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New Land-Usey Blog: RLUIPA Defense

Thanks to Municipal Minute for pointing out a new blog that should be of interest to our readers. Our friend and colleague Dwight Merriam and his firm are publishing RLUIPA Defense a "one-stop comprehensive site stocked with cases, trial materials, briefs and scholarly articles all about avoiding and defending against claims taken under the Religious Land Use and Institutionalized Persons Act (RLUIPA)."

Our biggest question: how do you pronounce "RLUIPA?" (Practice tip: get the Judge to say it first, then pronounce it the way s/he does.)

If Dwight and his blogmates can resolve that one, we'd be grateful.

Check it out here.

Feds Bogart Entheogenic Church's Weed

Several lessons from the Ninth Circuit's opinion in Oklevueha Native American Church of Hawaii, Inc. v. Holder, No. 10-17687 (Apr. 9, 2012), a case involving the First Amendment and the Religious Freedom Restoration Act:

• Do not send your weed via FedEx. 

• Especially a pound of weed.

• Even if you claim the weed is used for religious purposes.

• Especially when your church "only exists to espouse the virtues of, and to consume, entheogens."

• If you do, and FexEx narcs you out to the feds (you do know what the "Fed" part of "FedEx" is short for?), don't expect the feds to give your weed back, dude.

• Bogarting your weed does not violate the RFRA, which does not provide for money damages either, man. It's like sovereign immunity has not been waived. 

• Consider yourself lucky the feds didn't charge you with a crime, even though they might in the future. 

At least now we know what was in that package Tom Hanks returned in Cast Away. We can only be thankful the plaintiffs did not raise a Fifth Amendment Takings claim.

9th Circuit On The Constitutionality Of Hawaii's Good Friday Holiday: Go Shopping Or Something

Today is Good Friday, an official holiday in the State of Hawaii, so we're reposting our annual recounting of how it came to be that the State celebrates the date of the crucifixion. Turns out that it doesn't really, it's just coincidence that the "spring holiday" occurs on the same day. Or so says the Ninth Circuit.

March 13, 2012: RLUIPA Webinar

Mark your calendars: Dwight Merriam and his team at Robinson & Cole are conducting a webinar/teleconference CLE, "Religious Land Use and Institutionalized Persons Act Claims - Strategies for Local Governments to Avoid or Defend RLUIPA Actions." Also on the faculty is Professor Marci Hamilton, one of the nation's leading church/state scholars and the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University.

The webinar will be held on March 13, 2012, but the early registration deadline (for a substantial tuition discount) is February 17, 2012. Here's a description:

After the Religious Land Use and Institutionalized Persons Act (RLUIPA) was signed into law over a decade ago, religious institutions nationwide began filing claims against municipalities alleging that certain zoning and land use decisions violated RLUIPA and infringed upon their right to religious exercise.

RLUIPA suits continue today. Courts have ordered injunctions and awarded monetary damages and attorneys’ fees for RLUIPA violations, including at least two multi-million dollar awards in the past year. Courts have dismissed RLUIPA (and related) claims in appropriate circumstances.

In light of the increase in RLUIPA litigation, municipalities should evaluate their zoning policies and practices to ensure that they comply with the law.

Listen as our panel of land use lawyers, litigators and legal scholars examines current RLUIPA case trends, offers practical guidance on how to avoid RLUIPA claims, and recommends steps to take when a suit has been filed against your municipality.

More information, including registration, here.

Amicus Brief In RLUIPA Case: Planning Is A "Compelling Interest" Justifying Denial Of Church's Request For Rezoning

Update: cert denied.

This might be academic at this point, since this case was up for consideration by the Court at the September 26, 2011 conference and it didn't make the grant list (yet). But the amicus brief filed by the local chapter of the American Planning Association in City of San Leandro v. International Church of the Foursquare Gospel, No. 11-106 (cert. petition filed July 11, 2011), is worth reviewing for its walk-through of the land use process in one East Bay city.

The brief's bottom line: it's all about planning:

Land use planning and related zoning laws and decison-making enable local governments to preserve their distinct characters. Indeed, a general plan translated long-term values into comprehensive, complicated documents that describe how, why, when, and where to build or rebuild while challenging and inspiring members of the community with a vision of what might be -- and telling them how to get there.

Br. at 12. That should not be a surprise, coming from the APA. Here's the cert petition the amicus brief is supporting.

Brief of Amicus Curiae The California Chapter of the American Planning Association in Support of Petitioner...

"The numbers are from [the appellants'] motion for attorney's fees. Their mathematics appears to be incorrect. But who is going to care about a few dollars?"

Not the California Court of Appeals, Second District. Edna Valley Watch v. County of San Luis Obispo, No. B223653 (Aug 2, 2011), slip op. at 2, n.2 .

Oh yeah, the holding: administrative proceedings are "actions" thus entitling parties -- opponents of the building of a church -- who participated in those proceedings and in the subsequent lawsuit to attorney's fees.

New Cert Petition: What Standard Of Review For RLUIPA "Substantial Burden" Cases?

In a case we've been following, a San Francisco Bay Area municipality has filed a cert petition asking the U.S. Supreme Court to review the Ninth Circuit's opinion in International Church of the Foursquare Gospel v. City of San Leandro, No. 09-15163 (Feb. 15, 2011). In that case, the Ninth Circuit held that the church had established enough to get to trial under RLUIPA's “substantial burden” provision, and reversed the district court's grant of summary judgment to the city.

The court held that there was a triable issue of fact regarding whether the city's denial of the church's request for a an amendment to the zoning code and a conditional use permit to allow the construction of new facilities on industrial land imposed a substantial burden on the church's religious exercise under RLUIPA. The court applied the "strict scrutiny" standard of review, and held that the city failed to prove a compelling interest. More here from the San Francisco Chronicle and here from the San Leandro Patch.

The Questions Presented:

In Employment Div. v. Smith, 494 U.S. 872 (1990), this Court held that, under the First Amendment’s Free Exercise Clause, the "vast majority" of its precedents apply low-level scrutiny to neutral, generally applicable laws imposing a substantial burden on the free exercise of religious conduct. Id. at 884-85. This Court noted in dictum, however, that when a law is decided through a system of "individualized assessments," strict scrutiny applies. Id. at 884. Strict scrutiny requires the government to prove its law rests on a "compelling interest" and is narrowly tailored. Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 (1993).

Congress enacted the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb-1-4 (1993), to override this Court’s free exercise doctrine. It was invalidated in Boerne v. Flores, 521 U.S. 507 (1997). In response, Congress enacted the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2006) ("RLUIPA"), which is a conglomeration of (1) Congress’s preferred standard for free exercise cases, which is intended to trump this Court’s free exercise doctrine, and (2) concepts that are borrowed directly and intentionally from this Court’s free exercise doctrine.

Three terms in RLUIPA, each of which was appropriated from this Court’s free exercise doctrine, are now the subject of persisting and deepening splits in authority among numerous federal circuit and state supreme courts. They are: "substantial burden," "individualized assessment," and "compelling interest." All three splits affect both First Amendment and RLUIPA free exercise cases, and each requires this Court’s attention and clarification.

The questions presented are:

1. Whether cost and/or inconvenience can be sufficient for a religious landowner to prove that an adverse land use or zoning decision imposes a "substantial burden" under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1) (2006).

2. Whether case-by-case analysis of a land use application constitutes an "individualized assessment" under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(2)(C) (2006).

3. Whether neutral, generally applicable planning principles may be a "compelling interest" of local governments under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc(a)(1)(A) (2006).

Thanks to Jacob Cremer (Florida Land Environment blog) for the tip.

9th Circuit: Church's Use Permit Requirement Violates RLUIPA Equal Terms

We tend not to think of churches as "blighting" their neighborhoods. But what about a church in a downtown "entertainment" district, where the nearby businesses are bars, nightclubs, and liquor stores, and placing a church in the area might limit the availability of liquor licenses?

In a sort of reversal of the usual LULU (locally undersirable land uses) issue, in Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, No. 09-15442 (July 12, 2011), the Ninth Circuit considered whether a municipality ran afoul of RLUIPA's "equal terms" provision when it required a church to seek a conditional use permit before it could relocate to a downtown entertainment area, and then denied the permit because it might limit the liquor licenses that could be issued to nearby businesses.

Arizona law prohibits issuance of a liquor license to any new bar, nightclub, or liquor store within 300 feet of a church or school, and consequently, Yuma's land use ordinance requires religious organizations and schools to obtain a CUP before they can open in the Old Town Main Street district. Most other uses do not need a CUP.

