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Posts from September 2013.

Wardany v. City of San Jacinto, 9th Circuit Case No. 11-55879 (February 14, 2013) involved the installation of a median strip in front of plaintiff’s business so as to prevent motorists from making a left turn onto the property.  Plaintiff alleged a taking, violation of procedural due process and equal protection rights, and the First Amendment speech and establishment clauses.  The District Court granted summary judgment and plaintiff appealed.

The Ninth Circuit said there must be a protected property or liberty interest under state law for many of these constitutional provisions raised to operate and found plaintiff had no such interest in any particular level of access to its property.  That property remains accessible except for a prohibited direct left hand turn into the property.  Even if there were such an interest, plaintiff is affected in the same way that other property owners along the same stretch of road are subject to the new median.  Moreover, Defendant City alleged it mailed notices of the change (although plaintiff denies receiving the same).

Having found no procedural due process violation, the Ninth Circuit also rejected plaintiff’s equal protection and First Amendment challenges as there was no discriminatory treatment on the basis of race or national origin, or differential treatment of plaintiff’s business, aside from plaintiff’s own speculation which did not create a triable issue of fact.  The previous denial of plaintiff’s cell tower request appeared to the court to be a proper application of the City’s zoning ordinance and the court noted that plaintiff could have sought a variance or asked for a rezoning of the property but declined to do so.  The court saw no connection between this denial (and the previous sign code violation dispute) and the median installation sufficient support a retaliatory motive.  Similarly, there was no establishment clause violation shown in the record except plaintiff’s suggestion that an adjacent church was attempting to buy his property.  Finally, there was no factual basis for a taking or inverse condemnation claim under either federal or California constitutional or statutory laws to support a civil rights claim.  The District Court judgment was thus affirmed.

This case illustrates the folly of spending time and money to make constitutional claims without a supportive evidentiary basis.

Wardany v. City of San Jacinto, 11-55879 (9th Cir.) (February 14, 2013).

Bethel World Outreach Ministries v. Montgomery County Council, 4th Circuit Case No. 11-2176 (2013) involved plaintiffs praying for relief under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) as well as several constitutional provisions.  Plaintiff had one main church and one satellite church serving 1500 weekly congregants with four services.  Because of the numbers, plaintiff was forced to postpone communion until after the services and to cut short its “altar call,” which involves discussions with those coming forth about their spiritual life.  The church also believed it required additional facilities as well.  The great number of congregants also affected other church ministries.

Plaintiff purchased a 119-acre parcel and proposed to put a larger church on it, but the property was on a county-designated agricultural reserve where the county preferred development rights be transferred to preserve agricultural land.  The county also did not provide for water and sewer services to be extended to that area.  In 2005, at the very same meeting, defendant both denied plaintiff’s application for a 3000-seat church facility and amended its water and sewer plans to prohibit extension of those services to the site.  State court challenges were ultimately fruitless.

While those challenges were pending by way of appeal, defendant initially granted permission to another church for a 1500-seat facility in similarly zoned property, but then denied the applicant’s request for water and sewer service.  Plaintiff then downsized its application to an 800-seat facility but while that application was pending, defendant revised its zoning ordinance to prohibit a private institution to have water and sewer services on agricultural reserve property.  Plaintiff’s was the only application pending at that time and it promptly brought suit in federal court, alleging RLUIPA violations as well as those of the First and Fourteenth Amendment to the Federal Constitution and similar provisions of the Maryland Constitution.  The District Court granted summary judgment and plaintiff appealed.

The primary issue on appeal was whether defendant imposed a “substantial burden” on religious exercise which term includes the use, conversion or building on real property for the purposes of religious exercise.  The court did not use the Institutionalized Persons standard of pressuring a person to modify his or her religious beliefs as the government has less control over a person in a land use context and the government would rarely be able to force a person to violate religious beliefs because churches can move elsewhere.  Rather, the court said that the test was whether a government coerces a religious adherent or institution to change its behavior in a significant way so as to render religious exercise more difficult.

Besides applying the wrong test, the Fourth Circuit found that the trial court required that defendant must also have “targeted” plaintiff and its beliefs.  While such targeting is unconstitutional, RLUIPA does not require targeting under its “substantial burden” test, even if the burden is imposed in a neutral or generally applicable manner.  If there be such a burden, the public agency must use the least restrictive means and fulfill a compelling state interest.

Applying this standard, the court said the purchase of the subject site was predicated on building a church, which was permitted at the time.  Thus the denial of the permit inflicted a hardship on plaintiff, even though other properties may be suitable, as the delay, uncertainty and expense of selling one property and purchasing another “are themselves burdensome.”  While plaintiff faced the possibility of changing regulations (which changes were publicly being considered at the time) as well as an arguably discriminatory land use process, defendant had allowed churches on this in the same zone, which raised a sufficient question of material fact to preclude summary judgment.  The Fourth Circuit also found it significant that defendant denied plaintiff’s application instead of allowing a smaller footprint as a further factor in a substantial burden analysis, as is the inadequacy of plaintiff’s current facilities for its congregation.  A fact finder could conclude that plaintiff’s current facilities are inadequate and the planned facilities would alleviate that need.  Thus, the denial must satisfy strict scrutiny to show that the least restrictive to achieve a compelling state interest have been undertaken.  Preservation of agricultural land is a governmental interest, but defendant had not shown that it used the least restrictive means to do so through a minimum lot size, individualized review or otherwise.  Thus, summary judgment was reversed.

Plaintiff also claimed violation of RLUIPA’s discrimination and unreasonable limitation division.  The former prohibits discrimination against an assembly or institution on the basis of religion or religious denomination.  Although neutral on its face, plaintiff alleges its evidence shows defendant’s hostility to large churches.  The court answered that while defendant took the steps it did to curb large scale uses, there was no evidence that it did so because of hostility to religion in general or churches in particular and was consistent in its application of the regulation to all larger uses.  There was no reason to reverse the grant of summary judgment on this point.

