A dispute is heating up in Hilton Head, South Carolina between a church and a dog kennel that has been described as a “dog hotel.” The Church of Christ of Hilton Head plans to appeal the Board of Zoning Appeals’ approval of a special exception to permit a dog kennel on property that abuts and shares a driveway/parking lot with the Church property. The Church is concerned about the nuisance-like effect the dog kennel could have on its religious practice – the smell and the barking that could disrupt its services. The Church also worries about parking issues that could arise on Wednesdays and Sundays, days in which the Church allegedly has the exclusive right to use every parking space in the shared parking lot.
- The owner of the dog kennel plans to address the Church’s concerns by agreeing to the following conditions:
- Keeping the dogs inside at all other times. The dogs will only be taken outside to relieve them;
- Not taking the dogs outside during the bible class and worship services of the adjacent Church;
- Not allowing owners to pick up dogs during the bible class and worship services of the Church;
- Designing the interior space so that 89% of the kennels face away from the Church;
- Constructing a privacy fence around the area where the dogs will relieve themselves to limit the dogs’ vision of stimulus and prevent barking;
- Using ultra-sonic emitters and/or collars to discourage the dogs from barking;
- Immediately bagging waste and depositing it in lid-tight containers;
- Using a bacteria-killing cleaning product to clean the driveway on a daily basis;
- Creating 37 kennels, which will allow greater separation of the dogs and the ability to manage noise;
- Using an existing sound-proof room in the center of the building for a play area;
- Replacing the existing garage door with a heavier, more insulated door so the garage can be used as a play area while minimizing noise.
Neighbors of another dog kennel operated by this owner provided statements that the kennel has never been "cause for concern" as it relates to noise or odor. Hilton Head’s senior town planner agreed, stating that "[t]here is no evidence to indicate that the kennel will be obnoxious" The Board's minutes of the approval of the dog kennel are available here.
Although there are no indications that the Church seeks to use the Religious Land Use and Institutionalized Persons Act (RLUIPA) to challenge the dog kennel approval, it may give local governments pause (not paws) to consider that RLUIPA is not necessarily limited to applications submitted by religious institutions, as it provides in part: “No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution.” 42 U.S.C. Section 2000cc(a). Rather, a local government’s approval of a use that could burden a religious institution’s religious practice may give rise to an RLUIPA challenge. If a kennel were so odiferous, noisy, and traffic generating that it could be shown to disrupt religious services, could that be a basis for an RLUIPA claim or would it be barking up the wrong tree? Sometimes RLUIPA’s bark is worse than its bite.
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