In Athey Creek Christian Fellowship v. Clackamas County, (D OR, July 30, 2024), an Oregon federal district court dismissed a RLUIPA challenge to the denial of a Conditional Use Permit for construction of the second phase of a church building. The court said in part:
... [P]laintiff filed this suit in November of 2022, alleging that the zoning ordinance that required churches to apply for a conditional use permit and did not allow churches as a primary use is facially invalid under the RLUIPA, and that the County violated plaintiff’s rights under the RLUIPA, the First Amendment, and the Oregon Constitution by not allowing plaintiff to build phase 2 of the project and forcing plaintiff to re-apply for a new or modified conditional use permit.
The purported burden here then includes the County’s conclusion that the 2006 CUP has expired, and the County’s resulting insistence that plaintiff must now apply to build phase 2 under the new “primary use” .... Neither one of these carries the traditional hallmarks of a substantial burden under the RLUIPA....
Notably, the record in case is missing a common, even pervasive, attribute in those cases where the plaintiffs succeeded on a substantial burden claim, namely that the relevant zoning authority displayed some outward hostility toward or pretextual decision-making about the plaintiffs’ proposed religious use....
... [P]laintiff has not shown why seeking an extension of the 2006 CUP or timely obtaining the relevant building permits for phase 2 were a substantial burden to its religious exercise....
The same reasoning applies to the alleged burden that resulted from the County’s insistence now that plaintiff must now re-apply as a primary use. It is not a substantial burden to file an application for a proposed land use.
