant reasonable local regulations relating to where ADUs were sited on a lot, rather than where they were sited within areas zoned for detached single-family dwellings. As to the minimum lot-size requirement, minimum lot-dimension requirement, alley-access prohibition, and occupancy limits, the court held that those were not regulations relating to siting. Accordingly, the court affirmed LUBA’s construction and application of ORS 197.312(5)(a) to the four ADU development standards at issue.

Hughes v City of Eugene, 305 Or. App. 224 (7/1/2020)

This post was authored by Matthew Loescher, Esq.

Plaintiff Frederick “Hank” Robar installed toilets repurposed as planters containing floral arrangements and attached to decorative posts, installations he referred to as “porcelain gardens,” on seven properties he owned in Potsdam. The Potsdam Board of Trustees concluded that Plaintiff’s porcelain gardens were “junk” within the meaning of the relevant statute and ordered their removal. Following this, Plaintiff sought to enjoin Defendants from removing his porcelain gardens from his properties pursuant to the Board Resolution. In addition to seeking injunctive relief, Plaintiff also requested a declaration that his porcelain gardens were not “junk,” as defined in Village Code § 125-4.

Defendants first argued that the Board did not necessarily mandate the destruction of Plaintiff’s porcelain gardens, but only their removal from public view, and that Plaintiff therefore did not face irreparable harm. Even assuming this, the court found that requiring Plaintiff to relocate or somehow conceal the porcelain gardens pending the outcome of a trial on the merits would amount to a “loss of First Amendment freedoms” for that time. Thus, Plaintiff had established irreparable harm.

It was undisputed that at least part of Plaintiff’s intention in displaying the porcelain gardens is to communicate a political message. Specifically, one of the purposes of this display was to “recount the tale of Plaintiff’s legal dispute with the Potsdam government over his purported right to convert the property to a commercial use, to memorialize Plaintiff’s defeat, and to protest his purported persecution on philosophical grounds”. Plaintiff also claimed that he intended to convey non-political, artistic messages, to communicate “that beauty can be found in the simplest and strangest items” and to express the “fun, bright, and unique character of his hometown and community.” The court inferred that Plaintiff’s porcelain gardens, which have been in their present arrangement and location for nearly fifteen years, remained there because Plaintiff actually intended to express a message.

The record further reflected that nearly fifteen years separated Plaintiff’s initial creation of the art in question and the present enforcement action. These temporal distances undermined the inference that animus against Plaintiff was a prominent motivation behind either the passage of the law or its enforcement against Plaintiff. Moreover, the junk removal law’s restrictions applied to a variety of junk apart from toilets. As such, the court found that Plaintiff failed to show that Chapter 125 was a content-based restriction as applied to him, and intermediate scrutiny applied. The city demonstrated significant interests in mitigating attractive nuisances, promoting aesthetics, and maintaining property values. Nevertheless, the Board Resolution, in mandating the removal of every last one of Plaintiff’s installations entirely from public view, swept too broadly to be justified by these governmental interests and was found unconstitutional. Since Plaintiff had shown a likelihood of success on his First Amendment Claim, Plaintiff’s motion for a preliminary injunction was granted.

Plaintiff also sought a declaration that the porcelain gardens were not “junk” as defined in Chapter 125. In support of this, Plaintiff argued that the porcelain gardens were not “junk,” because they were not “worn out or discarded material,” but had been intentionally placed. The law explicitly stated that the porcelain gardens were included within this category, setting forth that “junk” “included, but was not limited to, junk appliances,” defining “junk appliances” to include “bathroom fixtures,” and defining “bathroom fixtures” to include “toilets.” Accordingly, Plaintiff’s request for declaratory relief was denied.

Robar v Village of Potsdam Board of Trustees, 2020 WL 5633824 (NDNY 9/21/2020)

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