What happens when a religious institution claims that local land use regulations impermissibly burden its First Amendment rights to freedom of religion? A recent case decided by the Ninth Circuit, Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 2006) (Aug. 1, 2006), illustrates the conflict.
After its proposal to develop a temple on one parcel was denied, a Sikh group sought a conditional use permit (CUP) from Sutter County, California, to construct a temple on another parcel designated for agricultural use. The County planning department recommended approval, with a series of conditions designed to mitigate the proposed temple’s impact, such as limiting the number of people attending the temple to 75, and several design modifications to the building. The Sikhs accepted the conditions.
After a public hearing at which members of the public opposed the CUP, mainly on the basis of noise, traffic, interference with neighboring agriculture operations, and predicted lowering of property values in the area, the county planning commission narrowly approved the application, subject to the conditions. Several neighbors appealed to the county Board of Supervisors which denied the CUP.
The Ninth Circuit first held that the denial of the CUP was a “substantial burden” on the temple’s free exercise of religion. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) thus applied, and required the government to show that the burden on religion was outweighed by a “compelling governmental interest.” In other words, before the government may deny a religious institution a specific land use permission, it must have a very good reason, and be able to prove it. In this instance, the court found that the County’s denial of the temple’s first request, combined with the County’s denial of the CUP even after conditions to mitigate impacts had been accepted by the Sikhs, was a substantial burden on their religious freedom:
Because the County’s actions have to a significantly great extent lessened the prospect of Guru Nanak being able to construct a temple in the future, the County has imposed a substantial burden on Guru Nanak’s religious exercise.
The County did not offer any countervailing “compelling interests,” and did not even attempt to meet the burden of persuasion imposed on it by RLUIPA. The Ninth Circuit also determined that RLUIPA was a valid exercise of Congress’ power to enforce the Fourteenth Amendment, and its power to enforce the Free Exercise Clause of the First Amendment.
This case shows that RLUIPA continues to be a powerful tool to prevent land use authorities from undue interference with a religious use of property.
Continue Reading ▪ Religious Land Use Trumps Local Permit Denials
Land use law
▪ Contesting Contested Cases
By Robert H. Thomas on
The Hawaii Supreme Court recently decided a case that provides some guidance to those who practice in the often ill-defined space between executive agencies and the courts, a place land use lawyers and their clients frequently find themselves.
In Hui Kakoo Aina Hoopulapula v. Board of Land and Natural Resources (Sep. 21, 2006), the court confirmed that in order to properly demand a “contested case” (a trial-like administrative hearing) and thus preserve a right to judicial review of agency action, the party demanding the hearing must follow the agency’s rules to request it, even if it appears futile to do so.
In that case, the electric company asked the State Board of Land and Natural Resources for a long-term lease of brackish water from a Big Island aquifer for “industrial use and fire suppression” for a generating plant.
Parties who have long objected to the generating plant objected to the proposed lease and orally asked the Board for a contested case at a public hearing the Board scheduled on the electric company’s request. The Board rejected the oral request for a contested case and issued the lease after a public auction. The objectors did not file a written request for a contested case with the Board, as required by the Board’s rules of procedure.
The objectors then sought judicial review in circuit court of the issuance of the lease, and the denial of the contested case. Circuit court review of administrative agency action is limited to appellate review of the administrative record produced after a contested case. Thus, if no contested case is held in the agency, the circuit courts lack subject matter jurisdiction.
The circuit court, finding that no contested case was conducted by the Board, determined it lacked jurisdiction, and the supreme court affirmed, never reaching the substantive issues raised by the objectors. Lack of jurisdiction prevented the courts from considering the case at all.
The key holding of the case is that a proper written demand for a contested case is a jurisdictional prerequisite to judicial review. Even when the agency has denied an oral demand. The court held that the agency’s “no” may not have really meant “no,” and the objectors may have been able to change the agency’s mind with a written demand for a contested case.
No demand for a contested case means no contested case is conducted, and no contested case means that a party disappointed with the result of agency action cannot run to court and seek reversal.