Timberline Baptist Church v. Washington County

BREWER, C. J.

Petitioner, Timberline Baptist Church (Timberline), sought approval from Washington County for special uses of property for a church, a day care facility, and a day school. The county granted special use and development review approvals for the church and the day care facility, but denied the requested special use approval for the proposed school. Petitioner appealed to the Land Use Board of Appeals (LUBA), which affirmed the county’s decision. Petitioner now seeks judicial review of LUBA’s order, asserting that LUBA erred in determining that denial of the special use approval for a weekday parochial school did not impose a “substantial burden” on petitioner’s religious exercise in violation of the Religious Land Use and Institutionalized Persons Act of2000 (RLUIPA), 42 USC §§ 2000cc to 2000cc-5 (2000) (set out, in part, below).¹ We conclude that the county’s decision did not impose a substantial burden under RLUIPA and therefore affirm.

We take the relevant facts from LUBA’s order and the record. Timberline Baptist Church was founded in 2001. At the relevant time, it had 267 members and held weekly services attended by 150 to 200 persons. The majority of the members resided in the City of Sherwood. The church used a converted single-family dwelling within Sherwood for its offices and for small meetings and rented space in the local high school and in other churches for Sunday and midweek services. In 2005, the church began operating a school for the congregation’s children in a separate leased facility; the school had 19 students.

In 2004, the church purchased the subject property of slightly more than seven acres for $500,000. The property is located in Washington County, outside the urban growth boundary (UGB) of the City of Sherwood. It is zoned AF-5 (Agriculture-Forest, 5-acre minimum lot size), as is land to the east and south. Land to the east is developed with rural residences and agriculture, and land to the west is in farm use in an AF-20 zone. Land to the north includes a dwelling, is in farm use, and is zoned for future development.

The AF-5 zone allows schools, churches, and accessory day care centers as permitted uses, subject to “special use” standards. One of those special use standards is established in Washington County Development Code (CDC) § 430-121.3, which provides that “[s]chools outside an urban growth boundary shall be scaled to serve the rural population.” That provision was in effect when the church purchased the property.

The purchased property is developed with a manufactured dwelling and outbuildings. In 2005, petitioner begem the process of seeking approval to build a 20,570- square-foot, single-story building that would serve as a combined church sanctuary, day care facility, and school.² Petitioner indicated that the school would serve 50 children from kindergarten through grade 12, would have five staff members, would be housed in a large multipurpose room within the proposed church building, and would operate from Monday through Friday, from 8:00 a.m. to 4:00 p.m. County staff recommended approval of special uses of the property for a church and a day care facility. However, relying on evidence that the prospective students of the proposed school would be children of church members and that church members primarily resided within the UGB, and applying a “rebuttable rule of thumb” that, in order for a school to be “scaled to serve the rural population” within the meaning of CDC § 430-121.3, at least 75 percent of its student body must be students residing in rural areas, county staff concluded that the proposed school use did not comply with that ordinance provision.³ Staff therefore recommended denial of the school use.

After a hearing, the county land use hearings officer agreed that the proposed school failed to meet the criterion in CDC § 430-121.3. The hearings officer also determined that application of that code provision to petitioner did not violate RLUIPA. The hearings officer first concluded that application of the criterion did not impose a “substantial burden” on petitioner’s religious practice because petitioner had failed to demonstrate that it had made a “sufficiently diligent effort” to locate suitable property within the UGB, where the school use would be permitted outright. The hearings officer also concluded that petitioner had failed to show that operating the school on a site separate from the church imposed a substantial burden on its religious practice, because evidence in the record showed that the church and the school currently were operating in separate locations. The hearings officer issued a decision approving the application as to the church and the day care facility, subject to conditions of approval, and denying it as to the school.

Petitioner appealed to LUBA, arguing that the county’s denial of special use approval for a school violated RLUIPA by reason of imposing a substantial burden on its religious practice and not furthering any compelling interest of the county. Pointing to its evidence in the record with respect to the availability of properties within the UGB at the time that it purchased the property, petitioner argued that the county therefore failed to demonstrate that petitioner did not make a “sufficiently diligent effort” to purchase such property. Petitioner also challenged the “sufficiently diligent effort” standard itself, arguing that it was sufficient that it acted reasonably in searching for suitable properties and arguing, alternatively, that the existence of alternative sites is irrelevant.

Notwithstanding that it continued its operations utilizing leased facilities, petitioner argued that the denial of its application imposed a substantial burden, asserting that the current separation of its church and school facilities was intended to be only temporary and that location of the school within the church building was important to the church’s religious mission. Finally, relying on Corp. of Presiding Bishop v. City of West Linn, 338 Or 453, 111 P3d 1123 (2005), and cases cited therein (discussed below), petitioner argued that those issues were, in effect, “academic” because the county’s denial met the test stated in that case: it forced petitioner to choose between forgoing or modifying an expression of its religious belief and obtaining a government benefit.

