BILL ANALYSIS
SB 38 -- 4/5/99 Page
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Richard K. Rainey, Chairman
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|BILL NO:SB 38 |HEARING: 4/21/99 |
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|AUTHOR: Baca |FISCAL:No |
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|VERSION: 4/5/99 |CONSULTANT: Detwiler |
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SB 38 -- 4/5/99 Page
RELIGIOUS INSTITUTIONS AND LAND USE
Background and Existing Law
The police power is the inherent authority of sovereign
governments to regulate private behavior, consistent with
constitutional rights and procedures. The California
Constitution delegates the police power to cities and
counties to "make and enforce within [their] limits all
local, police, sanitary, and other ordinances and
regulations not in conflict with general laws." Zoning and
conditional use permits are examples of how local officials
use their police powers to regulate land uses.
The Planning and Zoning Law declares a local land use
actions "null and void" if it denies any individual or
group the enjoyment of a land use because of various listed
characteristics, including religion.
* * * * *
The Free Exercise Clause of the First Amendment to the U.S.
Constitution which applies to the states under the
Fourteenth Amendment provides that "Congress shall make no
law respecting an establishment of religion, or prohibiting
the free exercise thereof ?"
From the late 1960s until 1990 the U.S. Supreme Court used
the "compelling interest" test when reviewing religious
freedom challenges to laws of general applicability. The
Court weighed the law's burden on religious exercise
against the government's interest in applying the law. If
the burden was substantial and outweighed the government's
interest, the government was required to accommodate the
religiously motivated conduct by exempting it from the law.
On the other hand, if the government's interest was
sufficiently important to outweigh the burden on religious
exercise and could not be achieved by less restrictive
means, no accommodation was required. An accommodation was
also not required if the burden on religious exercise was
not considered substantial.
In 1990, the U.S. Supreme Court abandoned the "compelling
interest" test. Congress reacted in 1993 by enacting the
Religious Freedom Restoration Act (RFRA). RFRA prohibited
government from substantially burdening a person's exercise
of religion, even if the burden results from a rule of
general applicability, unless the government can
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demonstrate that the burden is in furtherance of a
compelling governmental interest, and is the least
restrictive means of furthering that compelling
governmental interest.
In 1997, the U.S. Supreme Court struck down RFRA, finding
that the Act exceeded the authority of Congress under the
Fourteenth Amendment. The Boerne decision did not preclude
the states from enacting their own legislation on this
topic.
* * * * *
The Liberty of Conscience Section of the California
Constitution provides that "Free exercise and enjoyment of
religion without discrimination or preference are
guaranteed. This liberty of conscience does not excuse
acts that are licentious or inconsistent with the peace or
safety of the State. The Legislature shall make no law
respecting an establishment of religion."
* * * * *
A coalition of religious groups argues that California land
use regulations burden the free exercise of religion in
five situations:
Some regulations prohibit the use of private homes as
regular sites for religious assemblies and services. These
restrictions fall heavily on smaller faiths.
In some communities, it is difficult to locate a new
house of worship anywhere. Local officials have implicit
rules that religious congregations should not even apply
for zoning changes and land use permits.
The burden of community resistance to more places of
worship falls disproportionately on minority faiths.
Majoritarian religious institutions are already present and
land use regulations limit the availability of more
locations.
Some communities permit houses of worship but restrict
the kinds of activities that may be performed. Land use
regulations limit the ministry of a religious institution
without understanding the congregation's religious
obligations.
Land use regulations --- particularly historical
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preservation statutes --- ignore the relationship between a
house of worship and its congregation. Houses of worship
need to change as the congregation's needs and concerns
change.
This coalition wants the Legislature to adopt a statute
that defines the limits of land use regulation on religious
assemblies and institutions.
Proposed Law
Senate Bill 38 provides that the adoption or application of
a land use law that has the effect of prohibiting or
restricting the time, place, or manner of operation of a
religious assembly or institution must meet two
requirements:
Impose no greater limitation or restriction on
religious assemblies or institutions than nonreligious
assemblies or institutions or institutions that create
similar impacts on land use.
If it substantially burdens the free exercise of
religion, it must be supported by the weight of the
evidence (including a substantial connection to an
important governmental interest).
