Tuesday, January 8, 2013

More on religious uses

An appellate court in New York has reversed a decision of a local zoning board denying a special exception permit for a church on a lot split zoned residential and commercial. In Tabernacle of Victory Pentecostal Church v. Weiss, 2012 WL 6029100, the biggest difficulty was the lack of off-street parking, but the church offered to limit the number of worshipers at sanctuary, and to run buses bringing them to the sanctuary so as to negate the necessity of the parking requirements. At most, the church estimated that during peak hours only 8 to 10 parking spaces would be needed.

The lower court upheld the zoning board decision denying the special exception, finding that the church did not comply with the required off-street parking. On appeal to the Appellate Division, the decision was reversed. The appellate court emphasized that some flexibility should be permitted a religious institution, and some reasonable accommodations attempted. The failure to offer some reasonable accommodation in this matter rendered the denial of the permit inappropriate.

Perhaps this is another way to view the Tennessee Religious Freedom Restoration Act; perhaps offering reasonable accommodations to religious entities who make applications for conditional use permits/special exceptions, would be one way of attempting to convince a Tennessee court that the zoning board had done everything it could do by way of reviewing the application in a flexible and sympathetic manner. This may not be, and probably is not, sufficient under the Tennessee legislation; but it may be the best approach in trying to convince a reviewing court that the zoning board was exercising appropriate judgment and discretion.