Welcome to the first Pocket Park Episode! These episodes are shorter and focus on current events, stories, studies, etc, that are happening right now in the world.
In this episode, Shelley and Mary, focus on a case in Brookings, Oregon that revolves around the Religious Land Use and Institutionalized Persons Act (RLUIPA). Will it have lasting impacts on religious institutions and land use across the United States? How can planners avoid situations where they get in hot water around the RLUIPA? What would constitute a time when the RLUIPA would be relevant? We get into it all!
Want to be a part of the podcast? Send in an email! The team behind the upcoming Better Planners podcast wants to hear from you about the real life issues you handle as a planner. What are the honest, gritty, wicked problems you find yourself managing?
To share your experiences, email betterplannerspodcast@gmail.com Your message might end up in one of the upcoming podcast episodes. You can be as anonymous or as identifiable as you want.
Welcome to the first Pocket Park Episode! These episodes are shorter and focus on current events, stories, studies, etc, that are happening right now in the world.
In this episode, Shelley and Mary, focus on a case in Brookings, Oregon that revolves around the Religious Land Use and Institutionalized Persons Act (RLUIPA). Will it have lasting impacts on religious institutions and land use across the United States? How can planners avoid situations where they get in hot water around the RLUIPA? What would constitute a time when the RLUIPA would be relevant? We get into it all!
Want to be a part of the podcast? Send in an email! The team behind the upcoming Better Planners podcast wants to hear from you about the real life issues you handle as a planner. What are the honest, gritty, wicked problems you find yourself managing?
To share your experiences, email betterplannerspodcast@gmail.com Your message might end up in one of the upcoming podcast episodes. You can be as anonymous or as identifiable as you want.
You're listening to the better planners podcast brought to you by the Oregon chapter of the American planning association. My name's Mary Heberling Creighton, and my name is Shelley Denison. You can find us on Instagram at better planners planners is plural on the webpage for the Oregon APA chapter and on all of your favorite podcast streaming platforms.
Shelley Denison:
You can also get in touch with us with any questions or comments or complaints or ideas or whatever you have by sending an email to better planners podcast at gmail. com.
Mary Heberling-Creighton:
Um, we're excited to release our first pocket park episode. So pocket park episodes are going to be shorter episodes. They're going to be typically related to super current event, things that are happening in the news right now that pertain to all things related to planning and all of the allied professions around it. So, um, we have our first ever Pocket Park episode for you all today. And what are we going to talk about?
Shelley Denison:
Yeah. So today we're talking about a federal court case that is going to be heard this week in US District Court in Medford. And it's a case out of Brookings, Oregon. Brookings is a city down in Southern Oregon. And it's a case involving a church and specific land use laws related to religious institutions. So there's an Episcopal church in Brookings called St. Timothy's. They have existed since before the current Brookings land use code. So they are a legal, non conforming use under the existing code. They've also been serving food. They've been serving hot meals to members of the community in need for about 15 years. During COVID, uh, in 2020, when a lot of other similar programs were shutting down, they increased their lunch service to six days a week. They also offer a day program with showers, access to the internet and phone charging and free legal aid. In 2021, neighbors around the church sent a complaint to the city, asking them to, uh, Quote, prevent the congregation of vagrants or undesirables, which is quite a word. In July of that year, July of 2021, the city of Brookings sent a letter to St. Timothy's Church saying that providing these meals was not permitted under the development code, under the zoning code. The church said that because they had been doing this for so long, it qualified as a non conforming use. In October of 2021, Brookings City Council passed an ordinance requiring a conditional use permit for what they call benevolent meal service in residential zones, which St. Timothy's is cited in a residential zone. And this ordinance also would limit meal service to two days per week. In January, 2022, St. Timothy's filed a federal lawsuit claiming that This ordinance violated their federal RLUIPA rights. That's the Religious Land Use and Institutionalized Persons Act, which says, quoting from the act, no government shall impose or implement a land use regulation in a manner that imposes a substantial burden on 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 government interest. And then the act goes on to define The term religious exercise, pretty broadly, they say it includes any exercise of religion, whether or not compelled by