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A Religious Land Use Win in Oregon – Home Church and Wedding Ministry are Permissible Uses of Land

Written by Daniel P. Dalton on September 7, 2016 Category: Firm News, First Amendment, Land Use and Zoning, RLUIPA Cases

The law firm of Dalton & Tomich PLC is pleased to announce that our client Shepherdsfield Church prevailed in its land use dispute in central Oregon this week.  In this landmark decision, the administrative hearing officer found that home churches and wedding ministries are permitted uses under the state land development code.

Shepherdsfield Church (“Shepherdsfield” or “Church”) is a small fellowship of Christian believers who have been meeting together as a House Church since 2009. The Church encourages practice outreach to those in the community, both Christian and non-Christian, and as part of this belief, the Pastor John Shepherd and his wife, Stephanie Shepherd, officiate and provide wedding and memorial services on the Church grounds. In order to minister to those of lesser means, the marriage services and venue are offered at a reduced price to those who are members of the congregation as well as couples outside of the congregation.

In 2013, Shepherdsfield sought a conditional use approval to establish a private park on the subject property to be called Shepherdsfield Park. The Park would serve to Shepherdsfield was denied a conditional use approval to establish a private park on the subject property to be called Shepherdsfield Park, which would host weddings, wedding receptions, special events, and recreational activities. The application was ultimately denied, with denial based on several issues, including that Shepherdsfield did not include a site review plan application. In February of 2015, Shepherdsfield again applied for a conditional use permit with which it sought to establish Shepherdsfield Park. Complete with site plan review, the application was approved on February 3, 2015. On February 4, 2015, the Board initiated review of this application and affirmed the administrative approval and included additional findings. However, the Board’s approval was appealed to the Oregon Land Use Board of Appeals (“LUBA”) where the decision was reversed on August 17, 2015. LUBA characterized the use of the property as a “commercial wedding event,” and ruled that the proposed use did not qualify as a private park because the primary use – weddings – was not a recreational activity. In September of 2015, the County and Shepherdsfield entered into a Voluntary Compliance Agreement in which Shepherdsfield agreed that they would not allow use of the property for any weddings, wedding receptions, or similar event until and unless they obtain all necessary land use approvals for such use. On appeal to the Court of Appeals, the Court affirmed LUBA’s reversal on February 3, 2016, agreeing that the proposed use of hosting weddings and similar events did not qualify as a private park.

Shepherdsfield Church then retained the law firm of Dalton & Tomich PLC to ensure that their most recent land use application, in which the Church proposed to use its residential property as a church, would be approved. Specifically, Shepherdsfield sought for permission to use the property for: (1) weekly services, primarily conducted in the existing dwelling; (2) church related events, specifically weddings, restricted to mid-May through mid-October; (3) family and marriage counseling; and (4) church functions allowed by Oregon Revised Statute Section 215.441.

The Central Oregon Landwatch (“Landwatch”) objected to Shepherdsfield’s land use application on three points. First, Landwatch argued that the relevant statute, ORS 215.441,[1] does not allow for a church situated in a residence. Second, Landwatch asserted that the Church was in code violation over its Farm Management Plan, and therefore Deschutes County was prohibited from approving an application for any use other use of that land. Third, Landwatch contended that DCC Section 18.88 prohibits churches outright in the Metolius Deer Winter Range. Finally, Landwatch insisted that protection under the Religious Land Use and Institutionalized Persons Act should not apply to Shepherdsfield because the Church had the option of meeting at an alternate site that did not interfere with the Metolius Deer Winter Range.

To the first point, the Deschutes County Hearings Officer found that under Deschutes County Code (“DCC”) 18.04.030, a “church” is defined as “an institution that has nonprofit status as a church established with the Internal Revenue Service,” and that there was adequate evidence on the record to find that Shepherdsfield met this requirement. Further, the Hearings Officer found that church uses are allowed on the subject property in the EFU zone under DCC 18.16.025(C) on non-high value farmland. As, there is no dispute that the subject property is comprised of non-high value farmland, Shepherdsfield was in compliance with this code section. Similarly, ORS 215.283(1)(a) states that churches and cemeteries in conjunction with churches may be established in any area zoned for exclusive farm use, and therefore the Church was considered an outright use on the subject property.

The Hearings Officer further held that the requirements of ORS 214.441(1), established in Catholic Diocese of Baker v. Crook County to determine whether the local zoning ordinance allows a “church” on the subject property, were met. Importantly, neither case cited by Landwatch supported its contention that ORS 215.441 did not apply to the case at hand. Specifically, Landwatch asserted that ORS 215.441(1) applies only to “nonresidential” places of worship, and because the congregation will be meeting in a residential structure, the statute was inapplicable. However, in Reed v. Jackson, cited by Landwatch, the Oregon Land Use Board of Appeals (LUBA) rejected the application of ORS 215.441 because there was no church on the property, and therefore there was not a church for a wedding to be “customarily associated with the practices of.” The Hearings Officer noted that Reed contains no discussion regarding residential or nonresidential structures in which a congregation may meet. Further, Landwatch’s use of Bechtold v. Jackson County also did not adequately support its argument. The Hearings Officer held that Bechtold instead rejects the restrictive meaning of church that Landwatch advocated: “The legislature’s decision not to include a limiting definition of the term ‘church’ leaves open the possibility that structure beyond those devoted exclusively to formal worship services might qualify as church buildings.” The Hearings Officer further noted that in Catholic Diocese of Baker, LUBA observed that the phrase “other non-residential place of worship” was the legislature’s attempt to recognize that the words “church, synagogue, temple, mosque, chapel, meeting house” might no adequately describe all religions’ places of worship. According to the Hearings Officer’s decision:

In other words, the phrase is an expansive one and does not limit the types of structure in which a church and its congregation may meet. The fact that the structure is a residence is immaterial, as the proposed use of the property is for “religious activity,” Churches are allowed outright in the EFU zones under Oregon Statues and the Deschutes County Code. [Therefore,] [t]he Hearings Officer finds that ORS 215.441(1) applies to the proposed church in this case.

The Hearings Office then moved to step two of the ORS 215.441(1) analysis, which requires a determination of whether the wedding and reception and other outdoor uses are “activities customarily associated with the practices of the religious activity” of the Church. According to the decision, LUBA has indicated that the custom of the particular place of worship dictates the scope of the protected activities. LUBA has further ruled that custom may include activities that are commonly thought of as religious activity (“worship services” and “religious classes”), but may also include other kinds of activities (“weddings, funerals, child care and meal programs”). To this point, Landwatch argued that associated wedding receptions proposed with the Church application do not constitute religious uses that can be approved under ORS 215.441(1). It asserted that, while wedding ceremonies may be a permitted accessory use for a church, wedding receptions are secular celebrations that cannot take on the religious nature of the ceremony that precedes it. However, the Hearings Officer rejected this argument, finding that the Legislature’s failure to reference wedding receptions in the statute does not foreclose the right to host both weddings and receptions, if the Church has established that such uses are “customarily associated with the practices of” the church itself. Nevertheless, “associated” uses must be incidental and subordinate to the primary proposed or existing church use, regardless of whether the associated uses are religious or non-religious in nature and regardless of whether the associated uses are allowed with or without charge. The Hearings Officer held that the question under the statute is not whether the proposed associated uses are customarily associated with the Church or Christian faith in general. The question is whether the proposed associated uses are customarily located at the site of the church. Therefore, step two of ORS 215.441 was satisfied, as Shepherdsfield had been officiating and providing weddings, premarital and marital counseling and memorial services on the subject property as a form of ministerial outreach to the community.

The Hearings Office next addressed Shepherdsfield’s alleged code violation of its Farm Management Plan, as DCC 22.20.015(A) precludes issuance of land use decisions when a property is in violation of an applicable land use regulation. Specifically, Landwatch asserted that Shepherdsfield was in violation of a condition of approval that allowed for the farm dwelling in which the church resides, as Shepherdsfield’s predecessor in interest was required to adhere to a Farm Management Plan in order to construct the dwelling. Therefore, according to Landwatch, Shepherdsfield was required to produce 30 hogs each year to be sold at live auction, as per the FMP. The Hearings Officer noted that a violation” of a condition of approval may be found if a substantial alteration of the farm management plan had occurred. However, the Hearings Officer then concluded that a property owner has reasonable latitude under an FMP to change the types and numbers of livestock to be raised on the property. Therefore, Shepherdsfield’s small poultry and cow operation did not substantially alter the farm management plan, as the property still conducted the required “farm activities” and was therefore not in violation.

Finally, the Hearings Officer further rejected Landwatch’s contention that churches are prohibited outright in the Metolius Deer Winter Range pursuant to DCC 18.88. Rather, DCC 18.16.025 permits churches outright, as opposed to conditionally, in the EFU. Therefore, the prohibition on church use in the Wildlife Area combining zone must properly be read as a prohibition where church use is classified as a conditional use, rather than an outright use.

Although both Shepherdsfield and Landwatch raised arguments concerning the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), because the Hearings Officer approved the proposed church uses on the subject property, a RLUIPA analysis was not required.

Dalton & Tomich PLC is pleased to partner with Shepherdsfield Church and looks forward to helping other religious uses in similar circumstances attain their land use goals.  Thanks to Ms. Erin Cobain, a third year law student at the University of Detroit Law School who assisted Daniel Dalton with this case.

Dalton is the author of the nation’s first definitive guide to the litigation of cases under RLUIPA. Now in its second edition, Litigating Religious Land Use Cases provides practical advice for religious entities and lawyers representing them in religious land use claims.

[1] ORS 215.441 reads: “If a church, synagogue, temple, mosque, chapel, meeting house or other nonresidential place of worship is allowed on real property under state law and rules and local zoning ordinances and regulations, a county shall allow the reasonable use of the real property for activities customarily associated with the practices of the religious activity, including worship services, religion classes, weddings, funerals, child care and meal programs, but not including private or parochial school education for prekindergarten through grade 12 or higher education.”

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Dalton & Tomich, PLC is the national leader in successfully helping churches, other religious institutions and their insurers defend their rights in land use and zoning matters under RLUIPA, the Religious Land Use and Institutionalized Persons Act. We have helped clients win cases against municipalities and other local government bodies from coast to coast, with experience serving both as general counsel and special litigation counsel.