HomeMy WebLinkAboutAGENDA REPORT 2011 1207 CC REG ITEM 10DMOORPARK CITY COUNCIL
AGENDA REPORT
ITEM 10.D.
TO: Honorable City Council
FROM: David A. Bobardt, Community Development Direct r`'l "
Prepared By: Joseph R. Vacca, Principal Planneqr
DATE: November 23, 2011 (CC Meeting of 12/7/2011)
SUBJECT: Consider Resolution Directing the Planning Commission to Study,
Hold a Public Hearing, and Provide a Recommendation on
Amendments to Chapter 17.20 (Uses by Zone) of the Zoning
Ordinance to Address the Religious Land Use and Institutionalized
Persons Act in the Allowed Uses
BACKGROUND / DISCUSSION
Moorpark Municipal Code Chapter 17.20 establishes the uses by zone in the City. On
September 22, 2000, following unanimous approval by Congress, President Clinton
signed into law the Religious Land Use and Institutionalized Personas Act (RLUIPA),
(Attachment 1), which is a civil rights law that protects individuals and religious
institutions from discriminatory and unduly burdensome land use regulations. RLUIPA
is not a blanket exemption from zoning laws; it provides regulations for local
governments regarding local zoning laws, as follows:
• zoning must not substantially burden religious exercise;
• zoning must not treat religious uses less favorably than non - religious assemblies
or institutions;
• zoning must not discriminate based on religion or religious denomination; and
• zoning must not totally or unreasonably restrict religious uses.
Essentially, RLUIPA requires the city to apply zoning uniformly and not impose an
unjustified substantial burden on religious exercise. Traditional zoning concerns, such
as regulations addressing traffic, hours of operation, parking, maximum capacity,
intensity of use, setbacks and frontage requirements, may be implemented so long as
these regulations are applied to other assembly uses in the same way as applied to
religious land uses. A number of court cases over recent years have helped frame the
application of RLUIPA. At this time it is prudent to examine the City's Zoning Ordinance
in light of RLUIPA to determine if any amendments are necessary.
WE
Honorable City Council
December 7, 2011
Page 2
The Municipal Code calls for a resolution of City Council to initiate an amendment to the
Zoning Ordinance. The attached draft resolution, if adopted by City Council, would
direct staff and the Planning Commission to study and provide a recommendation to the
City Council on a Zoning Ordinance Amendment to address Uses by Zone in relation to
the Religious Land Use and Institutionalized Persons Act in the Zoning Ordinance.
STAFF RECOMMENDATION
Adopt Resolution 2011-
ATTACHMENTS:
1. Statement of Department of Justice on RLUIPA
2. Draft Resolution
\ \DC1 \Department Share \Community Development \DEV PMTS\Z 0 A \Initiations\2011 RLUIPA \cc 111207 stf rpt RULIPA.docx
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Statement of the Department of Justice on the Land -Use Provisions of the Religious
Land Use and Institutionalized Persons Act ( RLUIPA)
The Religious Land Use and Institutionalized Persons Act ( RLUIPA), 42 U.S.C. §
2000cc et seq., is a civil rights law that protects individuals and religious institutions from
discriminatory and unduly burdensome land use regulations. I After hearings in which
Congress found that religious assemblies and institutions were disproportionately affected,
and in fact often were actively discriminated against, in local land use decisions, Congress
passed RLUIPA unanimously in 2000. President Clinton signed RLUIPA into law on
September 22, 2000.