Centro Familiar, a 250-member congregation, wanted to relocate from an old movie theater to a former J.C. Penney store downtown, and several businesses already there objected. Although it noted the positive features the church would add to the downtown neighborhood, staff at the city's Planning and Zoning Commission recommended denial of the permit because the church would be "inconsistent with a '24/7 downtown neighborhood involving retail, residential, office and entertainment.' The liquor license problem was the 'pivotal factor.'" Slip op. at 9363.  Centro Familiar sued under RLUIPA's equal terms provision, seeking declaratory and injunctive relief, and damages. The district court ruled in favor of the city.

The Ninth Circuit reversed. It first concluded that Centro Familiar's requests for declaratory and injunctive were moot because after the lawsuit was filed, the church lost the property to foreclosure, and because the state law imposing the 300 foot no-liquor-license zone was amended to allow for waivers. However, the court held that the damage claim remained a live controversy because damages are available to the church under RLUIPA's "appropriate relief against the government" provision. 

On the merits, the court held that Yuma's ordinance violated RLUIPA's equal terms provision -- which requires the government in land use matters to treat religious assemblies and institutions on "no less than equal terms" than their nonreligious equivalents -- because it requires "religious organizations" to seek a CUP in circumstances where nonreligious organizations would not. Centro Familiar made out a prima facie case of violation, so the burden shifted to the city to carry the burden of persuasion. The most interesting part of the opinion is the court's treatment of the term "equal," and how it applies in context:

Under the equal terms provision, analysis should focus on what "equal" means in the context. Equality is always with respect to a characteristic that may or may not be material. For example, one can legitimately treat a tall person differently from a short person for the purposes of picking a basketball team, but not for the purposes of picking a jury. Likewise, a ten-member book club is equal to a ten-member church for purposes of parking burdens on a street, but unequal to a 1000-member church. Equality, "except when used of mathematical or scientific relations, signifies not equivalence or identity, but proper relation to relevant concerns." Thus, an ordinance that allowed membership organizations below some size would not have to allow churches substantially above that size, if parking were a relevant concern.

Slip op. at 9373-74 (footnote omitted). Applying this standard, the court concluded that the RLUIPA test is "[t]he city violates the equal terms provision only when a church is treated on a less than equal basis with a secular comparator, similarly situated with respect to an accepted zoning criteria. The burden is not on the church to show a similarly situated secular assembly, but on the city to show that the treatment received by the church should not be deemed unequal, where it appears to be unequal on the face of the ordinance" Id. at 9374-75 (footnote omitted). [Cert alert: footnote 47 notes that this test differs from the Third Circuit's.]

The court concluded that the only zoning criterion identified was the "damper" on liquor licenses, a justification the court rejected because Yuma's ordinance singled out religious organizations and there was no indication in the ordinance why it lumped schools in with religious organizations.The court also held that the ordinance was overbroad because it did not explain why it covered religious organizations when the state liquor license zone only covered "churches," and "[t]he exclusion of religious organizations is too broad for the liquor license statute to explain it away, because it excludes religious uses other than churches." Slip op. at 9377. Finally, the ordinance did not treat the church equally because "many of the uses permitted as of right would have the same practical effect as a church of blighting a potential block of bars and nightclubs. An apartment building taking up the whole block may be developed as of right, and so may a post office or prison." Slip op. at 9378 (footnote omitted).

This was an issue of first impression in the circuit; the court had considered RLUIPA's "substantial burden" provision in an earlier case, but never the equal terms provision. Now it has.

Upcoming CLE And ABA State & Local Govt Law Section Meeting (Portland)

Next week (May 12 - 15, 2011), the ABA Section of State & Local Government Law is meeting in Portland, Oregon.

This is our Spring Meeting (complete agenda here), and is co-sponsored by the Urban Land Institute and the American Planning Association. In addition to the business and administrative meetings (I promise, the meeting of the Condemnation Law Committee will be brief), we've lined up an impressive selection of CLE programs. Topics include:

• Sex, Drugs, and Government - local government regulation of medical marijuana dispensaries, most definitely a hot topic.

• Green Building - This panel will discuss the issues of Green Building Ordinances, ongoing cases involving the preemption of local green building codes under federal law and other challenges and pitfalls with Green Building Ordinance initiatives.

• Cyberbullying - This program will explore the challenges that the Internet brings to protecting students from harassment while at the same time respecting the Constitutional rights of free speech, due process, and personal privacy.

• Ethics of Social Networking - Get your ethics MCLE here. If you are reading this blog - or if you participate in social networking - you will love this session.

• Judicial Review of Local Land Use Decisions - Two Views - Hear two thoughtful judges, one from a trial court and another from an appellate court, discuss how they approach their review duties. How do such principles as due process, separation of powers and the scope of review, among others, affect their approach to this task?

• Regionalization - A panel discussion of lawyers and planners from Portland’s Metro and other regional government entities across the US (including my colleague Mark M. Murakami, to speak about Hawaii's experience) will share their expertise on the challenges, successes and  failures of regional efforts around the country as to affordable housing, transportation networks, transit-oriented development, economic development and urban growth boundaries.

• Land Use Hot Topics - Our annual run down of the issues included with the broad category of "state and local government law," including land use, environmental, administrative law, First Amendment, RLUIPA, exactions and impact fees, zoning, and education. Lunch is included. I'll be presenting a short article on the latest in Public Use in Eminent Domain. Did I mention lunch was served?

• Mobile Workshop - We're taking a walk and bus tour of area sites. Not your ususal tourist fare, we're viewing them through the lens of land use lawyers, including a brewery.

Disclosure: I'm the CLE Coordinator for the SLG Section, so I have a vested interest in you attending; I don't get a commission or anything like that, but if we put on a good program, people will think I am brilliant. So please join us.

If you can't attend in person, many of the CLE programs will be webcast live. For more information, go here.  For the complete meeting agenda (including all CLE sessions) and registration information, go here.

If you are able to join us in person, please also consider attending the several social and networking events, and the committee meetings, in addition to the CLE. Bring your business cards and meet your colleagues from around the nation. If you do, please find me and say hello.

"Now, What's The Use Of Having A Religion, If When You're Dead Your Troubles Never Cease..."

Hat tip: the Clancy Brothers' "They're Moving Father's Grave to Build a Sewer" (via Gideon Kanner). As we noted in our earlier post, life has imitated art: Chicago is seeking to take cemetery and move the graves in order to expand O'Hare airport.

As reported here ("High court ducks battle between O'Hare, cemetery), the saga now appears to have ended. The Illinois Supreme Court has denied review of the court of appeals' September 2010 decision allowing the condemnation.

The court of appeals concluded that the claims of the living relatives of the residents of St. Johannes Cemetery were adjudicated in federal court when the district court dismissed their complaint for failure to state a claim and the Seventh Circuit affirmed. Thus, their subsequent claims in state court were res judicata (that means "claim preclusion" to you young 'uns).

Here, all claims, both federal and state, clearly arose from a single group of operative facts: the City's condemnation of St. Johannes Cemetery as part of the O'Hare expansion plan. Although the state constitutional claims were not raised in the federal case, they could have been.

Slip op. at 8-9. The court concluded that the plaintiffs who brought the federal action were the "virtual representatives" of the different parties who participated in the state court action. The court also rejected the claim the taking of the cemetery was not necessary to the expansion of the runway: 

This argument misses the point. The issue of necessity is not a question of whether it is necessary to use each parcel of land specifically for the exact purpose originally planned, nor is it a question of whether the planned use could be reconfigured such that a particular parcel would no longer be required for the project. These are questions of a technical nature that are not appropriate for judicial review. The issue of necessity relates to whether the airport expansion is a legitimate public necessity.

Judicial interference in the actual plan to be implemented would lead to interminable delays, as there is always a different way to configure the use of land, especially a plan as massive as the expansion of an airport. Even if the overall expansion plan has changed such that the planned runway could be built on land other than the cemetery land, the fact remains that the runway is planned to be built there, and the trial court would have no authority to scuttle the plan or require the City to redraw the plan to place the runway elsewhere. We agree that alternate plans and the City's ability to pay were not relevant issues in the trial court.

Slip op. at 15. Yes, they really are moving father's grave.

