Van Tran v. Gwinn

Present: All the Justices

THANH VAN TRAN

v. Record No. 002810 OPINION BY JUSTICE ELIZABETH B. LACY
November 2, 2001
JANE W. GWINN, FAIRFAX COUNTY
ZONING ADMINISTRATOR

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge

The primary issue in this appeal is whether a zoning

ordinance prohibiting the use of property in a residential

conservation district for "churches, chapels, temples,

synagogues, and other such places of worship" without a

special use permit is constitutional.

The property at issue in this case is a five-acre parcel

zoned as a residential conservation district (R-C District)

and containing a single-family dwelling and a detached three-

car garage structure. Thanh Van Tran, a Buddhist monk and

president of the Vietnamese Buddhist Association (VBA), moved

to the subject property in 1989. At the time, VBA owned the

property and intended to build a temple on the property.

Under the Fairfax County Zoning Ordinance, using the property

as a church or other such place of worship required a special

use permit. VBA conducted worship services at the site and,

on June 21, 1989, submitted an application for such a permit.

VBA withdrew the application prior to action by the Zoning

Evaluation Division.
 Following the initial application, and in response to

neighbors' complaints, the zoning administrator's office

conducted several inspections of the property and issued

notices of violation in January and February 1992, for use of

the property as a place of worship without a special use

permit. On March 20, 1992, VBA notified the zoning

administrator that it would conduct no further religious

services without obtaining a special use permit. VBA received

an additional notice of violation on February 8, 1993. In

November 1994, VBA filed a second application for a special

use permit but the application was again withdrawn.

A fourth notice of violation was issued in March 1999.

Tran appealed the March notice to the Board of Zoning Appeals

(BZA). 1 The BZA upheld the zoning administrator's finding that

Tran and VBA were operating a place of worship. Tran did not

appeal the finding to the trial court. Code § 15.2-2314.

Based on information that Tran and VBA continued to use

the property as a place of worship, Jane W. Gwinn, Fairfax

County Zoning Administrator (hereinafter "the County"), filed

this action against Tran in the Circuit Court of Fairfax

County for declaratory judgment and injunctive relief to

enforce the zoning ordinance. In his Answer, Tran responded

1
Through a series of conveyances, Tran became the sole
owner of the property in March 1999.

2
that he was using the property for private worship in his

home, not as a place of worship; that the ordinance was

unconstitutionally vague and overbroad as written; and that it

violated his First Amendment rights of religion, speech, and

association.

Following an ore tenus hearing, the trial court agreed

with the County that, because the BZA's finding that a church

was being operated on Tran's property had not been appealed,

it was a thing decided; nevertheless the trial court went on

to make independent factual findings based on the evidence

produced at the hearing. The trial court held that the

detached garage on Tran's property was "outfitted to operate

like a temple or church, that it accommodates a fairly large

number of people, that it is regularly used to conduct

religious services," and that the evidence was "overwhelming"

that Tran was "operating this facility as a church." The

trial court concluded that Tran's use of his property as a

place of worship without a special use permit violated § 2-

303(1) of the zoning ordinance. The trial court also held

that the zoning ordinance was "a neutral law of general

applicability that does not burden [Tran's] free exercise of

his religion" and was not unconstitutionally vague either on

its face or as applied to Tran. The trial court entered a

3
final decree incorporating these findings and enjoining Tran

from violating the zoning ordinance.

Tran appeals, asserting that the injunction and zoning

ordinance violate his constitutional rights of due process and

free exercise of religion. Specifically, he states that the

decree and ordinance upon which it is based "violate the

constitutional standard of legislative and judicial neutrality

with respect to religion" and that the ordinance and

injunction are "unconstitutionally vague and overly broad as

applied to worship-related conduct in a residence."

As a preliminary matter, we note that Tran continues to

argue here, as he did before the trial court, that he was

using his property for private worship, not as a "church or

other place of worship." The trial court rejected this

argument based on the evidence produced at trial and Tran has

not appealed the trial court's factual finding that he was

using his property as a church or place of worship.

Accordingly we consider Tran's arguments in the context of the

operation of a church or other place of worship. We first

consider Tran's free exercise and due process arguments as

they apply to the ordinance.

