The The United States Department of Justice (DOJ) has notified James City County, Virginia that it has opened an investigation over the County’s 2013 refusal to allow Peninsula Pentecostal (Church) to operate as-of-right in the County’s industrial zone following a 2012 amendment to its zoning ordinance.  In 2013, the Church met with the County’s planners to outline its proposed 130,000 square foot facility (that is about the floor area of a Home Depot with a garden center) that would include two worship areas, classrooms, a nursery, offices, gym, meeting rooms, kitchen, reception hall, day care center, convenience store, and fuel station along with a 7,200 square foot garage and storage shed. The church’s school, day care and supporting facilties could accommodate 115 children.  At this meeting, the Church was informed by County officials that, based on a recent amendment to the County’s zoning ordinance, churches were allowed as-of-right in the industrial zone. 

In 2013, the County alleges that it became aware of “a large formatting error” with regard to the zoning ordinance amendment.  It claims that it inadvertently included approximately 40 non-industrial uses – including a church use (“places of assembly”) – as permitted uses in the industrial zone.  The County’s Planning Commission approved the proposed correction to the “formatting error,” but recommended that churches continue to be allowed as-of-right in the subject zone.  The Board of Supervisors disagreed, and voted to approve the correction to the ordinance in its entirety.  Now, the Church would have to submit an application to rezone its property for its intended use.  A memorandum issued by the County’s zoning administrator and planner documenting the history of events is available here.

The DOJ has requested that the County provide its attorneys with a slew of information within 21 days, including “all letters, emails, correspondence, staff memos, notes, drafts, studies, resolutions, agendas, minutes and recordings regarding changes to the limited business/industrial and general industrial zoning districts.”  It also seeks any other land use request made by a church in the past 10 years, as well as applications and decisions involving non-religious places of assembly (i.e., schools, museums, theaters, indoor amusements parks).  The DOJ notes that its “investigation is preliminary in nature, and we have not made any determination as to whether there has been a violation of [the law] by James City County.”

For more information about the DOJ’s involvement in RLUIPA cases, click here.  For local coverage, click here.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.