Book Review: Federal Land Use Law and Litigation, 2010 edition

I've just received my copy of the 2010 revision of Federal Land Use Law & Litigation by Brian W. Blaesser and Alan C. Weinstein (West, $225).

Here's the description of the book from West's site:

Examines all federal, constitutional, and statutory limitations on local land use controls, discussing cases, regulations, liability, defense strategies, doctrines, and antitrust restrictions. Comprehensively reviews Supreme Court and lower federal court decisions that consider the constitutionality of land use regulations. Discusses complicated free speech issues affected by federal land use law, and municipalities exercising home rule powers. Examines issues such as: constitutional and statutory limits, First Amendment limitations on land use controls, federal remedies and attorney's fees, liability and immunity issues, litigation guidelines, zoning, subdivision controls, growth management, model complaints, and selected constitutional and statutory decisions.

Federal Land Use Law & Litigation is an eminently useful single-volume research and reference guide. It's well-organized, and although it is a specialty book and it is helpful to have a base understanding of the topics, it covers the most frequently-occurring issues in land use litigation in an understandable and easy-to-follow fashion. Chapter 3 on Regulatory Takings contains a particularly good summary of the current state of doctrine, and a concise chronological overview of the critical cases, beginning with the foundation cases in the early 20th century (Hadacheck, Mahon, Euclid) and continuing to the present.

This is one that will continue to have a place on my back bookshelf, along with other such must-haves as Steven Eagle's Regulatory Takings, the latest "green book" (Patricia Salkin's yearly Zoning and Planning Law Handbook), and Norman Matteoni's Condemnation Practice in California.

Federal Land Use Law & Litigation is available for purchase via West here.

Friday Round-Up: Kagan On Property, RLUIPA, Second Amendment, CEQA, And Title VII (Yes, Title VII)

What we're reading today - not all of it property or land use law related:

• SCOTUS Nominee Kagan on Property Rights (The Eminent Domain Law Blog)

• River of Life Kingdom Ministries v. Villlage of Hazel Crest, No. 08-2819 (7th Cir., July 2, 2010) (en banc) - the Seventh Circuit details the proper standard for applying the equal-terms provision of RLUIPA.

• The paradox of McDonald v. City of Chicago (SCOTUSblog) - yes, the Second Amendment applies to the states, but how and why is anyone's guess.

• Torrey Hills Community Coalition v. City of San Diego, No. D055579 (Cal. Ct. App. July 2, 2010) - for you CEQA mavens: time limitations for serving summons and for a request of a hearing.

• Alvarez v. Royal Atlantic Developers, Inc., No. 08-15358 (11th Cir., July 2, 2010) - a Title VII employment discrimination case, notable for its opening: "Some people are impossible to please. No one can meet their standards and no matter how hard anyone tries, they find fault, criticize, and are unhappy with the result. They demand continuous perfection, which is more than any human being can deliver. The evidence in this Title VII case indicates that Heidi Verdezoto is one of those people. She is the Chief Financial Officer of two closely related, family-owned companies in Miami. As CFO, she supervises the controller of the companies and passes judgment on the performance of the person in that position. And it seems that the judgment she passes is always unfavorable." Slip op. at 2 Ouch.

Wednesday Potpourri: Inverse Condemnation And Beaches, Rail Takings, And More "Adult-Oriented" Land Use

Here are items we're reading today, in no particular order:

• Bill Ward's thoughts on Klumpp v. City of Avalon, the recent New Jersey Supreme Court case about inverse condemnation and beach restoration. Our take here.

• From Honolulu Civil Beat comes Michael Levine's recent three-part series on the multi-billion dollar Honolulu rail project. Start with Honolulu Rail Heading Right at Them (which includes some of our thoughts on the condemnation issues ("'At the end of the day, at least the way it's shaping up now, the taking of property for public transportation purposes is generally seen as one of those classic uses for eminent domain, provided there's no pretext for private business,' Thomas said."), then continue with Rail Could Force Out Church, Homes After 50 Years in Pearl City, then finish up with Aiea Businesses Unknowingly in the Path of the Train. Note that much of the content is behind a paywall, but that there are several levels of "membership."

• Continuing with this week's apparent theme "adult-oriented" land use issues (e.g., the porn dorm postings here and here), see Madain v. City of Stanton, No. G042218 (Cal. Ct. App. June 23, 2010). In that case, the City denied an application to operate an "adult-oriented cabaret," because it was near a "planned church." More from the Orange County Register here.

Latest Interesting Opinions

Here are some recently-released opinions; none so earth-shattering that they merit their own post, but definitely worth reading:

• People ex rel. Dep't of Transportation v. Acosta, No. C059064 (Cal. Ct. App. Oct. 26, 2009) - In an eminent domain case, the California Court of Appeals, Third District concludes that a claim for lost goodwill was not preempted by federal law (the Petroleum Marketing Practices Act).

• Town of Kearny v. Discount City of Old Bridge, Inc., No. A-6220-07T3 (N.J. Super. Oct. 23, 2009) - Analysis and summary here from the New Jersey Condemnation Law blog.

• River of Life Kingdom Ministries v. Village of Hazel Crest, No. 08 C 950 (7th Cir., Oct. 27, 2009) - In a case involving a church's claims that a rezoning violated RLUIPA, the U.S. Court of Appeals for the Seventh Circuit affirmed the denial of church's motion for preliminary injunction because the "Church has only a slim chance of success on the merits," among other reasons.

Cert Denied Update

Last week's cert grant by the Supreme Court in Stop the Beachfront Renourishment, Inc. v. Florida Dep't of Environmental Protection, No. 08-11 (cert. granted, June 15, 2009) got us to thinking about other petitions in takings and land use cases which we've discussed, so here's an update on the cases denied review:

• Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009) - the Illinois Supreme Court held (896 N.E.2d 277 (Ill. 2008) that a regulation which imposes a 3% "surcharge" on Illinois casinos with gross receipts over $200 million per year, and then gives the money to horse racing tracks is not a taking of property. Several casinos challenged the law asserting, among other arguments, that the redistribution of their money to tracks was a taking.  The Illinois Supreme Court held that the regulation was a tax, and not subject to takings analysis. Cert denied June 8, 2009.

• Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586 (9th Cir. 2008)- the Ninth Circuit held that since the Corps' jurisdictional determination is not a final agency action, the property owner cannot immediately challenge it under the Administrative Procedures Act. Cert denied June 22, 2009.

• Joy Builders, Inc. v. Town of Clarkstown, 11 N.Y.3d 863 (2008) - the New York Supreme Court Appellate Division upheld the imposition of a fee in lieu of a dedication of land. Cert denied April 20, 2009.

• Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008) - the Ninth Circuit determined it was not a "substantial burden" on the religious exercises of Native American tribes under the Religious Freedom Restoration Act for the Forest Service to allow a ski resort to make artificial snow from recycled sewage water on a mountain considered by the tribes to be sacred. Cert denied June 8, 2009.

• McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008) (cert petition filed Mar. 2, 2009) - the Ninth Circuit held that legislatively imposed exactions should be analyzed under the Penn Central ad hoc standards and not under Nollan/Dolan. Cert denied June 8, 2009.

• AmeriSource Corp. v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008) - the Federal Circuit held that the seizure as evidence was not a taking for public use because the seizure was an exercise of the government's "police power," and not an exercise of eminent domain. Cert denied March 23, 2009.

Minn Court Of Appeals: No Taking Of Church Property For Sidewalk Without Consent

In City of Jordan v. Church of St. John the Baptist of Jordan, No. CV-07-24976 (Apr. 14, 2009), the Minnesota Court of Appeals held that a state law requiring the consent of a church's governing board before its land can be taken for road or street purposes requires consent before a city can take property for sidewalks and traffic signals.

Minn. Stat. § 315.42 (2008) provides in relevant part:

No roads or streets shall be laid through the property without the consent of the corporation's governing board.

The city intended to place a new sidewalk and traffic signal lights on the church's property and could not negotiate a purchase. The issue was whether the sidewalk and signal constituted "roads and streets" under the statute.  The appellate court noted that the statute had never been interpreted since its enactment in 1881, but that the Minnesota Supreme Court in a case decided roughly contemporaneously with the statute, held that "sidewalk" was ordinarily understood to be part of a "street." The Jordan court concluded:

And because a religious corporation's land cannot be taken for street purposes without consent of the corporation's governing board, the church's land cannot be taken for sidewalk purposes without its consent. 

. . .

