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HomeMy WebLinkAboutAppeal LetterFebruary 6, 2008 Hand Delivery Lucia A, Dougherty (305) 579-0503 direct Fax: (305) 961-5603 E-Mail: do'ug erty©gtlhvd,com Ms, Teresita Fernandez Clerk, Hearing Boards City of Miami 444 S,W, 2nd Avenue Miami, FL 33130 Re: Special Exception for Property located at approximately 3570 Main Highway, Miami, FL. Dear Teresita: On behalf of the owner, William Hubbel, this letter constitutes an appeal in accordance with Article 20 and Section 1620 of the Zoning Ordinance of the decision of the Zoning Board at its hearing held on January 28, 2008, with regards to the above referenced Special Exception request. The Special Exception request is to permit a place of worship in an R-1 Single Family Residential District at 3570 Main Highway, Coconut Grove, Florida ("Property"). The Property is unique in that it is located on Main Highway with a circular private road surrounding the property and providing for access to abutting neighbors. The Property is located on a main road within the City of Miami which offers public parking in the immediate surrounding neighborhood, nearby commercial district and nine (9) spaces onsite. Furthermore, pursuant to Zoning Ordinance Sections 1301 and 1305, the project complies with the necessary criteria for the approval of a Special Exception request as follows: A. The project has proffered special limitations, conditions, and safeguards which should be applied as reasonably necessary to promote the general purposes of the zoning ordinance and, protects adjoining properties and the neighborhood from avoiding any potentially adverse effects. B. The use and occupancy criteria for the special permit is that which is permitted and recommended in the R-1 Residential District, in addition to that which is protected by the First Amendment of the United States Constitution as further elaborated by Eric Rassbach, Esq. of the Becket Fund attached hereto and incorporated herein as Exhibit "A." Evidence was presented at the Zonlrg Board hearing, as well as in the application for the Special Exception which demonstrates compliance with above criteria. The Zoning Board erred in denyinn the Special Exception by failing to provide any substantive competent evidence against the approval of the Special Exception application, We respectfully request to appeal the decision of the Zoning Board. Please contact me when the item is scheduled to be heard at 305-579-0603. LAD/ive Enclosure Very truly yours, Lucia A. Dougherty TvRA 179.931,SOOv1 044444.033800 BOARD OF ADVISORS Hon. WU[lam P_ Seirr Former Attorney General of the United States Prof. Stephen L. Carter Yaie Law School His Eminence Francis Cardinal George, Archbishop of Chicago Prof, Mary Ann Glendon Harvard Law School Hon. Orrin G. Hatch United States Senator (R-Utah) Hon. Henry J. Hyde United States Representative (R-I ltinois) Prof, Douglas Kmiec Pepperdine Law School Prof. Douglas Laycock University of Texas Law School Rev. Richard John Neuhaus President, Institute of Religion and Public Life Eunice Kennedy Shriver Founder and Honorary Chairman, Special Olympics International Sargent Shriver Chairman of the Board, Special Olympics International Dr. Ronald B. Sobel Senior Rabbi, Congregation Emanu-El of the City of New York John M. Templeton, Jr., M.D. Bryn Mawr, Pennsylvania 1350 Connecticut Avenue, NW Suite 605 Washington, DC 20036-1735 Phone: 202-955-0095 Fax: 202-955-0090 vww.becke und.orq BECKET FUND .. October 25, 2007 City of Miami Zoning Board Miami Riverside Center (MRC) 444 Southwest 2nd Avenue, 7th Floor Miami, Florida 33130 Fax: (305) 416-2035 Re: Zab Sang Institute's Application for a Conditional Use Permit (No. 05-00976x) We have reviewed the public record concerning the application of the Zab Sang Institute, a Tibetan Buddhist assembly, for a conditional use permit to use its property on Main Highway ("the Property") for religious assembly and worship. Although we do not represent the Zab Sang Institute or any of its members, we write to provide you with our opinion as to how a federal civil rights statute, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc, et seq., ("RLUIPA"), may be implicated should the Zoning Board decide to deny that application. By way of introduction, the Becket Fund for Religious Liberty is an international, interfaith, public interest law fill!' dedicated to protecting the free expression of all religious traditions. The Becket Fund litigates in support of these principles in state and federal courts throughout the United States and abroad, both as primary counsel and as amicus curiae. Our clients come from all different faith traditions, including Buddhists, Christians, Jews, Hindus, Muslims, Native Americans, Sikhs and Zoroastrians. In particular, we have been intensely involved in litigation under RLUIPA (an.d corresponding constitutional protections) involving discrimination or the burdening of religious exercise by local land use regulations/officials. We successfully represented the plaintiffs in the first case resolved under RLUIPA, Haven Shores Community Church v. City of Grand Haven, No. 1:00-CV-175 (W.D. Mich. 2000). Since then, we have brought suit under RLUIPA in Florida courts and across the country, including in Alabama, California, Colorado, Georgia, Hawaii, Illinois, Maryland, Michigan, New Hampshire, New Jersey, New York, Pennsylvania, and Texas. i Zoning .B 3ar d . 