LUBA affirmed the county’s decision. As pertinent to petitioner’s arguments under RLUIPA,⁴ LUBA first determined that, on the record presented, operation of the proposed school was a religious exercise for the purpose of that statute. LUBA then considered whether application of CDC § 430-121.3 imposed a substantial burden on that exercise. LUBA concluded that evidence of the availability of alternative property that met the conditions was relevant to the question whether the inability to operate the school at the same location as the church constituted a substantial burden.

As LUBA explained, the evidence on that issue consisted, initially, of a list of 16 properties in the Sherwood area that are greater than three acres in size and were on the market in January 2006. The list was generated by a real estate broker who represented petitioner during its acquisition of the subject property in 2004. In a memorandum that accompanied the list, the broker stated that most of the identified properties were already developed with residences, and none of the remaining properties had “ease of access off a main thoroughfare.”

In addition, petitioner submitted a list of 28 parcels in the Sherwood area that were sold during the last half of 2004. Petitioner also submitted a list of 29 properties that were on the market in January 2006. For both lists, the broker used a filter of four acres and a $10 million upper price limit. All but one of the parcels on the first list were located outside the UGB and apparently were rejected for that reason. The remaining listed property bore only the notation “11/05/02 Property Pending Sale.” The second list, consisting of properties on the market in January 2006, included notations that rejected each of the 29 properties for various reasons, including “outside the [UGB],” “limited access to the property,” “limited exposure of property,” “out of price range,” and “parcel size too small.”

In response, the county submitted a memorandum identifying 16 parcels within the UGB that were located near the subject property that, it asserted, appeared to meet petitioner’s size requirements (although the list did not give an acreage count for any of the listed properties). Petitioner responded that, for 12 of the 16 properties, “no market data” was available. According to petitioner, the remaining four properties previously had been sold or listed in the price range of $1.9 million to $2.7 million. Petitioner asserted that those four properties were not acceptable based on access, visibility, or price. Finally, the county identified two additional properties in the area that had been sold in mid-2005 for $125,000 to $160,000 per acre and that appeared to meet petitioner’s “criteria.”⁵

LUBA concluded that petitioner had made an inadequate showing that it could not acquire alternative property in the same area that met its requirements and, therefore, had failed to demonstrate a substantial burden. LUBA noted that petitioner had submitted lists of available properties intended to demonstrate that there were no suitable properties for sale within the UGB and that the county in turn had submitted evidence of suitable parcels within the UGB. Although LUBA declined to adopt the county’s “sufficiently diligent effort” test, LUBA determined that, in order to demonstrate a substantial burden, petitioner “must do more than present a * * * list of properties * * * and attempt to disqualify” the properties “based on ill-defined ‘criteria.’ ” Rather, LUBA reasoned, it would not substantially burden petitioner to seek out properties that were not listed for sale or take other steps that land developers commonly take.

LUBA also reasoned that it was “immaterial” at that point that petitioner already owned the subject property. Relying on Midrash Sephardi, Inc. v. Town of Surfside, 366 F3d 1214, 1227 n 11 (11th Cir 2004), cert den, 543 US 1146 (2005), for the proposition that RLUIPA does not require local governments to “shield” religious entities from the “sometimes ‘harsh reality' of the market,” LUBA concluded that it was not a substantial burden on petitioner’s religious practice to require petitioner to sell its existing property and purchase other property that was already zoned to allow both a church and a school, even if such property exceeded petitioner’s financial capabilities or required petitioner to trade off some other desired characteristic such as access or visibility; according to LUBA, the only proper criteria for disqualifying property from consideration for RLUIPA purposes were criteria related to religious exercise.⁶

Finally, having concluded that requiring petitioner to purchase some other property was not a substantial burden on petitioner’s religious exercise, LUBA explained that it need not decide whether evidence in the record that petitioner already was “successfully” operating a school at a separate site from the site where it held religious services provided an alternative basis for affirming the county's decision or, conversely, whether petitioner’s evidence regarding the necessity of locating the church and the school on the same premises was sufficient to require a different result under the “substantial burden” test.⁷ As noted, LUBA affirmed the county’s decision.

On judicial review, petitioner again renews its argument that the county’s application to it of CDC § 430-121.3 imposed a substantial burden on its religious exercise in violation of RLUIPA. Specifically, petitioner asserts that LUBA gave improper weight to the fact that petitioner currently operates a school at a separate location from the location at which it conducts religious services; petitioner asserts that it presented sufficient evidence that the ability to offer classroom instruction and worship within the same building is critical to its religious mission.⁸ Petitioner also emphasizes that it already has obtained permission to construct a church building and operate a day care facility on the subject property and urges us to consider that context in determining the extent of the burden imposed by the county’s denial of the school use; according to petitioner, it is being forced to choose between adhering to its religious precepts and forgoing the government benefit of building the church, on the one hand, or building the church and forgoing its religious mission of operating a church school, on the other. Relying on the analysis in Sts. Constantine, Helen Greek Orth. v. New Berlin, 396 F3d 895 (7th Cir 2005), petitioner argues that merely requiring an applicant to purchase alternative property, considered in combination with the additional application proceedings that the new property would require, imposes a substantial burden on its religious practice and that it therefore was not required to show either that this specific property has “religious significance” to it or that there were no other suitable properties available.⁹ Alternatively, petitioner argues that the subject property has religious significance to it because it already has obtained permission to construct a church thereon. Finally, petitioner argues that LUBA’s “additional requirements,” including the requirement that petitioner make offers for properties not currently on the market, considered in light of LUBA’s conclusion that unaffordability is not relevant, themselves impose substantial burdens on petitioner.

