California RLUIPA case - The "All Opinions are Welcome, but Sorry no Instigators" Board

Lisa Salberg · Status: Offline

California RLUIPA case

Lisa Salberg · Status: Offline

CT case moves forward with Marci Hamilton

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Murphy case fees approved

By: Pat Conway
06/11/2004

After an executive session Wednesday, the New Milford Board of Finance unanimously approved the appropriation of $10,000 for legal fees requested by the Zoning Commission.

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The money will be used for bills incurred before the end of the fiscal year June 30 in connection with the case involving prayer meetings at a private home.
The home, on Jefferson Drive in eastern New Milford, is the residence of Robert and Mary Murphy. The situation began in 2000, after neighbors of the couple repeatedly complained at zoning meetings that numerous cars parked in their cul-de-sac on Sundays for prayer meetings at the Murphys' home.
The commission directed Zoning Enforcement Officer (ZEO) Kathy Castagnetta to investigate. Based on a ruling by the commission Nov. 28, 2000, the ZEO issued a cease-and-desist order to the Murphys.
The order stated that the property owners were violating the regulations, which did not allow the use of a private premises as a meeting place for a large group of people, who are not family members, on a regularly scheduled basis.
Furthermore, the order said the regulations did not allow the use of a parking area in the rear yard of the Murphys' home, which was being used to meet the needs of those attending the prayer meetings.
The Murphys filed a lawsuit against the Zoning Commission and its enforcement officer in U.S. District Court in Bridgeport on Dec. 1, 2000.
In a decision released Sept. 30, 2003, U.S. Magistrate Judge Holly Fitzsimmons ruled in favor of the Murphys. She ruled that the cease-and-desist order violated the family's rights to free exercise of religion and peaceable assembly guaranteed in the First Amendment to the constitution.
For many of the same reasons, Judge Fitzsimmons determined that the commission's action violated the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) and the Connecticut Act Concerning Religious Freedom (ACFR).
Shortly after the decision, the Zoning Commission voted to appeal. The panel engaged the services of Marci Hamilton, an expert in constitutional law and a law professor, to work on the case along with Steve Byrne, the commission's attorney.
"We're in the U.S. Court of Appeals for the Second Circuit," said George Doring, chairman of the Zoning Commission, in a phone interview Thursday. "We're prepared to go forward."
The Zoning Commission will be appealing on other constitutional issues concerning the application of the law, and arguing that the commission "did not unreasonably restrict the Murphys in their practice of religion," according to Mr. Doring.

©New Milford Times 2004

karen · Status: Offline

Excellent, great news! I did a search and found this, not sure if it was posted previously but it's interesting general RLUIPA stuff:

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What would the Religious Land Use and Institutionalized Persons Act law do?

1) GENERAL RULE - No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--

(A) is in furtherance of a compelling governmental interest; and

(B) is the least restrictive means of furthering that compelling governmental interest.

On the face of it, this sounds very reasonable - why should the government interfere with people's free exercise of religion any more than absolutely necessary?

However, this principle only sounds reasonable as applied to religious rights because it could reasonably be applied to all of our rights and beliefs. Sure, it would be nice if the government were prevented from interfering with religion unless it had an "overriding, compelling reason" - but it would also be nice if it similarly prevented from interfering with our lives as a whole and our constitutional rights in particular unless it had an "overriding, compelling reason."

We should stop and consider the issue of just what constitutes "religious exercise of a person." Will our government restrict it to the practices and beliefs which are part of the traditional religious faiths of our country? What about the numerous non-traditional religious beliefs and practices - those normally designated as belonging to "cults?" What about Satanists? Heaven's Gate? New Agers? Could they be denied equal protection because they are "cults" and not "real" religions? Do they really mean "a person" and will exempt someone even if they are alone in their beliefs and habits?

And what of persons who have spiritual beliefs but do not align themselves with any particular religion? Is it only by belonging to a formal group that one's beliefs would be legitimized under the law? Is that something which I should be allowed to decide? Or a government bureaucrat? Well, that is exactly what must happen if the government is granted authority to privilege the activities of religious groups over the activities of other groups.