Congress found that zoning authorities were frequently placing excessive or
unreasonable burdens on the ability of congregations and individuals to exercise their
faith with little to no justification and in violation of the Constitution. Congress further
found that religious institutions often faced both subtle and overt discrimination in
zoning, particularly minority, newer, smaller, or unfamiliar religious groups and
denominations.z
Congress also found that, as a whole, religious institutions were treated worse than
comparable secular institutions by zoning codes and zoning authorities. As RLUIPA's
Senate sponsors, Senator Hatch and the late Senator Kennedy, said in their joint statement
issued upon the bill's passage: "Zoning codes frequently exclude churches in places where
they permit theaters, meetings halls, and other places where large groups of people assemble
for secular purposes.... Churches have been denied the right to meet in rented storefronts,
in abandoned schools, in converted funeral homes, theaters, and skating rinks —in all sorts
of buildings that were permitted when they generated traffic for secular purposes. "3
Congress further found that zoning authorities frequently were placing excessive
burdens on the ability of congregations and individuals to exercise their faiths without
sufficient justification, in violation of the Constitution.
1 This Statement deals with RLUIPA's land use provisions. Another section of RLUIPA protects the
religious freedom of persons confined to prisons and certain other institutions.
146 CONE. REc. S7774 (daily ed. July 27, 2000) (joint statement of Senators Hatch and Kennedy).
' Id. at S7774 -75.
CC ATTACHMENT 1 46
RLUIPA provides a number of important protections for the religious freedom of
persons, places of worship, religious schools, and other religious assemblies and institutions,
including:
• Protection against substantial burdens on religious exercise: Section 2(a) of
RLUIPA prohibits the implementation of any land use regulation that imposes a
"substantial burden" on the religious exercise of a person or institution except
where justified by a "compelling governmental interest" that the government
pursues in the least restrictive way possible.
• Protection against unequal treatment for religious assemblies and institutions:
Section 2(b)(1) of RLUIPA provides that religious assemblies and institutions must
be treated at least as well as nonreligious assemblies and institutions.
• Protection against religious or denominational discrimination: Section 2(b)(2) of
RLUIPA prohibits discrimination "against any assembly or institution on the basis
of religion or religious denomination."
• Protection against total exclusion of religious assemblies: Section 2(b)(3)(A) of
RLUIPA provides that governments must not totally exclude religious assemblies
from a jurisdiction.
• Protection against unreasonable limitation of religious assemblies: Section
2(b)(3)(B) of RLUIPA provides that government must not unreasonably limit
"religious assemblies, institutions, or structures within a jurisdiction."
RLUIPA's protections can be enforced by the Department of Justice or by private
lawsuits. In the ten years since its passage, RLUIPA has been applied in a wide variety
of contexts and has been the subject of substantial litigation in the courts. It is a complex
statute, with five separate provisions that protect religious exercise in different but
sometimes overlapping ways. In order to assist persons and institutions in understanding
their rights under RLUIPA, and to assist municipalities and other government entities in
meeting the requirements imposed on them by RLUIPA, the Department of Justice has
created this summary and accompanying questions and answers.
Date: September 22, 2010
Questions and Answers on the Land -Use Provisions of RLUIPA
1. Who is protected and what types of activities are covered by RLUIPA?
RLUIPA protects the religious exercise of "persons," defined to include religious
assemblies and institutions in addition to individuals. RLUIPA has been used, for
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example, to protect houses of worship, individuals holding prayer meetings in their
homes, religious schools, religious retreat centers, faith -based homeless shelters, soup
kitchens, group homes, and other social services.
2. What does "religious exercise" include?
RLUIPA provides in Section 8 that "religious exercise" includes any exercise of religion,
"whether or not compelled by, or central to, a system of religious belief." Thus a county
or municipality cannot avoid the force of RLUIPA by asserting that a particular religious
activity is something that a religious group merely wants to do rather than something that
it must do. For example, a town could not claim that Wednesday prayer meetings are not
religious exercise because they are less central to a church's beliefs or less compulsory
than Sunday worship services.
RLUIPA also specifies in Section 8 that "It]he use, building, or conversion of real
property for the purpose of religious exercise shall be considered to be religious exercise .
..." This provision makes clear that construction or expansion of places of worship and
other properties used for religious exercise purposes is religious exercise under RLUIPA.
Religious exercise covers a wide range of activities, including operation of homeless
shelters, soup kitchens, and other social services; accessory uses such as fellowship halls,
parish halls and similar buildings or rooms used for meetings, religious education, and
similar functions; operation of a religious retreat center in a house; religious gatherings in
homes; and construction or expansion of schools, even where the facilities would be used
for both secular and religious educational activities.
