Pennsylvania Magistrate Recommends RLUIPA Injunction

Hope Rising Community Church v. Municipality of Penn Hills, 2015 WL 7220380 (W. D. Pa.) involved a growing church congregation that leased an industrial building, making $7000 in improvements and gaining $10,000 in materials and labor donated by members. The pastor claimed that the staff gave him the verbal go-ahead, but the staff denied such a conversation. When the pastor applied for an occupancy permit, it was denied and the church was ordered to stop holding services at the site. Under defendant’s code, churches are only allowed as conditional uses in residential zones, and not permitted in the Light Industrial District where Plaintiff’s site lies. Uses not permitted outright or conditionally under the code are deemed prohibited. Defendant also denied Plaintiff’s use variance application, so the only uses recognized by Defendant are clothing distribution, food bank and volunteer meetings. The church alleges its membership attendance has dropped from 85 to from between 27 and 40.

The church brought this suit under the federal constitution and the Religious Land Use and Institutionalized Persons Act (RLUIPA) and requested a preliminary injunction. Such an injunction will issue only when a plaintiff shows a likelihood of success on the merits, irreparable harm if the injunction is denied, granting relief will not further harm the moving party and that the public interest favors such relief.

In particular the church alleges two facial claims under RLUIPA in support of its request for an injunction. The first was under the “unreasonable limitations” provision, which prohibits such limitations on religious assemblies, because the zoning ordinance does not allow religious assemblies outright anywhere, and that the conditional use process for allowing religious uses is itself an unreasonable limitation. The court found no unreasonable limitation of religious uses under the zoning scheme by these limitations and the additional opportunity to allow the use anywhere with a variance. Costs, procedural requirements and engagement in the political process do not in themselves constitute a violation of RLUIPA. These restrictions are not unreasonable and the motion for a preliminary injunction on this ground was denied.

Plaintiff’s alternative ground for the preliminary injunction was the “Equal Terms” provision of RLUIPA, which prohibits treatment of religious assemblies in a manner more rigorously than non-religious assemblies. Under case law, plaintiff must present a better-treated secular comparator under the land use regulations, though the comparator need not serve identical functions as the religious assembly. In this case, the court used parks and playgrounds as “assemblies” and educational facilities as “institutions” for comparison purposes and noted that the light industrial district required that any use create a minimal impact, be conducted within enclosed buildings, does not use open space for the storage of raw materials or finished products and not be offensive in terms of its externalities. The church was like an educational institution and the municipality failed to show how that use would cause greater harm to the Light Industrial District and its objectives than any of the comparison uses. The Church has shown adequate irreparable harm in its loss of congregation. Taken together, these factors justify a preliminary injunction.

This case is a reminder for municipal counsel to review their zoning regulations so as to avoid unnecessary potential litigation.

Hope Rising Community Church v. Municipality of Penn Hills, 2015 WL 7220380 (W. D. Pa.).

Second Circuit Upholds Withholding of Federal Housing Funds From Westchester for Failure to Affirmatively Favor Fair Housing

County of Westchester v US Department of Housing and Urban Development, 2015 WL 5616304 (2nd Cir.) was a challenge under the Federal Administrative Procedures Act by Plaintiff County against the Department of Housing and Urban Development (“HUD”), a federal agency that could dispense housing funds under the Community Planning and Development Formula Grant Programs, but did so under certain conditions. This challenge was the culmination of litigation begun in 2006 by the Anti-Discrimination Center of Metro New York, which brought a Qui Tam case against Plaintiff, alleging that it had falsely certified its housing program to receive federal housing funds from 2001-06 by falsely setting out an “analysis of impediments” to fair housing (“AI”) and develop strategies to overcome the same, both of which actions are required by federal law. Continue Reading

Another Take on Takings: The U.S. Supreme Court to Consider How the “Parcel as a Whole” Rule Applies to Historic Subdivisions

Small toy house on leavesLike a fly that can’t keep away from the flame, the U.S. Supreme Court has decided to add a Fifth Amendment Takings Clause case to its docket for 2016. More than 25 years have passed between the U.S. Supreme Court incursions into the use of the takings clause regarding conditions of approval in cases such as Dolan v. City of Tigard, Nollan v. California Coastal Commission, and the US Supreme Court’s 2013 decision Koontz v. St. Johns Water Management District.  The Court has decided to wade back into the takings mire once again. Rather than dealing with efficacy of land use conditions, as with the issue as in Nollan, Dolan, and Koontz, this time the issue relates to the “parcel as a whole” rule.

