New twist in RLUIPA caseMar 5, 2003 Frederick, Maryland will apparently be the first city in the United States
to benefit from a little-known provision of the Religious Land Use and Institutionalized
Persons Act of 2000 ("RLUIPA"). Section 5(e) of the Act allows "governmental
discretion in alleviating burdens on religious exercise," and the city
is currently being sued for exercising that discretion.
Frederick is being sued by Frank Gallart, who is challenging a March 7, 2002,
agreement between the city and Frederick Presbyterian Church. In 1998, the church
proposed a minor addition to its historic building in downtown Frederick, to
improve handicapped access and create a wider stairwell. Under local zoning
regulations, any change, even a minor one, triggers a parking requirement from
which the church had been exempted under a "grandfather" clause included
in an overhaul of the city's zoning ordinance in 1986.
The Becket Fund for Religious Liberty, which has represented dozens of churches
and other religious institutions in lawsuits against towns and cities in cases
filed under RLUIPA, sent city officials a letter explaining that enforcing the
parking requirement would implicate the new law because it would unreasonably
burden the free exercise of religion. In a consent agreement, city officials
agreed to allow the church to make the proposed changes without having to add
parking. Becket Fund Litigation Director Roman Storzer described the consent
agreement between the city and the church as "a reasonable compromise of
the interests of the city, the neighbors, and the church," and he praised
the city for "doing the right thing."
Gallart alleges that the city did not have authority to exempt the church from
the parking requirement. The Becket Fund represents Frederick Presbyterian,
which is also a defendant in the suit, and will argue that the city's action
is protected by Section 5(e) of RLUIPA, which provides that "a government
may avoid the preemptive force of any provision of this Act by changing the
policy or practice that results in a substantial burden on religious exercise,
by retaining the policy or practice and exempting the substantially burdened
religious exercise, by providing exemptions from the policy or practice for
applications that substantially burden religious exercise, or by any other means
that eliminates the substantial burden." It appears to be the first time
a city has invoked the provision to defend its accommodation of religious exercise
since the law was signed. The church is also represented by local attorneys
Bruce Dean and Brian Barkley.
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