As to plaintiff’s unreasonable limitations claim, RLUIPA prohibits a land use regulation that “unreasonably limits religious assemblies, institutions or structures within the jurisdiction.”  This contention also failed for, while defendant limited religious uses in the rural density transfer zone, it did so evenhandedly throughout the county.

As to plaintiff’s constitutional claims, the court said that Maryland interprets its free exercise and equal protection constitutional provisions consistent with the First and Fourteenth Amendments.  Plaintiff did not prevail on its free exercise claim as it could not show that a law of general applicability hindered religious practices because of a religious motivation.  The court applied rational basis scrutiny to this claim and found that limiting non-farm uses on farm land was a rational policy.  Finally, the court rejected plaintiff’s “class of one” challenge under the Equal Protection Clause.  Thus the case was remanded only on the substantial burden issue.

This case does counsel care by state and local governments changing land use regulations and also when they deny religious uses in places where they had permitted previously.  No doubt the rational of this case will be tested in Oregon with its exclusive farm use and restrictive forestry use regulations and will be the subject of further disputes.

Although not identified within LUBA’s statutorily-prescribed scope of review, all decisions approving proposed development against particular criteria must include adequate findings.  As established in cases such as Fasano v. Board of County Commissioners this requirement includes (1) identification of the relevant approval standards, (2) identification of the facts relied upon, and (3) an explanation of how the facts led to the decision.  Such obligations may appear easy enough on their face but have worked to snag many decisions that otherwise would have likely been affirmed.   The effect of this extra layer of review, followed by a remand not only results in delayed development, but increases the cost to local governments defending the decision and, it must be assumed, additional development costs then passed on by developers to homeowners and businesses.  Two recent LUBA opinions illustrate the problem.

In L’Heurex v. City of Portland, a neighbor challenged an adjustment committee approval of a height adjustment to allow construction of a dwelling that will be 30-feet tall instead of the required 23-footheight.  The findings responding to the five adjustment criteria were jumbled together, making it difficult for LUBA to determine which findings responded to which criteria.  One of the adjustment criteria asks whether granting an adjustment will “equally or better meet the purpose of the regulation to be modified.”  Here, the purpose of the height limitation is to “promote a reasonable building scale and relationship of one residence to another.”  The findings failed to define the term “scale” or “building scale;” a failure in identifying and interpreting the applicable standard, step one in the process outlined above.  This left LUBA to interpret the purpose on its own, concluding that “scale” means the “size, bulk or mass of a building.”

Moving to what the City did find, the decision explains that the “additional deep front yard setbacks places the home within a reasonable relationship to other residences” and as a result, when viewed by a pedestrian, the new home would be generally the same height as the adjacent homes.  The findings go on to note that the house will “not significantly impinge on views, light and open air among all houses.”   LUBA found that the shared dwelling setbacks, the views, light and open air had nothing to do with the purpose served by the regulations which is to reduce the scale or mass of a building.  LUBA went on to clarify that the reasonable building scale language is to be evaluated against neighboring residential homes, rather than for pedestrians when viewed from the street.

Finally, there was no discussion of whether the adjacent homes satisfied the existing height limitations as setting the baseline for the appropriate height.  In a footnote, LUBA speculated that they do not.  LUBA went on to opine that “it is hard for us to see how the city could ever grant a height adjustment to allow a house that is seven feet taller than the 23-foot standard, unless there are unusual on-site or neighborhood circumstances.”  Again, giving LUBA an opening to prognosticate about the application of a relatively frequently used adjustment criteria should make future applicants’ (as well as the city) nervous because such warnings often serve as homing signals encouraging likely opponents.  This is just another unanticipated consequence of failing to take time and care with findings.

One more interesting tidbit about this case, the applicant developer did not participate in the LUBA appeal defending its approval.  Rather, the city attorney’s office expended that effort.  Certainly the city could have chosen not to participate but it did in this case.  We can only assume that those legal costs will be covered by some future increase in development application fees.  In any event, the matter was remanded for the City to adopt adequate findings explaining the decision, thereby delaying development which may otherwise have been acceptable, considering that this was a single infill home.  In contrast, consider another recent case, Shamrock Homes LLC v. City of Springfield, where an amendment affecting a 267-acre area was appealed.

In Shamrock Homes, the City of Springfield adopted a series of ordinances amending a refinement plan that replaced the existing zoning designations with new mixed-use plan designations and zones intended to revitalize the Willamette River waterfront.  Petitioner, who owned a manufactured dwelling park on land that was previously zoned low density residential and was rezoned to Employment Mixed-Use, which does not allow manufactured dwelling parks, assigned error under a number of Statewide Planning Goals.  With regard to challenges regarding Goal 15, the Willamette River Greenway goal, LUBA found that identifying a 75-foot setback from the Willamette River may be consistent with other laws, but that such a finding fails to explain how the setback is established to “protect, maintain, preserve and enhance” the Willamette River as it is identified for protection in the city’s adopted inventories.  For this as well as many other reasons related to findings, LUBA remanded the decision extending what was a four-year planning effort to at least another year of delay.

The thing about adequate findings is that, although time consuming and often mind-numbing to draft, they are the low hanging fruit of errors in land use decision making that would be easy to correct.  The additional delay and cost associated with LUBA remands based on inadequate findings serves as fodder for Oregon land use system opponents who work to paint the process as too cumbersome, complicated, time-consuming, and anti-development.  The burden ultimately is on land use planners, local government attorneys, and decision-makers to demand better from their staff to take the time to avoid making these elementary errors.

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