2007 Page 2 The civil rights principles embodied in RLUIPA enjoy broad, bipartisan support. T.he legislation sailed through both houses of an otherwise sharply divided Congress, virtually unopposed, and was signed into law by President Clinton on September 22, 2000. RLUIPA's remarkable success in the legislative process can be attributed to strong support from an exceptionally diverse coalition of religious and c.ivrilrights groups, ranging from the ACLU and People for the American Way to the National Association of Evangelicals and the Union of Orthodox Jewish Congregations of America. Any denial of the dab Sang institute's application to use the Property for religious as$erribly raises serious potential liability issues under both R.LUIPA and the United States Constitution exposing the City to the possibility of liability in the millions of dollars and required sensitivity training for City officials.1 The requirements of RLUIPA are, for the most part, parallel to the protections provided by the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Thus, actions that violate RLUIPA are likely to violate the Constitution as well. RLUIPA has three main provisions: a "Substantial Burden" provision, an "Equal Terms" provision, and a "Nondiscrimination" provision. The Substantial Burden provision establishes that a local zoning regulation cannot substantially burden religious exercise unless that burden is the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000cc(a)(1).2 The Equal Terms provision requires, among other things, that a zoning authority —at a minimum —treat religious institutions on equal terms with non -religious institutions. 42 U.S.C. § 2000cc(b)(1). And the Nondiscrimination provision forbids discrimination "on the basis of religion or religious denomination." 42 U. S.C. § 2000cc(b)(2). It is our opinion that each of these provisions would be seriously implicated by any denial of the Zab Sang Institute's application to use its Property for religious assembly in accordance with the Buddhist faith. Turning to RLUIPA's provisions in more detail, RLUIPA' Substantial Burden provision provides in relevant part as follows: No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the 1 In Hollywood Community Synagogue v. City of Hollywood, No. 0:04-cv-61212, Dkt. 381 (S.D. Fla. July 5, 2006), the City of Hollywood, Florida, was required to pay S2 million in damages and its officials were required to undergo sensitivity training due to a RLUIPA Equal Terms violation. The Becket Fund provided the required sensitivity training to city officials with Department of Justice approval. 2 "The term `religious exercise' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 42 U.S.C. § 2000cc-5(7) (emphasis added). Moreover, "Ntlhe use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose." Id. City of Miami Zonis. October 25, 2007 Page government demonstrates that imposition of the burden on that person, assembly, or institution -- (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. This provision reflects the Supreme Court's conclusion, originally outlined in Sherbert v. Verner, 374 U.S. 398 (1963), and later reaffirmed in Employment Div. v. Smith, 494 U.S. 872 (1990), and Church of the Lukumi Babe ht Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), that government- imposed burdens on religious exercise must be subjected to the strictest form of judicial scrutiny whenthey are imposed by systems of "individualized assessments." In other words, pursuant to both the First Amendment and RLUIPA, strict scrutiny applies where burdens are applied on a discretionary, case -by -case basis, as is so often true in zoning permit decisions such as the one before the Board. See, e.g., Guru NanakSikh Soc }v v. County of Sutter, 456 F.3d 978, 993 (applying strict scrutiny to a CUP denial and holding the standard is the same under RLUIPA and the First Amendment); Sts. Constantine and Helen Greek Orthodox Church v. City of New Berlin, 396 F.3d 895, 897 (7`h Cir. 2005) (noting that RLUIPA "codifies Sherbert" and imposing strict scrutiny). The denial of the Zab Sang Institute's application for a place of worship for its Tibetan Buddhist congregation substantially burdens that congregation's ability to engage in a fundamental religious practice. Meditation, as