Corp. of Presiding Bishop v. City of West Linn

86 P.3d 1140

192 Or. App. 567

CORPORATION OF the PRESIDING BISHOP OF the CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, Respondent, v. CITY OF WEST LINN, Petitioner, 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, Intervenors-Respondents below.

2002-155; A122194.

Court of Appeals of Oregon.

Argued and Submitted October 6, 2003.

Decided March 24, 2004.

Timothy V. Ramis, Portland, argued the cause for petitioner. With him on the brief was Ramis Crew Corrigan & Bachrach, LLP.

I. Franklin Hunsaker, Portland, argued the cause for respondent. With him on the brief were Bullivant Houser Bailey PC, and James H. Bean and Lindsay Hart Neil & Weigler LLP, Portland, and Matthew K. Richards and Kirton & McConkie, Salt Lake City, UT.

Lowell V. Sturgill, Jr., Washington, D.C., argued the cause for intervenor on judicial review. With him on the brief were Mark Stern, Washington, D.C., and Peter D. Keisler, Assistant Attorney General, and Herbert C. Sundby, Department of Justice, Office of U.S. Attorney.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

BREWER, J.

The Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints (the church) applied to the City of West Linn (the city) for a conditional use permit to build a church meetinghouse in a residential neighborhood of the city. The city denied the application. The church appealed to LUBA, which determined that the city's decision violated certain provisions of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 USC § § 2000cc-2000cc-5 (2000) (set out in pertinent part below). LUBA also determined that the relevant provisions of RLUIPA are constitutional under the First Amendment and Fourteenth Amendment to the United States Constitution. LUBA remanded the matter to the city for consideration of whether the application could be approved under suitable conditions of approval.

The city seeks judicial review of LUBA's decision, asserting that LUBA erred in applying RLUIPA and in determining that RLUIPA is constitutional.¹ The United States intervenes for the purpose of defending the constitutionality of RLUIPA. We conclude that the city's decision did not violate RLUIPA and therefore remand to LUBA without reaching the constitutional question.²

I. THE PROCEEDINGS BELOW

We take the relevant facts from LUBA's order and the record. The subject property is a 5.64-acre tract consisting of two lots zoned Single Family Residential, 10,000-square foot minimum lot size (R-10). There is an existing dwelling in the northwest corner of the property. The property is bordered on the north by a vacant field used for agricultural purposes; on the south by Rosemont Road, a designated arterial; on the east by Shannon Road, a local street with a treed median; and on the west by Miles Drive, a local street that ends north of Rosemont Road. The surrounding area is generally developed with single-family dwellings.

Under the city's Community Development Code (CDC), certain uses, such as single-family dwellings, are permitted outright in R-10 zones. In addition, "religious institutions" are permitted in R-10 zones, subject to conditional use approval. For conditional uses, CDC 11.080 provides that "the appropriate lot size for a conditional use shall be determined by the approval authority at the time of consideration of the application based upon the criteria set forth in [CDC 60.070.A.1 and CDC 60.070.A.2]." CDC 60.070.A.1 requires in part that the site size and dimensions provide "[a]dequate area for aesthetic design treatment to mitigate any possible adverse effect from the use on surrounding properties or uses." CDC 60.070.A.2 requires a finding that the "characteristics of the site are suitable for the proposed use considering size, shape, location, topography, and natural features."

The church proposed to divide the subject property to create a 3.85-acre parcel on the eastern two-thirds of the property, bordering Rosemont Lane on the south and Shannon Lane on the east. On that 3.85-acre parcel, the church proposed to construct a 16,558-square foot, 28-foot-high, single-story structure, surrounded on three sides by parking lots providing 179 parking spaces. The proposed meetinghouse and parking lots would occupy 2.02 acres, with the remainder of the 3.85-acre parcel consisting of open landscaped areas, buffer areas, and a drainage swale. The setback between the rear property line and the nearest parking area would be 26 feet; a buffer area between the parking lot and Shannon Lane would be as narrow as 30-feet. The meetinghouse was intended to serve two "wards" or congregations with a current membership totaling 949 persons; on Sundays, an estimated 540 persons would attend two staggered services with an approximately one-hour period during which attendees of both services would be present.³ In addition to Sunday services, smaller groups would use the meetinghouse for short periods during the week.

