Tuesday, January 9, 2007
When should courts look behind the thick veil of governmental discretion and conclude that a land use regulation was motivated by an unlawful purpose?
This and other issues are at stake in a challenge to a land use ordinance of Sinton, Texas, that was adopted soon after the Grace Christian Fellowship established a rehabilitation center for parolees near the church. The ordinance prohibits parolees from living within 1000 feet of a church (as well as the usual off-limits locales, such as schools). Opposition to the law has brought together Christian groups and the ACLU. The Texas Supreme Court will hear the case this spring.
Laws banning ex-cons from living near schools are unusually upheld under the notion of local governmental discretion to make even unwise land use laws for the “public interest.” But when the facts (including the timing of adoption) point to a law’s motivation as targeting a specific activity –- and one that implicates freedom of religion –- the usual standard of deference should be flipped around. What justification is there for picking out churches, where people tend to congregate in large and safe groups, as being off-limits to parolees? And what if a church, such as the one in Sinton, has created the land use -– shouldn’t the freedom of religion demand that the church hold the power to override an ordinance designed for its “protection?”
Religious groups, advocates for ex-cons, and libertarians (and me) all are hoping that Texas’s high court will use the state’s Religious Freedom Restoration Act to flip the usual presumption and strike down the Sinton ordinance’s application.
Monday, January 8, 2007
The mainstream media loves a good tale of moral dilemmas and lots money, so the story of the Briny Breezes trailer park in Palm Beach County, Fla., has been getting a lot of publicity recently. (Click here a special section of the Palm Beach Post.) The community plans to vote this week on whether to accept an offer to sell the entire complex to a developer for more than $500 million, which would amount to more than $1 million per trailer owner, most of whom are far from rich. Despite the dangling cash, many of the residents are retirees who say they prefer life in the waterfront park, which has been around since the 1940s. Two-thirds of the town must vote “yes” for the sale to be approved.
The story holds a number of lessons for land use law. One point is that a monetary payment may not sufficiently “compensate” the resident for the entire psychic “value” of a home -– a point made by opponents of widespread eminent domain, both on the right and on the left. Another point is that the recent boom in land values, especially in locations such as coastal Florida, is creating a significant shift of the nation’s assets in favor of long-time homeowners, such as the trailer residents at Briny Breezes, who have the option of taking a large monetary windfall (not often a welcome term in coastal Florida), and away from young people and new entrants to the homeowning market, who are bearing the brunt of the high prices (which, admittedly, are finally starting to fall in many places). As with the uncertain future of social security, we as a nation pay too little attention to the generational discrimination of our land use policies and their effects.