3. Who is bound by RLUIPA's requirements?
RLUIPA applies to states (including state departments and agencies) and their
subdivisions such as counties, municipalities, villages, towns, cities, city councils,
planning boards, zoning boards and zoning appeals boards. RLUIPA does not cover the
actions of private citizens unless acting under color of state law, such as government
employees. RLUIPA does not apply to the federal government, though another similar
law, the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, does.
4. Does RLUIPA exempt religious assemblies and institutions from local zoning
laws?
No. RLUIPA is not a blanket exemption from zoning laws. As a general matter,
religious institutions must apply for the same permits, follow the same requirements, and
go through the same land -use processes as other land users. RLUIPA does not pre -empt
or replace the normal zoning code. Rather, it imposes a number of safeguards and
I •
requirements on local governments regarding zoning that impact religious uses by
requiring that:
• the zoning law or its application not substantially burden religious exercise
without compelling justification pursued through the least restrictive means,
• the zoning law not treat religious uses less favorably than nonreligious assemblies
and institutions,
• the law not discriminate based on religion or religious denomination, and
• the jurisdiction not totally or unreasonably restrict religious uses.
When there is a conflict between RLUIPA and the zoning code or how it is applied,
RLUIPA, as a federal civil rights law, takes precedence and the zoning law must give
way.
So long as a municipality applies its codes uniformly and does not impose an unjustified
substantial burden on religious exercise, it may apply traditional zoning concerns — such
as regulations addressing traffic, hours of use, parking, maximum capacity, intensity of
use, setbacks, frontage — to religious uses just as they are applied to any other land uses.
5. Are there occasions when a religious assembly or institution does not have to
apply for zoning approval, and appeal any denial, before it has recourse to
RLUIPA?
As a practical matter, applying for a zoning permit, special use permit, conditional use
permit, special exception, variance, rezoning, or other zoning procedure, and appealing
within that system in case of denials, is often the fastest and most efficient way to obtain
ultimate approval. Religious institutions and local governments are encouraged to
attempt to resolve disputes through established zoning processes.
In some circumstances courts have held that religious institutions need not make an
application or appeal before filing a RLUIPA lawsuit. These include settings where
further application or appeal would be futile under the circumstances, or there would be
excessive delay, uncertainty or expense, or if the application requirements are
discriminatory on their face.
6. RLUIPA applies to any "land use regulation." What does that mean?
RLUIPA defines land use regulation as a "zoning or landmarking law ... that limits or
restricts a claimant's use or development of land." Zoning law encompasses laws,
ordinances or codes that determine what type of building or land use can be located in
what areas and under what conditions. Landmark preservation laws are restrictions that
municipalities place on specific buildings or sites to preserve those that are deemed
significant for historical, architectural, or cultural reasons. RLUIPA's definition of land
use regulation, however, does not extend to every type of law involving land, such as fire
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codes, ordinances requiring use of municipal sewer connections, laws regarding property
taxes, most landlord- tenant laws, laws governing trespass, and others.
7. Does RLUIPA apply to local governments using eminent domain to take property
owned by religious institutions?
"Eminent domain" refers to government taking of private property for public use with
just compensation. As a general matter, it is not a zoning or landmarking law, and thus
RLUIPA will not apply. However, where municipalities have tried to use eminent
domain to short- circuit the zoning process for places of worship that have applied for
zoning approval, courts have found that such actions may be covered by RLUIPA.
S. Can places of worship still be landmarked?
Yes, places of worship can be landmarked. However, like any other land -use regulation,
landmarking designations that impose a substantial burden on religious exercise must be
justified by compelling government interests and pursued in the least restrictive means.
Also, landmarking regulations must not be applied discriminatorily.
9. What kinds of burdens on religious exercise are "substantial burdens" under
RLUIPA?