I. The Ordinance

Neither this Court nor the United States Supreme Court

has previously considered whether a local zoning ordinance

4
which allows churches in residential districts only under a

special use permit unconstitutionally burdens the free

exercise of religion. 2

However, other courts addressing the issue have generally

concluded that zoning ordinances which regulate the location

of churches within the community impose only a minimal burden

on the right to the free exercise of religion. These cases

have consistently held that limiting church operations to a

specific area or requiring a conditional use permit does not

regulate religious beliefs, does not regulate conduct related

to those beliefs, and does not have the purpose of impeding

religion or the effect of discriminating among religions.

See, e.g., Christian Gospel Church v. City and County of San

Francisco, 896 F.2d 1221, 1224 (9th Cir. 1990)(holding only

minimal burden of "convenience and expense" resulted from

denial of a permit to use residence as church); Messiah

Baptist Church v. County of Jefferson, 859 F.2d 820, 825 (10th

Cir. 1988)(holding that zoning ordinance may burden church

with additional expenses, but "financial consequences to the

2
Although the United States Supreme Court has recognized
that subjecting religious institutions to zoning regulations
is a proper contact between church and state, see generally,
Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), the impact of a
specific zoning ordinance on church activities was considered
by the United States Supreme Court only in the context of a
challenge to the zoning ordinance under a federal statute.
City of Boerne v. Flores, 521 U.S. 507, 511 (1997).

5
church do not rise to infringement of religious freedom");

Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v.

City of Lakewood, 699 F.2d 303, 307 (6th Cir. 1983)(deciding

zoning ordinance prohibiting construction of church in

residential district is "purely secular act" that results in

only "indirect financial burden"); Grosz v. City of Miami

Beach, 721 F.2d 729, 739 (11th Cir. 1983) (finding that zoning

ordinance imposed degree of burden that "stands towards the

lower end of the spectrum"); Area Plan Commission of

Evansville & Vanderburgh County v. Wilson, 701 N.E.2d 856, 860

(Ind. Ct. App. 1998) (stating that "inclusion of churches and

church-operated facilities as special uses in the ordinance

does not evince an intent to regulate religious belief"),

transfer denied, 714 N.E.2d 171 (Ind. 1999), cert. denied, 528

U.S. 1019 (1999).

The instances in which a zoning ordinance was found to

impermissibly regulate religious conduct in a manner

inconsistent with free exercise requirements can be

distinguished. Those instances involved the constitutionality

of a zoning ordinance as applied. In Islamic Center of

Mississippi, Inc. v. City of Starkville, 840 F.2d 293, 294

(5th Cir. 1988), the court held that refusing an exception to

allow use of a building as a Muslim mosque was

unconstitutional because exceptions had been allowed for

6
Christian churches. The court in that case concluded that the

city did not act in a religiously neutral manner in denying

the exception, that is, it favored Christian churches over

Muslim mosques. Id.; see also, Cam v. Marion County, 987 F.

Supp. 854, 865 (D. Or. 1997) (holding that denial of permit to

establish a new church in agricultural building violated the

establishment clause because the statute as applied

demonstrated government preference for an existing church.) 3

Most of these cases were decided when the jurisprudence

of the constitutional right of free exercise of religion

included an analysis in which the burden imposed on the right

was balanced against the governmental interest involved.

Sherbert v. Verner, 374 U.S. 398, 403 (1963). In 1990, the

Supreme Court restricted the use of the balancing test to

workers' compensation issues, and held that a generally

applicable law that is neutral as to religion does not violate

the First Amendment, even if it incidentally burdens a

religious practice. Employment Division, Dept. of Human

Resources of Oregon v. Smith, 494 U.S. 872, 878-79, 881

(1990). 4 Nevertheless, the cases cited above remain

3
As indicated above, no decision has been made regarding
a special use permit for Tran's property because the
applications were withdrawn on two separate occasions.
4
This test has, to date, only been applied by the Supreme
Court in cases involving criminal statutes or ordinances, see,
e.g., Smith; Church of Lukumi Babalu Aye, Inc. v. City of

7
instructive in determining the First Amendment tolerance for

zoning regulation of land used for religious purposes.