For purposes of Minn. Stat. § 315.42 (2008), sidewalks are part of streets. Also, because a city is to place traffic-control devices on a highway or street, the prohibition in Minn. Stat. § 315.42 (2008) on using the land of religious corporations for road or street purposes without the consent of the corporation's governing board precludes the use of the church's land for sidewalk and signal light purposes without consent of the church's governing board.

Slip op. at 7, 10.

Hawaii's Good Friday Holiday: It's Like Thanksgiving And Christmas

If you are wondering why your calls to State and County offices go unanswered tomorrow, it is because it is Good Friday, a legal holiday in the State of Hawaii pursuant to Haw. Rev. Stat. § 8-1. 

The day of the crucifixion was originally made a holiday in 1941 by the Territorial Legislature. The statute was recodified upon statehood in 1959, and the holiday has been confirmed via Haw. Rev. Stat. § 89-1, the law that makes the establishment of public holidays -- among many other things -- a product of what the statute calls "joint decision-making" process between the government and the government employee unions, also known as collective bargaining.

The Establishment Clause, which has been incorporated against the states by the due process clause of the 14th Amendment, prohibits the government from establishing an official religion (the so-called separation church and state), and in 1987, several Hawaii taxpayers challenged the designation of Good Friday as a public holiday because it was plainly -- they claimed -- a religious, not secular observance.  The Hawaii federal court held otherwise in Cammack v. Waihee, 673 F. Supp. 1524 (D. Haw. 1987), concluding among other things that the Legislature made Good Friday a holiday to insure that public workers have more days off, not to make sure they were religious: 

[T]he Good Friday holiday was primarily proposed to increase the frequency of legal holidays. It is also noteworthy to point out, as does the State in this case, that the legislative report seems to acknowledge that Good Friday is not an entirely religious day. The 1939 report characterizes Good Friday as  in theory at least a day of solemn religious observances, apparently reflecting the legislature's sentiment that Good Friday had lost much of its religious nature and had become a holiday similar in nature to Thanksgiving or Christmas which have been secularized to some extent over the centuries.
Indeed, this court is also of the opinion that Good Friday has attained a secular character; for the majority of Americans Good Friday has become more an integral part of a traditional three day secular celebration of Spring which begins on Good Friday and continues through Easter Sunday than a solemn observance of Jesus Christ's crucifixion.

This court concludes that the secular purpose behind the establishment of the Good Friday is manifest. The legislature does not offend the First Amendment by enacting a statute intended to ensure that the people of Hawaii have an adequate number of leave days. This court further concludes that any ancillary sectarian purpose which the legislature may have had in establishing Good Friday as a holiday is not fatal to the Hawaii Rev. Stat. § 8-1, since  a clearly secular purpose  for the statute exists and since Good Friday, like Christmas, has become secularized to some extent over the centuries.

An examination of the effects of Hawaii Rev. Stat. § 8-1 leads this court to the conclusion that the legislature's intended purpose in declaring Good Friday to be a legal holiday has been fulfilled. While the plaintiffs argue that the effect of the Good Friday statute is to give Christian sects the imprimatur of State approval, an analysis of the effects of the statute compels this court to find that the secular effects of the statute significantly predominate over the sectarian effects of the statute.

The Ninth Circuit affirmed. See Cammack v. Waihee, 932 F.2d 765 (9th Cir. 1991).  The majority of the three-judge panel noted that many people in Hawaii use the Good Friday holiday to go shopping, and held "[i]t is of no constitutional moment that Hawaii selected a day of traditional Christian worship, rather than a neutral date, for its spring holiday once it identified the need."  The court concluded that the presence of a plausible secular purpose for enacting the law made the holiday's religious nature effectively irrelevant; to violate the Establishment Clause, the legislature must have intended the Good Friday holiday to only serve a religious purpose: 

We conclude that the Hawaii statute has a legitimate, sincere secular purpose, specifically to provide Hawaiians with another holiday, and thus is not motivated wholly by an impermissible purpose. There is nothing impermissible about considering for holiday status days on which many people choose to be absent from work for religious reasons. That the state legislature was able to accomplish its secular purpose and at the same time accommodate the widespread religious practices of its citizenry is hardly a reason to invalidate the statute.

(citation omitted). One judge dissented, arguing that a day off for Good Friday was not in any sense secular, and was a government endorsement of religion: 

The holly and the ivy, jingling bells, red-nosed reindeer, and frosty snowmen this is not. What this case is about is Hawaii's endorsement, by means of a state holiday, of a day thoroughly infused with religious significance alone. Because I believe that such a state establishment of religion violates both the purpose and effects prongs of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). I respectfully dissent.

The dissenting judge argued that the court's duty is to seek out whether the legislature had a primarily religious purpose, rather than whether it had any legitimate secular purpose.

Tuesday Round-Up: Forced Farming, Tax Or Taking, RLUIPA Loophole

Several items of interest:

• California Coastal Commission: "You must farm" - As a condition of allowing a Northern California family to build a home, the California Coastal Commission demanded that they dedicate an "agricultural easement" on their 143-acre parcel.  In other words, as a condition of use, the Commission requires a family that has never farmed its land to use its land for farming.  More about the case from the Half Moon Bay Review here. The complaint is posted here.
  

  "What the Coastal Commission is asking us to do in return for a building permit is to put the remaining acreage into agriculture easement," Dan Sterling said. "But it doesn’t stop there. They want control of what and how we farm. And even then, they can come in here whenever they want." That’s Sterling’s biggest issue. He says he’d lose control over all but 10,000 square feet of his property but still be liable to keep it up to state standards. And as far as he’s aware, no one has ever farmed any portion of the property – terrain marked by steep hills of trees and brush.

• WSJ op-ed: Riverboat Robbery - When does a tax become an illegal 'taking'? - The Opinion Journal's thoughts on the pending cert petition in Empress Casino Joliet Corp. v. Giannoulias, No. 08-945 (cert. petition filed Jan. 21, 2009), a case we discussed here. 
  

In a time of fiscal pressure, Illinois-type actions may be increasingly tempting for state and local governments to get money to prop up politically favored businesses. In the long run, it will only encourage corruption and deny business the kind of transparency they need to operate and expand. As with all takings, for railroads or schools or highways, if the state believes that the increased purses of the Illinois racetrack are in the public interest, the state must be willing to pay for it.

• Closing a big loophole in RLUIPA - RLUIPA and Eminent Domain: How a Plain Reading of a Flawed Statute Creates an Absurd Result.  Eminent domain is not a "land use regulation" under RLUIPA, most courts hold, including Hawaii's. See City & County of Honolulu v. Sherman, 110 Haw. 39, 129 P.3d 542 (Feb. 28, 2006). Thus, while a local government's zoning may be scrutinized under RLUIPA, the actual taking of property is immune from review. 

  This article addresses the Religious Land Use and Institutionalized Persons Act of 2000. It argues that while the courts hearing RLUIPA cases have correctly held that eminent domain is not land use regulation under RLUIPA, Congress intended eminent domain to be covered under RLUIPA, sound public policy holds that sacred property ought to be afforded special protection from burdensome government action, and Congress must cover eminent domain under RLUIPA in order to adequately protect religious liberty in the land use context.

Conference: ABA Section Of State & Local Government Law Virtual Spring Meeting

Instead of an in-person Spring Meeting this year, the ABA Section of State & Local Government Law will be "meeting" virtually from March 31-April 2, 2009.  As part of the meeting, the Section will be featuring a series of teleconference and live audio webcasts on a variety of subjects including topics near and dear to us: workforce housing, condemnation, land use, and green regulations. You can register for all programs, or individual subjects. A complete list of programs is posted here.

I will be participating as faculty in two of the programs: Condemnation Hot Topics (April 1, 2009 from 2:00 - 3:30pm EDT) and Hot Topics in Land Use Law (April 2, 2009 from noon - 1:30 EDT).  I'll be speaking about the issue of public use and pretext in eminent domain, and recent cases questioning the government's ability to take property.

Registration information is available on the links. If you can't make it for the live programs, the ABA is making recordings available also.  I hope you can join in.

Weekend Round-Up

Some interesting items have crossed my desk on Friday and Saturday:

• From the Grand Theft: Property blog, Jim Mattson posts his thoughts about Monks v. City of Rancho Palos Verdes, 67 Cal. App. 4th 263 (Cal. Ct. App. 2008), the case in which a California Court of Appeals held that a municipality's development moratorium was a Lucas taking.