The substantial burden inquiry is fact - intensive, and looks at the degree to which a zoning or
landmarking restriction is likely to impair the ability of a person or group to engage in the
religious exercise in question. Whether a particular restriction or set of restrictions will be a
substantial burden on a complainant's religious exercise will vary based on context, such as
the size and resources of the burdened party, the actual religious needs of an individual or
religious congregation, the level of current or imminent space constraints, whether
alternative properties are reasonably available, the history of a complainant's efforts to locate
within a community, the absence of good faith by the zoning authorities, and many other
factors.
Generally, when a municipality takes one of the following types of actions, it may constitute
a substantial burden on religious exercise under RLUIPA:
• effectively barring the use of a particular property for religious activity;
• imposing a significantly great restriction on religious use of a property; or
• creating significant delay, uncertainty, or expense in constructing or expanding a
place of worship, religious school, or other religious facility.
Courts have, for example, found substantial burdens on religious exercise in a denial of a
church construction permit due to onerous off - street parking requirements imposed by a city,
a permit condition requiring a religious retreat center to operate as a bed - and - breakfast, a
denial of construction of a parish center, a denial of expansion plans for a religious school,
and a denial of the ability to convert a building's storage space to religious use.
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Conversely, courts have found no substantial burden violation when a church was denied the
amount of off - street parking it would have preferred when there were reasonable parking
alternatives available, when a religious high school was denied the ability to operate a
commercial fitness center and dance studio out of a portion of its building, and when a
church was barred from demolishing an adjacent landmarked building it had purchased in
order to construct a family life center, as there was other space on the church's campus that
would be suitable.
10. RLUIPA contains a complicated description about when the "substantial
burden" section will apply. Just when does the "substantial burden" test apply in a
particular case?
RLUIPA applies the substantial burden test to zoning or landmarking laws that have
procedures in place under which the government makes "individualized assessments of
the proposed uses for the property involved." By their nature, zoning or landmarking
decisions typically involve such "individualized assessments." Individualized
assessments are present when the government looks at and considers the particular details
of a proposed land use in deciding whether to permit or deny the use. It thus will cover
most applications for variances, special use permits, special exceptions, rezoning
requests, conditional use permits, zoning appeals, and similar applications for relief, since
these all ordinarily involve the government reviewing the facts and making discretionary
determinations whether to grant or reject an application. A denial of a building or
occupancy permit based solely on a mechanical, objective basis with no discretion on the
part of the decision maker would not be an individualized assessment and thus would not
require the application of the substantial burden test. Practically, however, such purely
"ministerial" situations are extremely rare in zoning disputes.
Even if a zoning or landmarking case did not involve an individualized assessment, the
substantial burden test still applies if the use at issue impacts interstate commerce, such
as construction or expansion projects, or if there is federal funding involved.
11. What are examples of compelling interests that will permit local governments to
impose substantial burdens on religious exercise?
A government cannot impose a substantial burden on religious exercise unless it has a
compelling governmental interest for doing so that is pursued through means that are the
least restrictive of religious freedom possible. "Compelling interest" is a legal term
meaning interests "of the highest order." Government interests that are merely
reasonably or even significantly important are insufficient. Courts have ruled that
municipal interests in revenue generation, economic development or eliminating
congestion, are not compelling. The burden of proving that an interest is compelling lies
squarely on the local government.
Examples of interests that may be compelling are those related to preserving public
health and safety. For example, safety concerns relating to traffic can be compelling.
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I lowever, a county or municipality cannot simply point to an interest in traffic safety in
the abstract as a compelling interest justifying a substantial burden on religious exercise.
Rather, the government must show that it has a compelling interest in achieving that
interest through the particular restriction at issue, such as safety interests in regulating
traffic flow on the particular street at issue.
Even where an interest is compelling, it must be pursued through the least restrictive
means. If there is another way that the government could achieve the same compelling
interest that would impose a lesser burden on religious exercise, it must choose that way
rather than the more burdensome way.