It could happen that the government will become so tied in knots that they won't be able to properly distinguish between one "religion" and another, forcing them to treat each and every religion in exactly the same manner. This, of course, could mean that all of us will have the opportunity to ignore any land use or zoning regulation we wish by simply saying that it is an important part of our religion.

But that's wrong. It isn't right that the government should set up one set of rules for religious organizations and another, more restrictive set of rules for the rest of society. The government would have to demonstrate "compelling interest" to force a church to adhere to building codes or anti-discrimination laws, but would not bear that burden when dealing with a private business or non-religious group.

In this way, a blatantly discriminatory class of "special rights" for religious groups and believers is created, allowing for a dual system of laws and regulations. Ordinances that apply to everyone and every group would not necessarily apply to religious groups. This places government in the unconstitutional position of favoring religion over irreligion.

Real-World Impact

The real rationale behind not only this law, but all of the previous attempts to create special exemptions from general laws for churches, seems to be the question of land use, not the free exercise religion. If you examine the record, you will find that most problems between religious groups and local governments have not been about the free exercise of religious practice.

Instead, the real problems have been over the very worldly matters of zoning exemptions, waiver of permits on environmental controls, construction of massive "mega-churches," expansion of church parking lots and buildings into surrounding neighborhoods, etc. Basically, the churches want to do whatever it is they want to do, regardless of how it impacts their neighborhoods and their neighbors.

There are a wide variety of land use and zoning regulations which could become essentially invalid under the RLUIPA - including noise ordinances, safety laws, zoning rules, and historical preservation. Lest anyone think that such fears are unfounded and nothing of this sort would really happen, Marci A. Hamilton (plaintiff's attorney in the Boerne v. Flores case) has collected examples of exactly such things happening.

Noise ordinances are an example of generally applicable laws which are designed to apply to everyone and help everyone. Under the RLUIPA, however, anyone who wishes to violate them for religious reasons can force the government to prove that they should have to abide by them anyway.

Marci Hamilton has provided an example reported in the Chicago Tribune (Rocking Church Riles Neighbors, July 9, 1999): here, a church in a residential neighborhood held services Wednesday evening that included a band. The noise level went one decibel above the maximum allowed and so neighbors complained. According to the church, however, the Alabama RFRA prohibited local government from enforcing noise regulations against them.

So, how would you like to live near a church which could force you to listen to whatever sorts of music, preaching, or general noise that they wanted to broadcast? Can you imagine how difficult it would be for you to sell your home and get out? What can be said of the moral standards of a church which cannot manage to be a good neighbor?

Another case cited by Hamilton is one dealing with the very important issue of safety laws: In California, a homeless shelter owned and operated by a church started to admit people at night. Unfortunately, the building's structure was in violation of numerous safety regulations, even including fire safety regulations.

Believe it or not, courts ruled that because of the RFRA, this church did not have to live up to safety codes and, so, was permitted house the homeless men in an admittedly unsafe building. Only after the RFRA was held to be unconstitutional was that decision reversed and the church forced to abide by basic safety codes. I really have to wonder at the moral values of a church which does not think that the homeless deserve safety.

This issue has a direct impact on any neighborhood that contains either a church or any building owned and operated by a church. If they do not have to abide by fire codes, they pose a fire threat to the entire area. If some politicians have their way and religious organizations start to administer government programs like welfare, food stamps, job training, etc., then people will have to come to unsafe buildings just to obtain guaranteed government assistance.

Historical preservation is an obvious problem - it was exactly this issue that was at the heart of the Boerne v. Flores decision. Any time a church owns a historic building, they will be permitted to do anything they wish - even including demolishing it entirely.

Lisa Salberg · Status: Offline

California case #2

Neighbors Renew Etz Chaim Fight

by Julie Gruenbaum Fax, Religion Editor

Despite continuing legal challenges, members of Etz Chaim this month prayed for the first few Shabbats in their new home, a house converted for use as a shul on the corner of Highland Avenue and Third Street in Hancock Park.

For the last eight years the house has been at the center of lawsuits between the congregation, a group of neighbors and the City of Los Angeles, as well as activity in the Los Angeles City Council.

