The long-awaited decision by Chancellor Robert Corlew was handed down yesterday, concluding that the notice provided by the County in the Murfreesboro Post was insufficient public notice pursuant to the Tennessee Open Public Meetings Act, TCA § 8-44-101 et seq. Chancellor Corlew evidently relied upon the smaller circulation of the Post in the County, as opposed to its more brisk circulation within Murfreesboro itself, as well as the fact that there was no Internet notice, and no notice by public television.
The statute, §8-44-103 requires "adequate public notice" of public meetings. In the past, fairly simple notice, indicating the date, time, and place, as well as the name of the board or commission, has been deemed sufficient. The difficulty here, from the perspective of the court, evidently was the circulation of the newspaper itself.
The mosque is almost complete and because the mosque was not a party to the litigation, no injunction issued against further construction.
There is one further interesting aspect of this decision. The Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. §4-1-407, subsection (c)(1), provides that "no governmental entity shall substantially burden a person's free exercise of religion" unless essential to a compelling governmental interest. Of course, the state of Tennessee, through the Open Public Meeting Act, requires "adequate public notice" of all public meetings, but if the application of that statute "substantially burdens" the free exercise of religion under the circumstances of this case, shouldn't there be some demonstration that there is some compelling governmental interest?
I haven't considered the application of the Tennessee Religious Freedom Restoration Act from this standpoint, and of course, before the act applies at all, there must be a substantial burden on freedom of religion. But the act defines the term "substantial burden" as anything that inhibits or curtails religiously motivated practice, and under the circumstances presented here, it seems as though the Open Public Meetings Act itself may inhibit or curtail religiously motivated practice. Under normal circumstances, certainly, adequate public notice as required by the Open Public Meetings Statute would not be seen as a potential violation of the Religious Freedom Restoration Act, but as applied here, it seems as though it might have the potential to violate the provisions of the Religious Freedom Statute.
And if there is a substantial burden, then there must be some demonstration of a compelling governmental interest to justify the notice required by statute. I'm sure that an interesting argument can be made that adequate notice of public meetings is compelling, but I'm less than sure about that given the fact that Tennessee state and local governments existed for 150 years without requiring such notice. Furthermore, recall that this application was for site plan review, basically a glorified building permit. Public notice of the meeting to consider such an application seems unwarranted in the first place.
This is just another complexity that the Religious Freedom Restoration Act adds to the already complicated system of land use controls we have here in Tennessee.
Finally, the Mosque might be well advised not only to appeal the decision of the trial court, but also to immediately request a new hearing before the county planning commission, this time with better notice to the public. Frankly, it would seem very difficult for the county planning commission to deny the application, although to be sure, the hearing room will be packed with opponents. In this way, the Mosque might get relief more quickly than it otherwise could through an appeal to the Tennessee Court of Appeals.
We'll just have to wait and see; I'm sure the coming months will bring some new twists and turns in this already interesting litigation.