Timberline Baptist Church v. Washington Co.

• Decision Date: 28 March 2007
• Docket Number: 2006058.,A133320.
• Parties: TIMBERLINE BAPTIST CHURCH, Petitioner, v. WASHINGTON COUNTY, Respondent.
• Court: Oregon Court of Appeals

154 P.3d 759

211 Or. App. 437

TIMBERLINE BAPTIST CHURCH, Petitioner, v. WASHINGTON COUNTY, Respondent.

2006058.

A133320.

Court of Appeals of Oregon.

Argued and Submitted October 23, 2006.

Decided March 28, 2007.

Ross Day, Portland, argued the cause for petitioner. With him on the brief was Oregonians in Action Legal Center.

Chris Gilmore, Assistant County Counsel, argued the cause for respondent. With him

on the brief was Office of Washington County Counsel.

Before WOLLHEIM, Presiding Judge, and BREWER, Chief Judge, and BREITHAUPT, Judge pro tempore.

BREWER, C.J.

Petitioner, Timberline Baptist Church (Timberline), sought approval from Washington County for special uses of property for a church, a day care facility, and a day school. The county granted special use and development review approvals for the church and the day care facility, but denied the requested special use approval for the proposed school. Petitioner appealed to the Land Use Board of Appeals (LUBA), which affirmed the county's decision. Petitioner now seeks judicial review of LUBA's order, asserting that LUBA erred in determining that denial of the special use approval for a weekday parochial school did not impose a "substantial burden" on petitioner's religious exercise in violation of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc to 2000cc-5 (2000) (set out, in part, below).¹ We conclude that the county's decision did not impose a substantial burden under RLUIPA and therefore affirm.

We take the relevant facts from LUBA's order and the record. Timberline Baptist Church was founded in 2001. At the relevant time, it had 267 members and held weekly services attended by 150 to 200 persons. The majority of the members resided in the City of Sherwood. The church used a converted single-family dwelling within Sherwood for its offices and for small meetings and rented space in the local high school and in other churches for Sunday and midweek services. In 2005, the church began operating a school for the congregation's children in a separate leased facility; the school had 19 students.

In 2004, the church purchased the subject property of slightly more than seven acres for $500,000. The property is located in Washington County, outside the urban growth boundary (UGB) of the City of Sherwood. It is zoned AF-5 (Agriculture-Forest, 5-acre minimum lot size), as is land to the east and south. Land to the east is developed with rural residences and agriculture, and land to the west is in farm use in an AF-20 zone. Land to the north includes a dwelling, is in farm use, and is zoned for future development.

The AF-5 zone allows schools, churches, and accessory day care centers as permitted uses, subject to "special use" standards. One of those special use standards is established in Washington County Development Code (CDC) § 430-121.3, which provides that "[s]chools outside an urban growth boundary shall be scaled to serve the rural population." That provision was in effect when the church purchased the property.

The purchased property is developed with a manufactured dwelling and outbuildings. In 2005, petitioner began the process of seeking approval to build a 20,570-square-foot, single-story building that would serve as a combined church sanctuary, day care facility, and school.² Petitioner indicated that the school would serve 50 children from kindergarten through grade 12, would have five staff members, would be housed in a large multipurpose room within the proposed church building, and would operate from Monday through Friday, from 8:00 a.m. to 4:00 p.m. County staff recommended approval of special uses of the property for a church and a day care facility. However relying on evidence that the prospective students of the proposed school would be children of church members and that church members primarily resided within the UGB, and applying a "rebuttable rule of thumb" that, in order for a school to be "scaled to serve the rural population" within the meaning of CDC § 430-121.3, at least 75 percent of its student body must be students residing in rural areas, county staff concluded that the proposed school use did not comply with that ordinance provision.³ Staff therefore recommended denial of the school use.