or central to a system of religious belief. So St. Timothy's lawsuit basically argues that this ordinance, this land use ordinance requiring a conditional use permit for benevolent meal services passed by the city council, violates their right to free religious exercise. Quoting from the lawsuit, it says the city suddenly claimed that St. Timothy's long established use of its property, which is by the city's own land development code, a lawful nonconforming use, did not comply with the city's zoning laws. And when plaintiffs did not accept the city's suggestion that they stop engaging in Christian acts of service for the Brookings community, the city decided to rewrite the laws in an effort to force them to do so. So, that was January 2022, is when they filed that lawsuit. In April of 2023, the city gave St. Timothy's an abatement notice saying that they could be fined up to$720 per day for operating a benevolent meal service without a permit. And then they also said that the other programs, particularly the free legal aid clinic, were violating the zoning code. But in an act of, we could call it civil disobedience, St. Timothy's continued to provide These services. In June of 2023, the public works director for the city of Brookings sent a report to city council, among other things, challenging the claims that social programs are part of a church's typical function, which I think raises a really interesting question, which is what qualifies as religious exercise? And are governments, the entity that gets to decide that? In July of 2023, there was a planning commission hearing where the church appealed the abatement notice. The planning commission ended up voting against the appeal against the church at a vote of four to two with one commissioner abstaining. In November of 2023, the Federal Department of Justice filed a Statement of Interest in the case. A Statement of Interest from the DOJ is similar to like an amicus brief in the Supreme Court, basically saying we're a group of experts who want to provide some guidance on what's going on in this case. So the DOJ filed the Statement of Interest explaining that The city's decision to restrict the church's distribution of meals to people who are homeless or hungry may have substantially burdened religious exercise under the Religious Land Use and Institutionalized Persons Act. So the DOJ is siding with the church. And then this week, February 15th, 2024, there will be a district court hearing in Medford. That's the first district court hearing looking at this case. Uh, there will be oral arguments and the defendant, so the city, has filed a motion for summary judgments and the plaintiff, the church, is also filing a motion for summary judgment and summary judgment is basically, we just want the judge to decide. So this doesn't have to go to trial, which makes sense because it's otherwise very, very expensive. So that's where we are right now. I think this is a really interesting case that really highlights the kind of hot water that cities and planners can get into when it comes to RLUIPA and ensuring that religious institutions are being held to the correct standards under their RLUIPA rights.
Mary Heberling-Creighton:
Yeah, and I think, as the two of us, as we've been city planners before, um, your constantly running into situations where you're, you're dealing with, um, churches or other religious institutions wanting to do things on their properties, And the RLUIPA is kind of known, but it's not something that I think we are experts in by any means, but it is important to understand the background behind it because, um, it'll help you in terms of wanting to potentially stay out of sticky water as a planner. Um, or just know when to consult. Experts and when, when it's not really necessary. So we'll give you a little bit of a background of the RLU IPA. Um, if you're studying for your AICP exam, this probably is going to be super helpful, um, cause they will have questions about this as two people that have taken the test. I'm positive that they have questions on this. So, the Religious Land Use and Institutionalized Persons Act was enacted by the U. S. Congress in 2000, and one of its main purposes is to act as protection against substantial burdens on religious exercise. So, from the DOJ, RLUIPA prohibits implementation of any land use regulation that imposes a substantial burden on the religious exercise of a person or religious assembly or institution except where justified by a compelling governmental interest that the government pursues through in the least restrictive way possible. So the RLU IPA was actually originally opposed by the American Planning Association when it was first enacted due to concerns that it would put land use planners in an untenable position that religious institutions would effectively be above any and all land use regulations. However, according to Daniel Dalton, a Michigan based attorney who specializes in religious land use cases, about 80 percent of RLU IPA lawsuits fail. And this doesn't take into account the churches that lack the resources to sue in the first place, which is actually probably the most common cases. The churches just don't have the ability to go to court.