• A California Court of Appeal issued an opinion in Rental Housing Ass'n of Northern Alameda County v. City of Oakland, No. A114855 (Cal. Ct. App.,  Feb. 27, 2009), striking down in part the city's rent control ordinance because it is preempted by state law.

• From the New York Zoning and Municipal Law blog comes a summary and analysis of the recent oral arguments in the latest phase of the Atlantic Yards eminent domain fight from Brooklyn. 

• More on AmeriSource v. United States, No. 08-497 (cert. petition filed Oct. 15, 2008) from the law bloggers at Volokh Conspiracy here (follow the links to earlier analysis of the issue). We posted the briefs in the case and our thoughts about the issues here.

• Also from the VC, see Supreme Court to Hear Potentially Important Property Rights Case, about SCOTUS agreeing to review the following question:

In determining whether the Due Process Clause requires a State or local government to provide a post-seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the "speedy trial" test employed in United States v $8,850, 461 U.S. 555 (1983) and Barker v. Wingo, 407 U.S. 514 (1972) or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976)?

• The International Municipal Lawyers Association's Local Government blog posts a summary and analysis of the decision the U.S. Supreme Court issued earlier this week about whether the Free Speech Clause requires a city to allow a religious group to place a permanent religious monument in a public park. Pleasant Grove City, Utah v. Summum, No. 07-665 (Feb. 25, 2009).

Cert Petition Asks: Does Spraying Recycled Sewage Water On A Sacred Mountain "Substantially Burden" Religious Exercise?

Thanks to SCOTUSblog for posting the cert petition, filed on January 5, 2008, in Navajo Nation v. United States Forest Service, No. 08A368.

The petition seeks review of an en banc Ninth Circuit panel decision holding it was not a "substantial burden" on the religious exercises of Native American tribes for the Forest Service to allow a ski resort to make artificial snow on a mountain considered by the tribes to be sacred. The artificial snow is made from recycled sewage water. 

The Ninth Circuit held the Religious Freedom Restoration Act, a federal statute which requires the government to justify with compelling reasons actions which substantially burden religious exercises, does not apply.  The court held that religious exercises are only burdened under the RFRA only when a person is forced to choose between adhering to their religion and accepting a government benefit, or when civil or criminal penalties are threatened.  Since the snowmaking activities did neither, the court held there was no violation of the RFRA.  Download the petition here.

US Seeks Cert Review in the Mojave Cross Case

Thanks to Professor Friedman's Religion Clause blog for the post about the federal government seeking Supreme Court review of the Ninth Circuit's decision in Buono v. Kempthorne, No. 05-55852 (Sep. 6, 2007). In that case, the Ninth Circuit invalidated a land swap on Establishment Clause grounds. The Solicitor General's cert petition suggests two Questions Presented:

More than 70 years ago, the Veterans of Foreign Wars (VFW) erected a cross as a memorial to fallen service members in a remote area within what is now a federal preserve. After the district court held that the presence of the cross on federal land violated the Establishment Clause and the court permanently enjoined the government from permitting the display of the cross, Congress enacted legislation directing the Department of the Interior to transfer an acre of land including the cross to the VFW in exchange for a parcel of equal value. The district court then permanently enjoined the government from implementing that Act of Congress, and the court of appeals affirmed. The questions presented are:

1. Whether respondent has standing to maintain this action where he has no objection to the public display of a cross, but instead is offended that the public land on which the cross is located is not also an open forum on which other persons might display other symbols.

2. Whether, even assuming respondent has standing, the court of appeals erred in refusing to give effect to the Act of Congress providing for the transfer of the land to private hands.

The petition is posted here.

Settling Land Use Litigation: Private Agreements and Public Process

A worthwhile article in the latest edition of The Urban Lawyer about settling land use disputes with processes that may not adhere strictly to the usual permit consideration procedures.  Here's the summary from the ABA's site:

Paul D. Wilson, Of Synagogues and Nude Juice Bars: Can a Municipality Settle Land Use Litigation Without a Permitting Process?, 40 Urb. Law. 535 (Summer 2008). This article examines conditional use permits and the appropriateness of settlement agreements between municipalities and controversial zoning permit applicants. The author examines a recent ninth court decision, League of Residential Neighborhood Advocates v. City of Los Angeles, in which the court struck down a settlement agreement between a city and an Orthodox Jewish synagogue wishing to locate in a residential zone, finding that the settlement was not a substitute for a conditional use-permit. The author then examines several analogous cases which present variations of the issue and possible solutions for municipalities.

The Urban Lawyer is the law review published by the ABA's Section on State and Local Government Law, and this article is well worth reading.

We have followed this issue for many years, and have posted a summary of the League of Residential Advocates case here.  This post contains summaries of, and links to, several recent cases on the issue of whether a municipal government may by agreement avoid the usual public processes in rezoning, eminent domain, or the consideration of land use permits.

Cases and Links From Today's Seminar

To all those who attended today's seminar, thank you.  Here are the links to the cases I mentioned.  From the morning session on Case Law Update:

• Wilkie - Government Gone Wild! - no comprehensive federal remedy for federal interference with property
• My Advertiser op-ed on Wilkie
• Crown Point - Ninth Circuit abandons Armendariz doctrine
• Cine SK8 - one way to prove a substantive due process case
• Post-Kelo claims of pretext:

• Franco - District of Columbia Court of Appeals - allegations of pretext cannot be summarily dismissed

• Goldstein v. Pataki - Second Circuit - government's claim of public use trump claims of pretext - cert. petition filed March 31, 2008

• Brescia - shoreline setback and equitable estoppel - HAWSCT holds you gotta get your "official assurances" from the right party
• Private agreements and public process - development and settlement agreements not a substitute for zoning process

From the afternoon session on Appealing an Administrative Zoning Decision:

• Hawaii Home Infusion - venue in administrative declaratory actions under § 91-7
• CARD - can a § 91-8 declaratory action substitute for an appeal?
• Colony Surf - nonconforming uses and reliance on administrative procedures
  
• E & J Lounge - what is a "contested case?"  See also Aha Hui Malama v. Kaniakapupu v. Land Use Comm'n (July 24, 2006)
• Rees v. Carlisle - private rights of action
• Silva v. City and County of Honolulu - the basis for rational basis equal protection arguments must be in the record

Questions?  Want a copy of the vested rights/zoning estoppel law review article? Drop me an email.

The First Amendment, the Ninth Circuit, and the Ten Commandments

While not exactly on the usual topics of this blog, the Ninth Circuit's opinion in Card v. City of Everett, No. 05-35996 (Mar. 26, 2008) is worth a read.  It involves the question of whether the placement of a reproduction of the Ten Commandments (the tablets, not the movie) on the grounds of Old City Hall in Everett, Washington violates the state and federal establishment clauses.  As usual in these type of cases, the facts are fascinating, as is the debate over the controlling law. 

In the end, the Ninth Circuit held that the city's display does not run afoul of either the Washington or the U.S. Constitutions.  Perhaps the best line of the opinion is in the concurring opinion of Judge Fernandez:

I applaud Judge Wardlaw’s scholarly and heroic attempt to create a new world of useful principle out of the Supreme Court’s dark materials.

Slip op. at 3039 (Fernandez, J., concurring) (citing Milton, Paradise Lost).  Read the complete opinion here.

PA Supreme Court Upholds Use of Eminent Domain to Take Private Property And Turn Over to Religious School

In a case at the intersection of Kelo-style eminent domain and First Amendment church-state issues, the Pennsylvania Supreme Court in In re Condemnation of 1839 North Eighth Street, No. 36 EAP 2006 (Dec. 29, 2007), held that the taking of property designated as "blighted" pursuant to a redevelopment plan, and for a nominal price transferring it to a religious entity did not violate the U.S. Constitution's Establishment Clause.

In 1968, a Philadelphia neighborhood which included the subject property was certified as "blighted" by the city's planning commission.  Thirty-four years later, in 2002, a coalition of Catholic groups asked the city's redevelopment authority to take 39 acres of the neighborhood, including the subject property, and turn it over to establish a "non-denominational, faith-based, not tuition based school."  The city approved of the plan and condemned the property, listing the Catholic group as the developer.  The property owner objected to the taking, alleging:

the taking of the Property was not for a public purpose; that the taking was  arbitrary, capricious and discriminatory; that the taking is the result of a  predetermined illegal commitment to a religiously-affiliated private entity; and that Condemnee’s due process rights were violated.

