Posted by: Patricia Salkin | February 26, 2008

MD Court of Special Appeals Finds No RLUIPA Violation in Denial of Variance for Church Sign

The Church sought a variance to permit a single-faced free standing, illuminated identification sign of 250 feet in lieu of the allowed 25 square feet, and 25 feet in height in lieu of the allowed 6 feet, with part of the sign being changeable copy operated electronically. The deputy zoning commissioner denied the variance request and the zoning board issued a 34-page opinion upholding the denial based upon the applicable standards in the Baltimore Zoning Ordinance,  finding that: 1) the property was not “unique;” 2) there is no “practical difficulty” with respect to the property; 3) the municipal sign ordinance is not unconstitutional; and 4) the board did not have authority to decide Church’s claim that RLUIPA (the Religious Land Use and Institutionalized Persons Act) applies to the instant case because the that is not within the Board’s jurisdiction.   

On appeal the trial court agreed with the first three findings, but decided that it was within the power of the zoning board to consider and decide whether RLUIPA might affect the Church’s request for a sign variance, and the Court remanded the case to the Board on this issue. 

On remand, the zoning board found that the denial of the variance did not amount to a substantial burden on the church’s religious exercise and therefore its enforcement did not violate RLUIPA.  The Board also determined alternatively, that the variance request was the least restrictive means available to further the County’s compelling interest in traffic safety and community aesthetics as reflected in the sign regulations.  The Board again denied the variance.  On a second appeal to the trial court, the zoning board’s denial was upheld and the Court noted that there was substantial evidence to support the Board’s finding that there was a compelling interest in the passage of the sign ordinance to reduce the number of distractions to motorists and to reduce clutter and incompatible signage, and that the regulation was the least restrictive means of furthering that compelling governmental interest.  Therefore, the Court concluded there was no RLUIPA violation.  

On appeal to the Court of Special Appeals, the Court noted that the Zoning Regulations provide that the power to grant variances from sign regulations exists “only in cases where special circumstances or conditions exist that are peculiar to the land or structure which the subject of the variance and where strict compliance…would result in practical difficulty or unreasonable hardship…” The Court upheld the Board’s finding that the property was not unique since it was supported by substantial evidence in the record.  With respect to the Church’s RLUIPA challenge, the Court of Special Appeals noted that no Maryland State Court had yet determined the meaning of “substantial burden” or “religious exercise” in the context of RLUIPA.  The court determined that the Church’s intended use of the sign for which it sought area variances – to inspire it’s congregants and passersby is a form of religious exercise under RLUIPA.  The Court noted that Evangelism of this sort qualifies as religious exercise. The Court held, however that the Board’s denial of the variance did not substantially burden the religious exercise since the denial did not compel the church to modify the behavior of its congregants so as to violate their beliefs, and the variance denial did not render “effectively impractical” the Church’s use of a sign as a means to inspire member and recruit new members (following the 4th Circuit opinion in Lovelace v. Lee, 472 F.3d 174 (2006)). Furthermore, the Court noted that the Church had alternate means to preach to and inspire potential new members other than by use of a sign that did not comply with the zoning regulations. Since the congregation is a “regional” congregation drawing members from a large geographic area, the Court noted that the Church could use commercial billboards and signs to advertise its product. The Court said that “Although having to rent a sign might be more expensive and less convenient for the Church in its religious exercise, it does not compel members of the congregation to violate or modify or forego their religious beliefs or precepts.”     

Trinity Assembly of God of Baltimore City, Inc. v. People’s Counsel for Baltimore County, 2008 WL 314717 (Md. App. 2/6/2008).   

The opinion can also be accessed at: http://mdcourts.gov/opinions/cosa/2008/2840s06.pdf


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