12. What does RLUIPA require of government with regard to the treatment of
religious assemblies and institutions as well as nonreligious assemblies and
institutions?
Section 2(b)(1) of RLUIPA contains a provision, known as the "equal terms provision."
It provides that "[n]o government shall impose or implement a land use regulation in a
manner that treats a religious assembly or institution on less than equal terms with a
nonreligious assembly or institution." This section extends to ordinances that on their
face treat religious assemblies or institutions on less than equal terms, as well as
ordinances that, although facially neutral, are applied in a manner that treat religious
assemblies or institutions on less than equal terms than nonreligious assemblies or
institutions.
Congress enacted this provision to address the problem of zoning codes, either facially or
in application, excluding places of worship where secular assemblies are permitted. The
legislative history points to the problem of houses of worship being excluded where
theaters, meeting halls, private clubs, and other secular assembly places are permitted.
Determining if a religious assembly is treated on "less than equal terms" than a secular
assembly or institution requires a comparison of how the two types of entities are treated
in a zoning code. Courts have differed regarding how such a comparison is made, and
thus the precise legal test for determining when this section is violated will vary
depending on the judicial circuit in which the case arises.
Courts have found the equal terms section violated in situations where places of worship
were forbidden but private clubs were permitted, where religious assemblies were
forbidden but auditoriums, assembly halls, community centers, senior citizen centers,
civic clubs, day care centers, and other assemblies were permitted, and where places of
worship were forbidden but community centers, fraternal associations, and political clubs
were permitted.
Regardless of the legal test employed in a particular jurisdiction, however, local
governments can avoid violating this section of RLUIPA by ensuring that their
regulations focus on external factors such as size, impact on traffic and parking, intensity
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of use, hours of operation, noise, and similar objective criteria in regulating land uses,
rather than focusing on the content of the speech and assembly activities being regulated.
13. What constitutes discrimination based on religion or religious denomination
under RLUIPA?
Section 2(b)(2) of RLUIPA bars implementation of a land use regulation that
discriminates on the basis of religion or religious denomination. This bar applies to
application of land use regulations that facially discriminate, as well as applications of
land use regulation that are facially neutral but which in fact discriminate based on
religion or religious denomination. Thus if a zoning permit is denied because town
officials do not like members of a particular religious group, or if for any other reason an
applicant is denied a zoning permit that would have been given to it had it been part of a
different religion or religious denomination, Section 2(b)(2) has been violated. Because
this section applies to discrimination based on either religion or religious denomination,
it can apply to situations where a city may not be discriminating against all members of a
religion, but merely a particular sub -group or sect.
14. What does it mean for a local government to totally exclude religious uses from
a jurisdiction?
Section 2(b)(3)(A) prohibits local governments from "totally excluding] religious
assemblies from a jurisdiction." If a city, town or county had no location where religious
uses are permitted, that would be a facial violation of Section 2(b)(3).
15. What does it mean for a local government to impose unreasonable limitations
on a religious assembly, institution, or structure?
Section 2(b)(3)(B) prohibits land use regulations that "unreasonably limit[ ]" religious
assemblies, institutions, or structures within a jurisdiction. This provision is violated if a
municipality's land use laws, or their application, deprive religious institutions and
assemblies of reasonable opportunities to use and construct structures within that
jurisdiction. A determination of reasonableness depends on a review of all of the facts in
a particular jurisdiction, including the availability of land and the economics of religious
organizations. Courts have found unreasonable limitations where regulations effectively
left few sites for construction of houses of worship, such as through excessive frontage
and spacing requirements, or have imposed steep and questionable expenses on
applicants.
16. When must someone file suit under RLUIPA?
RLUIPA lawsuits brought by private plaintiffs must be filed in state or federal court
within four years of the alleged RLUIPA violation.
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17. What can a local government do to avoid liability under RLUIPA?
