Friday, October 19, 2007
One of the most intractable issues of public law concerns the effect of laws on religious groups. On one hand, if a wide-ranging law imposes a burden on religion, it may be considered an infringement of the constitutional right to exercise religion freely. On the other hand, if exceptions are made, this may cause an unconstitutional “establishment” of religion.
In Westchester County, N.Y., a Jewish school won this week a land use challenge against the Village of Mamaroneck, which had denied a special use permit application to expand the school. (The decision is Westchester Day School v. Village of Mamaroneck, No. 06-1464-cv, U.S. Ct. App. for the Second Circuit, Oct. 17, 2007).
The school argued successfully that the town violated the federal Religious Land Use and Institutionalized Persons Act, in which Congress in effect enacted a variant of the existing constitutional law. When a land use regulation imposes a “substantial burden” on “religious exercise,” the regulation is lawful only when it furthers a “compelling” governmental interest and is the “least restrictive means” of furthering this interest. See 42 U.S. Code section 2000cc(a)(1). Needless to say, each of the quoted terms raises more questions than it answers.
Although one of the purposes of the Act was to avoid government “entanglement” with religion, in practice even a religious protection law often results in just such an entanglement. In the Westchester case, both the federal trial court and the U.S. Court of Appeals delved into facts of how Jewish religious education was practiced at the school, as a means of supporting the courts’ conclusion that the school’s inability to expand would harm the school’s religious education, not just peripheral school functions such as recreation or office space. (But query: If a school can’t administer itself adequately, how can it carry out religious education?)
After the courts found that the permit denial burdened religion, they then concluded that the town didn’t have a compelling interest in denying the special permit. The courts relied on the fact that the town had initially approved the permit application, but then reversed itself after complaints from neighbors of the school. The courts found that the neighbors had an “undue influence” on the town’s decision.
But what kind of influence is “undue”? There was no assertion of bribery or any such unlawful action. If local governments were not allowed to make decisions based on complaints of neighbors, this would demolish land use law as we know it. This doesn’t mean that the town should have won, but it does point out that neither I, nor most other attempts at resolving such controversies, provide a fully satisfactory means of reconciling government-religious clashes …
Thursday, October 18, 2007
Imagine if the government held a public vote on many issues pitting the supposed public interest against one party’s putative freedom. You want to live far from work and emit a lot of greenhouse gases during your commute? Let the town vote. You want to send your kid to private school, thus exacerbating racial segregation in the community? Let’s vote. You want to change your factory’s production line to robots, thus saving money but putting people out of work? Let’s vote.
If these sound preposterous, consider that referenda are becoming a more common method for deciding land use questions. Because government’s land use decisions are supposed to be based on the “public interest,” and because public referenda seem to embody democracy at its purest, the courts have largely approved local governments’ decisions to punt … er, rather, to refer to the people … the decision whether to approve a land use plan. (For example, City of Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976)).
But the public is not very good at considering the argument of private property rights and interests, especially when the typical citizen has little interest (in both meanings of the word), other than to decrease traffic. I humbly suggest that a governmental body, such as planning or zoning agency, which has the time and inclination to consider both sides of an issue, with the approval of elected representatives, is the best body to make land use decisions. (And yes, I recognize the greater likelihood that such a small governmental body will come under the sway of wealthy developers.) Sometimes representative government is better than direct democracy.
Yet many localities are considering more public referenda in land use decisions. In Sarasota County, Florida, a forthcoming referendum would require a 4-1 supermajority of county commissioners to approve changes in the comprehensive plan to increase density. A “yes” vote would lend support to the idea that most citizens aren’t opposed to growth per se, they just don’t want it near them …
Tuesday, October 16, 2007
When was the last time you visited a brick-and-mortar branch of your bank? Despite the growth of online banking, many banks apparently find that the presence of a bank near home or work remains very appealing to customers (both to those who do not bank online often and to those who, unlike me, have high finance to conduct in person). The result is a proliferation of bank branches in American cities. It has become so prominent that some cities are taking steps to restrict new bank branches by zoning law, on the assumption that banks don’t add much to the “buzz” of a city neighborhood trying to revitalize and keep residents from decamping to the suburbs. Chicago already restricts bank branches from being too close to each other on designated “pedestrian streets.” Washington, D.C., is considering a similar step. Behind this is also a policy of desiring to support the idea of small business owners (flower shops, bakeries, etc.) at the expense of big impersonal banks. If everyone were like me, and visited their bank only once a year, we wouldn’t have this unusual land use policy dilemma …