Molalla Christian ChurchHave we arrived at a point in America where dirt is more important to local governments than religion? Welcome to Clackamas County, Oregon. The little town of Molalla is about 20 miles south of the center of Portland, just off of Highway 213. Molalla Christian Church, having outgrown its present facility, bought a 10.29 acre property along Highway 213 on the outskirts of town, and sought approval for construction of a new church on the land. In September 2002, the Clackamas County planning director issued a decision concluding that the county's Zoning and Development Ordinance ("ZDO") prohibits churches in the Exclusive Farm Use ("EFU") zone where the property is located, because it is within three miles of an Urban Growth Boundary ("UGB") and on "high value farm land" in the EFU zone. In this case, soil on the site is primarily "Aloha 1A" dirt. The church appealed the decision on September 17, 2002. County Hearings Officer Larry Epstein held two public hearings on the matter, and issued a decision on January 23, 2003. He ruled that the "Aloha 1A" dirt made the site "predominantly high value farm land as defined by" the ZDO. And he held that prohibiting construction of a church on "Aloha 1A" soil "furthers a 'compelling government interest' by ensuring that the limited supply of valuable farm land in the County remains available for farm uses." Epstein rejected arguments from church attorney Wendie Kellington that application of the ZDO in this fashion unconstitutionally burdens the free exercise of religion and violates RLUIPA. In fact, he ruled that "RLUIPA does not apply to a land use decision or permit, because RLUIPA is not part of the Constitution and is not incorporated into the ZDO." But, he added, in "the interests of justice . . . the hearings officer decided to apply RLUIPA in this case." It was small comfort. A complete "prohibition on churches in a limited area of the EFU zone — where preservation of that area is most important to realizing the compelling governmental purpose — is the least restrictive means of serving the County's compelling government interest." Molalla Christian Church has now appealed the case to the Clackamas County Commission, and on January 31, 2003, The Becket Fund for Religious Liberty sent commissioners a letter cautioning that, "It is our opinion that the Hearings Officer's application of the County land use ordinances to prohibit Molalla Christian Church's proposed church violates several provisions of RLUIPA." The hearings officer "correctly concluded that the complete refusal to allow the Church to relocate its ministry onto its land in the EFU district imposes a substantial burden on the church's religious exercise. However, the Hearings Officer seriously erred in stating that a court would find that the County had an interest sufficient to impose such a burden on the Church." Saving dirt — "preserving certain kinds of soils on lands zoned for farm use—is inadequate under the applicable 'strict scrutiny' standard. RLUIPA (and the First Amendment) requires any restrictions on religious exercise to serve 'compelling governmental interests': these are 'interests of the highest order,' interests that revent a clear and present, grave and immediate danger to public health, peace and welfare. Moreover, a flat refusal to permit the Church to locate on its land under any circumstances will certainly not be considered the 'least restrictive means' of achieving any proffered compelling interest." Finally, the fact that the value of the dirt notwithstanding, the county ZDO permits construction of "community centers, wedding facilities, golf courses, wineries and farm stands" while prohibiting churches "clearly violates RLUIPA's 'Equal Terms' provision. On May 7, 2003, the Clackamas County Commission, after weighing the church's most recent submission and The Becket Fund's letter, decided that RLUIPA did indeed apply, and voted 2-1 in favor of granting the use permit for the new church. Articles & News Items
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