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Thou shalt not unduly burden the free exercise of religion through onerous zoning laws, or so said Congress with the passage of a religious land use law in 2000, spawning a cottage industry in church-construction litigation and confusion among federal courts. Around the country, federal judges have been struggling to define not only what constitutes an “undue burden” on free exercise of religion under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), but also whether the law allows monetary recovery along with injunctive relief and when to allow attorney fee awards. In San Francisco, a month-long federal jury trial began last week that raises the stakes from the typical dispute over church building to one asking whether plans for a 650-student Christian school should trump voter-approved land use limits that would bar the school from bucolic rolling hills 25 miles southeast of the city. Whether it is teaching science or using the chapel “faith is integral and the act was designed to protect that,” said Derek Gaubatz, litigation director of the Becket Fund for Religious Liberty, which is representing Redwood School. The courts should not create some test to separate religious from nonsectarian uses, he said. The only other federal jury trial on RLUIPA issues came in Wyoming, Gaubatz said. In 2003, a Wyoming jury sided with the city of Cheyenne in denying a Methodist Church a permit for a large day-care center in a residential neighborhood. The 10th Circuit subsequently upheld the decision in Grace United Methodist Church v. Cheyenne, 451 F.3d 643 (2006). A high-stakes case The stakes in the California case are high. An expert for the school has estimated the county’s refusal to allow construction has cost the church $30 million in lost enrollment, construction delay and financing costs. The suit, Redwood Christian Schools v. Alameda, No. C01-4282SC, alleges that the denial of a permit to construct the interdenominational school for grades K-12 has deprived students drawn from 200 area churches their constitutional rights of speech, association and free exercise of religion. The verdict in the six-year legal battle between Alameda County and the school is almost certain to be appealed. The central question in this case, and others around the country, has been whether the zoning laws impose a “substantial burden” on the church group’s free exercise rights, and, if so, did the municipality have a “compelling interest” and impose the least restrictive means to protect it. Since RLUIPA’s passage, municipalities have discovered that the law gives churches potentially broad new power to trump zoning limits when expanding existing facilities or building new ones. Few cases have addressed the knotty issue of building church-sponsored facilities, such as schools, where both secular and nonsecular functions are conducted. “Schools are treated exactly the same as churches under RLUIPA, even nursing homes, recreation centers and book stores,” said Daniel Lennington, a Grand Rapids, Mich., attorney at Warner Norcross & Judd and chairman of the Georgetown Township Zoning Board of Appeals. “All are held to be religious exercises and you can’t place a substantial burden on religious exercise,” he said. What would stop a savvy developer wanting to build an ice rink or pool hall from affiliating with a mosque, church or synagogue, thinking he or she can get a free pass on zoning, asked Lennington. “Are we promoting a religious over nonreligious use? People are not grappling with that,” he said. The law should be amended to make clear its original intent-nondiscrimination against religious groups, he said. If not, churches and a host of other religious facilities with nonsectarian uses, such as schools, will be given preferential treatment in zoning matters, he said. Circuit courts have split over the breadth of the law. The 7th U.S. Circuit Court of Appeals, in C.L.U.B. v. City of Chicago, 342 F.3d 752 (2003), narrowed the “substantial burden” definition to apply to regulations that make religious exercise “effectively impracticable.” Three other circuits — the 3d, 4th and 9th — have since joined. Judge breaks away But Judge Richard Posner broke with the 7th Circuit’s own C.L.U.B. decision to hold that denial of rezoning for construction of a church on 14 acres caused delay, uncertainty and expense, thus substantially burdened the church. Saints Constantine & Helen Greek Orthodox Church Inc. v. City of New Berlin, 396 F.3d 895 (2005). District judges in other circuits have also been divided. In a long-running dispute in Mamaroneck, N.Y., over expansion of an Orthodox Jewish school, Westchester Day School, the 2d Circuit overturned summary judgment in favor of the school and sent the case back to the trial judge on whether the village was protecting a compelling government interest. After another defeat, the village again appealed to the 2d Circuit in December 2006. Westchester Day School v. Village of Mamaroneck, 417 F. Supp. 2d 477 (2006). The 6th Circuit became the first to uphold the right to collect $72,000 in attorney fees and costs in a fight over a bed-and-breakfast hosting guests for religious prayer and contemplation. DiLaura v. Ann Arbor, 471 F.3d 666 (2006). And the 4th Circuit became the first to deny recovery of damages under RLUIPA in the case of a prisoner denied kosher meals. Madison v. Commonwealth of Virginia, No. 06-6266. In the California case, there has been no assertion of overt discrimination by Alameda County, but that is not the only consideration under RLUIPA. “The evidence will show the county refusal to let them build has imposed a substantial burden on these people to practice their religion,” said Clinton Coddington, Redwood attorney with Coddington, Hicks & Danforth in Redwood City, Calif. The silver-haired Coddington told jurors that Christian volunteers, whom he called “angels,” retrofitted a dilapidated school after the last eviction of Redwood School. But the lease expires in 2010. The permanent home they seek to build on a $3 million, 55-acre, parcel would create some noise but that would be “the laughter of children,” he said. By contrast, Alameda County attorney John Keker called the county “religious-school friendly.” The reason the county denied a permit to build the school is that “this project is far too intense for the semi-rural area” of one-acre to five-acre properties with some livestock and small grape vineyards, said Keker of Keker & Van Nest in San Francisco.

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