Gallart v. City of Frederick

The case of Frederick Presbyterian Church is a classic example of the way in which a handful of angry neighbors can use local zoning rules to delay or prevent even the smallest church modification. It also eventually became a good example of a city's decision to "do the right thing." Ultimately, it also became the first case in which a city was able to invoke Section 5(e) of RLUIPA, which allows "governmental discretion in alleviating burdens on religious exercise," when the city was sued by one of the angry neighbors who refused to accept the consent agreement approved by the city and the church in March 2002.

The case began when church officials drew up a plan to improve handicapped access to a building more than 175 years old. It became a battle that dragged on for three and a half years.

In 1998, members of the Frederick, Maryland church decided to build an addition to its church building. A new 180-square-foot lobby area would provide handicapped access to the church, an elevator, improved bathrooms and a wider stairwell. When church attorney Bruce Dean met with the City Zoning Administrator to determine what approvals were needed, he was told that the church did not conform to current zoning requirements mandating that on-site parking be provided. Although the existing church was grandfathered from the regulation, the construction of an addition would trigger the parking requirement. Because it was physically impossible, due to size constraints, to build a parking lot meeting the city's zoning requirements on the church's property (the church was built in 1825, well before invention of the automobile), Dean was told that the church would need a variance for the existing sanctuary if they wished to proceed with construction of the addition.

The City Board of Appeals held two hearings on the variance application. At the first hearing, there was virtually no neighborhood opposition to the addition, and church officials assumed that the variance would be granted. By the time of the second hearing, when the Board voted, neighbors had organized opposition to the addition on grounds that it would be used for non-religious activities. Though the Church vehemently denied that the addition would be used for anything other than improving accessibility to the sanctuary, the variance was rejected on a vote of 3-2 (four affirmative votes were needed for approval).

Following the rejection of the variance application, the church filed an appeal in county circuit court, and also began to work with other local church leaders to push for a change in the zoning ordinance that would allow construction of a building addition without triggering a requirement for additional parking. Numerous meetings on the proposed amendment were held throughout 1999. In early 2000, the Frederick Area Ministerial Association (FAMA) submitted proposed language that had been worked out in lengthy negotiations with city staff and with input from city leaders.

At a joint meeting on May 24, 2000, the Mayor, the Board of Aldermen and the Planning Commission directed city staff to draft an amendment to allow additions to existing buildings without extra on-site parking as long as the project would not create demand for more parking. The City Zoning Administrator supported the amendment, but at the last minute, her supervisor, the Director of Planning, rewrote the staff report and recommended denial of the amendment. Based largely on that staff report, the Mayor and Board of Aldermen voted to reject the amendment, and Frederick Presbyterian Church was back to square one.

A few months later, in the fall of 2000, the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) was signed into law, and the church asked the office of the City Attorney for an opinion on how the new law would affect Frederick Presbyterian's ongoing effort to win approval of the new addition. On January 30, 2001 The Becket Fund for Religious Liberty wrote a letter to City Attorney Lynn Board, noting that Frederick's "zoning regulations place a substantial burden on the church's use of the property for religious exercise," and that "imposing the parking requirements on the church would violate RLUIPA." An assistant City attorney researched the issue and came to the same conclusion, and the Zoning Administrator ruled that the church could proceed with building the addition. At about the same time, the Historic District Commission unanimously approved the addition.

In the meantime, the decision of the Zoning Administrator had been appealed by a disgruntled neighbor. On the day that the Board of Zoning Appeals (BZA) was to hear the case, in August 2001, a new City Attorney issued an opinion saying that the earlier opinion regarding the applicability of RLUIPA was in error, and the BZA quickly sided with the City Attorney and reversed the Zoning Administrator's approval.

In September 2001, church attorney Bruce Dean held a series of meetings with the Mayor, the City Attorney, the Zoning Administrator and the Director of Planning. The City Attorney readily conceded that RLUIPA encourages cities and churches to negotiate settlements in such matters, and ultimately a consent agreement was drafted under which the Church agreed not to use the addition for assemblies, meetings, concerts or any use that would increase the number of people attending Church events. The Becket Fund reviewed the agreement and later sent a letter to Mayor Jennifer Dougherty stating that it was "a reasonable compromise of the interests of the City, the neighbors, and the Church.".

On March 7, 2002 the Frederick Board of Aldermen voted to approve the agreement, 3-2. The church proceeded with plans to make modifications to its building, but on October 11, 2002, neighbor Frank Gallart filed a lawsuit against both the city and the church in Frederick County Circuit Court, charging that the city did not have the authority to exempt the church from the parking requirement. The Becket Fund, along with local attorneys Bruce Dean and Brian Barkley, represents the church.

In defending against Gallart's suit, Frederick had become the first city in the country to cite section 5(e) of RLUIPA in its defense. It provides that:

"A government may avoid the premptive 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."

At a hearing on cross-motions for summary judgment on November 5, 2003, Judge Julie Stevenson Solt denied cross-motions for summary judgment. The Becket Fund's Opposition to the Motion for Summary Judgement and Memorandum in Opposition to [the plaintiff's] Motion for Summary Judgment contain a detailed discussion of the issues involved.

(Frank Gallart v. City of Frederick, et al., Circuit Court for Frederick County, Maryland, Case No. 02-2504-CV)

Articles & News Items

• "New twist in RLUIPA case," March 5, 2003