After a hearing, the county land use hearings officer agreed that the proposed school failed to meet the criterion in CDC § 430-121.3. The hearings officer also determined that application of that code provision to petitioner did not violate RLUIPA. The hearings officer first concluded that application of the criterion did not impose a "substantial burden" on petitioner's religious practice because petitioner had failed to demonstrate that it had made a "sufficiently diligent effort" to locate suitable property within the UGB, where the school use would be permitted outright. The hearings officer also concluded that petitioner had failed to show that operating the school on a site separate from the church imposed a substantial burden on its religious practice, because evidence in the record showed that the church and the school currently were operating in separate locations. The hearings officer issued a decision approving the application as to the church and the day care facility, subject to conditions of approval, and denying it as to the school.

Petitioner appealed to LUBA, arguing that the county's denial of special use approval for a school violated RLUIPA by reason of imposing a substantial burden on its religious practice and not furthering any compelling interest of the county. Pointing to its evidence in the record with respect to the availability of properties within the UGB at the time that it purchased the property, petitioner argued that the county therefore failed to demonstrate that petitioner did not make a "sufficiently diligent effort" to purchase such property. Petitioner also challenged the "sufficiently diligent effort" standard itself, arguing that it was sufficient that it acted reasonably in searching for suitable properties and arguing, alternatively, that the existence of alternative sites is irrelevant.

Notwithstanding that it continued its operations utilizing leased facilities, petitioner argued that the denial of its application imposed a substantial burden, asserting that the current separation of its church and school facilities was intended to be only temporary and that location of the school within the church building was important to the church's religious mission. Finally, relying on Corp. of Presiding Bishop v. City of West Linn, 338 Or. 453, 111 P.3d 1123 (2005), and cases cited therein (discussed below), petitioner argued that those issues were, in effect, "academic" because the county's denial met the test stated in that case: it forced petitioner to choose between forgoing or modifying an expression of its religious belief and obtaining a government benefit.

LUBA affirmed the county's decision. As pertinent to petitioner's arguments under RLUIPA,⁴ LUBA first determined that, on the record presented, operation of the proposed school was a religious exercise for the purpose of that statute. LUBA then considered whether application of CDC § 430-121.3 imposed a substantial burden on that exercise. LUBA concluded that evidence of the availability of alternative property that met the conditions was relevant to the question whether the inability to operate the school at the same location as the church constituted a substantial burden.

As LUBA explained, the evidence on that issue consisted, initially, of a list of 16 properties in the Sherwood area that are greater than three acres in size and were on the market in January 2006. The list was generated by a real estate broker who represented petitioner during its acquisition of the subject property in 2004. In a memorandum that accompanied the list, the broker stated that most of the identified properties were already developed with residences, and none of the remaining properties had "ease of access off a main thoroughfare."

In addition, petitioner submitted a list of 28 parcels in the Sherwood area that were sold during the last half of 2004. Petitioner also submitted a list of 29 properties that were on the market in January 2006. For both lists, the broker used a filter of four acres and a $10 million upper price limit. All but one of the parcels on the first list were located outside the UGB and apparently were rejected for that reason. The remaining listed property bore only the notation "11/05/02 Property Pending Sale." The second list, consisting of properties on the market in January 2006, included notations that rejected each of the 29 properties for various reasons, including "outside the [UGB]," "limited access to the property," "limited exposure of property," "out of price range," and "parcel size too small."

In response, the county submitted a memorandum identifying 16 parcels within the UGB that were located near the subject property that, it asserted, appeared to meet petitioner's size requirements (although the list did not give an acreage count for any of the listed properties). Petitioner responded that, for 12 of the 16 properties, "no market data" was available. According to petitioner, the remaining four properties previously had been sold or listed in the price range of $1.9 million to $2.7 million. Petitioner asserted that those four properties were not acceptable based on access, visibility, or price. Finally, the county identified two additional properties in the area that had been sold in mid-2005 for $125,000 to $160,000 per acre and that appeared to meet petitioner's "criteria."⁵

LUBA concluded that petitioner had made an inadequate showing that it could not acquire alternative property in the same area that met its requirements and, therefore, had failed to demonstrate a substantial burden. LUBA noted that petitioner had submitted lists of available properties...