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OP-ED: Sorting out conflicts between weddings, wildlife protections

Wedding venues are generally not allowed on farmland or other resource-protected lands, but this has not stopped property owners wishing to host such events from coming up with new and creative approaches to allow such activities. A recent Land Use Board of Appeals (LUBA) decision, Central Oregon Landwatch v. Deschutes County, elevates this creativity to a whole new level and may open a door to these types of challenges elsewhere.

In 2011, a couple – the Shepherds – began using their farm dwelling and property located in land zoned for Exclusive Farm Use (EFU) and within the Metolius Winter Range (Wildlife Area – WA – Combining Zone) to conduct commercial wedding events. Such activity is not allowed on EFU lands. After the county initiated enforcement proceedings, the Shepherds obtained county approval for the wedding venue as a “private park.” On appeal, LUBA held that the Shepherds’ proposed event use did not qualify as a “private park.”

The Shepherds then created the Shepherdsfield Church and applied for approval to use their farm dwelling and property as a “church,” which is allowed as a conditional use in the county’s EFU zone but is prohibited in a WA zone. A county hearings officer granted conditional use approval for the church and interpreted the local regulations with respect to the deer winter range to allow the use. However, on appeal, LUBA held that under local regulations, churches were prohibited.

Mr. Shepherd then informed the county that unless it amended the code to remove the prohibition on churches, he would sue the county under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which provides certain protections for religious uses from land use limitations that impose a substantial burden or place religious uses on less than equal terms with non-religious uses.

Shortly thereafter, the county initiated a code amendment that would eliminate the prohibition, varying from the existing protections for deer and elk grazing land, a protected Goal 5 resource. The statewide administrative rules require that, in order to make that change, the county conduct an analysis of the Economic, Social, Environmental and Energy (ESEE) consequences of allowing, limiting or prohibiting uses that may conflict. Based on this analysis, the county must then determine whether to prohibit or allow the conflicting use at some degree.

The Board of County Commissioners decided to approve the code amendments to eliminate the prohibition of churches in the WA zone. In discussing the economic consequences of allowing churches as part of its ESEE analysis, the county concluded that “permitting churches alleviates the risk that the county will be required to expend resources defending an unnecessary RLUIPA lawsuit.”

On appeal to LUBA, the petitioner argued that the county could not use the risk of expending resources for a hypothetical RLUIPA lawsuit as a basis to allow conflicting uses, particularly when it provided no analysis that indicating that the existing regulations violated RLUIPA. The county responded that the potential financial risk was too high, even if it prevailed in a RLUIPA suit. The county went on to explain that, even without the hypothetical risk of a RLUIPA claim, the social benefits realized by encouraging the provision of churches could, on its own, justify allowing the conflicting use.

In response, LUBA initially agreed with the county that local governments have discretion to consider a broad range of impacts on a resource site that could include legal conflicts. However, LUBA also said that the threat of such lawsuit was insufficient. Rather, the county must evaluate the claim and determine that its existing Goal 5 program was “vulnerable to a legal challenge.” LUBA explained that without such analysis, it is unable to provide any meaningful review.

The petitioner argued that the county had other alternatives short of allowing churches in the WA zone to eliminate the alleged RLUIPA vulnerabilities such as prohibiting all assembly uses, as the county planning commission had concluded. LUBA disagreed that Goal 5 requires a local government to select the least impactful solution and may choose – so long as the county explains why measures to protect the Goal 5 resources “to some extent” should not be provided.

Finally, the petitioner argued that the county’s findings regarding the social benefits went beyond protecting the free exercise of religion, and instead violated the Establishment Clause of the First Amendment of the U.S. Constitution by expressing governmental preference for religious land uses over secular uses. For example, the county found that “religion provides the moral foundation of self-reliance and community awareness necessary for the success of a republican self-government.” LUBA did not decide this issue, but observed that under the county’s amendments, churches were allowed, but community centers were not.

These holdings on remand or in other contexts could lead to some interesting results. First, in order to use the threat of a lawsuit as an economic consequence, the county would have to essentially admit there was a RLUIPA problem in the first instance. This would be a risky proposition, given that RLUIPA allows a successful claimant recovery attorney fees.

Second, although RLUIPA does prioritize religious uses over secular uses, LUBA’s suggestion that there is a point where these protections may go too far could result to challenges to church authorizations on lands that are not extended to other non-religious gathering uses as well. What is the most certain is that more LUBA decisions considering the Shepherdsfield Church will be forthcoming.