A person can assert a violation of this new law as a claim
or defense in a lawsuit, and obtain appropriate relief
against state and local agencies.
SB 38 applies to all land use laws adopted before or after
January 1, 2000. The bill does not allow monetary damages
against state and local agencies for land use laws adopted
before January 1, 2000.
The bill declares that the free exercise of religion is a
matter of statewide concern and not a municipal affair. It
applies to charter cities.
SB 38 defines five specific terms used in the bill and
names the new law the "Religious Freedom Protection Act."
Comments
1. For heaven's sake ! The practice of American democracy
requires balancing private rights and public power. State
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and local governments have clear constitutional authority
to regulate land use in the public interest. Individuals
and groups have clear constitutional protections to the
free exercise of religion. This balancing act is obvious
when public officials impose land use regulations on
churches, temples, synagogues, and other houses of worship.
Faith-based communities want the Legislature to focus on
land use laws that have the effect of restricting the free
exercise of religious practices.
2. A shield or a sword ? Some of the bill's supporters
seek a statutory shield from land use decisions that they
see as unfairly burdening the exercise of religion. They
offer anecdotes about local officials who apply standards
inconsistently, who give in to neighborhood political
pressures, and who are hostile to minority religions.
Other supporters hope for a statutory sword that they might
wield against these situations. They say that the bill's
threat of monetary damages will aid them when confronted
with public officials who impose unreasonable burdens on
religious exercise. In debating SB 38, the Committee
enters unfamiliar ground where the constitutional
principles of police power regulation, legislative
delegation, and home rule doctrine may clash with the
constitutional principles of religious freedom. Should the
Legislature hammer out a shield or forge a sword?
3. Standard of review . California land use law
distinguishes between two types of decisions: legislative
acts and administrative acts, and the courts use different
standards of review in lawsuits that challenge land use
decisions.
Legislative acts make policy. The adoption and
amendment of general plans, specific plans, zoning
ordinances, and development agreements are all legislative
acts by which city councils and county supervisors
establish goals, policies, and standards for future land
uses. When someone challenges a legislative act, the
courts apply a relatively low standard of review called
ordinary mandamus. Judges usually uphold the policies
adopted by elected officials, unless a decision was
arbitrary, capricious, or entirely lacking in evidence or
if officials failed to follow the required procedures.
Administrative acts apply established policies to
specific properties. Approving subdivision maps, issuing
conditional use permits, and granting zoning variances are
all administrative acts. Some observers call
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administrative acts adjudicatory or quasi-judicial
decisions. Sometimes administrators make these decisions;
sometimes local elected officials make them. It's not the
decisionmaker's identity that makes the difference, it's
the nature of the decision. Administrative decisions
require officials to make written findings that "bridge the
gap" and explain the connection between the established
policy and the specific property affected by the land use
decision. When someone challenges an administrative act,
the courts apply a higher standard of review called
administrative mandamus. The judges inquire if the
decision and the findings are supported by substantial
evidence in the record.
SB 38 applies a different standard of review called the
"independent judgment test" when the plaintiff asserts that
a land use decision substantially burdens the free exercise
of religion. The bill applies the independent judgment
test to all land use decisions, both legislative acts and
administrative acts. The independent judgment test allows
the court to substitute judicial judgment for the judgment
of legislative and administrative officials. The existing
standards of review require the court to accept the
rational decisions of legislators and administrative
agencies. According to one legal commentator, the
independent judgment test "has never applied to questions
of law, policy, or discretion and has never applied in
cases of review of quasi-legislative action." The
Committee may wish to consider whether the Legislature
should set a precedent and apply the independent judgment
test to land use lawsuits involving religious freedom.
4. Remedies and damages . When land use decisions violate
the Fifth Amendment's constitutional protections against
the taking of private property without just compensation,
the courts have required agencies to reverse their
unconstitutional decisions and pay the property owners. SB
38 creates a new remedy, allowing a person to sue for
monetary damages if a land use decision violates the
proposed new law. While it is clear that property owners
must be compensated for Fifth Amendment takings, it is not
clear that violating the First Amendment results in
monetary damages. Some of SB 38's supporters say that the
bill's threat of monetary damages will prevent land use
decisions that infringe on religious practices. Some
opponents say that creating new damages just for religious
institutions violates the California Constitution's ban on
creating a preference for religion. The Committee may wish
to consider whether the Legislature should create a new
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category of damages for land use decisions.