Shelley Denison:
Yeah. And, um, you know, there's, there, there was an Atlantic article a few years ago, uh, highlighting this law and highlighting a specific church.
Mary Heberling-Creighton:
Yeah.
Shelley Denison:
And they talked about how a lot of smaller churches don't even know about this law. And so they won't even look for potential properties if the zoning does not say that it outright allows religious institutions.
Mary Heberling-Creighton:
And, and honestly, like, nor do planners or planning commissions sometimes even realize maybe what they're doing could be considered an issue with the RLU IPA. So it's, it's partially that way too, as well. So there's not even like a discussion being brought up about that because it's just, you just don't know sometimes. So, um, a 2016 DOJ report on religious discrimination talks about how land use and planning concerns are sometimes used to mask outright discrimination. One participant of a roundtable discussion explained that opposing the construction of houses of worship have become more organized, more subtle, and more strategic in their protests. Other participants recall people don't come into hearings now and say, I hate Muslims. Sometimes they say the traffic is going to be terrible on Fridays. Some have even distributed literature about how to raise traffic noise and congestion concerns. This stems in part, according to some participants, from previous attempts to use hostile and racist opposition backfiring. Leading to many municipalities to vote in favor of mosque and Islamic institutions in land use decisions. So this is also an important point. Um, this particular case we're talking about in Oregon is a Christian church, but, um, as we all know, religious liberty is for any type of religion. So this is something that falls under so many different types of, um, people and the way that they are religious. So according to Daniel Dalton, only about 20 percent of successful RLUIPA cases involve Muslims, Jews, or Christians who are ethnic minorities. And mosques are disproportionately targeted by overburdensome land use regulations. According to that same DOJ report, even though less than 1 percent of the U. S. population identifies as Muslim, 15 percent of the agency's investigations into religion related zoning disputes between 2000 and mid 2010s involved mosques or Islamic schools. Between mid 2010 and mid 2016, that number jumped up to 38%.
Shelley Denison:
As Mary said, it is super important to understand what RLU IPA is because it can be very easy to accidentally violate it. If you don't, if you, if you simply don't know that religious institutions are not beholden to the same land use regulations as any other land use, it can be very easy to break federal law as a planner. So the first resource that we would recommend is your city's or your jurisdiction's attorney. Consult your attorney. Um, imagine that there are, there are clapping hand emojis in between each one of those words. I don't think we can stress this enough. If you don't know the answer to a question, if a, if a church is asking you a land use regulation question, if you don't know the answer, that is the time to pull out the, I don't know, but I can ask and get back to you response. Um, the American Planning Association also has a handful of really great publications talking about RLUIPA and what planners should look out for. We'll also have links to all of these in the show notes. So if you go to the podcast page on oregon. planning. org You will find, on this episode's page, links to all of these resources. In 2018, Planning Magazine published an article on RLUIPA compliance tips. They talk about re examining your city's land use regulations. So taking a look at your development code with a particular eye of what does this mean about religious institutions. And are there things that we should change to ensure that we are in compliance with the law? They also recommend erring on the side of caution. So like I said earlier, don't answer questions about religious land uses, about religious institutions, unless you are 100 percent certain of the answer, and even then consult your city's attorney. And they also recommend to put everything in writing. This is, I think, one of my most important personal professional practices that I have adopted, the CYA, um, cover your ass, uh, practice of putting everything in writing. Everything in writing.
Mary Heberling-Creighton:
And that's just not for this. That's in general.