In contrast to the in-your-face determination of the past few years, congregants and their leader, Rabbi Chaim Rubin, moved into the newly renovated 8,000-square-foot house with little fanfare.

"We just want to be left in peace to daven," Rubin said, refusing to comment further.

This is a change for Rubin, who in the past has been outspoken about what he believes is outright anti-Semitism on the part of neighbors who want to keep the growing Orthodox community in the area at bay.

The 50-member congregation raised the ire of some in the neighborhood in 1995 when it sought to move services, which had been held for 30 years in Rubin’s home, to a house on the corner of the busy Hancock Park intersection.

Neighbors claimed they simply wanted to follow the existing zoning laws intended to retain the residential quality of the upscale neighborhood.

"I think the neighbors are intent on getting justice, and they are a very good group of people, and it is my hope that they will be able to prevail in what has been a very unfair situation," said Marci Hamilton, co-counsel for the League of Residential Neighborhood Associations (LRNA), which formed in large part to challenge Etz Chaim.

In the latest development, LRNA last week amended and refiled a previously dismissed complaint against both the congregation and the city. While the heart of the complaint, which originated in July 2003, remains the same — that the permit allowing the congregation to use the building is illegal — some of the legal theories and arguments behind that conclusion have changed.

Susan Azad, counsel for the congregation, is confident the judge will again dismiss the complaint.

Hamilton hopes to eventually appeal to the Ninth Circuit Court and then to bring this case all the way up to United States Supreme Court, since it relies on a relatively new law that she believes is unconstitutional.

The Religious Land Use and Institutionalized Persons Act (RLUIPA), signed into law by Bill Clinton in 2000, allows religious institutions to override local zoning laws, and there are several cases across the country challenging its constitutionality.

"The heart of the lawsuit rests on the same reasoning — and that is that it is unconstitutional and fundamentally unfair to create two class of landowners — the landowners that must obey the law and the religious landowners who can get around the law," asserted Hamilton, who has argued similar cases before the Supreme Court.

RLUIPA came into the picture just in time to save the congregation, which had lost appeal after appeal of a suit it brought against the city in 1996, alleging that the city was violating the religious freedom of the congregation by preventing it from praying in the house.

With RLUIPA bolstering Etz Chaim’s case, in February 2002 then-city attorney James K. Hahn entered into a settlement agreement with the shul, allowing limited use of the 3,600-square-foot building at 303 S. Highland, with some renovations.

Soon after, the congregation razed the building and built an angular 8,100-square-foot house with a living room that serves a sanctuary and mikvah (ritual bath) in the basement. Some neighbors feel the house doesn’t fit in with area’s Tudor and Mediterranean Revival mansions and that security cameras and increased foot traffic invades their privacy.

During the renovations the city asked the judge for a stop-work order, contending the renovations violated the settlement agreement. That request was denied and the city appealed that decision in August 2003; it is now awaiting a decision from the Ninth Circuit Court of Appeals.

Meanwhile, Fourth District Los Angeles City Councilman Tom LaBonge, in whose district the house resides, brought a motion in January of this year asking the L.A. City Council to follow through on an earlier commitment to challenge the constitutionality of RLUIPA when cases arose. In one case the city filed against the Missionaries of Charities Brothers, a Catholic nonprofit that is using a house in the Pico-Union area as a homeless shelter, the judge found RLUIPA unconstitutional. That decision is expected to be appealed as well.

LaBonge asked the City Council to request a report on the Etz Chaim case from the city attorney, including suggestions about how to pursue challenging RLUIPA through the Etz Chaim case.

He also asked that the city retain outside council to adjudicate the case.

The request for outside council was defeated, with the help of Fifth District City Councilman Jack Weiss, whose jurisdiction begins just across the street from the synagogue.

The activity in City Council delayed the congregation from moving into the building until just a few weeks ago, but in mid-January the congregation held a parade through the streets of Hancock Park with musical accompaniment on a flatbed truck to bring a new Torah scroll to the shul. The Torah was dedicated on the occasion of the bar mitzvah of Rubin’s son, who has Down syndrome.

