Central Oregon Landwatch v. Deschutes County

Under 42 USC § 2000cc(b)(1), part of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), local governments may not treat religious assemblies or institutions on “less than equal terms with a nonreligious assembly or institution.” This is known as the equal terms provision. In a prior appeal, LUBA and the Court of Appeals determined that the county’s Wildlife Area (WA) overlay zone violated the equal terms provision because it allowed wineries, museums, outdoor mass gatherings, and other commercial uses, but prohibited churches. In response, the county amended its comprehensive plan and zoning ordinance to remove “churches” from a list of prohibited uses in the WA overlay zone, replace the term “churches” in its zoning ordinance with the phrase “religious institutions and assemblies,” and allow religious institutions and assemblies outright in several Unincorporated Community (UC) zones.

The WA overlay zone was adopted to protect wildlife habitat and the UC zones contained riparian resources and wildlife habitat, all of which were Statewide Planning Goal 5 (Natural Resources, Scenic and Historic Areas, and Open Spaces) resources. The county concluded that the amendments allowed new conflicting uses and that it was required to apply Goal 5 pursuant to OAR 660-023-0250(3)(b). The county therefore conducted an economic, social, environmental, and energy (ESEE) analysis pursuant to OAR 660-023-0400. Under OAR 660-023-0040(5), after conducting an ESEE analysis, local governments must decide whether to (1) protect the Goal 5 resource fully, (2) allow the conflicting use to a limited extent, or (3) allow the conflicting use fully. The county decided to allow religious institutions and assemblies fully in the relevant zones. This appeal followed.

Under ORS 197.830(2), a petitioner must have “appeared” before the local government in order to have standing to challenge a post-acknowledgment plan amendment at LUBA. A party “appears” if they facilitate full development of the record. Because petitioner appeared orally at four public hearings and submitted 120 pages of testimony, LUBA concluded that they “appeared” for purposes of ORS 197.830(2). However, because petitioner appeared before the planning commission but not the board of commissioners, and because the planning commission simply made a recommendation to the board of commissioners and did not approve or deny the amendments itself, the county argued that petitioner lacked standing. LUBA concluded that the delegated decisional authority of a lower hearings body is irrelevant for purposes of standing and reiterated that an appearance before a lower hearings body is sufficient if the lower hearings body created a record that was presented to the final decision-maker. Because the planning commission record was presented to the board of commissioners, LUBA concluded that petitioner had standing.

Under OAR 660-023-0040(4), “[a] local government may conduct a single [ESEE] analysis for two or more resource sites that are within the same area or that are similarly situated and subject to the same zoning.” Because the county conducted a single ESEE analysis for wildlife habitat in the WA overlay zone as well as the riparian resources and wildlife habitat in the UC zones, and because the various species in those habitats were in different zones and in different parts of the county, inhabited different environments, and faced different risks to their continued existence, petitioner argued that the county’s ESEE analysis did not comply with OAR 660-0223-0040(4). Because the county substantially complied with the ESEE decision process, and because petitioner did not explain how the differences between the species in those habitats actually prevented the county’s single ESEE analysis from enabling it to meaningfully analyze the impacts that religious institutions and assemblies would have on those resources, LUBA concluded that petitioner’s argument provided no basis for reversal or remand.

Because the WA overlay and UC zones prohibited certain secular uses as well as religious uses, petitioner argued that the county misconstrued the applicable law in concluding that its zoning ordinance violated the equal terms provision. LUBA concluded that it had already resolved this issue in a prior appeal. However, LUBA reiterated that the purpose of the equal terms provision is not to ensure that, if a religious use is prohibited in a particular zone, some similar secular uses are also prohibited. Rather, its purpose is to ensure that, if a secular use is allowed in a particular zone, similar religious uses are also allowed. Again, the WA overlay zone allowed wineries, museums, outdoor mass gatherings, and other commercial uses. The UC zones allowed marina, park, playground, picnic and barbecue area, restaurant, bar and cocktail lounge, golf course, nature centers, observatories, retail sales, and rental and repair services. Because the county concluded that those uses were similarly situated to religious institutions and assemblies, LUBA concluded that the county did not misconstrue the equal terms provision by concluding that it was required to allow religious institutions and assemblies in the WA overlay and UC zones.

Under OAR 660-023-0040(5)(c), where a where a local government decides to allow a conflicting use fully, it must explain why “measures to protect the resource to some extent should not be provided.” The county considered imposing limitations on religious institutions and assemblies such as hours of operation, square footage maximums, and restoration requirements. However, because the similarly situated secular uses in the WA overlay and UC zones were not subject to such limitations, the county concluded that that could be seen as discriminatory, which could not only lead to negative social consequences but also potentially violate the equal terms provision. Petitioner argued that that explanation was inadequate for purposes of OAR 660-023-0040(5)(c). Because both LUBA and the Court of Appeals had previously determined that the county’s WA overlay zone violated the equal terms provision for similar reasons, LUBA concluded that the county’s explanation was adequate.

Petitioner argued that the amendments violated the Establishment Clause of the United States Constitution. Under the Establishment Clause, “Congress shall make no law respecting an establishment of religion.” Under Lemon v. Kurtzman, a law violates the Establishment Clause if (1) it has a religious purpose, (2) its primary effect either advances or inhibits religion, or (3) it fosters excessive government entanglement with religion. Petitioner did not argue that the amendments were adopted for a religious purpose and, because they were adopted to comply with RLUIPA, LUBA concluded that they were not. Petitioner also did not argue that the amendments fostered excessive government entanglement with religion. Instead, petitioner argued that the amendments violated the Establishment Clause because they allowed religious institutions and assemblies in the WA overlay zone while continuing to prohibit equally noisy and disruptive secular uses such as playgrounds. Under Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, a law does not impermissibly advance religion merely because it allows religion to advance itself. Because the county was not advancing religion itself by allowing religious institutions and assemblies in the WA overlay zone, LUBA concluded that the amendments did not violate the Establishment Clause. The county’s decision was therefore AFFIRMED.