Slip op. at 3.  The trial court upheld the taking, and held that since the property was declared blighted, it didn't matter to whom the property was transferred.  The Supreme Court affirmed the judgment for different reasons.  It relied on Justice Kennedy's concurring opinion in Kelo and held the record did not support a claim of bad faith by the redevelopment agency, and that the only question was whether turning over the property to a religious organization violated the Establishment Clause. 

The court applied the three-part test of Lemon v. Kurtzman, 403 U.S. 602 (1971), and held (1) that there was a secular purpose in the taking (to eliminate blight), (2) that the primary effect of the taking was to develop a school, and even though the organization was sectarian that religious education was not the principle reason for the taking, and (3) that the taking and transfer to a Catholic group did not "excessively entangle" church and state.

Justice Baer dissented.  He agreed with the court's analysis of parts (1) and (3), but disagreed that the principle reason for the taking was secular.  He argued that government advances religion when it takes property and transfers it to a religious organization to run a religious school for nominal consideration, it is the same thing as government providing direct aid to a religious school.  Justice Baer relied on the stated nature of the organization to support his conclusion that the school would be religious:

The Hope Partnership described the venture as being between “[t]wo  Communities of religious sisters, the Society of the Holy Child Jesus and the Sisters of Mercy. . . .” R.R. at 43, 47. It further explained that “[t]his collaborative venture is being built on the long established Holy Child and Mercy traditions of service, characterized by reverence, compassion, and belief in the life-changing power of education. As vowed religious, we are called to journey with those in need. . . .” Id. One of the purposes of the Sisters of Mercy, which is a Roman Catholic Order, is to operate schools devoted to education under the principles of commitment to God. The school that Hope Partnership seeks to run will be based on a model inspired by Judeo-Christian values that is nondenominational, but assumes the presence of God.

Dissenting slip op. at 2.  Justice Baer would have held that the transfer of the condemned property is no different than direct government aid to a religious organization, and thus the taking would not serve a public use:

I believe this is a case of direct government aid, in the form of a land transfer below market value to a religious organization for the development of a religious school. The state action here is neither directed at, nor directly benefits, individual students without regard to where they choose to apply the aid. Instead, the aid here is essentially a land grant, directly to the religious school, as a consequence of state decisionmaking.

Id. at 6. Given that the Pennsylvania Court based its decision solely on federal law, and that the authorities cited by Justice Baer seem to support his argument, a cert petition to the U.S. Supreme Court may be in the cards.   

The Philadelphia Inquirer reports on the decision here.

Third Circuit RLUIPA Decision - Circuit Split?

Visit the New Jersey Eminent Domain Law blog and read "RLUIPA, Redevelopment, and Eminent Domain," a report about Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, No. 06-1319 (Nov. 27, 2007), a recent decision by the US Court of Appeals for the Third Circuit (which covers Pennsylvania, New Jersey, Delaware and the US Virgin Islands).  This case is worthy of attention since, according to NJED, it is at odds with decisions from other federal circuits, and thus may be a candidate for Supreme Court review.

▪ Petition for Rehearing/En Banc in RLUIPA Settlement Case

In a case discussed earlier here and here, Congregation Etz Chaim has filed a Petition for Rehearing and Suggestion for Rehearing En Banc in the Ninth Circuit in The League of Residential Neighborhood Advocates v. City of Los Angeles, No. 06-56211 (Aug. 21, 2007).

In that opinion, a three-judge panel of the Ninth Circuit determined that Los Angeles agreed as part of a settlement of the Congregation's RLUIPA claim to issue a conditional use permit (CUP) to the congregation.  Neighbors complained that city could not override the CUP process in a settlement agreement, which would have provided the neighbors notice and hearing under state law.  The Ninth Circuit agreed, voiding the settlement agreement unless there had been a specific finding that federal law was violated. 

The petition argues that the panel got it wrong factually: the settlement did not grant the Congregation a CUP, rather, it was premised on the idea that a CUP was not necessary and the Congregation could use its property for worship without a permit.  The petition also argues that the panel's ruling, by requiring a finding of "actual violation," undercuts the courts' and the litigants' ability to settle lawsuits without having to litigate a case to a judgment, and differs from the law in the Seventh and Third Circuits (i.e., a circuit split). 

Download the petition here.  The oral arguments in the Panel decision is here (8mb wma)

▪ Religion vs Land Use - Major RLUIPA Case

In Westchester Day School v. Village of Mamaroneck, No. 06-1464-cv (Oct. 17, 2007), the US Court of Appeals for the Second Circuit upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The decision has been analyzed extensively by others, so I won't repeat the details, just provide some links to this important decision. 

The Second Circuit's opinion is here.  Professor Patty Salkin's analysis at her Law of the Land blog is here.  Land Use Law Prof posts here, and the New York Zoning and Municipal Law blog posts here.  The Becket Fund for Religious Liberty posts details of the case here, and includes copies of the major pleadings and briefs.

▪ Land Use Round-up

Interesting items of the week:

• The Maui News reports on the short-term rental issue: "Planning Official: Enforcement due to TVRs' increase"

• California court: Development must be consistent, not identical, with general plan as summarized by Law of the Land blog (decision reported here, California Land Use Law blog report and summary here)

• Seventh Circuit: RLUIPA does not stand in the way of condemnation of cemetery (St. John's United Church of Christ v. City of Chicago (Nos. 05-4418, 05-4450, 05-4451 (Sep. 13, 2007), because the exercise of eminent domain is not a "land use" regulation under the Act; opinion here; oral argument mp3 here) -- for the Hawaii Supreme Court's treatment of the same issue, see Sherman v. City & County of Honolulu, 110 Haw. 39, 129 P.3d 542 (Feb. 28, 2006) (cited by St. John's at page 45 of the slip opinion)

• Professor Gideon Kanner comments on a $12 million Connecticut just compensation verdict which includes compensation for lost profits and business losses

• Blue Hawaii: the Honolulu Advertiser reports "Developer abandons plans to rebuild Kauai's Coco Palms"

▪ Ninth Circuit: Land Swap of Cross on Federal Land Violates Establishment Clause Injunction

The Ninth Circuit panel summarizes its decision:

A Latin cross sits atop a prominent rock outcropping known as “Sunrise Rock” in the Mojave National Preserve (“Preserve”). Our court previously held that the presence of the cross in the Preserve—which consists of more than 90 percent federally-owned land, including the land where the cross is situated—violates the Establishment Clause of the United States Constitution. Buono v. Norton, 371 F.3d 543 (9th Cir. 2004). We affirmed the district court’s judgment permanently enjoining the government “from permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.”

During the pendency of the first appeal, Congress enacted a statute directing that the land on which the cross is situated be transferred to a private organization in exchange for a parcel of privately-owned land located elsewhere in the Preserve.  See Pub.L. No. 108-87, R. 12.1, 12.4 § 8121(a)-(f), 117 Stat. 1100 (2003). That land exchange is already in progress and would leave a little donut hole of land with a cross in the midst of a vast federal preserve. The issue we address today is whether the land exchange violates the district court’s permanent injunction. We conclude that it does, and affirm the district court’s order permanently enjoining the government from effectuating the land exchange and ordering the government to comply with the original injunction.

Buono v. Kempthorne, No. 05-55852 (Sep. 6, 2007).  Full opinion here (149kb pdf).

▪ 9th Cir: Rock Climbing Ban at Lake Tahoe Not Motivated by Religion

In The Access Fund v. United States Dep't of Agriculture, No. 05-15585 (Aug. 27, 2007), the Ninth Circuit upheld the prohibition by the US Forest Service of recreational rock climbing at the culturally and religiously significant Cave Rock on the eastern shore of Lake Tahoe.  The rock is many things to many people:

To the Washoe Tribe, it is a site of powerful religious and cultural significance. To historians and archaeologists, it sheds light both on historical Washoe culture and on the history of American transportation. And, to rock climbers, it offers some of the most challenging climbing in the nation.

Slip op. at 10528-29.  A rock climbing advocacy group challenged the prohibition as a government establishment of religion, prohibited by the First Amendment's Establishment Clause.  Government action violates the prohibition on the establishment of religion if (1) it has no secular purpose; (2) its principal effect is to advance religion; or (3) it involves excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).  The Ninth Circuit held that the Forest Service's ban was not an endorsement of the Washoe Tribe's religious beliefs, and there was a secular purpose in banning rock climbing.  Professor Howard Friedman's summary of the issues here on his Religion Clause blog.

