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City won’t appeal ruling on West End synagogue

Post by Lewis Kamb / The News Tribune on April 7, 2010 at 4:11 pm with 1 Comment »
April 7, 2010 4:56 pm

The city won’t appeal a hearing examiner’s recent decision that cleared the way for a controversial synagogue to be built in Tacoma’s West End, Tacoma City Attorney Elizabeth Pauli told me Tuesday.

The city’s decision not to appeal likely means Rodney M. Kerslake’s Mar. 25 ruling — which reversed the city’s denials of zoning variances needed for Chabad of Pierce County to proceed with construction of the proposed synagogue on North Mildred Street — will stand.

“You only have certain grounds for challenging a hearing examiner’s decision,” Pauli told me in a phone call today, when further explaining the city’s legal decision. “There must be a mistake of law or the lack of evidence of fact…We didn’t see a strong case.”

The news came as disappointment to the West End Neighborhood Council. The council had fought the Orthodox Jewish group’s synagogue proposal on behalf of dozens of West End residents, who primarily opposed the structure’s size. The council says it will formally request Kerslake to reconsider his ruling.

“We have to file all the paperwork for reconsideration by tomorrow,” said Ginny Eberhardt, chairwoman of the West End Neighborhood Council. “Beyond that, we don’t know what we’ll do.”

Under law, affected parties to the case (essentially the city and the neighbors’ group) have two avenues for challenging Kerslake’s ruling. They can ask the hearing examiner to reconsider his ruling; and/or they can appeal the decision in Pierce County Superior Court.

But members of the neighborhood group, which formally intervened on Chabad’s appeal of the city’s denials to the hearing examiner, have said they likely can’t afford a court appeal. They also say they know the likelihood Kerslake will reconsider his decision and reverse himself isn’t good.

Still, opponents contend the city should take up the issue because the ruling will have far-reaching negative impacts on the city. They argue Kerslake’s decision will open the floodgates for construction of overly large structures throughout city neighborhoods.

Pauli disagrees.

“This (ruling) was very fact-specific and based on a unique body of law that applies to religious facilities,” she said.

Pauli noted the city carefully analyzed the ruling before deciding against an appeal.

Chabad had sought the variances to city landscaping and setback requirements so that it could build a proposed synagogue with more than 7,700 square feet of floor space and a 32-foot high peak on a lot of less than 7,200 square feet nestled between two existing homes.

The city denied the variances, later arguing the group could have redesigned the synagogue to conform to existing zoning or found a larger site to build the synagogue as proposed.

But Kerslake ruled that the denials imposed a “substantial burden” on the group’s constitutional rights to freely exercise religion.

Rabbi Zalman Heber, leader of the local Chabad group, told me last week that his congregation plans to begin raising up to $1.5 million to build the synagogue.

Leave a comment Comments → 1
  1. tacomascene says:

    The Religious Freedom Restoration Act of 1993
    Religious Land Use and Institutionalized Persons Act of 2000

    The Religious Land Use and Institutionalized Persons Act was enacted by the United States Congress in 2000 to correct the problems of the Religious Freedom Restoration Act (RFRA) of 1993. The act was passed in both the House of Representatives and the Senate by unanimous consent in voice votes, meaning that no objection was raised to its passage, so no vote was taken.

    Through RLUIPA, Congress has expanded religious accommodations to a point where it appears to restrict municipalities’ zoning power. Arguably, RLUIPA gives religious landowners a special right to challenge land use laws which their secular neighbors do not have. Even if a zoning law is void of discrimination, the court reviewing a challenge will apply strict scrutiny to the city’s regulation.

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