Ben Schwartz

Quick! Tell me everything you know about Salem,Virginia!

If you can’t answer that, don’t feel too badly. I’d never even heard ofSalem,VA, until about 20 minutes before I started writing this column.

Wikipedia tells me that Salem’s population was 24,802 in 2010; it is the county seat of Roanoke County; it abuts the city of Roanoke; and is known for its high school football program (the Spartans have won seven state football titles since 1996).

So why care about Salem, which I’m sure is a wonderful little suburban town in the Commonwealth of Virginia? I’ll come back to that in a few moments.

The battle between the City of Lexington and the Islamic Center of Lexington over the Center’s desire to expand in its location contrary to zoning rules took two big steps forward in the last couple of weeks. First, the City filed a lawsuit Feb. 5 against the Center, seeking financial penalties and an injunction preventing the group’s members from occupying the former Longhorn Laundry at 401 N. Grant. Then, the American Civil Liberties Union entered the fracas via a letter to the City, urging the City Council to grant the Center’s request for a conditional use permit, allowing the expansion.

The specter of the Religious Land Use and Institutionalized Persons Act (RLUIPA) loomed over all of this, even dating back to the Planning Commission meeting held last November, when the matter was first publicly discussed. I’ll admit to not really understanding RLUIPA, but after business hours Friday I had an epiphany.

“Hey dummy, how about instead of trying to decipher a bunch of legalese, why not just look up real world instances of how RLUIPA was applied in the real world?”

After some searching, I came across Salem.

Here are the basics: Salem invested hundreds of thousands of taxpayer dollars to develop a brand new industrial park out by Interstate 81, with the idea being to attract good jobs to the community. Once the project was completed, however, Pastor Tom McCracken applied for a zoning change on the industrial park so he could move his CommUNITY (their spelling, not mine) Church to that location.

The Salem government told McCracken to kick rocks. They hadn’t spent all that money so he could build a new church. They’d done it to bring jobs to their town in hard economic times.

So how did it end up? With the city capitulating. They quit on the stool like Mike Tyson against Kevin McBride.

This all went down in 2009-2010, and as far as I can tell the CommUNITY Church is still out there at 901 Russell Drive in Salem.

How in the world did that happen? How was a religious organization able to co-opt hundreds of thousands of dollars of public dollars and thumb its nose at the city government and its zoning rules?

RLUIPA.

Thank goodness for the Roanoke Times, which still had the story available online. Here are some excerpts from a statement by the Salem government. See if any of this seems familiar.

From the Roanoke Times: The church has a contract to buy the 25,000 square foot building at 901 Russell Dr. and then use the structure for its various services. Church leadership has asked that the property be rezoned to residential single family to allow such use, a request that the Salem Planning Commission denied on December 16, 2009.

Soon after that recommendation of denial was made, the church’s attorney David Tenzer, sent City Manager, Kevin Boggess, a five-page letter stating among other things that the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) gave CommUNITY Church the right to use this address for religious assembly.

Cozad Attorney Claude Berreckman Jr. sent a similar, if more concise letter, to the Lexington City Council in December, though that was before the council denied the request. Plus, the ACLU’s letter said the city’s denial was a violation of federal law.

More from the Roanoke Times: ‘We are pleased to have CommUNITY Church in Salem and glad that they have been holding services in the city for some time, but we wish they could have found a home that didn’t have such a significant impact on the city’s tax base and potential development possibilities,” says Salem Mayor, Randy Foley. “We put a great deal of effort into showing church leaders a number of alternative properties both in the city and on the western end of the county, but they seem to have their hearts set on Russell Drive.”

Lexington officials including City Manager Joe Pepplitsch and Development Director Bill Brecks have said multiple times that they’ve worked with the Islamic Center to find different locations, to no avail. The city council also expressed the hope that a different location could be found when it denied the Center’s request for a conditional use permit.

Here’s the important part: Stephen Yost, Salem’s City Attorney, one of his partners, William Maxwell, and the National Legal Research Group then began researching over 100 written opinions that have been presented in the 10-year history of this federal law. Although the City will not be rezoning the property as requested, it recognizes, in these unique circumstances, that (RLUIPA) takes priority.

While Council members are unanimous in their belief that this is not the best use of a business-commerce area, especially one where the city has invested over $230,000 in improvements, the members are not in favor of a legal battle that has the potential to be both lengthy and costly. In the event the church prevailed in any litigation, the city could be responsible for court costs, attorney fees and any damages.

“As City Council members, we don’t feel like we can support this re-zoning request, but we believe it will be in the best interest of Salem to move past this issue as soon as possible, and get back to working on other more pressing issues that are affecting our citizens in these trying economic times,” says Mayor Foley. “We wish the church and its congregation the best and trust they will be good stewards of the property.”

Man that had to be a bitter pill to swallow. Cities invest a ton of time (and in the Salem case, a ton of money) into development, and here comes a religious group with a federal law that allows them to do pretty much whatever they please when it comes to land use.

You can probably see where I’m going with this. Lexington’s city government faces a similar situation to one that caused a small town in another state to not only make an exception to its zoning rules, but also walk away from a substantial public investment.

Based on the Salem story, other examples of RLUIPA-implementation I read about online, and the frank conversation I had this week with the legal director of the ACLU of Nebraska, I do not think the Lexington government can prevail in this.

There may well be many of you among our readership and even in the city government who think I am a fool. But if that is the case, then those people must determine how much treasure they are willing to risk in a fight they may not win. I hope they’ve got something up their sleeves.

If they don’t, I think the City should learn from Salem’s experiences and just swallow the bitter pill. As the case in Virginia demonstrated, it could be a lot worse.

I understand that there is going to be a lot of frustration in the community with a situation where the rules do not apply equally to everyone. I share in some of those frustrations.

I’d point out however that it was not the members of the Islamic Center who passed RLUIPA; that was the Republican Congress in the year 2000 (signed into law by a Democratic president). Further, it was not the members of the Islamic Center who wrote, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” in the first amendment.

The people who did make those decisions probably did not have mosques in old Laundromats in mind, but those are the rules when it comes to religion in America. I will not fault a group for advocating for their rights to the fullest extent of the law, regardless of any personal feelings I have in the matter.

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