In light of those cases and the record in this case, we

conclude that the Fairfax Zoning Ordinance requiring a special

use permit to use property in the R-C district as a synagogue,

temple, church, or other place of worship imposes a minimal

and incidental burden on the constitutional right of free

exercise of religion. 5 The ordinance does not totally

Hialeah, 508 U.S. 520 (1993), and may not be applicable if the
free exercise claim is invoked with another first amendment
claim. Smith, 494 U.S. at 881-882.
5
Section 2-303(1) of the Fairfax County Zoning Ordinance
provides:
No use of a structure or land that is
designated as a special permit use in any
zoning district shall hereafter be established,
and no existing use shall hereafter be changed
to another use that is designated as a special
permit use in such district, unless a special
permit has been secured from the BZA in
accordance with the provisions of Article 8.

Part C of Article 3 of the ordinance regulates the use of land
in the Residential-Conservation District and § 3-C02 lists the
land uses permitted as a matter of right in the R-C District:
1. Accessory uses and home occupations as
permitted in Article 10.
2. Agriculture, as defined in Article 20.
3. Dwellings, single family detached.
4. Privately-owned dwellings for
seasonable occupancy, not designed or
used for permanent occupancy, such as
summer homes and cottages, hunting and
fishing lodges and cabins.
5. Public uses.

Section 3-CO3 of the ordinance identifies a number of
uses labeled "Group uses" which are allowed with a special use

8
prohibit operation of a church in the R-C district and any

financial cost associated with the permit process or

relocation of the church does not impact any religious belief

or practice and thus is not of constitutional dimension.

Therefore, the Constitution will tolerate zoning ordinances of

this type.

Despite the lack of impact this zoning ordinance has on

religious conduct, it must still be considered under the

standard established in Smith, which presumes the

constitutionality of ordinances that are "neutral, generally

applicable regulatory law." Smith, 494 U.S. at 880. In

applying this standard, "neutrality and general applicability

are interrelated, and . . . failure to satisfy one requirement

is a likely indication that the other has not been satisfied."

Hialeah, 508 U.S. at 531.

Tran argues that the ordinance does not satisfy the Smith

test. Tran asserts that the ordinance is not neutral or

generally applicable because it "target[s] religiously

motivated conduct occurring at Tran's home" and because it

relies on "highly 'individualized' determinations" regarding

permit. Included among these are Institutional Uses,
Community Uses, Outdoor Recreation Uses, Older Structures,
Temporary Uses and Uses Requiring Special Regulation. Use of
the land as a church or other place of worship is included
within Institutional Uses and thus is permitted under a
special use permit. § 3-CO3(1)(A).

9
the types of gatherings at persons' homes. We reject these

arguments. The premise underlying Tran's position is that

whenever a church or place of worship is subjected to local

zoning regulations, the regulation, by definition, is not

neutral. However, Tran points to no case, and we can find

none, holding that churches or other such places of worship

are exempt from zoning ordinances because any such ordinance

unconstitutionally impacts the free exercise of religion.

Such a broad statement has no support in case law. Instead,

case law requires each ordinance to be examined individually

to determine if "the object of [the] law is to infringe upon

or restrict practices because of their religious motivation,"

Hialeah, 508 U.S. at 533, and if the complained of ordinance

was enacted, "because of, not merely in spite of" a religious

practice. Id. at 540 (internal quotation marks omitted). If

so, then the ordinance lacks the necessary neutrality.

In Smith, the Court indicated that a statute or ordinance

lacks neutrality if it "attempt[s] to regulate religious

beliefs, the communication of religious beliefs, or the

raising of one's children in those beliefs." The fact that

use of land for churches or other places of worship is not

permitted as a matter of right does not require the conclusion

that the ordinance is not neutral. There is no evidence that

10
the object of the ordinance was to infringe upon or restrict

certain practices because of their religious motivation.

The ordinance was enacted under the County's authority to

provide for the general safety and welfare of the community,

and allows uses that are beneficial to the community. Code

§ 15.2-2280; cf. § 15.2-2200 (legislative intent of Chapter

22). The legislative decision to develop a residential

community in the R-C district included a determination that

certain group uses of the property were compatible with the

district and provided a permit system for that purpose. There

is nothing in the ordinance "targeting" religious conduct and,

to the extent the ordinance affects religious conduct in any

way, it benefits religious exercise by allowing that group use

in the R-C district.

Tran's complaint that the ordinance is not of general

applicability because it requires "individualized"

determinations is also flawed. The procedure requiring review

by government officials on a case-by-case basis for a grant of

a special use permit may support a challenge based on a

specific application of the special use permit requirement,

see, e.g., Islamic Center, but such a procedure does not alter

the generally applicable nature of the ordinance. 6

6
To the extent Tran argues about government involvement
in this process, the Supreme Court has recognized zoning

11
 Applying the test set out in Smith, we conclude that the

ordinance at issue is a neutral law of general applicability.