a form of worship, is a principal tenet of Tibetan Buddhism. Denying these Buddhist practitioners the ability to use their property to conduct core religious practices of meditation and worship is a substantial burden on religious exercise. See Cottonwood Christian Center v. City of Cypress, 218 F. Supp. 2d 1203, 1226 (C.D. Cal. 2002) (finding substantial burden because "[p]reventing a church from building a worship site fundamentally inhibits its ability to practice its religion"). The same is true of religious education. The ability to communicate spiritual lessons and religious practices is a core concern of many faiths, including Tibetan Buddhism. Substantial burdens often exist when religious organizations cannot engage in religious education. See, e.g., Westchester Day School v. Village of Mamaroneck, --- F.3d ---, No. 06-1464 (3d Cir. Oct. 17, 2007) (denial of peiniit to expand Jewish day school was a substantial burden on religious exercise); Living Water Church of God v. Charter Twp. of Meridian, 384 F.Supp.2d 1123 (W.D. Mich. 2005) (denial of CUP to build religious school imposed substantial burden); Castle Hills First Baptist Church v. City of Castle Hills, 2004 WL 546792 (W.D. Tex. 2004) (refusal to accept application to use fourth floor of building for religious education was a substantial burden), We are not aware of any interests that the City might have sufficient to impose such a burden on Zab Sang's Buddhist congregation. RLUIPA and the First Amendment provide that the state may only substantially burden religious exercise when the imposition of such burden is the least restrictive means of furthering a compelling government interest. Courts have repeatedly held that "in this highly sensitive constitutional area, `only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.' Sherbert v. Verner, 374 U.S. 398, 406 (1963); Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."). City of Miami Zoning Board October 25, "007 Page 4 From our review of the record, we understand that the primary COMMIS raised in opposition. to the application are traffic and parking, However, courts have not repeatedly epea meet dlye ncludd that traffic offc a and parking, though understandably legitimate concerns, do "compelling" government interest. See, e.g.. Westchester Day School v. Village of Mamaroneck, affirmed, Westchester Day School v. Village of F. Supp. 2d 230, 242 {S.D.N.Y" 2003), ff Mamaroneck: --- F,3d ---, No. 06-1464 (3d Cir. Oct. 17, 2007) ("traffic concerns have never been. deemed compelling government interests."3) (emphasis added). The same is true for concerns over aes neighborhood character, consistency of land uses, and its tliMoreover, rry.lig ous ass mb y under any the Zab Sang institute's Buddhist congregants to property or . io 3 See also New Hope Baptist Church v. City of Hackensack, No. L-2873-03, at 35-36 (Super. Ct., Bergen Co. N.J. Oct. 22, 2003) (asserted interests concerning traffic and parking - as a basis for denying church permit - are not compelling); Whitton v. City of Gladstone, 54 F.3d 1400, 1408 (8th Cir, 1995) ("[A] municipality's asserted interests in traffic safety and aesthetics, while sid., 33 F. S fca t, have never been held to be compelling."); Curry v. Prince George 's County, d 447, 452 (D. Md. 1999) ("Again, while recognizing aesthetics and traffic safety to be °significant government interests,' none of these courts found those interests tere t s s Clinton, ent72 ly coSmpelling o1pass the e applicable strict scrutiny test."); McCormack v. Township of (D.N.J.1994) ("[N]o court has ever held that [aesthetics and traffic Villagef of t Schaumburg compelling justification for acontent-based restriction on political speech");Jeep safety and visual Eagle Sales Corp., 676 N.E.2d 200, 204 (Ill. App. 1996) (finding that "[tjraffle satY aesthetics are not the sort of compelling state interest required t justify 2d 246, content-based249 (9 Cir. 1988) restriction on expression"); National Advertising Co. v. City of gLoftus ("interests in traffic safety and aesthetics, while `substantial,' fell shy o f`c mpe ling aesthetics or. 354, 361 W.D. Pa. 1991) Township of Lawrence Park, 764 F. Supp. { residential quietude is sufficiently compelling to ever justify a content -based restriction...on freedom of expression"). (holding Dimmitt v. Cityo Clearwater, 985 F.2d 1565,1569-70 (11th Cir. 1993) ( g 4 See, e.g., .f that "interest[] in aesthetics...is not a compelling government United19) (� ty'� interest kers of Florida Housing Project, Inc. v. City of Delray Beach,493 � 2d 799 {Sth CWater, 384 F. Supp. 2d at 1134-35 in consistency with master plan not compelling); Living ("density" is a "valid interest" but not a compelling XXL o interest o justiHeightsfy ,d341 eniF Supp.2d 765, of a CUP for a religious school); of Ohio, Inc. Commerce v. City f Broadview 789-90 (N.D. Ohio 2004) (rejecting "aesthetics" and protection of"neighborhood character" at l 15a 326 F.Supp.2d 4 compelling of 'd 56 3d 978 (9th Cir. 2006) (defendant's reluctanst); Guru Nanak Sikh Soe 'y v. County of ce to assert incompatibility (E.D. Cal. 2003), aff'd 456 of land use as a compelling interest "is understandable, for [RL gP, strict scrutiny FSup 1d2r d.. 1239 difficult one to meet"); Stuart Circle Parish v. Board of Zoning Appeals, (E.D. Va. 1996) (compatibility of land uses" would not be a compelling government interest sufficient to support racial classifications, so it cannotsupport "a substantial burden ard non theharms, free ee exercise of religion."). Seer Cottonwood, 218 F. Supp such 02 as the elimination of blight, are not compellingAlthou hn�safetyeSand `aesthetics' s Tare substantial WI.: 1677687, at * 1$ {E.D. Mich. 20Q2) g government interests, they are not compelling..."). City of Miami Zonin , Board October 25_ 2007 Page 5 circumstances will certainly not be considered the "least restrictive?mans" of achieving a pro.ffered compelling .interest. Accordingly, any denial of the Zab Sang Institute's application to use the Property for religious worship, meditation and other activities raises serious issues under RLUIPA's Substantial Burdens provision. Second, RLUIPA provides that, "No govern' at shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." 42 U.S,C. § 2000cc(b)(1) (emphasis added). Like the Substantial Burdens provision, this Equal Terms provision codifies existing First Amendment precedent. See Midrash Sephardi. v. Town ofSurf_3ide, 366 F.3d 1214 (11th Cir. 2004); Freedom Baptist Church v, Twp. Of Middletown, 204 F. Supp. 2d 857, 869 (E.D. Pa. 2002) (upholding RLUIPA because it codifies existing precedent). "The purpose of this section is to forbid governments from prohibiting religious assembly uses while allowing equivalent, and often more intensive, non -religious assembly uses_" Ventura County Christian High School v. City of San Buenaventura, 233 F. Supp. 2d 1241, 1246 (C.D. Cal. 2002) (quotations omitted).5 The Eleventh Circuit (the federal Court of Appeals for Florida) has taken a particularly hard line against cities that prohibit religious assemblies in zones where secular assemblies are allowed. See Midrash Sephardi v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004) (Florida town violated RLUIPA by prohibiting synagogues where private clubs were permitted); Konikov v. Orange County, 410 F.3d 1317 (11th Cir. 2005) (Florida county violated RLUIPA by prohibiting religious assembly in private home while permitting secular assemblies). The City should be wary of denying Zab Sang's application when it permits secular assemblies nearby. The Property is directly across the street from Ransom Everglades School, a non -religious school serving more than 800 students. In fact, three secular schools, both public and private, are located within a mile of Zab Sang's location. Permitting nonreligious assemblies, such as schools, but forbidding the Zab Sang Institute's comparable religious assembly use would raise serious concerns under RLUIPA's Equal Terms provision and the Free Exercise Clause. See, e.g., Midrash Sephardi, 366 F.3d at 1231. Finally, RLUIPA also provides that "No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination." 42 U.S.C. § 2000cc(b)(2). Zab Sang's property is surrounded by other permitted religious uses, including a Catholic school, a Christian Science Reading Room, a Chabad, and several Baptist churches. There are at least nine religious assemblies and two religious schools within a mile of the Property, many of these in residential zones. To deny this Buddhist congregation's use of its property while permitting various other religious denominations to utilize nearby propel ty would legitimately give rise to serious concerns under RLUIPA's anti- discrimination provision. 5 See also Roman P. Storzer & Anthony R. Picarello, Jr., The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices, 9 GEO. MASON. L. REV. 929, 976-1000 (2001). City of Miami Zoning Board October 25, 2007 Page 6 We recognize, of course; that RLUIPA. is a relatively recent civil rights statute (enacted September 22. 2000), and thus the Board may not have been fully aware of the Acts scope an.d application. We contact you now so that the .Board may consider the Zab Sang Institutes application and otherwise proceed with the benefit of more complete knowledge of how the obligations of RLUIPA and the Constitution may apply in this situation. Should you so desire; we can. also provide you with more detailed information about RLUIPA and its requirements upon. request. We also invite you to visit our website dedicated to the Act, www.rluipa.com. We welcome any inquiries. Sincerely, The Becket Fund for Religious Liberty Eric Rassbach, Esq. National Litigation Director i H. Windham, Esq. egal Counsel