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Conditional Land Use Requirements and RLUIPA

Written by Daniel P. Dalton on October 4, 2010 Category: Land Use and Zoning, Religious Institutions, RLUIPA

In Arnold v. Versailles-Midway-Woodford County Bd. Of Adjustment, No. 2008-CA-001850-MR, 2010 WL 668664 (Ky. App. Feb. 26, 2010), plaintiffs appealed the Circuit Court’s opinion and order affirming the determination of the Versailles-Midway-Woodford County Board of Adjustment granting a conditional land use permit to the Versailles United Methodist Church for the construction of a church building, a school building, a gymnasium, and parking areas. On appeal the plaintiffs argued that the Board failed to heed the Woodford County zoning ordinance by defining “church” to include a school and a gymnasium, that the circuit court erred when it affirmed the use of procedures created by the Board’s counsel which, they contend, effectively usurped the fact finding and decision making duties of the Board and, thus, denied them their procedural due process rights, that the Board lacked substantial evidence to reach the conclusion that the Church’s conditional use request should be approved, that the record did not support the conclusion that the Board’s findings relative to RLUIPA were deleted, and finally that that it was error to dismiss their petition for declaratory judgment.

In response to the plaintiffs’ first argument, the Kentucky Court of Appeals held that “based on the broad language of the ordinance and the general understanding of the mission of religious organizations, we have no doubt in concluding that not just a single building was contemplated by the Board in its ordinance.” In response to plaintiffs’ second argument the Court held that the plaintiffs did not provided any evidence that the Board’s reliance on counsel’s recommended manner of proceeding was unreasonable or not according to law, and that there was no error as it related to that argument. The Court did however determine that the Board’s action in granting the permit was arbitrary because it lacked substantial evidentiary support, and therefore reversed and remanded for additional findings by the Board in accordance with the Davis decision and KRS Chapter 100. [1] With Respect to plaintiffs’ argument that the Board’s findings relative to RLUIPA were deleted the Court held that “[t]he Board’s minutes are clear that it never took such action and the Circuit Court’s determination was in error. On remand, the Board shall make appropriate findings under RLUIPA.” The Kentucky Court of Appeals disagreed with plaintiffs’ final argument that it was error to dismiss their petition for declaratory judgment, holding that, “KRS 100.347 provides an exclusive statutory remedy for an appeal from the actions of the Board…A request for a declaratory judgment cannot substitute for an action that is particularly provided for, to be brought in a particular way.” . See Black v. Utter, 303 Ky. 803, 190 S.W.2d 541, 542 (1945); Sullenger v. Sullenger’s Adm’x, 287 Ky. 232, 152 S.W.2d 571, 574 (1941). By unanimous concurrence the Kentucky Court of Appeals affirmed in part, reversed in part and remanded the judgment of the Woodford Circuit Court for further proceedings consistent with its opinion.


[1] “[T]he factual determinations made by the board should demonstrate that it had considered the effect of the proposed land use on the public health, safety and welfare in the zone affected, in adjoining zones and on the overall zoning scheme.” Davis v. Richardson, 507 S.W.2d 446, 449 (1974).

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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.