As the Supreme Court stated in Hialeah, "[a]ll laws are

selective to some extent," but government, even "in pursuit of

legitimate interests, cannot in a selective manner impose

burdens only on" religious conduct. 508 U.S. at 542-43. The

ordinance here does not selectively impose a burden on

religion. The uses for which special use permits are required

are group uses, including churches and other places of

worship. This is not the type of selective regulation that is

constitutionally offensive to the free exercise of religion.

Accordingly, we reject Tran's claim that by requiring a

special use permit to use the property as a church or other

such place of worship, the ordinance is facially

unconstitutional as an impermissible burden on the free

exercise of religion.

We also reject Tran's arguments that the ordinance is

unconstitutional because it violates due process. Tran argues

that the ordinance is unconstitutionally vague because it does

not define "church, chapel, temple, synagogue, or other such

regulations as legitimate church-state contacts and
acknowledged that some of those contacts might place a
continuing burden on the state to insure that the conduct
affording preferential treatment is present. Lemon v.
Kurtzman, 403 U.S. 602, 614 (1971) (citing Walz v. Tax
Commission, 397 U.S. 664 (1970)).

12
place of worship" and there is no "express standard" that

establishes the "permissible nature, size, and frequency of

gatherings at his home." 7 Tran's conduct in operating a

church falls squarely within the ordinance's application and

Tran concedes as much by not appealing the factual

determinations of the trial court and board of zoning appeals

that he was operating a church. The failure to appeal this

factual finding precludes Tran from arguing here that the

ordinance is vague or overbroad such that it violates his due

process rights. Nor can Tran be heard to complain about the

rights of others who may be adversely affected by the

ordinance. Tran is not within the class of people who may

raise a due process claim against this ordinance. Fairfax

County v. Parker, 186 Va. 675, 680, 44 S.E.2d 9, 11 (1947);

see also, Kenyon Peck, Inc. v. Kennedy, 210 Va. 60, 63, 168

S.E.2d. 117, 120 (1969).

II. The Decree

Next we consider Tran's due process and free exercise

challenges to the decree. 8 However, Tran's arguments in

7
Tran made this same argument in conjunction with his
free exercise challenge; however, the argument is functionally
a due process challenge and we will treat it as such.
8
The decree contains the following provisions:

2. The Respondent . . . shall . . . cease
the use of the subject property as a place of
worship and permanently remove . . . all items

13
support of his free exercise claim are directed at the

ordinance, not the decree. That issue was resolved in our

prior discussion and we need not address Tran's free exercise

claims further here.

Tran claims that the decree is unconstitutionally vague

and overbroad because it enjoins him from using his property

as a "place of worship, meeting hall, or other place of

assembly" but that these phrases do not give him sufficient

guidance for complying with the injunction and avoiding

related solely to such use, including but not
limited to the shoe racks, collection box, and
speaker system. The Respondent shall not
resume such use unless and until he has secured
the approval of a valid Group 3 Special Permit
allowing it. Specifically, the Respondent
shall not do or allow to be done any of the
following:

A. Use the garage structure, the
residence, or any other portion of the
subject property as a place of worship,
meeting hall, or other place of
assembly without the proper approval(s)
from all necessary authorities.

B. Advertise the subject property, by any
medium, as a place of worship, meeting
hall, or other place of assembly.

C. Use the subject property for memorial
services, weddings, or other worship
services.

Finally, the decree permanently enjoined Tran, his
successors, agents, employees and tenants from using or
allowing the property to be used in violation of the decree or
the zoning ordinance.

14
further sanctions. We agree that the trial court's decree is

flawed, but we do not reach this decision on constitutional

grounds. See Board of Supervisors of Henrico County v.

Commonwealth, 116 Va. 311, 312-13, 81 S.E. 112, 112

(1914)(determining case on non-constitutional grounds).

The injunction's prohibition against using the property

as a "meeting hall, or other place of assembly" without a

special use permit goes beyond the scope of the ordinance.