The church submitted a conditional use application accompanied by a proposed site plan. City planning staff recommended that the planning commission approve the application based on various conditions to which the church agreed, including revision of the landscaping plan to screen the parking lot from Shannon Lane more effectively. The planning commission conducted three public hearings at which a number of neighboring landowners testified in opposition. On September 5, 2002, the commission voted to deny the application on the grounds that no buffer could adequately screen the parking lot from surrounding residences; that a building of the proposed size was not appropriate in a residential zone; that local roads were not adequate to serve the proposed meetinghouse; and that the meetinghouse was not compatible with adjoining residential uses.

The church appealed the planning commission's decision to the city council, which conducted three additional public hearings and, on October 28, 2002, denied the appeal. The city concluded that the proposed use did not comply with CDC 60.070.A.1.b, pertaining to adequacy of a design for purposes of mitigating possible adverse effects on surrounding properties and uses, because, among other reasons, the property was too small and too flat, and the proposed landscaping was insufficient, to provide adequate buffering between the building and its parking lot, on the one hand, and adjacent residential properties, on the other. Again citing the size of the property, its flat topography, and its location in a residential neighborhood, the city also concluded that the proposed design violated CDC 60.070.A.2, pertaining to the suitability of the site's characteristics for the proposed use. The city also concluded that the proposed meetinghouse did not comply with CDC 55.100.B.6.b, pertaining to compatibility with existing development, because the building's scale and mass were substantially greater than those of surrounding residences and those differences were not adequately compensated for by buffering or screening; with CDC 55.100.C, pertaining to the provision of buffers between different types of uses, because, among other buffering deficiencies, the proposed 30 foot buffer between the parking lot and Shannon Lane provided insufficient light, vision, and noise buffering; or with CDC 55.100.D.3, setting out noise standards.

The city also addressed the church's argument that denial of its application would violate RLUIPA. The city concluded that denial did not impose a "substantial burden" on the church's religious exercise within the meaning of RLUIPA, because additional land was available to the church around the site and the church "might have obtained approval if the site were larger"; in addition, according to the city, it would have denied any application having the proposed characteristics. The city also concluded that it had a compelling governmental interest within the meaning of RLUIPA in maintaining the quality of its residential neighborhoods. It therefore concluded that denial did not violate RLUIPA and denied the application.⁴

The church appealed to LUBA. It argued that the city's findings of noncompliance with CDC 60.070.A.1.b, CDC 60.070.A.2, CDC 55.100.B.6.b, CDC 55.100.C, and CDC 55.100.D.3 were not supported by substantial evidence in the record.⁵ The church also contended that the city's denial of its application violated RLUIPA. The city responded that substantial evidence supported the city's findings of noncompliance and that denial of the application did not violate RLUIPA. The city also argued that, if interpreted and applied in the manner urged by the church, RLUIPA would violate the Establishment Clause of the First Amendment⁶ and the Enforcement Clause of the Fourteenth Amendment.⁷

LUBA determined that the city's findings pertaining to noncompliance with the described CDC provisions were supported by evidence in the record. It concluded, however, that the city's denial of the church's application violated RLUIPA. In that regard, LUBA first determined that RLUIPA was applicable to the city's decision notwithstanding that the decision was based on application of preexisting standards and criteria. LUBA noted that the city's conditional use standards and criteria were "extremely subjective" and afforded the city "significant discretion to approve or deny the application," "augmented" by the deferential standard of review applicable under ORS 197.829(1) to the city's interpretation of its own ordinances.⁸ LUBA concluded that the city's decision therefore involved an "individualized assessment" within the meaning of that term in RLUIPA. LUBA also concluded that the city's application to the property of its design review criteria implicated a "use" of land and that RLUIPA therefore was applicable to those...