The City of Lake Elsinore, while challenging the constitutionality of a federal religious-rights law, said even if the law is upheld, the city was within its rights to prevent a church from occupying its prospective new property.

As previously reported by WorldNetDaily, Elsinore Christian Center sued the City of Lake Elsinore after the church’s conditional-use permit (CUP) was denied, preventing the church from moving into property it has in escrow. The lawsuit is based on a year-old federal law that holds local governments to the highest legal standard when evaluating land-use permits for religious organizations.

The Religious Land Use and Institutionalized Persons Act, or RLUIPA, requires cities to demonstrate a compelling state interest for any substantial burden they place upon any church’s usage of its property. It also prohibits selective discrimination against churches regarding zoning policies. The act states:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

Elsinore Christian Center purchased a grocery store in the city’s downtown area, to which it plans to move. The move is necessary, the church claims, because its current parking and facilities are inadequate. That inconvenience has caused some to leave the church, including elderly and disabled parishioners who require close parking. Escrow will close on the property as soon as the church is granted a CUP. But the city denied the permit, saying the grocery store is a necessary element in preventing a blighted area from worsening – a “compelling governmental interest.”

The city also believes RLUIPA is unconstitutional. Were the city automatically to allow churches to move into any city zone, it would be excessively entangling government with religion, since similar non-religious organizations are required to abide by land-use policies. Such entanglement would violate the Establishment clause of the Constitution, the city claims.

Elsinore Christian Center believes the administrative land-use procedures it is forced to undergo to occupy its new site, namely the requirement of a CUP, is a “substantial burden” on its free exercise of religion.

Additionally, the church “sincerely believes that it is called to worship and evangelize downtown Lake Elsinore from the parcel disputed in this case,” wrote the church’s attorney Robert Tyler of the Pacific Justice Institute.

The church cites a specific provision of RLUIPA, which states, “The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.”

In its application of the law to this case, the church believes that since it was prevented by the city from occupying the grocery store, the city violated RLUIPA.

But in a court document, the city outlines its argument to the contrary.

“The City’s denial of the CUP to the [church] has not ‘substantially’ burdened its religious exercise. The congregation of the Church continues to practice its religious and missionary services at its current downtown location and denial of the relief sought will simply result in continuing to do so. The inability of some of its members to easily attend church services and events, given the limitations on parking, can easily be remedied by a van or a taxi service provided by the church to its disabled members,” the document states.

Assistant City Attorney John McClendon said the church’s interpretation of RLUIPA would allow cities to set up “church zones” in which churches would be allowed to move in as a matter of right, without having to go through the CUP process. Currently, churches may move into any zone with a CUP, unlike non-religious organizations, which are restricted to appropriate zones. (For example, a retail establishment is not allowed to move into a residential neighborhood.) Setting up a “church zone,” the attorney argued, could actually be harmful to churches.

“We don’t want to ghetto-ize churches,” he said.

McClendon, who as a Christian is sympathetic to churches and wishes Elsinore Christian Center no ill will, believes RLUIPA faces similar constitutional problems as an older and now-defunct federal law did several years ago.

RLUIPA is intended to replace the Religious Freedom Restoration Act of 1993, or RFRA, which was struck down by the Supreme Court in 1997 as unconstitutional because it attempted to tell the federal courts how they must interpret and apply the First Amendment when scrutinizing state and local laws. RFRA violated the separation of powers set forth in the Constitution. Critics of RLUIPA say the new law may be struck down for the same reason.

“I’m not convinced Congress solved all the constitutional problems of RFRA,” he said.

Even if the statute is upheld, the city was well within the boundaries of the law when it denied the church’s CUP, McClendon continued. The church has ignored a key element in the case – the grocery store it wishes to occupy sits in a redevelopment area.

Local governments across the United States set up redevelopment agencies that seek out impoverished or unused areas, declare them “blighted,” acquire them through eminent domain and use federal funds to improve economic development. The property in question is located in such an area.

Under California redevelopment law, a building and its use cannot be changed if it lies in a redevelopment area unless the property’s new owner gets permission from the redevelopment agency of jurisdiction. Neither the church nor the grocery store’s current owner have complied with the regulations, according to McClendon.

The grocery store is the only one in the blighted neighborhood, the attorney said. If it were eliminated, blight would only be worsened as residents of the low-income neighborhood, many of whom do not own cars, would be forced to shop at markets several miles away. Additionally, the 10 people employed by the market would lose their jobs, further depressing the area’s economic status.

Prevention of blight is a compelling government interest, argues McClendon. So even if the court finds the church has suffered a substantial burden, the city has not overstepped the boundaries of RLUIPA, he said.

The U.S. Department of Justice has filed a motion to intervene in the case to defend RLUIPA’s constitutionality. As the nation’s attorney, it is Attorney General John Ashcroft’s job to defend federal laws. Accordingly, a Justice Department attorney from Washington, D.C., made the trip to California for a recent hearing in the case, which began in May.

Attorneys for the DOJ claim RLUIPA passes the “Lemon test,” which was created by the Supreme Court in 1971 to evaluate Establishment Clause challenges. The three-pronged test, outlined in Lemon v. Kurtzman, requires any accommodation law to have “a secular legislative purpose” and a “principal or primary effect” that “neither advances nor inhibits religion.” Also, the law must not “foster an excessive government entanglement with religion.”

Several lawsuits have been filed under RLUIPA by churches and other religious organizations since the law was enacted. The first case decided in favor of a religious institution under the statute was on Dec. 20, when a U.S. district judge in Michigan agreed that the Haven Shores Community Church could occupy storefront property. The church had been holding Sunday services temporarily at a local high school while seeking a permanent home. Haven Shores signed a lease for the property at the end of May 1999. But when Rev. David Bailey went in to apply for a building permit to modify the space, he was told by city officials that religious meetings and worship were not permitted at that location under city zoning laws.

In fact, Grand Haven’s zoning ordinance for the “B-1 Community Business District” specifically allows “private clubs,” “fraternal organizations,” “lodge halls,” “funeral homes,” “theaters,” and “assembly halls, concert halls or similar places of public assembly.”

Bailey tried every available avenue in an attempt to persuade the city that a church was obviously a “place of public assembly” that could occupy property in the B-1 district, but his arguments were rejected by the Office of Public Safety, the Zoning Board of Appeals, the Planning Commission and finally, the City Council. The Becket Fund successfully represented the church in its RLUIPA lawsuit against the city.

Related stories:

DOJ intervenes in religious-rights case

Church sues city over land-use permit

Churches sue for zoning rights

Christian college to sue over zoning

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