The ordinance adopted by Fairfax County authorized the use of

property in the R-C district for certain group activities with

a special use permit. Use of the property as a "meeting hall,

or other place of assembly" was not a group use permitted with

or without a special use permit. The trial court effectively

amended the ordinance by adding these uses to the uses

permitted with a special permit in the R-C district when it

prohibited these uses unless Tran "secured the approval of a

valid Group 3 Special Permit."

Adopting or amending a zoning ordinance is a legislative

act. Hurt v. Caldwell, 222 Va. 91, 96, 279 S.E.2d 138, 141

(1981). Thus, the trial court in this instance, assumed the

legislative function and, in so doing, improperly breached the

separation of powers. City of Richmond v. Randall, 215 Va.

506, 513 n.3, 211 S.E.2d 56, 61 n.3 (1975); Board of Zoning

Appeals of Town of Abingdon v. Combs, 200 Va. 471, 477, 106

15
S.E.2d 755, 759 (1959). In this regard we also note that the

prohibitions in the decree against using the property for

"memorial services, weddings, or other worship services" and

against advertising the property for the enjoined uses without

obtaining the special use permit suffer from the same

infirmity.

Finally, the ordinance addresses uses of the property,

not objects located on the property. The court has the

authority to order the dismantling of an item or structure

which by its existence violates a zoning ordinance. Code

§ 15.2-2299; Zoning Ordinance § 18-901; see, e.g., Segaloff v.

City of Newport News, 209 Va. 259, 163 S.E.2d 135 (1968);

Cherrydale Cement Block Company v. Arlington, 180 Va. 443, 23

S.E.2d 158 (1942).

But the trial court does not have the authority, under

the ordinance or case law, to order removal of objects that do

not violate the ordinance by virtue of their location on the

property. Thus, the decree's requirement that Tran remove

items "related solely to [the use of the property as a place

of worship], including but not limited to the shoe racks,

collection box, and speaker system" goes beyond the authority

of the trial court.

The trial court overreached its authority in other

respects by enjoining Tran from using the property as a place

16
of worship without a special use permit. The decree prohibits

Tran from using or permitting the property to be used "in

violation of . . . Zoning Ordinance § 2-303(1)." This

prohibition effectively enjoins Tran from violating the law.

However, injunctions cannot issue merely to enjoin "all

possible breaches of the law." Swift & Co. v. U.S., 196 U.S.

375, 396 (1905).

A "first principle of justice" is that an injunction not

be so vague as to "put the whole conduct" of a defendant at

the "peril of a summons for contempt." Id. Instead, courts

must navigate carefully between the extremes of issuing a

decree that is so vague and overreaching that all actions by

the defendant might potentially violate the decree and a

decree that is so limited as to be ineffective in preventing

the harm contemplated by the ordinance. Hartford-Empire Co.

v. U.S., 323 U.S. 386, 409-10 (1944); Swift, 196 U.S. at 395-

96. In considering this injunction, therefore, we are mindful

that an injunction must be specific, be no more than

necessary, and not be solely a command to comply with the law.

Hartford, 323 U.S. at 410; Swift, 196 U.S. at 396; Tuttle v.

Arlington County School Board, 195 F.3d 698, 708 (4th Cir.

1999), cert. dismissed, 529 U.S. 1050 (2000).

In this case, the County sought and obtained a

declaratory judgment that the collective effect of the

17
activities in which Tran engaged constituted the use of his

property as a place of worship in violation of the ordinance

because Tran did not have a special use permit. There was no

evidence presented that Tran had ceased or intended to cease

any of the activities at issue. Thus, in addition to issuing

a declaratory judgment, the County was entitled to an

injunction against Tran requiring that he cease the activities

found to violate the ordinance. 9

However, the injunction in this case went beyond

enjoining such activities by "permanently enjoin[ing]" Tran

"from using or permitting the subject property to be used in

violation of . . . Zoning Ordinance § 2-303(1)." Accordingly,

while the County was entitled to an injunction, the injunction

issued was not tailored to the offensive activities, was

overbroad, and exceeded the authority of the trial court.

For the above reasons, we will affirm the judgment of the

trial court holding that the ordinance as it applies to

churches and other such places of worship is a neutral law of

general applicability, which has a minimal or incidental

burden on religious practice or conduct. We will, however,

vacate the injunction contained in the final decree and remand

9
French v. Pobst, 203 Va. 704, 710, 127 S.E.2d 137, 141-
42 (1962)(granting declaratory judgment alone does not command
performance).