Opinion posted here.  The Forest Service's summary of the litigation here.  Write up from the Reno Gazette-Journal here.

Sidebar: The Ninth Circuit also recently decided a case involving a local government's ability to settle RLUIPA claims, as I posted about here.  The Establishment Clause and the RLUIPA issues are different, of course (the Establishment question going to whether the government has gone too far in accommodating religion, while the RLUIPA issue generally is whether the government has not gone far enough), but it appears that the intersection of land use and religion may be becoming a hot issue. 

▪ More on 9th Circuit RLUIPA Settlement Case

In The League of Residential Neighborhood Advocates v. City of Los Angeles, No. 06-56211 (Aug. 21, 2007), which I first discussed here a few days ago, the Ninth Circuit invalidated an agreement between the city of Los Angeles and a congregation to settle the congregation's federal RLUIPA claim.  As part of the settlement, the city agreed to issue the congregation a Conditional Use Permit (CUP).  The League objected, asserting its members had been deprived of their right to a public hearing on the CUP.  More details on the case at Professor Patty Salkin's Law of the Land blog here. 

The Ninth invalidated the agreement because the usual procedure to issue a CUP under California law includes public hearings, which had not been held in this case due to the settlement agreement.  While a federal district court has broad powers to settle litigation, those powers could not be invoked because the court had not found an "actual violation" of federal law, merely a "potential violation."  As is usual in settlement agreements, the city did not admit it had breached RLUIPA, or violated the congregation's rights.  The court found that fact dispositive.

However, this decision does not necessarily spell the end for settlement of federal land use litigation by procedures that may not conform precisely to state law.  Federal courts have extensive authority to settle litigation, especially lawsuits involving federal constitutional issues by way of settlement agreements between the parties or consent decrees. 

Under a federal court's consent decree authority, its inherent supervisory powers, and its power to remedy constitutional violations, it may command a state or local government to do things that they could not do under their own laws (like issue CUP's without a public hearing, for example). 

I like to think of consent decrees as settlement agreements on constitutional steroids.  The US Constitution's Supremacy Clause is a very potent tool, after all.  The seminal article on the subject was written by University of Hawaii Law School professor David Callies: The Use of Consent Decrees in Settling Land Use and Environmental Disputes, 21 Stetson L. Rev. 871 (1992). There are important differences between a settlement agreement and a consent decree that could distinguish League of Residential Neighborhood Advocates, and allow comprehensive (and creative) settlement of land use disputes. 

First, settlement agreements are merely contracts to end litigation, while consent decrees are federal court judgments (albeit agreed to by the parties) over which the court retains jurisdiction to supervise and enforce.  The fact that a consent decree is a judgment means that the limitation set forth in the Ninth Circuit decision -- that the court finds an "actual violation" of federal law -- is met. 

Second, the due process undercurrents in the Ninth Circuit case may not be present in the consent decree process, as courts generally hold at least one hearing prior to entering a consent decree at which third parties who may be impacted may object.

Update 10/22/2007 - the Congregation has filed a petition for rehearing/en banc with the Ninth Circuit.

▪ 9th Cir: Settlement of RLUIPA Claim Can't Override State Law

Los Angeles entered into settlement agreement with a religious organization to settle a RLUIPA claim.  The city agreed as part of that settlement to issue a conditional use permit (CUP) to the congregation.  Neighbors complained that city could not agree in settlement agreement to override CUP process, which would have provided the neighbors notice and hearing under state law. 

The Ninth Circuit agreed, voiding the settlement agreement unless there had been a specific finding that federal law was violated.  Settlement of lawsuits does not give local governments a "blank check" to ignore or avoid the rights of their residents:

Municipalities may not waive or consent to a violation of their zoning laws, which are enacted for the benefit of the public. See Hansen Bros. Enters., Inc. v. Bd. of Supervisors, 907 P.2d 1324, 1343 (Cal. 1996); Trancas [Property Owners Ass’n v. City of Malibu], 138 Cal. App. 4th [172], 181-82 [(2006)]; see also Cal. Civ. Code § 3513. Any such agreement to circumvent applicable zoning laws is invalid and unenforceable. See Smith v. City of San Francisco, 225 Cal. App. 3d 38, 55 (1990).

Slip op. at 10187.  The court held that local law might be avoided if there was a specific finding by the federal court that federal law had been violated, but there had been no such finding in this case. 

Here, the district court held that a potential violation of federal law allowed a settlement agreement authorizing the City to disregard its zoning regulations. This was incorrect. Before approving any settlement agreement that authorizes a state or municipal entity to disregard its own statutes in the name of federal law, a district court must find that there has been or will be an actual violation of that federal law.

Slip op. at 10193-94 (emphasis original).  Indeed, the settlement agreement stated that the city denied violating any laws.

The League of Residential Neighborhood Advocates v. City of Los Angeles, No. 06-56211 (Aug. 21, 2007).

The LA Times report on the case is posted here.  Professor Patty Salkin's take on the case here at her Law of the Land blog. 

For a complete discussion of the use of federal consent decrees in settling land use disputes, see David L. Callies, The Use of Consent Decrees in Settling Land Use and Environmental Disputes, 21 Stetson L. Rev. 871 (1992).

Update 10/22/2007 - the Congregation has filed a petition for rehearing/en banc with the Ninth Circuit.

▪ Land Use Trifecta: Historic Preservation, Religious Uses, and Regulatory Takings

An interesting decision from the Kansas federal district court, Mount St. Scholastica, Inc. v. City of Atchison, No. 06-2208-CM (Mar. 12, 2007), contains a land use trifecta: historic preservation, religious objections to a denial of a permit, and regulatory takings.  (No link yet to opinion, which currently is only available via Westlaw; email me if you want a copy.  Update: Becket Fund for Religious Liberty has posted a copy of the opinion on its web site.)

Mount St. Scholastica, a "monastic community," owns property that includes a building constructed in 1924 that has in the interim been used for classrooms, administration, and a community center.  By 1989, however, it had apparently outlived its usefulness to Mount St. Scholastica, which in 2005 sought a demolition permit from the city. 

The building itself apparently is not landmarked, but is near to historic properties, so under Kansas law, the owner needed a demolition permit from the state historic preservation officer.  The preservation officer denied the permit because the building is a "character-defining feature of the environs."  The officer suggested the owners sell the building or "mothball" it "until a new use can be found."  After unsucessfully exhausting administrative remedies, Mount St. Scholastica filed suit against the city in state court for violations of state and federal law, including an argument that denial of the demolition permit infringed upon its rights under the Free Exercise Clause of the First Amendment, and a federal takings claim under 42 USC § 1983.  The city removed the case to federal court.

Mount St. Scholastica asserted, without opposition, that its religious beliefs include the requirement of making prudent economic use of its property.  The court consequently applied strict scrutiny analysis and held that historic preservation is not a "compelling government interest" allowing the city to deny the demolition permit.  Professor Howard Friedman's Religion Clause blog details the court's First Amendment analysis.

The court also determined that the regulatory takings claim was ripe "because it is unlikely that plaintiff has an inverse condemnation procedure available" under Kansas law.  On the merits of the takings claims, however, the court held there was neither a per se nor a Penn Central regulatory taking, since the landowner's entire parcel had not been impacted.  While the plaintiff alleged that the city's actions rendered the entire building useless, the court held that because the building is part of the larger property, the "parcel as a whole" rule means that the plaintiff has some economically beneficial use for its entire property, and therefore has not suffered a taking.

▪ 2006 Land Use in Review

As a way of saying "aloha" to 2006, I've summarized the land use law highlights (or lowlights, depending on your point of view) from the Hawaii Supreme Court, the Ninth Circuit, and the U.S. Supreme Court, roughly in chronological order.  Topics include shorelines, eminent domain, environmental impact statements, RLUIPA, vested rights, and land use litigation procedures.