RLUIPA contains a "safe harbor" provision that protects a local government from
application of RLUIPA's enforcement provisions if it takes steps to ameliorate the
violation. Section 4(e) provides that a local government can avoid the force of
RLUIPA's provisions by:
• changing the policy or practice that results in a substantial burden on religious
exercise;
• retaining the policy or practice and exempting the substantially burdened religious
exercise;
• providing exemptions from the policy or practice for applications that
substantially burden religious exercise; or
• any other means that eliminates the substantial burden.
18. What is the Department of Justice's role in enforcing RLUIPA?
The Department of Justice is authorized to file a lawsuit under RLUIPA for declaratory
or injunctive relief, but not for damages. For example, the Department may bring suit
seeking an order from a court requiring a municipality that has violated RLUIPA to
amend its discriminatory zoning codes or grant specific zoning permits to a place of
worship, religious school, or other religious use. However, the Department may not seek
monetary awards on behalf of persons or institutions that have been injured. Those who
have suffered monetary damages from RLUIPA violations must file individual suits.
The Housing and Civil Enforcement Section of the Civil Rights Division has the
delegated authority within the Department to investigate and bring RLUIPA lawsuits,
both on its own and in conjunction with United States Attorney's offices around the
country. If you believe you have a potential RLUIPA violation case, you should bring it
to the attention of the Department of Justice as soon as possible to allow adequate time
for review.
The Department receives many complaints from individuals and groups whose rights
under RLUIPA may have been violated. While it cannot bring suit in all cases, the
Department may take a number of actions in addition to filing suit to resolve RLUIPA
matters. The Department may involve the Community Relations Service (CRS) to
address community unrest or discord. It may contact the municipality to educate it
regarding its obligations under RLUIPA. It may file an amicus brief to weigh in on an
important point of law. In deciding whether to file suit, the Department considers a
number of factors including whether a case involves important or recurring issues,
particularly serious violations of law, or if it is a case that will set precedent for future
cases. Many of the Department's cases have been resolved by negotiating consent
decrees that lay out a municipality's specific obligations to comply with the law.
Aggrieved individuals and institutions are encouraged to seek private counsel to protect
their rights, in addition to contacting the Department of Justice.
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19. How can someone contact the Department of Justice about a RLUIPA matter?
The Civil Rights Division's Housing and Civil Enforcement Section may be reached by
phone at:
(202) 514 -4713
(800) 514 -1116
(202) 305 -1882 (TTY)
(202) 514-1116 (fax).
The mailing address is:
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Housing and Civil Enforcement Section, NWB
Washington, D.C. 20530
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RESOLUTION NO. 2011-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, DIRECTING THE PLANNING COMMISSION
TO STUDY, HOLD A PUBLIC HEARING, AND PROVIDE A
RECOMMENDATION TO THE CITY COUNCIL ON A ZONING
ORDINANCE AMENDMENT THAT WOULD AMEND CHAPTER 17.20
OF THE MOORPARK MUNICIPAL CODE RELATED TO RELIGIOUS
LAND USES
WHEREAS, Section 17.44.050 of the Municipal Code provides that the City
Council may initiate proceedings to consider amendments to the Zoning Ordinance by
the adoption of a resolution of intent; and
WHEREAS, the City Council wishes to initiate proceedings to consider a Zoning
Ordinance Amendment that would amend Chapter 17.20 of the Moorpark Municipal
Code related to religious land uses.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. INITIATION OF PROCEEDINGS: The City Council hereby
authorizes the initiation of proceedings to consider a Zoning Ordinance Amendment that
would amend Chapter 17.20 of the Moorpark Municipal Code related to religious land
uses.
SECTION 2. DIRECTION TO PLANNING COMMISSION: The Planning
Commission is hereby directed to study, hold a public hearing, and provide a
recommendation to the City Council on this matter.
SECTION 3. CITY CLERK CERTIFICATION AND FILING: The City Clerk
shall certify to the adoption of this resolution and shall cause a certified resolution to be
filed in the book of original resolutions.
PASSED AND ADOPTED this 7th day of December, 2011.
ATTEST:
Maureen Benson, City Clerk
Janice Parvin, Mayor
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