In a published opinion released just hours ago, the 9th Circuit Court of Appeals released its decision in International Church of the Foresquare Gospel v. City of San Leandro, Case No. 09-15163 where the Court reversed the decision of the lower court who granted summary judgment to the City of San Leandro on an effective exclusions/substantial burden case. See http://www.ca9.uscourts.gov/opinions/ This firm assisted in the case through the submission of an amicus brief.
In this highly anticipated case, the Court was asked to look at a community who permited zoning in a district knowing that there is no land available to build a religious use or the land is undesirable for a religious community. The Court employed a “reasonableness” test to determine the actual effect that the proposed Ordinance amendment will have on religious uses. The legislative history of the RLUIPA evidences that “[w]hat is reasonable must be determined in light of all the facts, including the actual availability of land and the economics of religious organizations.” In determining reasonableness, a court will evaluate whether the number of sites available under the new zoning scheme provides a reasonable opportunity for religious expression. This is a method employed in the context of First Amendment free expression challenges to zoning ordinances. While “[t]he calculation of the number of sites is a question of fact,” reasonableness is a question of law. This type of analysis is consistent with the analysis used in First Amendment actions, as well as that proposed by Congress, as evidenced by the legislative history of RLUIPA.
As with the pure First Amendment “Free Exercise” cases, the issue in dispute was whether the City Ordinance unreasonably limits alternative avenues of religious expression. In finding whether the Zoning Ordinance leaves open reasonable alternative avenues of expression, the Court must answer two questions: 1) what is the actual number of sites available and 2) do these sites provide a reasonable opportunity for expression. To undertake this analysis, courts have, amongst other things (the number of lots or buildings available in the district for these uses, the physical size of the municipality and acreage available for these businesses, the ratio of these establishments per population in the municipality, and the market demand for opening such enterprises), looked to the percentage of accessible land in a given municipality available for the expression. The available land need not be presently available for sale or lease. Courts “have generally found the number [of sites] to be inadequate if fewer than a dozen sites, or under 1% of the city acreage, is potentially available.”
The City bears the burden of proffering the number of sites which are legal for religious uses under the challenged regulations. While it is true that religious assemblies cannot complain when they are subject to the same marketplace for property as are all land users, religious assemblies are not participating in the same marketplace when they are required to aggregate anywhere from the number of properties as the average land user and required to obtain more frontage than any other non-residential uses in the same district. Consequently, the application of a zoning ordinance to a parcel of land imposes unreasonable limitations upon religious assembly in violation of section (b)(3)(B) of the RLUIPA, and will violate a religious entities Freedoms under the First Amendment if the zoning precludes the use. Today marked a huge victory in the context of religious land use with respect to RLUIPA cases nationwide.
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.
In 2015, Hope Rising Community Church experienced extreme opposition, the kind that would force it to close its doors and leave behind the families and youth it was so passionate about reaching. As the lead pastor I felt helpless, inferior and as if I had no […]Read More
Dalton & Tomich’s assistance in our RLUIPA matter has paved the way for our church to continue serving the community and for new churches in the area to thrive in the future. Thank you from the bottom of our hearts for your stand for religious […]Read More
The Urban Church will be forever grateful to Dalton & Tomich plc for navigating it through a difficult land use issue. Let them give you honest and caring advice because that’s exactly what they’ll do.Read More
Dalton & Tomich, PLC defended a complicated case at a church we insure. Not only is the firm professional, they understand how church business runs and work well within church leadership.Read More
Dalton & Tomich, PLC helped us immensely in the areas of litigation and negotiation! Their professionalism and understanding of church policy helped our church be victorious in a modern day religious land use battle. RLUIPA Religious Land Use Case: Lighthouse Community Church of GodRead More
Dalton & Tomich, PLC serves as General Counsel for the 144 churches within the Church of God in Michigan. The firm provides the legal expertise we need in dealing with the issues that arise during the course of fulfilling our ministry.Read More
I met Dan Dalton during a dark time for our church. He was recommended as the leading RLUIPA attorney in the nation. He demonstrated wisdom, expertise, a gentle nature, a calming inter-relational skill, genuineness, and a humble demeanor, while at the same time, being sharp, […]Read More
Mr. Dalton’s expertise and experience helped us through a very difficult legal journey, ultimately achieving a favorable outcome. His personal interest in helping our church went “above and beyond” just the call of duty. His understanding of both legal and spiritual matters seems to uniquely […]Read More