• Depends What the Meaning of "Shall" Is:  Leslie v. Bd. of Appeals, County of Hawaii (HAWSCT) (nondiscretionary actions, shoreline area boundaries)
  
• Environmental Assessments, Early and Probably Often:  Sierra Club v. Office of Planning, State of Hawaii (HAWSCT) (environmental assessments, boundary amendments)
• Eminent Domain and Land Reform Revisited:  City & County of Honolulu v. Sherman (HAWSCT) (eminent domain, RLUIPA)
• What to do if the Government Changes its Mind:  Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii, 27 U. Haw. L. Rev. 17 (Feb. 2006) (vested rights)
• Hawaii Water Law is Not a Federal Case:  Maui Tomorrow v. State of Hawaii (HAWSCT) (attorneys fees, water rights)
• No Leg to Stand On: Keahole Defense Coalition, Inc. v. Bd. of Land and Nat. Res.  (HAWSCT) (standing, what is a "property" interest)
• The Supreme Court Muddies the Clean Water Act: Rapanos v. United States (SCOTUS) (Clean Water Act jurisdiction)
• Return to Sender - Elvis and Notice: Jones v. Flowers (SCOTUS) (due process notice to property owners)
• What is a "Contested Case?" - Aha Hui Malama O Kaniakapupu v. Land Use Comm'n (HAWSCT) (administrative appeals, contested cases)
• Who Protects the Public Trust? - Kelly v. 1250 Oceanside Partners (HAWSCT) (water pollution, public trust)
• Contesting Contested Cases:  Hui Kako Aina Hoopulapula v. Bd. of Land and Nat. Res. (HAWSCT) (administrative appeals, contested cases)
• RLUIPA and Local Land Use: Guru Nanak Sikh Society of Yuba City v. County of Sutter (9th Cir.) (RLUIPA and local land use)
• Hawaii Eminent Domain Compendium (eminent domain)
• Shoreline Tales: Diamond v. Bd. of Land and Nat. Res. (HAWSCT) (CZMA shoreline certifications)
• Voters Nationwide (But Not Hawaii) Enact Eminent Domain Reform (property rights, eminent domain)
• New Appellate Track: In re Water Use Permit Applications [Waiahole] (HAWSCT) (appellate jurisdiction, water rights)
• Honolulu "Fixed Guideway" Mass Transit Approved (eminent domain)

If you think I missed any key cases or events, please email me.

    

▪ 2006 Land Use in Review: RLUIPA and Local Land Use

Revisiting the RLUIPA issue, the Ninth Circuit held in Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir., Aug. 1, 2006) that a local land use decision regarding a church's proposed use of its property violated the federal Religious Land Use and Institutionalized Persons Act of 2000.  While it is not a groundbreaking case, it illustrates the competing dynamics when a church's desires to use its property clashes with local land use rules.  My summary of the case is posted here.
    

▪ 2006 Land Use in Review: Land Reform Revisited

City & County of Honolulu v. Sherman, 110 Haw. 39, 129 P.3d 542 (Feb. 28, 2006), is the latest chapter in the use of eminent domain to effect "land reform" in Hawaii.

I.  Background

The story begins long ago when the Hawaii legislature enacted the statute that was challenged and sustained in Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229 (1984).  Finding that the economic ills purportedly caused by the concentrated ownership of private single-family residential property in Hawaii, Haw. Rev. Stat. ch. 516 allowed homeowner/lessees to petition the Hawaii Housing Authority to exercise eminent domain on the homeowner's behalf and condemn the fee simple interest underneath their homes from the lessor, and transfer it to the lessee upon payment of just compensation.

After that statute was upheld by the U.S.Supreme Court against a Fifth Amendment public use challenge in Midkiff, and under the Hawaii Constitution's public use clause by the Hawaii Supreme Court in Hawaii Hous. Auth. v. Lyman, 68 Haw. 55, 704 P.2d 88 (1985), efforts were made to pass similar legislation affording condominium owners the same ability to force condemnation of their leasehold interests. 

At the state level, those efforts were ultimately unsuccessful, but the City & County of Honolulu eventually enacted a local version, codified as Hon. Rev. Ord. ch. 38.  That ordinance, like the Land Reform Act, was challenged under the public use clauses of the U.S. and Hawaii Constitutions, but as in Midkiff and Lyman, those challenges were rejected by both federal (Richardson v. City and County of Honolulu, 124 F.3d 1150 (9th Cir. 1997)) and state courts (Richardson v. City and County of Honolulu, 76 Haw. 46, 868 P.2d 1193 (1994)). 

Under chapter 38, the owners of many Honolulu condominium projects were permitted to condemn and take the leasehold interests from their lessors.  By 2005, however, public sentiment regarding eminent domain had turned, and the City Council surprisingly repealed chapter 38. 

The story does not end there, however, because at the time of repeal, several condominiums had begun the process to condemn their leaseholds, and were entitled to continue. 

II.  Taking of a Church's Private Property - RLUIPA

Sherman involved one of those condominiums in the process of condemnation.  In that case, the apartment owners petitioned to condemn the leasehold interest from the owner, a church, which raised the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) as a defense, asserting that the lease-to-fee conversion was a "land use regulation" that impermissibly interfered with the church's free exercise of religion.  The trial court denied the church the opportunity to prove these allegations, ruling against it on a motion for summary judgment.  Relying on federal cases, the Hawaii Supreme Court held that chapter 38's condemnation scheme was not a "land use regulation" as defined by RLUIPA, and the defense was therefore unavailable. 

The text of RUIPA defines "land use regulation" as a "zoning" or "landmark" law.  There is a split of federal authority on whether an exercise of eminent domain is a "land use regulation," with most courts holding that a typical condemnation of property that is owned by a religious organization does not trigger RLUIPA, while a few other courts disagree. 

It does seem odd for Congress to have excluded an outright appropriation of a church's property, while requiring strict scrutiny for mere regulation. If onerous regulatory decisions should be judged strictly by the courts to insure they do not interfere with the free exercise of religion, how is that actually depriving a church of its property should be immune from such scrutiny?  Alas, such questions are not the province of the courts -- especially state courts -- and despite the apparent logical gap in RLUIPA, it is up to Congress to amend the statute, not the courts, so the Hawaii Supreme Court's decision appears sound. 

III.  Delegation of Eminent Domain Power

The court also rejected the church's claim that the City improperly delegated the power of eminent domain to the City Department of Community Service.  The church argued that even though the City Council ultimately had the duty to approve chapter 38 takings, the DCS and the lessees were, in reality, the parties that actually determined what property was to be condemned. 

The court did not really address the church's argument, holding instead that the legality of delegation to DCS had already been decided in a prior case, Richardson v. City and County of Honolulu, 76 Haw. 46, 868 P.2d 1193 (1994).  In that case, the court had reviewed the chapter 38 procedures and held that DCS "merely" designated property, and it was the City Council's ultimate decision whether to actually take it. 

While that may be how chapter 38 was designed to work, the church alleged the reality was much different, and once DCS and apartment owners designated property, the City Council would never be anything more than a "rubber stamp."  The church was denied the opportunity to support that argument with evidence, however, because the Supreme Court upheld the trial court's grant of summary judgment to the City. 

Thus, under Sherman, it seems not to matter what actually happened in the decision whether to take property, but only what the law states is supposed to happen.  If read to apply broadly, this conclusion does not hold up to the standards of Kelo v. City of New London, particularly the warning in Justice Kennedy's concurring opinion that an exercise of eminent domain is not automatically immune from judicial review, and plausible allegations of extra-legal conduct must be taken seriously.  Thus,Sherman must be read narrowly in the context of the facts of the case; the property owner only alleged that the delegation violated Haw. Rev. Stat. § 101-13, and Haw. Rev. Stat. § 101-14, not that the delegation  violated federal and state constitutional standards.  That issue, apparently, must be decided in some other case.

IV.  Impact

Finally, the court addressed technical issues of the City's compliance with chapter 38, and the number of apartment owners who qualified for conversion, but since the ordinance has been repealed, this analysis holds little current interest.  If you need to know more, it's best to read the opinion.

In the end,Sherman will probably not be remembered as a landmark eminent domain case, since it dealt primarily with an ordinance that had already been repealed.  But the two key issues in Sherman are sure to arise again, as governments become even more aggressive taking property in the wake of Kelo -- including church property -- and more willing to delegate that authority to third parties.

      

▪ Religion vs Land Use Regulation

The NY Times posts this article, attempting to put the RLUIPA debate into larger context, focusing on a church in Boulder, Colorado that is running into opposition to its expansion plans from the local land use regulators. 

RLUIPA requires local land use decisions that impact religious uses to meet the "strict scrutiny" test -- precise tailoring to further the stated government interest, while minimizing the impact on religious freedom.  The Ninth Circuit recently held RLUIPA constitutional in a decision regarding a Sikh temple in rural California, invalidating the local government's refusal to allow construction.

 

▪ Religious Land Use Trumps Local Permit Denials

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.