That was the question before the Deschutes County Board of Commissioners earlier this month.
The conflict arose as a result of John and Stephanie Shepherd’s continued attempts to host weddings on their property in Deschutes County, Oregon (the “County”), which is zoned for exclusive farm use (“EFU”) and subject to a wildlife protection overlay zone to protect mule deer, elk, and other animals. The Shepherds initially sought approval to operate as a “private park”, a conditionally permitted use in the EFU. Although the County approved this use in 2015, the Oregon Land Use Board of Appeals (“LUBA”) later reversed that decision, finding that the Shepherd’s proposed use did not qualify as a “private park”. On appeal, the Oregon Court of Appeals affirmed LUBA’s decision, observing that the proposed use more closely resembled that of a “commercial event venue” than a private park. See Landwatch v. Deschutes County, 276 Or. App. 282, 295 (2016).
Following the Court of Appeals’ 2016 decision, the Shepherds filed an application to operate a church on their property, which was approved by the County in September of the same year. However, in April 2017, LUBA once again thwarted the Shepherd’s operations, upon a finding that the County Code explicitly prohibits churches in the wildlife protection overlay zone, and that the Shepherds’ claim under RLUIPA’s equal terms provision was “undeveloped”. The full text of this decision is available here.
In the months since, the County has been reviewing the provisions of its Code that regulate religious use in the wildlife protection overlay zone, with an eye toward amendment. Conservationists are concerned that allowing an increased intensity of use in the wildlife protection overlay zone, such as church use, would stress shrinking wildlife populations, while citizens like the Shepherds believe that the Code, as written, presents a clear violation of federally- and state-protected religious freedoms.
At a meeting of the Deschutes County Board of Commissioners on December 18, 2017, the Commissioners expressed their intentions to amend the Code to remove the word “church” from the list of uses prohibited in the wildlife protection overlay zone. A final version of the proposed amendments is expected to be reviewed and acted upon at the Board’s meeting on December 27, 2017.
Question: What would happen if they amended the Code to prohibit without limitation all places of public assembly? Could it help a municipality avoid a possible equal terms claim under RLUIPA?