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Kine v. City of Bend: A Message That Oregon’s Cities May Want to Revamp Comprehensive Plan Policies to Allow for Affordable Housing

ThornhillThe City of Bend is in dire need of more housing at all income levels, particularly affordable housing. In a November 2015 presentation to the Housing Land Advocates, Jim Long, the City’s  Affordable Housing Manager, reported that the housing market is so tight in Bend that he receives calls from hospitals looking for homes for new doctors, in addition to the low income population his office is meant to serve. Despite the demand for affordable housing, the case of Kine v. City of Bend (LUBA No. 2015-068, December 24, 2015) represents how difficult it is to increase the supply within city limits.

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Who Decides Whether Reasonable Access Exists – The Court or the Jury?

Red barrierState ex rel Dept. of Transp. v. Alderwoods (Oregon), Inc., 2015 WL 9589848, — P.3d — (2015)

The Oregon Supreme Court held that a government’s use of its police powers to eliminate or limit access to a property for public safety reasons is not compensable under Article I, Section 18 of the Oregon Constitution, so long as reasonable access to the abutting public right-of-way is maintained. The Court summarized its holding in the following proposition:

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Agriculture And Urbanization: The Case Of Woodburn

Skyline_farm_city clipartThere were two failed efforts to expand Woodburn’s Urban Growth Boundary (UGB), initially begun in 2005 which would allow the city to plan, annex and develop lands around the existing city limits. UGB expansion in Oregon requires evaluation of two sets of factors: one relating to the need for expansion for the 20-year timeframe required by law, and the other relating to the location of the revised UGB. Based on city population projections, additional lands for residential use were anticipated. The rub was over the total amount of lands needed for future residential, commercial, industrial, and employment uses, as well as the location of the revised UGB.  Continue Reading

New York Federal Court Decides Preliminary Motions In Hasidic Property Use Controversy

Downtown_Bloomingburg,_NYBloomingburg Jewish Education Center v. Village of Bloomingburg, 2015 WL 3604300 (S.D.N.Y.) involved the purchase of property and moving in of Hasidic Jews in Bloomingburg, the adjacent defendant community of Mamakating, the resistance of existing community members, and their elected officials to these efforts, allegedly in violation of the First Amendment, the Equal Protection Clause, the federal Religious Land Use and Institutionalized Persons and Fair Housing Acts and New York law. Defendants seek dismissal of those claims. Specifically, Plaintiffs allege Defendants obstructed a housing development marketed to potential Hasidic buyers, impeded a private Hasidic religious school and mikvah (a Hasidic ritual bath used for purification), and engaged in a program of harassment and discriminatory code enforcement aimed at Hasidic Jews.

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Welcome the Stranger

Chinese family in a gardenMost of us in the United States are philosophical descendants of a Middle Eastern pioneer who left his parents’ home and ventured to a new land.  He was inspired by his firm belief in monotheism, and his descendants founded the Jewish, Christian and Moslem faiths.  Aside from the stories about his destruction of idols in his father’s shop, Abraham was well known for his hospitality towards strangers.  The bible describes how he washed the feet of travelers who came to his tent after crossing the desert.  In the realm of human behavior, this progenitor of three great world religions is best known for welcoming the stranger.

During this time of tumult over refugees coming to our shores, you might think I’m writing about the influx of Syrian’s fleeing war in their homeland. No, I’m a real estate and business lawyer, not a politician. This message is about welcoming the participation of foreigners in our real estate markets, especially our Pacific neighbors – the Chinese.

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The Court of Appeals Affirms the Urban Growth Boundary Expansion for the City of Scappoose

800px-Scappoose_Industrial_Airpark_OregonScappoose, Oregon, located right off Highway 30, has only 6,800 residents. Its motto is “A place to grow.” This expected growth was the subject of a recent court of appeals case, Zimmerman v LCDC, 274 Or App 512 (2015). In 2011, the city enacted an ordinance amending its comprehensive plan, hoping to add more land to its UGB designating much of it for industrial and commercial uses, particularly for airport employment uses. To expand a UGB pursuant a Goal 14, a local government must establish that land is needed to further future economic opportunities; determining such need requires compliance with Goal 9 and implementing administrative rules. In order to justify such expansion, a local government must compare the demand for industrial and employment lands against the existing supply, through a review of the “best available” information considering national, regional or local trends, site characteristics of expected uses and development potential. OAR 660-009-0015.

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Court of Appeals Addresses Public Meeting Requirements

Public meetingFor those practicing in the land use field, there is always a concern about how decisions get made and, in particular, what communication occurs behind closed doors.  The Oregon Public Meetings Law is clear that all decisions must be made in a public meeting, but public officials may sometimes meet in groups of less than a quorum to discuss their perspectives.  The Court of Appeals issued a decision last month that will require local governments to reconsider such conversations.

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