DATE: December 4, 2001
TO: Planning Commission & Board of Adjustment
Oscar Graham, Planner
Community Development Department
FILE NO.: USE2001-00024 & VAR2001-00018
PROPOSAL: A Conditional Use permit for construction of a sanctuary addition and supporting facilities to an existing church. The total square footage of the facility will be approximately 74, 000 square feet. A Variance is requested to allow for a 49 foot overall height with a 54 foot tower where the CBJ code requires a height restriction of 35 feet.
The Planning Commission considered the above referenced land use applications at its August 14, 2001 meeting. Because the conditional use permit was predicated on approval of a variance to build a portion of the building in excess of the 35 foot height limit (to a height of 65 feet) the variance and conditional use permit were presented together. While staff analysis resulted in a recommendation for denial of the variance, consideration of the Religious Land Use and Institutionalized Persons Act (RLUIPA) raised a number of questions which complicated consideration of the variance criteria. Five neighboring property owners provided testimony relative to impacts that they perceived would result from the proposal as set forth in the applications. The resulting discussion ended with the variance being tabled for consideration at a future meeting. Similarly the conditional use application was tabled until the variance was resolved. The staff reports for the Conditional Use and Variance applications and a memo addressing RLUIPA are included under this memorandum as attachments B, C and D respectively. The minutes of the August 14th Planning Commission meeting are included as attachment E.
Over the past several months, the applicant has revised the design of the building to reflect a maximum height of 54 feet. This height is limited to the tower structure located on the southern end of the building. The roofline associated with the remainder of the proposed structure is 49 feet 2 inches in height. The overall size and footprint remain unchanged. The applicant and neighboring property owners have met on a number of occasions to identify measures to mitigate the impacts of the expanded facility on neighboring property owners. Discussion has covered a range of mitigation measures including access onto Glacier Highway and retention of vegetated buffers. As of the date of this memo no accord had been reached. A letter from the Walpole Acres Homeowners is included as attachment F. On Tuesday November 27th the applicant requested that their applications be placed on the December 11th agenda, for consideration by the Planning Commission. Because of the lengthy intervening period between the initial hearing and December 11th, full public notification was provided.
Because the conditional use and variance applications have not changed significantly, the staff reports and recommendations prepared in conjunction with the August 14th Planning Commission meeting continue to represent the position of the Community Development Department. Revised elevations have been submitted in order to amend the applications. The elevations are included as attachment A.
While staff reports and recommendations have not changed, the memorandum discussing RLUIPA included as attachment E no longer represents the recommendation of the Community Development Department. Based on discussion at the August 14th meeting and additional direction of the CBJ Law Department provided at that meeting, staff recommends that the applicability of RLUIPA be considered through the application of two tests:
1.Does the height limitation impose a "substantial burden"? A substantial burden is a burden that prevents the religious adherent from engaging in conduct or having a religious experience which the faith involves. This burden must be more than an inconvenience and must interfere with a tenet or belief that is part of the religious doctrine. It must significantly inhibit or constrain conduct or expression that manifests a tenet of a personís individual beliefs or curtails a personís ability to express his or her adherence to a faith. A substantial burden must deny a person reasonable opportunities to engage in those activities that are fundamental to a personís religion.
2. If the height limit does constitute a substantial burden: a.) Does that burden further a compelling governmental interest? and b.) Is it the least restrictive means of furthering that compelling governmental interest?
The applicant has not asserted a violation of RLUIPA. Neither has the applicant assumed the burden of proof in demonstrating that a substantial burden exists or that if such a burden exists that it is not in furtherance of a compelling governmental interest. This notwithstanding it does not appear that the height restriction imposed under the land use code constitutes a substantial burden in that it does not prevent the adherent from engaging in religious activities associated with the exercise of the faith. No demonstration has been made that compliance with the height requirements inhibits or restricts in any fundamental sense the practice of faith or religious expression.
If such a substantial burden were successfully demonstrated it would then be necessary to show that the height restriction does not further a compelling governmental interest. In this case the height restriction does further the compelling governmental interests set forth in ß49.05.100 PURPOSE AND ITNENT including:
(1) To achieve the goals and objectives, and implement the policies of the Juneau comprehensive Plan and coastal management program;
(2) To insure that future growth and development in the city and borough is in accord with the values of its residents;
(3) To identify and secure, for present and future residents, the beneficial impacts of growth while minimizing the negative impacts;
(4) To ensure that future growth is of the appropriate type, design and location, and is served by a proper range of public services and facilities such as water, sewage, and electrical distribution systems, transportation, schools, parks and other public requirements and in general to promote public health, safely and general welfare;
(5) To provide adequate open space for light and air; and
Finally, it should be noted that the establishment of the height limit at 35 feet accommodates the predominance of structural proposals for the D-5 zoning district. This height has been established, in part, as the least restrictive standard which will further the uses provided for in this zone. Further relief can be obtained through the variance procedure if the criteria for granting a variance are satisfied.
It is recommended that the Planing Commission establish findings relative to RLUIPA. Specifically a finding relating to "substantial burden" should be provided. If the Planning Commission determines that a substantial burden has been imposed on the applicant, further findings addressing "compelling governmental interest" and "least restrictive means" should be drafted. Draft findings will be provided at the commissionís request. If the Commission finds that a "substantial burden" does not exist, or that a compelling governmental interest is being served, and that the least restrictive means of furthering the compelling governmental interest is being utilized then the standard of review should be the variance criteria.
The recommendations and conditions associated with USE2001-00024 and VAR2001-00018 are set forth in the staff memos dated July 18, 2001 and included as attachments B and C as follows:
We recommend that the Planning Commission adopt the director's analysis and findings and grant the requested Conditional Use permit. We recommend the approval be made subject to the following conditions:
VAR2001-00018 (As amended to reflect a height of 54 feet)
Staff recommends that the Board of Adjustment adopt the staff analysis and the directorís findings which conclude that the grounds for variances, specifically criteria 5 and 6, are not met, and deny the requested variance to allow a portion of a building to have a height of 54 where the code has a height restriction of 35 feet.