The Supreme Court on Monday refused to consider a constitutional challenge to the Religious Land Use and Institutionalized Persons Act (RLUIPA), leaving intact a federal jury’s verdicts that Boulder County, Colorado had violated three separate provisions of the statute in its processing and denial of a 2004 special use application filed by Rocky Mountain Christian Church of Niwot, Colorado.

Following a trial in November of 2008, the jury found that the county treated the church unfairly in the land use process compared to a similarly situated secular school, imposed a substantial burden on the church’s exercise of religion, and unreasonably limited the ability of churches to locate within the county.  Based upon the verdicts, the district court then entered an injunction directing the county to approve the church’s 2004 application to expand its Niwot facility which is used both as a church and a school.

The Tenth Circuit upheld the jury verdicts and injunction in July of 2010.  The Supreme Court denied the county’s petition for certiorari, meaning it will not review the Tenth Circuit’s decision.  In two separate decisions, the church has also been awarded approximately $1,450,000 for attorneys’ fees incurred by its trial counsel, Otten, Johnson, Robinson, Neff & Ragonetti, P.C. of Denver, and The Becket Fund for Religious Liberty, a Washington D.C. based law firm, as well as its lead appellate counsel, Williams & Connolly LLP of Washington, D.C.

Alan Ahlgrim, Lead Pastor of the church, said “We’re grateful that the legal process is now done and we have been vindicated by yet a third court.”  He noted that during the application process the church had spent countless hours and great sums of money trying to comply with the county’s requirements and to address concerns of the church’s neighbors.  “The expanded facility will be a benefit both for the congregation and the entire Niwot community,” he said.

Kevin Baine of Williams & Connolly said he was not surprised by the Supreme Court’s decision not to review the case because “both lower courts had upheld the jury’s finding that the church had been treated less favorably than a secular school in the same position.”  According to Tom Macdonald of the Otten Johnson firm, the jury heard extensive evidence comparing the county’s treatment of the applications filed by the church and the Alexander Dawson School, which was also located on land with the same zoning and comprehensive plan designations as the church’s property and which received approval of an expansion similar in size to total project size sought by the church and that included a gymnasium of roughly the same size as the church requested.

Macdonald said the unreasonable limitation verdict was based upon evidence that the county made it more difficult for churches to operate in the county, had effectively left few sites for church construction and had told a synagogue it could have only 100 seats because the county did not want any more mega churches.  The substantial burden claim was based upon evidence that space constraints had inhibited the church’s growth and outreach to new members in a number of ways, he said.

RLUIPA was passed unanimously by both houses of Congress and signed into law by President Clinton in 2000.  “This case demonstrates the ongoing need for civil rights laws like RLUIPA that protect people of all faiths,” according to Eric Rassbach of the Becket Fund.  “It is also a testimony to the American commitment to religious freedom for all,” he said.

For additional information contact Tom Macdonald (303-575-7520; mac@ottenjohnson.com); Kevin Baine, (202-434-5010; kbaine@wc.com); or Eric Rassbach (202-349-7214; erassbach@becketfund.org).

We have been following the newly adopted requirement that Colorado property owners’ associations register with the Colorado Division of Real Estate (the “Division”) no later than January 1, 2011, or face losing their assessment lien power and enforcement rights.  See our earlier reports (Aug. 2010 and Dec. 2010) for background information on this new requirement.

For the past few months there has been uncertainty surrounding this requirement.  Recently, steps have been taken to implement it.  Aaron Acker has been hired as the HOA Information Officer and the Division has promulgated an emergency rule granting an automatic, temporary registration for Colorado property owners’ associations.  This temporary registration expires on March 1, 2011.   In addition, online registration is now available on the Division’s website.  The registration fee is currently set at $8.93. 

What is still uncertain is which Colorado property owners’ associations are subject to this new registration requirement—just those formed under the Colorado Common Interest Ownership Act (“CCIOA”) (adopted in 1992) or all property owners’ association, even those formed earlier than 1992 or otherwise exempt from CCIOA.  We understand from Mr. Acker that this and other issues are still being reviewed and we will continue to follow this matter and report back any new developments.

wind farm m.jpgA few months ago I wrote about how wind turbines could constitute a nuisance to adjoining landowners.  While that may be the case for residential neighbors, recent studies have shown that wind turbines might actually provide unexpected benefits to farmers.  The Denver Business Journal recently reported that wind turbines help plants grow by cooling them by day and warming them by night.  Organic farmers in particular stand to benefit from adjacent wind turbines because the wind from the turbines helps dry the plants thereby preventing the growth of harmful fungi and mold without the need for spraying. 

Teams of researchers in Iowa and Colorado are working to corroborate these initial findings.  If they do, there could be a rush by farmers to lease their land to energy companies to set up wind farms.

Photo by contemplative imaging (Flickr)

Anton Troianovski had an interesting article in the Wall Street Journal on how downtown office markets are currently improving faster than suburban office markets.  In part, Troianovski observes, this may be based on the types of businesses that tend to be in the two markets (mortgage companies and home builders in suburban markets, while downtowns tend to be home to government offices and big banks).  

City Photo.jpgBut he also notes that a possible “secular shift is under way in the American workplace” because younger people want to work in downtown markets.  Downtown Denver is specifically mentioned in this article as a beneficiary of this trend.  Whether this trend continues as the job market solidifies over the coming months and years will be worth watching.

Photo by paul (dex) (flickr)

A client recently raised concerns regarding a potential change in property tax assessment methodology that may be upcoming in the next Colorado state legislative session.  With revenues continuing to decline, local governments are seeking opportunities to capture property taxes from new sources.  The issue concerns residential property owners claiming an agricultural tax classification without having a bona fide agricultural operation on their land.

Colorado assessors classify real estate for property tax assessment purposes based on use, regardless of the underlying zoning designation.  Often, an agricultural classification results in a lower tax bill, because the actual value of agricultural land is based on its agricultural productive capacity.  A low productive capacity results in a low tax bill.    

HB10-1293, which became law last year, established the Land Assessment and Classification Task Force (the “Task Force”).  The Task Force’s nine members were charged with studying and evaluating assessment methodology for agricultural and residential properties and proposing statutory amendments to ensure that property is taxed in accordance with its actual use.  Under existing law, a residence on agricultural land is classified as residential, but the land is classified as agricultural.  

In October of this year, the Task Force released its Final Report.  In the Final Report, the Task Force agreed to focus its attention on a mixed residential/agricultural classification that would more accurately reflect the land’s use.  The Task Force proposed four recommendations as follows:

1. For any parcel that is more than 2 acres in size, assess a maximum of 2 acres as residential, when the residence is not an integral part of the agricultural operation.

2. For any parcel that is less than 2 acres in size, assess that portion of the land not used for agricultural operations as residential.

3. Require the division of taxation to establish guidance on the definition of “integral to agricultural operations” with certain guiding principles.

4. Require members of the Task Force to include recommendations 1 through 3 on any legislation carried
forward by Task Force Members. 

Because any changes to the historical tax classification methodology could have significant long–range consequences, it will be important to monitor the legislature’s interest and activity in this area.  I understand legislation on this matter supported by a number of Colorado counties has already been drafted.  Newspapers in Denver and Vail are already weighing in.