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Zoning and the right to practice religion

SW MI Planner

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A local township is suing an Amish property owner for erecting a second house on their property. The Amish are saying that because they are Amish, they can erect a second house on their property, even though it is prohibited by zoning to everyone else.

In the county next to us, a judge ruled that Amish do not have to pull building permits.

At the risk of sounding ignorant, this sounds like a clever way to get around building and zoning code. How does a second home prevent them from practicing their religion? I could see if it was a church or something. It will be interesting to see how this all plays out.

Any thoughts, experience with this?
 

SW MI Planner

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NHPlanner said:
Welcome to the post RLUIPA world......
I'm sure that's what they will be using to make their case, but sorry, I don't buy that reasoning (not directed at you NHP). RLUIPA is meant to prevent a local govt from infringing on the rights to practice religion. In my opinion, placement of their home does not prevent them from exercising their religion, or even place any religious burden on them.

What about if your 'religion' tells you to have a meth lab out of your garage. In addition to it being illegal, you don't have zoning approval for a home business. I'm being kind of tongue in cheek about it, but my question is where do you draw the line?

I don't know, I'm interested to see where this goes.
 

NHPlanner

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SW MI Planner said:
I'm sure that's what they will be using to make their case, but sorry, I don't buy that reasoning (not directed at you NHP). RLUIPA is meant to prevent a local govt from infringing on the rights to practice religion. In my opinion, placement of their home does not prevent them from exercising their religion, or even place any religious burden on them.

What about if your 'religion' tells you to have a meth lab out of your garage. In addition to it being illegal, you don't have zoning approval for a home business. I'm being kind of tongue in cheek about it, but my question is where do you draw the line?

I don't know, I'm interested to see where this goes.
I agree with you completely....and think RLUIPA is unconstitutional, IMHO....but religious organizations all over are testing the limits of it.....
 

michaelskis

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Can a Rastafarian toke up in public in the US... Nope

Even religious institutions need to follow basic zoning requirements. The church that I went to when I lived in PA wanted to build a school on their property, and the township said no it exceeded the maximum lot coverage for the farmland preservation requirements.

I am no expert in religions, but I think that having only one single-family residential structure per lot does not inhibit their ability to practice their religion. If it is a large piece of land, then they might be able to split it into conforming sections, then everyone wins.
 

Cardinal

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There was an important legal case decided earlier this year which is one of several beginning to reign in the interpretation of RLUIPA. I can't recall the name, but it involves a churches challenge to a denial of its request to construct a new church in the neighborhood, based on certain findings including the inadequacy of the public infrastructure to meet the demands the church would create. The court upheld the city, finding that the denial did not place unreasonable resitrictions on the religious use, and noting that the city did identify other, more suitable locations. I sense this is the direction we are headed.

In your case, I do not see where a house is a religious use or where the requirement to obtain approvals is an unreasonable restriction of religious practice.
 

otterpop

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As described, the Amish wouldn't have a leg to stand on regarding RLUIPA. Communities are permitted to apply their zoning and subdivision regulations to religious properties so long as it doesn't infringe on their right to practice their religion. Communities can make churches have adequate parking or meet maximum building height restrictions. Two dwellings on one parcel is not religious practice.
 

jordanb

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Yeahbut wouldn't it be pretty insane to require an Amish church to have parking? ^o)
 

michaelskis

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I spoke with a lawyer friend of mine last night and she mentioned that the Amish people would have a difficult time proving that not having multiple residential dwellings on a single lot is inhibiting their ability to practice their religion.

She (who has no real experience with land use law) asked me if they could do a land spilt…
 

donk

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this is an interesting one, from what I've been able to learn about the Amish, they tend to hold communal religious services in their homes rather than a fixed church, so maybe having the second dwelling is really a religious use?

If it is in a rural area, does your By-law not permit secondary/accessory dwellings for farm help?

On parking, it is an issue, if you look really carefully at some of the pictures I posted for the barn raising you can see 50 or so buggies in the field
 

Cardinal

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donk said:
this is an interesting one, from what I've been able to learn about the Amish, they tend to hold communal religious services in their homes rather than a fixed church, so maybe having the second dwelling is really a religious use?
RLUIPA does not guarantee the right to any religious practice in any location without limitation. It is a guarantee against unreasonable regulation. If the religion can be practiced in any house in any location, then how is it unreasonable to prohiit construction of a new house that does not meet the zoning/subdivision code? The house is not necessary for the practice of religion and is not entitled to any protection under RLUIPA.
 
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Religious Land Use

An attorney representing our community submitted the following information regarding Religous Land Use and Institutionalized Persons Act and Illinois Religious Freedom Restoration Act.

