Can the Town Require This Religious Use to Get a Special Use Permit?

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David Owens

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Eddie Haskell, a Maycomb town council member, dropped in on town manager Paul Proteus. After chatting a bit, he ventures “Quick question for you, Paul. I vaguely recollect that when we adopted the downtown revitalization plan last year, the council agreed that only commercial uses should go in that four block area. Right?” Paul replied that Eddie’s memory served him well.

“Well,” says Eddie, “as you know I’m the lodge master for the Sons of Maycomb. I have a problem to run by you.” Paul knows the lodge, a long-time staple in town, has been financially struggling. The membership is aging and the quarterly fish fry the lodge has relied on in the past is just not generating the proceeds it used to. Paul fully expects that Eddie is about to ask for some town financial assistance for this venerable but increasingly stressed nonprofit fraternal order.

Eddie, however, has a different predicament. He tells Paul the lodge was approached a few months ago by the Brotherhood Fellowship, a newly organized religious group. Paul is familiar with the group, as members recently began to appear at town council meetings to vigorously advocate for action on some controversial social issues. The Fellowship offered to rent the Son’s downtown lodge building. They intend to use the space for services  on Sunday mornings and on three weekday evenings, as well as for office and meeting space at other times. The lodge would still have use of the meeting space for their monthly meetings. “I don’t need to tell you how much the lodge needs this extra money,” Eddie explained. “There are lots of other places in town the Brotherhood could go, but they liked our downtown space and the low rent we offered. I know this is going to give a few of the businesses around us heartburn to have these folks as neighbors, but this is a really good deal for us. So last week we signed a lease. But the Brotherhood’s leader just called and says we have a zoning issue.”

That jogged Paul’s memory. When the town council adopted the downtown revitalization plan, they also put this four-blocks into a downtown overlay zoning district. The ordinance allows fraternal organizations as a permitted use downtown (in deference to the Sons and a couple of other long-term groups with lodges there). However, in order to encourage new commercial uses and limit future incompatibility with the anticipated nightspots downtown, the ordinance requires places of religious assembly to have a special use permit if they want to locate in this zoning district. “I hate to be the bearer of bad news,” Eddie continued, “but the Brotherhood folks are uncomfortable about having to get any town approvals. They say a federal law exempts them from town zoning. He says they won’t even apply for the special use permit. They let me know right up front that they’ll sue the town if you try to make them get a permit. Anyway, they’re starting up this weekend and I thought you should hear about this from me first.” As soon as Eddie is out the door, Paul calls the town attorney and asks about the Brotherhood’s claim. Is the group really exempt from town zoning?

No, but the town still has a legal problem.

In North Carolina and around the county most local governments have traditionally applied land use regulations to religious uses. Setbacks, height limits, off-street parking, landscaping, sign regulations, and limits on uses in particular zoning districts apply to religious as well as secular land uses. Since land use regulations are almost always considered uniform laws of general applicability, the courts have held there is no mandatory exception required for religious land uses by the First Amendment’s guarantee of free expression of religion.

Congress has, however, adopted legislation that imposes some limits on how local land use regulations are applied to religious uses and that law affects Maycomb’s options. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), codified at 42 U.S.C. §§ 2000cc to 2000cc-5, has several provisions. It establishes a general rule that land use regulations not impose a substantial burden on religious exercise (including religious assembly) unless it is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. While that rule has some implications we will review in a future post, the law includes another provision that more directly affects this situation. It mandates that land use regulations must not treat religious assemblies on “less than equal terms” with non-religious uses and must not discriminate on the basis of religion or religious denomination.

This equal terms provision of RLUIPA probably dooms the town’s special use permit requirement for the Brotherhood Fellowship because the town does not apply the same review to comparable non-profit organizations such as the Sons of Maycomb. The town cannot allow fraternal lodges as a permitted use while requiring a comparable religious use to go through a special or conditional use permit process. A number of cases hold that it is improper to treat comparable religious and secular uses differently. Even without RLUIPA some courts have found that type of discrimination to violate a variety of constitutional limits (the Due Process, Equal Protection, and Free Exercise Clauses.

While the town may well be able to treat treat commercial and non-commercial uses differently (and that is the issue we’ll look at in more detail in a later post), it cannot allow secular nonprofit groups where it excludes comparable religious groups. In Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1230-31 (11th Cir. 2004), the court held the town could not prohibit places of worship in a commercial district that allowed other nonprofit uses, such as private clubs and lodges. Nor can the town it impose different permit requirements on these comparable uses. The town needs to require both the lodge and the religious use (or neither) to get a special use permit in order to avoid problems with RLUIPA’s equal terms provision.

It may be possible in narrow circumstances to treat a religious use more strictly than somewhat comparable secular uses. Since not all places of assembly have the same land use impacts, several cases have allowed some distinctions among somewhat (but not exactly) similar land uses. For example, the court in Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 262-64 (3rd Cir. 2007), held the critical inquiry is whether there is differential treatment of an analogous secular use that has a similar impact on the aims of the regulation. In that case the court held the town could exclude places of worship from a redevelopment area that only allowed commercial uses, as the aim of the regulation was encouraging location of bars, nightspots, and the like in a focused redevelopment area. One factor the court considered was that location of a religious use there would have precluded new bars, breweries, and other purveyors of alcohol in the redevelopment area given the state’s rules prohibiting new liquor licenses close to a place of worship.

So, unless the town can establish that its special use permit requirement was imposed to address legitimate differential land use impacts and that it was undertaken without any religious animus, the town attorney will tell Paul not to start a zoning enforcement action, but to start drafting a zoning amendment so that Maycomb’s code gives equal treatment to comparable religious and secular land uses.

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