Corp. of Presiding Bishop v. West Linn

111 P.3d 1123

338 Or. 453

CORPORATION OF THE PRESIDING BISHOP OF the CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, Petitioner on Review, v. CITY OF WEST LINN, Respondent on Review, and United States of America, Intervenor on Judicial Review, and Robert Fulton, Susan Fulton, Gregg Crawford, Holly Crawford, Walter Swanson, Kathi Swanson, Dale Krug, Colleen Krug and Steven Wilkes, Intervenor-Respondents at LUBA.

LUBA No. 2002-155; CA A122194; SC S51504.

Supreme Court of Oregon, En Banc.

Argued and Submitted January 11, 2005.

Decided May 5, 2005.

I. Franklin Hunsaker, of Bullivant Houser Bailey, PC, Portland, argued the cause and filed the briefs for petitioner on review. With him on the briefs were James H. Bean, of Lindsay Hart Neil & Weigler, LLP, Portland, and Von G. Keetch and Matthew K. Richards, of Kirton & McConkie, Salt Lake City.

Timothy V. Ramis, of Ramis, Crew, Corrigan & Bachrach, LLP, Portland, argued the cause and filed the briefs for respondent on review.

Lowell V. Sturgill, Jr., Appellate Staff, Department of Justice, Washington, D.C., argued the cause and filed the brief for Intervenor on Judicial Review United States of America. With him on the brief were Peter D. Keisler, Assistant Attorney General, Herbert C. Sundby, Attorney, Department of Justice, and Mark Stern, Attorney, Appellate Staff, Department of Justice, Washington, D.C.

Wendie L. Kellington, Lake Oswego, filed the brief for amicus curiae The Becket Fund for Religious Liberty. With her on the brief were Roman P. Storzer, Anthony R. Picarello, Jr., and Derek L. Gaubatz, Washington, D.C.

Barry Adamson, Lake Oswego, filed the amicus curiae brief for himself.

BALMER, J.

In this land use dispute, the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints (the church) challenges the City of West Linn's (the city's) denial of a conditional use permit (CUP) to build a new meetinghouse. The church argues that the denial constituted a "substantial burden" on religious exercise as that term is used in the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 USC §§ 2000cc-2000cc-5 (2000); which prohibits a government entity from implementing a land use regulation that imposes such a burden unless imposing that burden furthers a compelling governmental interest and is the least restrictive means of achieving that interest. On review of the city's decision, the Land Use Board of Appeals (LUBA) agreed with the church in part. The city sought judicial review, and the Court of Appeals reversed, holding that the city's decision did not violate RLUIPA. Corp. of Presiding Bishop v. City of West Linn, 192 Or.App. 567, 86 P.3d 1140 (2004). We allowed the church's petition for review. For reasons that we explain below, we affirm the Court of Appeals.

We take the facts from the Court of Appeals' decision and the record. The church has no meetinghouse in West Linn, and many of its congregants who live in West Linn travel to Lake Oswego to attend church. The Lake Oswego congregation has grown, and the meetinghouse there is crowded. To relieve the crowding, the church sought to construct a meetinghouse in West Linn on a 5.64-acre tract that was zoned Single Family Residential (R1). The tract is bordered on the north by undeveloped property, on the south by Rosemont Road (a local arterial), on the east by Shannon Lane (a local street), and on the west by Miles Drive, a dead-end street. The area surrounding the site is developed mainly with single-family homes.

The city allows the construction of religious buildings in R1 zones if the owner obtains a CUP. The church applied for a CUP and submitted a site plan proposing to build the meetinghouse on a 3.85-acre parcel that it would create by subdividing the existing 5.64-acre tract. That parcel would consist of the eastern approximately two-thirds of the existing tract. The church planned to divide the remaining 1.79 acres into two parcels: a parcel in the northwest corner containing an existing home with a yard, and a parcel on the southwest that would be used to extend Miles Drive and connect it with Rosemont Road. The plan contemplated a single-story meetinghouse, 16,558 square feet in area and 28 feet tall, surrounded by parking lots on three sides. Together, the meetinghouse and parking lot would cover 2.02 of the 3.85 acres, and the plan contemplated that a drainage swale and landscaping would occupy the remainder. At the most narrow points, the plan allowed 26 feet between the parking lot and the northern property line and 30 feet between the eastern side parking lot and Shannon Lane.