The Illinois Supreme Court decided in favor of Western Springs, Illinois. The Illinois Supreme Court denied the First United Methodist Church's petition for appeal on October 6, 2004. This case involved the Church's desire to have a third party (BEDS) operate an overnight homeless shelter in its facility. The Church has refused to comply with the Village's zoning, building and fire prevention codes relative to the operation of the homeless shelter, which lead to litigation and cross claims between the parties. The Church asserted that the Village's code enforcement efforts violated IRFRA, RLUIPA, and its First Amendment rights (free speech and free exercise). The trial ruled in the Village's favor (granting its summary judgment motion), the First District Illinois Appellate Court affirmed the trial court's decision, and now the Illinois Supreme Court has refused to review the Appellate Court's decision.

Thomas Hoff
Zoning Coordinator
City of Park Ridge, Illinois
 

SW MI Planner

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Update from todays paper:


Dispute between Amish, Algansee Township continues

By Don reid-Staff Writer
COLDWATER -- The culture clash between Algansee Township's zoning laws and its Amish community continues, with three pending lawsuits to stop construction of second homes on Amish farms in the township.

On Friday, Branch County Circuit Court Judge Michael Cherry continued an emergency order to stop all work on a second house on property of John Schwartz on Brown Road.

Judge Cherry urged the parties to try to find a resolution to the social issues before a final hearing on a township request for a court order to tear down the house.

John Schwartz asked Cherry, "what am I going to do with my son?"

He wanted to house his son and his family on the land.

Reuben Girod, a bishop of the Old Order Amish of the Mennonite Church, testified, "Things are getting tight for us. What will we do if young couples can't build homes? We need more room to take care of our old people. We don't send them off."

Schwartz sought permission to build a second home on the property and township officials discussed what variances or permits could apply, under the zoning ordinance adopted in November of 2003. There appeared to be none available, so Schwartz did not apply for a variance or permit. He consulted with his bishop and elders.

"The township was trying to drive us past our conscience," Girod said. "We told him to go on. There was nothing else left."

Cherry warned the more than a dozen Amish who attended the hearing, "What the Bishops decide is not binding on the courts" or the township.

Township attorney, Chuck Lillis, said the zoning ordinance -- adopted after much work and controversy -- allows only one home per 40 acres, a quarter section, in land zoned agriculture. Also a second home cannot be granted a special variance if the land has been cultivated in the past 10 years. He also said the ordinance is designed to accomplish the goal of protecting farmland and open space.

He said the township enacted the ordinance "for the good of all citizens as a whole." He admitted it might not be good for part of society.

"It follows the Michigan legislative acts to encourage protection of farmlands," Lillis said.

Schwartz said they could not afford to buy 40 acres for another home for his son.

"If you drive them away our church would die out," he said.

The attorney told the judge the case was hard and Algansee Township does not take the issues lightly.

"We have great respect for Amish culture, understand they are people of devote faith, people of high moral fiber, people who care for each other and have a close knit community," he said, adding that there are other cultures and other faiths who do the same and abide by the law.

Cherry said if Schwartz will file for a special use permit or variance by Nov. 1, the township must act on the request. Still it does not appear Schwartz can qualify for a variance permit.

Cherry suggested a review of the ordinance and circumstances.

"The goal is to find a solution to accommodate the duly authorized ordinance together with the needs of the Amish neighbors," Judge Cherry said. "So children can be close to them on the land so the elderly can be taken care of."

In August, the township filed suit for an injunction against Noah Girod to stop use of a building moved to his property as a residence or for a court order to allow the township to remove it and tax the costs against the property.

In March Girod asked for a permit to allow a second residence on his Hamman Road land, as he wanted it for his daughter and other family members. He moved it onto the property when he learned he did not qualify for a permit. That case is pending.

Also, in September, the township filed to remove a second house under construction on South Ray Quincy Road. Samuel and Catherine Girod began construction of a second home on 40 acres behind a hedgerow. They allowed a township employee to place a stop work order on the home and then ordered him off the property. The township believes work continues on the home.

Rather than seek and injunction, the township just sued for removal.

Cherry did suggest the parties look at how Colon Township handled a similar dispute. After the Amish there began voting in elections, the township changed its minimum lot size in agriculture to one acre. Lillis said that was not acceptable in Algansee.

Judge Cherry did make some accommodations for the Amish. He allowed them to promise to tell the truth rather than take an oath. He also locked cameras -- used to record all courtroom proceedings -- so it would not show them as they spoke.

Schwartz objected it was against their religion to have pictures made of Amish.
 
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