During the procession, angry neighbors came to take pictures and videos, as they had at the bar mitzvah the day before, in what members feel was an attempt to antagonize them.

"It was the most incredible feeling, to go into a private residence to give respect to the incredible achievement of this child and to be intimidated," said Michael Rosenberg, a member of the congregation and president of the Hancock Park Residents Association.

Lisa Salberg · Status: Offline

Lets hear from Hawii
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Wednesday, May 12, 2004

— Time: 4:56:49 PM EST

By HARRY EAGAR, Staff Writer

WAILUKU - Armed with a fresh decision from the 9th Circuit Court of Appeals in a California case, Maui County apparently is going to try a new approach in its lawsuit with Hale O Kaula Church in Pukalani.

The Maui Planning Commission was briefed in executive session Tuesday by Deputy Corporation Counsel Madelyn D'Enbeau.

In public session, the commission voted unanimously to "accept a position" to take with regard to settlement discussions.

What that position is was not stated in public, but in a public briefing beforehand, D'Enbeau presented the strategy of Morgan Hill, a California city that faced a zoning challenge under the same federal law being used by the Pukalani church: the Religious Land Use and Institutionalized Persons Act.

Morgan Hill won its case at the 9th Circuit, in a decision published in March.

At a seminar for municipal lawyers, the Morgan Hill city attorney presented the documentation his town used to support the rejection of zoning for San Jose Christian College.

In detail, the cases are not similar.

The Morgan Hill property was already zoned for a planned unit development of a hospital. Hale O Kaula is seeking to expand a building for religious uses on an agriculturally zoned parcel.

One argument Morgan Hill used was that the parcel in dispute was the only one in the city with infrastructure suitable for a hospital. Part of Maui County's objections to Hale O Kaula has been lack of infrastructure, specifically water.

But the underlying legal principles are similar.

D'Enbeau told the commission that an applicant invoking RLUIPA must demonstrate that it will suffer a "substantial burden" if it is denied.

"Substantial" is not exactly defined, D'Enbeau said, but the court said "incidental burdens" would not be sufficient to get the benefit of RLUIPA.

Once the municipality is on notice that a substantial burden is likely to be claimed, if it still wants to deny the permit, it must show a "compelling government interest."

"Compelling" is not exactly defined, either, but Morgan Hill successfully argued that "public convenience, necessity and general welfare . . . require denial of the zone change to preserve the site for hospital facilities."

As for whether the burden to the school would be incidental or substantial, Morgan Hill argued that since school officials had testified that "they had looked at 10 to 12 other sites, and thus there are other alternative sites available."

Hale O Kaula has contended that its Joseph ministry requires work on the land as part of educating its congregation and that, on Maui at least, the possible options to do that were few.

Morgan Hill raised eight "separate and distinct" objections to granting the zoning.

One was that the application was "inconsistent with surrounding uses," also an issue with Hale O Kaula.

In the California case, the lower court judge found the college had not even met the requirements to trigger "strict scrutiny" under RLUIPA.

But the appeals court found that the way Morgan Hill had responded also did not infringe on free exercise of religion, free speech or freedom of assembly.

RLUIPA has been battled in courts across the country since being passed by Congress in 2000. In some cases, municipalities have lost; in others RLUIPA has been declared unconstitutional, at least in part.

The Maui case is of national interest because it involves land not already in some form of urban zoning.

There is even another parallel between the Morgan Hill decision and Hale O Kaula, because Morgan Hill contended that the college had not submitted a full and complete application.

In the Maui application, there was a contested case hearing, at which the church decided not to submit testimony.

The reason had to do with preserving a claim of bias against the hearings officer, but it has allowed Maui County to argue that the church did not go through the normal review process.

The parties are under instruction of the U.S. District Court in Honolulu to undertake settlement negotiations.

How productive these talks have been is uncertain, since the order was made last year, but lawyers in settlement negotiations are not permitted to discuss them, which means neither side is able to discuss the case except with the parties, such as members of the commission.

Harry Eagar can be reached at heagar@mauinews.com.