The city planning staff worked with the church to refine the plan and recommended that the city planning commission approve a revised plan that included more vegetation to screen the parking lot from Shannon Lane. The church agreed to the revisions and submitted a revised plan. The planning commission held hearings at which it heard witnesses for and against the church's proposal and evaluated the proposal in light of the city's Community Development Code (CDC). The CDC provisions include the following:

"60.070 APPROVAL STANDARDS AND CONDITIONS

"A. The Planning Commission shall approve, approve with conditions, or deny an application for a conditional use * * * based on findings of fact with respect to each of the following criteria:

"1. The site size and dimensions provide:

"* * * * *

"b. Adequate area for aesthetic design treatment to mitigate any possible adverse effect from the use on surrounding properties and uses.

"2. The characteristics of the site are suitable for the proposed use considering size, shape, location, topography, and natural features.

"* * * * *

"4. All required public facilities have adequate capacity to serve the proposal."

The CDC also provides, for all development proposals in the city, that

"[t]he proposed structure(s) scale shall be compatible with the existing structure(s) on site and on adjoining sites. Contextual design is required. Contextual design means respecting and incorporating prominent architectural styles, building lines, roof forms, rhythm of windows, building scale and massing, materials and colors of surrounding buildings in the proposed structure."

CDC 55.100(B)(6)(b).

Ultimately, the commission voted unanimously to deny the application. Its written decision stated that (1) the application did not satisfy CDC 60.070(A)(1)(b) because the size and dimensions of the lot did not allow for adequate buffering to mitigate the aural and visual impacts on the neighborhood that a meetinghouse of that size would create; (2) the application did not satisfy CDC 60.070(A)(2) because the meetinghouse would be "heavily used" and was therefore unsuitable for a residential neighborhood; (3) the application did not satisfy CDC 60.070(A)(4) because the roads in the proposed location were insufficient to handle the traffic that the meetinghouse would generate; and (4) the application did not satisfy CDC 55.100(B)(6)(b) because the scale of the proposed meetinghouse was "nearly five times the size" of the average building in the area. The commission also rejected the church's claim that RLUIPA prohibited the denial, because it concluded that the denial did not impose a substantial burden on religious exercise.

The church appealed to the city council, which held its own hearings and accepted additions to the written record. The council then rejected the application, primarily because it found that the lot was too small for a facility the size of the proposed meetinghouse. That inadequacy, it concluded, created detrimental impacts that could not be reconciled with the CDC criteria. In particular, the council found that there was not enough space for buffers to mitigate the aural and visual impact of the building on the neighborhood (CDC 60.070(A)(1)(b)) and that the small lot with minimal buffering rendered the proposed use unsuitable for a residential area (CDC 60.070(A)(2)). Regarding CDC 55.100(B)(6)(b), the council concluded that, although the scale of the proposed meetinghouse was incompatible with the residential neighborhood, compatibility is not required if the building is "adequately separated from other buildings by distance, screening, [or] grade variations, or is part of a development site that is large enough to set its own style of architecture." CDC 55.100(B)(6)(d).

Although the council rejected the application primarily because the parcel was too small to accommodate the buffers of vegetation and distance that the CDC required for a meetinghouse of that size and in that residential location, the council noted that it could approve a site plan that included a building of the same size on a larger lot with adequate buffering. The council found that there was no apparent obstacle to the church's using more than the 3.85 acres that the plan contemplated.¹ Based on those facts, the council concluded that RLUIPA did not prevent it from denying the application, because there was no substantial burden on the church's religious exercise and because, even if the denial had imposed a substantial burden, the city's interest in maintaining the quality of residential neighborhoods was sufficiently compelling to allow denial.²

The church appealed to LUBA, claiming that RLUIPA required the city to state conditions of approval rather than deny the application. LUBA concluded that there was substantial evidence in the record to support the city's findings that the application failed to comply with each of the CDC provisions that it had cited and that the church had failed to include the proper documentation for the noise study. However, LUBA ruled against the city on RLUIPA grounds, holding that the city's denial of the CUP had violated the church's rights under RLUIPA. Corporation Presiding Bishop v. City of West Linn, 45 Or LUBA 77 (2003).

LUBA stated that, in general, federal courts had defined a "substantial burden" as a...