De Pere officials warned against violating federal religious land use lawMar 4, 2003
The Becket Fund for Religious Liberty, which has represented dozens of churches
and other religious organizations in lawsuits filed under the Religious Land
Use and Institutionalized Persons Act of 2000 ("RLUIPA"), today warned
the De Pere Common Council that denial of a conditional use permit to the New
Life Christian Fellowship "violates both RLUIPA and the United States Constitution."
De Pere is a small community on the outskirts of Green Bay, Wisconsin
On February 19, 2003 the Council voted 5-2 to reject the church's application
for a conditional use permit that would have allowed it to use a vacant commercial
building at 113 N. Wisconsin Avenue as a place of worship. The Council will
have an opportunity to reconsider its action at its meeting tomorrow, March
5.
In a letter (PDF format, 63K) delivered to the Mayor and Common Council members
today, Becket Fund Legal Counsel Derek Gaubatz cautions that "if New Life
Christian Fellowship is denied the ability to use the Property for church services
and other religious ministries, that denial would ‘substantially burden'
its religious exercise," something the city can only do if it has a "compelling
government interest," which courts have defined as "interests that
address a clear and present, grave and immediate danger to public health, peace
and welfare. The only governmental interest identified by the City—essentially
the need to preserve the area for revenue generating retail business—simply
does not meet that high hurdle."
Moreover, the city's action violates RLUIPA's "Equal Terms" provision
because it permits "as a matter of right" theaters, gymnasiums, day
care centers and certain types of schools, but "refuses to allow assembly
for religious purposes."
"Finally, it is especially unfortunate that the City appears to have adopted
and enforced its zoning requirements preventing the Church's location in the
business district for the very purpose of discriminating against religious institutions,"
the letter notes. A letter from Alderperson Mike Fleck, made part of the record
on February 19, explains that the revised zoning code "says we do not want
to have churches in our downtown business district."
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