5. "Worship" not "exercise "? SB 38 applies to land use
decisions that apply to "religious assemblies or
institutions" but the bill's definition goes beyond
protecting places of religious worship (page 3, lines
11-13). The bill uses the term "religious exercise" which
may mean schools, soup kitchens, church-affiliated radio
stations, office buildings, hospitals, or other buildings
that religious groups use for purposes beyond worship
services. If the bill's sponsors are concerned about land
use regulations that make it hard to locate churches,
temples, synagogues, and other houses of worship, then the
Committee may wish to consider focusing the bill on
religious worship instead of religious exercise.
6. Reasoning by analogy . The Planning and Zoning Law
highlights certain land uses for special treatment by local
officials. (1) Because the First Amendment protects
expressive behavior, land use statutes allow local
officials to regulate the secondary effects associated with
sexually oriented businesses. Cities and counties can
adopt content neutral ordinances that regulate the time,
place, and manner of operating those businesses. (2)
Mindful of neighborhood resistance, state law requires
local officials to treat several categories of care
facilities with six or fewer residents in residential areas
the same as they treat single-family homes. (3)
Acknowledging community resistance to outsiders, the
Planning and Zoning Law bans discrimination on housing for
low- and moderate-income families and actually prohibits
local officials from denying affordable housing
developments that meet specific conditions. Rather than
promote contentious litigation by creating new legal
standards and damage awards based on religious practices,
the Committee may wish to require local officials to treat
houses of worship just the same as they treat other land
uses with the same characteristics. Why not treat a temple
that seats 200 people the same as a 200-seat theater?
7. Watch your language . When breaking new legal ground,
the Legislature should be careful which words it uses. SB
38 does not apply to local land use decisions. The bill's
definitions of land use law, regulation, or decision (page
2, line 34 to page 3, line 3) and "legislative body" (page
3, lines 4-7) include state departments and regional
agencies. The Coastal Commission, BCDC, Airport Land Use
Commissions, Regional Water Quality Control Boards, and
LAFCOs are subject to the bill's requirements and damages.
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8. Misleading tombstone . SB 38 calls itself the Religious
Freedom Protection Act, a title that suggests more than the
bill delivers. Rather than raise expectations (or fears)
about the breadth of the proposed law, the Committee may
wish to delete the title. Not every new law needs a
tombstone.
9. Legislative history . After the U.S. Supreme Court's
1997 Boerne decision, legislatures in several states
drafted their own versions of the Religious Freedom
Restoration Act which the Court struck down. California's
version was AB 1617 (Baca, 1998) which Governor Wilson
vetoed. A much broader measure than SB 38, last year's
bill generated considerable debate over individual rights
and religious freedom. SB 38 has a much narrower focus,
concentrating on land use.
10. Double-referral . The Senate Rules Committee has
ordered a double-referral of SB 38 to both the Local
Government Committee and the Senate Judiciary Committee.
Support and Opposition (4/15/)
Support : California Coalition for the Free Exercise of
Religion, Agudath Israel of California, American Civil
Liberties Union of Northern California, American Civil
Liberties Union of Southern California, American Jewish
Committee Los Angeles Chapter, American Jewish Congress,
Anti-Defamation League, Baptist Joint Committee on Public
Affairs, Buddhist Sangha Council of Southern California,
California Church IMPACT, Capitol Resource Institute,
Church of Jesus Christ of Latter Day Saints, Church-State
Council of Seventh Day Adventists, Committee on Moral
Concerns, Christian Science Committees on Publication of
California, Episcopal Diocese of Los Angeles, Friends
Committee on Legislation of California, Interfaith
Religious Liberty Foundation, Jewish Community Relations
Committee of Los Angeles Jewish Federation, Jewish
Community Relations Committee of San Francisco Jewish
Federation, Justice Fellowship, Lutheran Office of Public
Policy, Muslim Public Affairs Council, Pacific Union
Conference of Seventh Day Adventists, Pacific Justice
Institute, People for the American Way, Sikh Media Action
Resource Task Force, Traditional Values Coalition,
Unitarian Universalist Project Freedom of Religion.
SB 38 -- 4/5/99 Page
Opposition :
Unknown.