Land Development Podcast

Land use and zoning attorneys, Jennifer Fine and Stanley Price, discuss the approval process, standards of proof, RLUIPA, and how the first amendment relates to Religious Use Law.

Transcript:

JENNIFER FINE

Welcome to Land Development in the 305, a podcast featuring news, observations and, analysis on the redeveloping and reshaping of Miami's skyline.  My name is Jennifer Fine.  I am a land use and zoning attorney in the Land Development and Government Relations group here at Bilzin Sumberg, and I'm here interviewing Stanley Price, who I will let introduce himself.

STANLEY PRICE

Good afternoon. My name is Stanley Price. I'm the Chair of the Land Use Department of Bilzin Sumberg. I've been practicing land use law for over 45 years, and I've represented during that period of time many major religious organizations, such as the Archdiocese of Greater Miami, all of the major Orthodox Jewish facilities in Dade County, and I have personally been involved in over 35 churches as their attorney for zoning in the South Florida area.

JENNIFER FINE

Thank you, Stan. So on that note, we're here today to talk about a little bit of your experience in this area.  Can we start by you explaining to us a little bit more about what religious use is?

STANLEY PRICE

Religious use is a commonly used term to indicate a house of worship and ancillary and incidental uses thereto, such as schools, parish churches, parish homes, libraries, anything that furthers the basic tenet of the religious organization that is on the property.

JENNIFER FINE

And what types of specific approvals are generally required for these types of religious uses? What's the process?

STANLEY PRICE

Every jurisdiction has their own zoning code, so you have to be familiar with South Florida's 37 municipal codes as well as Miami Dade County zoning code.  Most jurisdictions treat churches and places of public assembly as what we call special exceptions, unusual uses, or conditional uses, which is shorthand in zoning parlance for the need that they must be approved pursuant to a public hearing.

Churches create unique impacts upon communities such as traffic if they have associated schools they have noise and traffic, and generally, people are opposed to having houses of worship in the immediate area of the residential community except, of course, if it's their church.  This is known as the NIMBY concept, "Not in My Backyard."

JENNIFER FINE

Thank you, Stan. So, what is the standard of proof and freedom of religion cases, and how does the First Amendment tie into land-use cases?  You talked a little bit about how we typically treat churches and other religious institutions, but what are the constitutional kind of implications and requirements?

STANLEY PRICE

The founders of our country fled Europe primarily for religious freedom.  The very basic concept of the First Amendment to the United States Constitution provides that Congress shall make no law in regard to the establishment or free exercise of religion.  So, religion has played a major role in our country since the founding fathers arrived here from Europe.  As you are aware, as a world traveler, you will know that if you go to almost any jurisdiction, the church or the places of worship in a particular town are usually the tallest structure in that town and usually the focal point of the community.  The community grows around the church, and to a great degree, that is the way it is in the United States and specifically in South Florida. 

After the founding fathers created the freedom of religion, for the first 150 years of our country, religious uses were well-accepted, they predate zoning laws, and churches generally were placed, once again, as the focal point of a community.  In 1926, the United States Supreme Court finally recognized that zoning is a proper exercise of the police power. Therefore, communities then started to draft zoning codes and place certain restrictions upon houses of worship. 

In the State of Florida, houses of worship have always been favored by the courts because they are deemed to be contributing to the public welfare, and they felt that is a major public objective. 
Around the turn of the last century, several southern churches started complaining that the local government was placing restrictions on where they could be placed and how they can be approved. 
This type of protest found some worthy ears of several United States Senators, including Senator Ted Kennedy from Massachusetts, who drafted the Religious Freedom Restoration Act of 1996. 

This Act gave great rights to religious organizations in the field of zoning and other fields that restricted to a great degree the ability of government to regulate churches.  This law was found to be unconstitutional by the United States Supreme Court and undaunted and based upon the lesson of the Supreme Court saying the law was too inclusive. They restricted it to two specific categories, number one, being zoning, and number two being prisoners' rights.  We have seen a series of cases that were brought under this new statute, which is known as RLUIPA, which is the Religious Land Use and Institutionalized Persons Act.  This Act creates four categories in the area of zoning in which a government needs to be careful on how they treat applications for religious worship. 

Just briefly, the courts have always felt that the government in regulating churches in land use cases have to be cognizant that there has to be a compelling public interest involved in restricting the church use.  Generally, that public interest test was predicated upon creating traffic in the middle of a residential neighborhood.  And traffic has always been the number one issue in most religious organizations I have represented.

And the second test was it had to be the least restrictive means of furthering the governmental interest.  To exclude churches from being in a specific area of town was something that was not looked favorably by the courts and created a whole series of cases.  A case of interest in South Florida is the Sephardic case out of the Town of Surfside, which dealt with a local ordinance that created a restriction that churches can only be placed on the second floor of a commercial district.

And if you know the Town of Surfside, the Town of Surfside only has one block in the entire town that has a second story above the commercial, and that's between 95th and 96th Street.  The case went to the Fifth Circuit Court of Appeal, which is now the Eleventh Circuit Court of Appeal. The Court struck down the town's regulation indicating that based upon the criteria of the government, the town's restriction wasn't an unequal treatment to other similar types of places of public assembly. 