Shelley Denison:
That's just in general. That's just in general. That's our tip for you in general. So if you have a verbal conversation or, you know, conversation over the phone or in person, just follow up with an email of the things that you talked about so that there is a paper trail of the conversations that you're having. Also, in Planning Magazine from 2016, there is an article called Defining Religious Exercise, where they talk about what actually constitutes religious exercise. There was a federal RLUIPA court case in 2016, Chabad Luvavich of Litchfield County versus the borough of Litchfield, which offered a really important litmus test for what constitutes religious exercise. I highly recommend going and reading that article, defining religious exercise. And then this one is a little bit older of a resource. It's from 2010. It's from Zoning Practice, which is a publication from the American Planning Association. It's called What Constitutes a Substantial Burden under RLUIPA. Um, if you're an APA member, you can access that for free. If you're not an APA member, it is$10. It's a really comprehensive guide that explains exactly what is a substantial regulatory burden on religious institutions regarding their land use rights.
Mary Heberling-Creighton:
And, uh, we'll provide links to all of these resources. Some of them are behind a paywall, unfortunately, but, um, if you have, like, an Atlantic subscription, that article's really good that we referenced. Um, and again, uh, we'll put all of these links in the bottom of the show notes.
Shelley Denison:
Yeah. And, uh, I'm, I'm really interested in seeing how this Brookings case, uh, Pans out.
Mary Heberling-Creighton:
Mm hmm. It could be similar to that 2016 one that you mentioned where it'll Further define what is considered religious exercise.
Shelley Denison:
Right.
Mary Heberling-Creighton:
So yeah, this will be a really interesting case to to keep aware of.
Shelley Denison:
Right. Yeah, exactly and you know, it also opens up, this is, you know, a little bit of a bigger conversation, maybe a little more abstract, but it also opens up, again, that idea of who gets to define what religious exercise is. We look at this case in Brookings with St. Timothy's, and I think a lot of people would probably say, like, oh yeah, feeding unhoused people is absolutely a religious practice, right? That is a core tenet of, like, a lot of major world religions. Especially Christianity. Right? In fact, the, uh, the St. Timothy's lawsuit actually quotes Matthew 25, Jesus saying, I was hungry and you gave me something to eat. I was thirsty and you gave me something to drink. I was a stranger and you invited me in and everybody saying, when was that? And Jesus responding, if you do these for other people, you're doing it for me. So St. Timothy's quoted this part of the Bible to show this is a direct religious act. This is a direct, this is a direct expression of our religious beliefs. And on the flip side, there are certainly things that some churches, some religious institutions in the United States have, have done, that a lot of people would not consider reasonable religious expressions of belief. I'm thinking about, you know, churches that have an extraordinary amount of resources, you know, relatively a lot of money and a lot of property and run profit generating revenue, revenue generating businesses on those properties, right? Obstensibly in order to get out of having to pay taxes. So of course, you know, for, for, you know, there's, there's St. Timothy's, which I think a lot of reasonable people would say, yes, this is absolutely a, religious expression. And then there are certainly things on the other side of the spectrum where it's much more debatable. And it comes down to this big question of who gets to decide what is and isn't religious expression.
Mary Heberling-Creighton:
Yeah. Yeah. And it's not planners.
Shelley Denison:
And it's not planners.
Mary Heberling-Creighton:
As much as sometimes we would like to be able to have all of the answers for everyone, sometimes we just don't.
Shelley Denison:
Yeah, I would like to be clairvoyant.
Mary Heberling-Creighton:
That'd be cool.
Shelley Denison:
BLOOPER REEL.......So in 2018, the In 2018, Plaggett
Mary Heberling-Creighton:
I feel good that we're both doing it. We've got some big words in this.
Shelley Denison:
I know, I'm so sorry.
Mary Heberling-Creighton:
No, no, no, it's, it is perfectly fine. It's not your fault.
Shelley Denison:
There was a, Hmm, there was a, we're gonna do this, we're gonna get through this, we're gonna do it, we're gonna get through this. Talking about, uh, Jesus saying feeding. Oh my gosh. I am not gonna sound like an ignorant loser. Um, Hold on.