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Fla S Ct: Fla Religious Freedom Restoration Act broadens protection - many zoning restrictions probably improper

In this opinion handed down on Thursday, the Florida Supreme Court analyzed the requirements of the Florida Restoration of Religious Freedom Act to hold that facially neutral regulations that either prohibit an activity required by a religious belief or require an action prohibited by religious belief are subject to a "compelling state interest" and "least restrictive means" test.

In the process, it clearly indicated its belief that zoning regulations that require special exceptions for the location of churches - and by implication, regulations against holding religious services in homes or other places - are subject to strict scrutiny under the Act. Wake up folks - this Act provides for positive suit against government actions AND attorney's fees against the government for successful litigants.

As is so often the case, this relatively landmark decision came up under rather ridiculous facts: a challenge to a Boca Raton ordinance governing the municipal cemetery that prohibited vertical headstones and other markers. Yes, a group of people claimed that a restriction on placing crosses upright rather than horizontal was a substantial burden on their exercise.

The Court ultimately rejected that claim, but it first both interpreted the requirements of the Act and established the test for a "substantial burden."

With regard to the bringing and trying of claims:

As noted above, the Act specifically mandates that the strict-scrutiny standard be applied irrespective of whether or not the burden results from a rule of general applicability. See § 761.03, Fla. Stat. (2003). Under the test articulated by the FRFRA, the plaintiff bears the initial burden of showing that a regulation constitutes a substantial burden on his or her free exercise of religion. See § 761.03(1), Fla. Stat. (2003). Once that threshold determination has been made, the government bears the burden of establishing that the regulation furthers a compelling governmental interest and is the least restrictive means of furthering that interest. See § 761.03(1)(a)-(b), Fla. Stat. (2003). Thus, the plaintiffs must demonstrate that the government has placed a substantial burden on a practice motivated by a sincere religious belief. See, e.g., Weir v. Nix, 890 F. Supp. 769, 783 (S.D. Iowa 1995). The Southern District specifically noted: "It is undisputed that the plaintiffs placed vertical decorations on their [c]cemetary plots in observance of sincerely held religious beliefs." Warner, 64 F. Supp. 2d at 1277.10 show that collection and payment of taxes violated church?s sincerely held beliefs); Bob Jones Univ. v. United States, 461 U.S. 574, 603 n.8 (1983) (noting evidentiary record which showed that the challenged practices of the university were based on a genuine belief that the Bible forbids interracial dating and marriage); Wisconsin v. Yoder, 406 U.S. 205, 215-19 (1972) (examining the record, testimony of expert witnesses, and religious texts to determine whether compulsory education violated the Amish right to free exercise of religion). Since appellants have demonstrated that their religious beliefs are sincere, the next issue is whether the government's regulation constitutes a substantial burden on the free exercise of religion.
The Court had (first, in this case) articulated the test for a "substantial burden":

Thus, we hold that a substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires. See Mack, 80 F. 3d at 1178. We acknowledge that our adoption of this definition may occasionally place courts in the position of having to determine whether a particular religious practice is obligatory or forbidden. However, we conclude that this inquiry is preferable to one that requires the Court to question the centrality of a particular religious belief or negates the legislative requirement that only conduct that is substantially burdened be protected by strict scrutiny.

The Court then analyzed the regulation and found that while the laying of religious symbols was protected religious belief, restrictions on the orientation did not substantially burden it and that the specific regulation was not subject to strict scrutiny, or the compelling state interest/least restrictive means test.

But, in a critical footnote, the Court indicated that regulations that restrict religiously motivated activities - including the location of churches - must be subject at least to analysis under the tests laid out in this case. The critical language is in this footnote:


11. Both the Third and Fourth District Courts of Appeal have considered the FRFRA. In First Baptist Church v. Miami-Dade County, 768 So. 2d 1114 (Fla. 3d DCA 2000), the Third District considered whether the county's decision to deny the church's request for a zoning special exception violated the FRFRA. The Third District found that the county did not have the burden of showing it had a compelling interest in denying the church's zoning request. The Third District, relying on United States Supreme Court precedent, reasoned that neutral laws of general application were not required to be justified by a compelling governmental interest. Since the regulation at issue regulated only conduct and was entirely secular in purpose and effect, the Third District held that the zoning board' decision did not violate the FRFRA. Id. at 1118.
Similarly, in Abbott v. City of Fort Lauderdale, 783 So. 2d 1213 (Fla. 4th DCA 2001), the petitioner argued that the city's denial of a permit to conduct a feeding program for the homeless violated his rights under the FRFRA. However, the Fourth District accepted the trial court's findings that the city's rule infringed upon the petitioner's religious rights; thus, it required the city to show that it had a compelling interest in selecting an alternate site. Accordingly, the Fourth District remanded the case for the trial court to determine whether the alternate site selected by the city represented the least intrusive means of furthering the government's compelling interest. Id. at 1215.
We note that the Third District?s analysis in First Baptist is inconsistent with our opinion in the instant case. Accordingly, we disapprove the opinion in First Baptist.

The Court is holding that the "neutrality" of the zoning law doesn't get it past the FRFRA - and by implication that such a restriction might substantially burden religious exercise.

Here are some predictions:

1) Any restrictions on meeting and conducting services in the home of a religious adherent will be struck. This is particularly important to orthodox Jews, who have been the subject of a number of actions to prevent exactly this kind of service. I'm betting that any home legitimately used as a residence will also be permitted to be used for services without being zoned as a church.

2) Zoning ordinances that prohibit churches in residential districts and special exception ordinances that are used to limit or prohibit the location of churches in residential areas are going to be struck as substantial burdens. Special permit/use regulations that require structures used primarily for churches or church purposes to meet "standard" types of zoning requirements (height, setbacks, parking) will be held not to substantially burden exercise.

3) We're going to see inconclusive and contradictory results in two major areas: the use of church buildings for other religiously related purposes (schools, etc.), and limitations on the height and use of minerets at mosques. I would guess that most restrictions on non-ceremonial use will be found not to substantially burden religious exercise, but that some folks are going to win on the ability to have schools in church buildings. I also guess that mosques will win the right to use humans in minarets to call the faithful to prayer, but not recordings or amplifiers. I also bet we're going to see wildly erratic decisions on the question of whether on-street parking restrictions can be used to keep people from parking at other people's homes to attend services.

4) Finally, I predict that most local governments will flaunt this ruling and won't review their zoning codes and modify them appropriately. They will continue to apply zoning restrictions that are understood to be substantial burdens and will make religious adherents fight over the application of this decision. Given the way that local governments have completely ignored the clear prohibition against discriminatory regulations against modular and manufactured housing, we can expect no greater respect for the rule of law in this case.

Here's looking for new and fun litigation!

Robert


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