Westgate Tabernacle v. Palm Beach County, 4D07-3792.

• Decision Date: 20 May 2009
• Docket Number: No. 4D07-3792.,4D07-3792.
• Citation: 14 So.3d 1027
• Parties: WESTGATE TABERNACLE, INC., Reverend Avis Hill, Reverend Sherry McGee-Hill, and Maria Todd, Appellant, v. PALM BEACH COUNTY, Appellee.
• Court: Florida District Court of Appeals

14 So.3d 1027

WESTGATE TABERNACLE, INC., Reverend Avis Hill, Reverend Sherry McGee-Hill, and Maria Todd, Appellant, v. PALM BEACH COUNTY, Appellee.

No. 4D07-3792.

District Court of Appeal of Florida, Fourth District.

May 20, 2009.

Rehearing Denied August 13, 2009.

Barry M. Silver, Boca Raton, for appellants.

Robert P. Banks and Leonard Berger, Assistant County Attorneys of Palm Beach County Attorney's Office, West Palm Beach, for appellee.

WARNER, J.

Westgate Tabernacle appeals a final judgment entered after a jury verdict finding that the imposition of Palm Beach County's Unified Land Development Code ("ULDC" or "code") requirements on Westgate's activities as a homeless shelter did not violate the Florida Religious Freedom Restoration Act ("FRFRA") or the federal Religious Land Use and Institutionalized Persons Act ("RLUIPA"). Because the code requirements did not constitute a substantial burden on its religious beliefs, we affirm the final judgment.

Westgate Tabernacle, Inc. is a not-for-profit corporation which operates a church located in West Palm Beach. The church and its pastors, the Reverends Avis Hill and Sherry McGee-Hill, opened the church property as a shelter for the homeless in Palm Beach County as a part of its Christian mission.

Westgate's church is situated in a Multi-Family Residential High Density (RH) Zoning District under the ULDC. The ULDC constitutes the County's official zoning code and has been approved by the Board of County Commissioners. The code lists all permitted uses, special uses, and conditional uses (class A and B) within a given district. A permitted use is by right and requires no prior approval. ULDC § 6.4.C.1 (1995). Class B conditional uses are permitted "if they are approved by the Zoning Commission in accordance with the procedures and standards of Sec. 5.4.F." ULDC § 6.4.C.4. Class A conditional uses require approval "by the Board of County Commissioners in accordance with the procedures and standards of Sec. 5.4.E." ULDC § 6.4.C.5. The ULDC includes a detailed procedure involved when applying for a conditional use permit ("CUP"). See ULDC § 5.4.

The code uses the term "congregate living facility" and not "homeless shelter" to regulate group living facilities. Congregate living facilities are permitted in the RH zoning district. ULDC § 6.2.D.8. The code identifies three types of facilities: Type 1 can house up to six people and is a permitted use in the RH district. ULDC §§ 6.4.D.24.b.(1), 6.2.D.8. Type 2 can house up to fourteen and is a class B conditional use. ULDC §§ 6.4.D.24.b.(2), 6.2.D.8. Type 3 determines the number of residents based on land density and requires Board approval as a class A conditional use. ULDC §§ 6.4.D.24.b.(3), 6.2.D.8.

"Prohibited uses" are those not listed in the use regulation schedule "as permitted by right, as a Conditional use, or a Special use," and "are not allowed in such district unless otherwise expressly permitted under this Code." ULDC § 6.4.C.6. In other words, any use not expressly listed under the district's definition or in the use regulation schedule is prohibited.

Because Westgate was operating a shelter for more than six people without a CUP, the County issued a May 4, 1998, notice of violation entitled, "Operating a Homeless Shelter is Prohibited in this Zoning District." The notice gave Westgate two months to comply or attend a hearing before the Code Enforcement Board for the imposition of fines.

Westgate failed to correct the violations, and the Board conducted a hearing, which Reverend Hill and Westgate's attorney attended. At the hearing Westgate's counsel conceded that the shelter currently housed around twenty people, admitting that the use was not legal in the district without a conditional use permit. Westgate requested time to obtain the necessary permit, and the Board agreed to give Westgate 180 days, during which time it requested that the church attempt to keep the number of residents at fourteen. The Board's written order found Westgate in violation of section 6.4.C.6 and gave Westgate until April 5, 1999, to either file an application for a Type 2 congregate living facility or to cease operations as a homeless shelter. If Westgate did not exercise one of these options within the allotted time, the County would impose a $100 fine for each day the violation continued. Westgate did not appeal the Board's order, as permitted under article 14 of the ULDC. Westgate submitted but then withdrew a permit application during the 180-day period.

A code enforcement officer inspected the property in April 1999, concluding that Westgate had not complied with the Board's order. Based upon his affidavit of non-compliance, the Board imposed a fine as set forth in its order. Westgate did not appeal the fine order. In October 1999, Westgate shut the shelter. Nevertheless, the County imposed a $22,700 fine against Westgate for its period of noncompliance. Westgate did not satisfy the debt, and the County imposed a lien on the property.

Westgate filed two multi-count complaints against the County based on a variety of state and federal constitutional doctrines claiming that the County had violated Florida's Religious Freedom Restoration Act, chapter 761, Florida Statutes, and the federal Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc, et seq. Throughout a lengthy trial, Westgate presented evidence to show that the operation of a shelter was mandated by religious beliefs. It also presented some evidence that the ULDC imposed an outright ban of homeless shelters on RH-zoned property. Much of the evidence produced explained the mission of Westgate and that its sheltering activities have substantially improved many lives. Westgate stressed that County agencies routinely sent homeless people to Westgate, as no other shelters existed in Palm Beach County.

The County presented witnesses who explained that the ULDC exists to ensure public health and safety. Homeless shelters, identified as congregate living facilities, are permitted in Westgate's district upon obtaining a CUP, and Westgate was aware of this fact at the time of the 1998 violation. In fact, Westgate admitted that it was required to obtain a conditional use permit. The County also elicited testimony that the code enforcement department tried in vain, by repeatedly meeting with church officials and their lawyers, to help the church obtain a CUP.

After presentation of the case, the jury found that the application of the ULDC to the church did not substantially burden its religious activities in violation of either FRFRA or RLUIPA. It also found that the ULDC constituted the least restrictive means of furthering a compelling interest. It thus found in favor of the County, and the court entered judgment accordingly, from which this appeal is taken.

FRFRA and RLUIPA each include a provision meant to protect the free exercise of religion. Section 761.03 of the FRFRA provides:

(1) The government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, except that government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person:

(a) Is in furtherance of a compelling governmental interest; and

(b) Is the least restrictive means of furthering that compelling governmental interest.

(emphasis supplied). The parallel statute in RLUIPA provides:

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 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.

42 U.S.C. § 2000cc(a)(1) (emphasis supplied).

In light of the above similarities, federal and state courts have applied the same analysis under FRFRA and RLUIPA. See Christian Romany Church Ministries, Inc. v. Broward County, 980 So.2d 1164 (Fla. 4th DCA 2008) (relying on cases applying RLUIPA in a case involving the FRFRA); Konikov v. Orange County, 302 F.Supp.2d 1328, 1346 (M.D.Fla.2004), rev'd in part on other grounds, 410 F.3d 1317 (11th Cir.2005).

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