Judge Moore concurred in the judgment, but would have adopted a different definition of "substantial burden" under RLUIPA:Although RLUIPA assuredly protects religious institutions in their religious exercise, the statute’s language indicates that it is not intended to operate as "an outright exemption from land-use regulations." [citation omitted]....
We decline to set a bright line test by which to "measure" a substantial burden and, instead, look for a framework to apply to the facts before us. To that end, we find the following consideration helpful: though the government action may make religious exercise more expensive or difficult, does the government action place substantial pressure on a religious institution to violate its religious beliefs or effectively bar a religious institution from using its property in the exercise of its religion?...
While Living Water has outgrown its current facility, the record does not contain the kind of facts that would permit a finding that the building which the church can construct without an additional SUP would be so inadequate as to substantially burden Living Water’s religious exercise in the future.
I would adopt the substantial-burden standard established by the Seventh Circuit.... [It] held that "a land-use regulation that imposes a substantial burden on religious[Thanks to Brian D. Wassom for the lead.]
exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise—including the use of real property for the purpose thereof within the regulated jurisdiction generally—effectively impracticable."