For example, social clubs and private clubs could be placed on the first floor of the shopping center, but only churches were restricted from going to the second floor. The Court held in a very interesting decision. For those individuals who want to research the law, the Religious Freedom Restoration Act of Florida is contained in Chapter 761 of the Florida Statutes, but perhaps the most important case dealing with RLUIPA in Florida is the Midrash Sephardic case which is found at 366 Fed. (3d) 1214, which is Eleventh Circuit in 2004. 

The equal terms claim means that a church cannot be treated differently from other places of public assembly.  Part of the arguments advanced in that case, and this was an orthodox Jewish synagogue, which was that the members of the congregation did not want to walk far distances.  Orthodox Jews are restricted from driving their automobiles on the Sabbath and other High Holy Days. The Court found that was not a valid basis, a substantial burden upon the congregants, but found for the congregants on the equal terms clause.  A pre-RLUIPA case, but one of great interest is what is a religious organization. 

And the town of Hialeah, the City of Hialeah, tried to regulate the Santeria Church in Hialeah.  And the city fathers did not want this church to locate within the boundaries and passed a law that prevented the slaughter of animals within certain districts of the city.  That in and of itself is not an unusual criteria.  However, the Supreme Court struck down the city ordinance and indicated that it was directly aimed at this religious organization rather than organizations in general.  And for that basis, it found that it was a substantial burden, and it was a discrimination case that was found against the city. 

There are four types of cases that you can bring under RLUIPA; one is a substantial burden, which is very difficult to win. Second is equal terms claims, which is the one I use most often, cause most zoning codes do not distinguish or do distinguish between private clubs and places of worship.  Non-discrimination clams, which are the Santeria case I just described, the exclusion and limits clause, which are those jurisdictions that specifically prohibit all churches within a community.  Through my experience, I can only think of two jurisdictions in South Florida that do not have any churches within the town.  I have not researched whether they have any provision for churches, but if someone wants to bring a claim to build a church in these communities, they will probably be successful under the exclusion provision.

JENNIFER FINE

Thank you, Stan, for your historical perspective and background on RLUIPA and the treatment of religious institutions generally.  Can you give us a little more information on cases in which you have been involved and examples?

STANLEY PRICE

I think a very good instructional case for people who are looking to represent houses of worship is the Jesus Fellowship v. Miami-Dade County case, which is found at 752 So. 2d 708. It's a pre-RLUIPA case. It's a case in which we were representing a non-traditional congregation known as Jesus Fellowship who wished to expand their existing church as well as to put a day school on the property.

Under the Dade County Zoning Code, as with most jurisdictions, churches are deemed to be special exceptions, which mean that they must go to a public hearing.  But a special exception is different from other types of zoning relief such as a variance or a district boundary change. 

A special exception provides that once an applicant has demonstrated that the use is consistent with the local comprehensive plan and that they do not create an undue burden based upon specified standards, the burden shifts to the local government and to the objectors to show why that is not so.  In this case, as typically happens in an application for a church, large angry members of the community showed up at the hearing, they voiced objection, I put on the record that everything was signed off by the professional staff of the county. 

We had a favorable recommendation from the planning and zoning director, which is always very helpful in a zoning application, and the neighbors were very hard-pressed to try to object to the evidence.  In fact, what they did to object to the evidence ultimately won the case for the client.  Number one, they brought up an engineer who admitted he was not an expert in traffic but testified that this would create too much traffic in the neighborhood. Another individual got up and said we don't need this facility in our community; it will be too much of an impact without stating any specific reasons for the impact.  And the third expert indicated since this was not a mainstream church, we should look into what in fact they are worshiping in this facility.

The County Attorney's Office cautioned the Commission that it was not their job to determine whether a church is mainstream or not mainstream so long as they are a viable 501(c) organization that is all that is required for a church application.  The Third District Court of Appeal, in a case decided and written by Judge Fletcher, who used to oppose me on all my zoning applications when he was in private practice, weighed out the general test that a special exception is a permitted use in the district and once the applicant has proven all of the necessary elements of the application, you cannot then turn this application down. 

The twist in this application was at the very end the client was asking for a school of a certain population and called up the attorney representing the neighbors and asked the attorney how many students in the school could you live with.  He picked a number, which is 150, which is less than 25% what was being asked for, and Judge Fletcher indicated that this is not Let's Make a Deal and Spin the Wheel.  As long as we were able to demonstrate that the 500 students we were seeking met all the criteria of the Code, which it did because the director recommended approval, it was not up to the County Commission to pick an arbitrary number.

Church cases are very interesting. It's one of the few times in my career that I have a 50/50 shot of having as many people in favor of the application than is opposed to the application.  But it is a very rewarding thing to get a local community and those people who have worked years to try to establish a house of worship that they will feel comfortable in to be permitted in a neighborhood. 

I suggest that everyone please check their local zoning code, find out what the standard is, the burden of proof, and provide a necessary record to support the application.

JENNIFER FINE

Thank you for listening to our podcast, and thank you, Stan, for sharing your insight.  If you want more on this and other land development related topics, visit us at bilzin.com and subscribe to our new Miami blog at www.newmiamiblog.com.