18
the case to the trial court for entry of an injunction

consistent with this opinion. 10

Affirmed in part,
vacated in part,
and remanded.

JUSTICE KINSER, concurring in part and dissenting in part.

I agree with the majority opinion except with respect to

one issue. Therefore, I write separately to note that area of

disagreement and to emphasize certain other points.

The majority is correct in concluding that, because Tran

did not assign error to the trial court’s factual finding that

he was using his property as a place of worship, he cannot

challenge the Fairfax County zoning ordinance at issue on the

basis that it is vague and overbroad as applied to him. Yet,

the overbreadth and vagueness of the injunction issued by the

circuit court may be indicative of the vagueness of the

ordinance as applied to an individual engaging in the free

exercise of religion in a private residence.

However, unlike the majority, I do not believe that Tran

has asserted that the overbreadth of the zoning ordinance

“chills” the free exercise of religion by other persons. In

10
Both parties addressed the constitutionality and
applicability of the Religious Land Use and Institutionalized
Persons Act of 2000, 42 U.S.C. §§ 2000cc-2000cc-5 (2001),
legislation that was enacted after the proceedings in the
trial court. We do not address this issue as it was neither

19
other words, he has not made a facial due process challenge.

On brief, Tran stated that his “second assignment of error is

that the final decree and the zoning ordinance are

unconstitutionally vague as applied to him.” In responding to

Tran’s argument on that assignment of error, Jane W. Gwinn,

Fairfax County Zoning Administrator, noted that, to the extent

that Tran may have previously raised a facial challenge, he

has now abandoned that argument. Tran has not disputed

Gwinn’s observation. ∗ Thus, it is not necessary for the

majority to decide that “Tran is not within the class of

people who may raise a due process claim” that the zoning

ordinance adversely affects the rights of others.

Nevertheless, I point out that this Court has previously

stated that, “when overbreadth impinges upon First Amendment

guarantees, a person accused under the statute has standing to

make a facial attack, even though [that person’s] own speech

or conduct was not constitutionally protected; when

overbreadth has only due process implications, [that person]

has no standing to make a facial attack but only standing to

challenge the statute as applied to his own conduct.” Stanley

presented to the trial court nor assigned as an error in the
appeal to this Court. Rule 5:17(c).
∗
In his reply brief, Tran acknowledged that he was not
contending that the zoning ordinance is unconstitutionally
vague in all circumstances.

20
v. City of Norfolk, 218 Va. 504, 508, 237 S.E.2d 799, 802

(1977).

I also agree with the majority’s conclusion that, under

the test set forth in Employment Division v. Smith, 494 U.S.

872, 878-80 (1990), the ordinance is neutral and generally

applicable. See Cornerstone Bible Church v. City of Hastings,

948 F.2d 464, 472 (8th Cir. 1991); Rector of St. Bartholomew’s

Church v. City of New York, 914 F.2d 348, 354-55 (2d Cir.

1990), cert. denied, 499 U.S. 905 (1991). Under that test, “a

law that is neutral and of general applicability need not be

justified by a compelling governmental interest even if the

law has the incidental effect of burdening a particular

religious practice.” Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520, 531 (1993).

Nevertheless, the soundness of the Smith test continues

to be questioned. See City of Boerne v. Flores, 521 U.S. 507,

544-65 (1997) (O’Connor, J., joined by Breyer, J.,

dissenting); id. at 565-66 (Souter, J., dissenting); id. at

566 (Breyer, J., dissenting); City of Hialeah, 508 U.S. at

559-77 (Souter, J., concurring); id. at 578 (Blackmun, J.,

joined by O’Connor, J., concurring). Furthermore, if the

Religious Land Use and Institutionalized Persons Act of 2000,

42 U.S.C. §§ 2000cc through 2000cc-5 (2001), is applicable to

this zoning ordinance, a different test would have to be

21
utilized to determine the ordinance’s validity under that act.

The test established in 42 U.S.C. § 2000cc(a)(1) requires that

“[n]o government shall impose or implement a land use

regulation in a manner that imposes a substantial burden on

the religious exercise of a person . . . unless the government

demonstrates that imposition of the burden on that person

. . . (A) is in furtherance of a compelling governmental

interest; and (B) is the least restrictive means of furthering

that compelling governmental interest.”

For these reasons, I respectfully concur in part, and

dissent in part.

22