Wednesday, December 7, 2011

Board Findings: A Mask for Discrimination?

Yesterday, we discussed an interesting case from Virginia involving the RLUIPA. That discussion focused on the holding of the court that the RLUIPA furnished no protection because the day school under consideration there was secular in nature and hence not subject to the protections of the act. The case is Calvary Christian Center v Fredericksburg, 2011 WL 5843641 (ED Va 2011).

Today I'd like to address one other issue that is interesting to me within the context of that decision. Remember that the church applied for a special use permit but was turned down by the local legislative body. The reasons advanced for the denial included the number of group homes and group facilities already functioning in the Fredericksburg area; the propriety of Fredericksburg providing services to special-needs students from outside the area; the nature of the disabilities of the Fairwinds students; the operation of Fairwinds; and the safety of the day care students. My thought today is whether these reasons really amount to a valid basis for the denial.

First, the city contended that there were already too many group homes and facilities functioning in Fredericksburg. Why is this a decision that the local government is permitted to make? Is this not a society that depends on supply and demand to make these kinds of decisions? Perhaps the school will take students from other schools that are currently operating because it's a better school? For the city to make a decision based on the number of existing facilities has always struck me as improper. What essentially is happening is that the city is favoring businesses which are already existing and discriminating against new arrivals. The zoning power is not designed to keep people out particularly people where, as here, who suffer from emotional and mental disabilities.

Remember that the US Supreme Court has already invalidated the denial of a conditional use permit for a group home under somewhat similar circumstances. City of Cleburne v Cleburne Living Center, 473 US 432 (1985). in fact, as a result of that case, there is at least some thought that conditional use permit should not even be required for such activities, including a decision from the Sixth Circuit.

In any event, denying a conditional use permit because there are already too many similar facilities has always seemed to me as a mask for irrational decision-making and a way to hide discriminatory animus.

The second reason was because several of the students would come from outside of the city to attend this private school. Once again, this reasoning strikes me always as specious. I'll bet that the customers to the local malls who come in from outside the city are welcomed with open arms. There is no fear about those people bringing their money into the city. It strikes me as discriminatory and frankly almost unconnected with land use as to where the people come from. The question is what is the severity of the impact on surrounding land uses, not where the users may ultimately be from.

The third reason advanced was the nature of the disabilities of the students themselves. Once more, this certainly seems like a rationale motivated by discrimination and not any valid land use planning concept. unless there was some proof that the specific disabilities was somehow have an untoward impact on the surrounding land uses, the specifics of the disabilities are largely irrelevant. Again, part of the decision in the US Supreme Court decision, City of Cleburne, was that the reasons advanced for denial masked the real reasons which were an underlying discrimination. That is certainly what seems apparent in this third reason.

Finally, the fourth and fifth reasons, were the nature of the operations and the safety of the students. The opinion is not much more specific about this and so it's unclear as to what precisely was at issue here. Certainly, if there was any kind of safety issue, those would have to be addressed. However, one would certainly think that if the operation met the requirements of the International Building Code for this type of occupancy, the safety requirements would be completely met. Furthermore it's not clear what type of operations the city was concerned about and this may very well be simply another way of masking discriminatory animus.

Overall, the reasons advanced by the local legislative body, without regard to the RLUIPA, or the First Amendment to the federal Constitution, seem highly unlikely to support a decision denying this special use permit. Frankly, it seems to me that the District Court to easily accepted the rationale advanced by the city. As the United States Supreme Court held in the Cleburne case, unsubstantiated fears of the local citizenry are insufficient by themselves and fall under the rational basis doctrine of the Equal Protection Clause. So to should this denial by Fredericksburg. The reasons advanced, based on the information contained in the federal decisions, seem extraordinarily sketchy and written in a way to mask discriminatory motivations.

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