In its response, the county first asks us to strike petitioner’s arguments based on the ostensible fact that a church will be built on the subject property; as we understand the county’s argument, that fact should not be assumed because the decision that is at issue in this judicial review proceeding — and therefore is not final — included the approval of the church use. The county also contends that petitioner failed to raise below the issue whether the delay and expense associated with seeking other properties constitutes a substantial burden.

Turning to the merits, the county argues that the record demonstrates that locating the school within the church building was a matter of mere practical convenience and not a matter of religious belief. The county also argues that, in any event, the issue is whether it substantially burdens petitioner’s religious exercise to deny the requested school use on the subject property. The county argues that it does not, because there is no evidence that this particular property has religious significance or that seeking out and purchasing other property would be a substantial burden; the county also notes that, aside from the initial purchase of the property, petitioner has not yet made an extensive investment in it such as by constructing the church building.

In addition, the county argues that RLUIPA’s protections do not apply “where the property owner’s choice creates the alleged burden” — here, the choice to buy less expensive rural property rather than urban property where a school would be allowed outright. Relatedly, the county also contends that LUBA correctly concluded that petitioner failed to make a sufficient search for other properties and urges us to follow the reasoning of LUBA that petitioner’s choice of property cannot be based on mere convenience or practical concerns and that, as a matter of law, the difficulty and costs of acquiring suitable property are not a substantial burden. The county contends that denial of the permit also does not constitute a substantial burden because it does not force petitioner to forgo providing religious education, but merely prohibits it from providing it to an urban population in a rural location. Finally, the county contends that it has not denied petitioner’s application while approving applications of other entities similarly situated, applied vague standards, acted for political reasons, or otherwise engaged in invidious discrimination or unfair treatment. Conversely, the county argues that interpreting RLUIPA to require approval of petitioner’s school use when a nonreligious entity would not be entitled to approval would violate the Establishment Clause of the First Amendment to the United States Constitution.

Before turning to the applicable analysis, we address the county’s initial points. First, we decline to “strike” petitioner’s arguments purportedly based on the assumption that a church will be built on the subject property. The county has approved petitioner’s requested church use. We also conclude that petitioner did not fail to preserve the issue whether the delay and costs associated with seeking an alternative property constitutes a substantial burden. Petitioner’s submission of evidence and arguments pertaining to the availability of alternative property at the time of the hearing, as well as at the time it purchased the subject property, sufficed to raise that issue.

We turn to RLUIPA. 42 USC section 2000cc provides, in part:

“(a) Substantial burdens

“(1) General rule

“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, unless the government demonstrates that imposition of the burden on that person, assembly, or institution—

“(A) is in furtherance of a compelling governmental interest; and

“(B) is the least restrictive means of furthering that compelling governmental interest.”

Under RLUIPA, “religious exercise” includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 USC § 2000cc-5(7)(A). RLUIPA expressly defines “religious exercise” to include “[t]he use, building, or conversion of real property for the purpose of religious exercise * * 42 USC § 2000cc-5(7)(B). See also 42 USC § 2000cc-2(b) (plaintiff has burden to show that regulation substantially burdens religious exercise; where plaintiff produces prima facie evidence, burden shifts to government as to other elements of claim).¹⁰

The United States Supreme Court has not yet had occasion to address the proper interpretation and application of the land use provisions of RLUIPA.¹¹ The Oregon Supreme Court has done so, however. In Corp. of Presiding Bishop, a city denied a church’s application for a conditional use permit for a new church building, on the grounds that the application did not meet various requirements for buffer zones and screening of the building. 338 Or at 459. The Supreme Court first explained that a person asserting that implementation of a land use regulation violates RLUIPA must demonstrate that a government actor has implemented the regulation in a manner that imposes a “substantial burden” on the person’s religious exercise; if the person does so, the land use regulation must yield, unless the record shows that the regulation furthers a compelling governmental interest and does so in the least restrictive manner possible. Id. at 462. The court further explained that, in enacting RLUIPA, Congress intended the term “substantial burden” to be interpreted by reference to the United States Supreme Court’s jurisprudence relating to the Free Exercise Clause of the First Amendment. Id. at 464.

After reviewing that jurisprudence, as well as considering then-existing interpretations of RLUIPA by lower federal courts, the court determined that a land use regulation imposes a substantial burden on religious exercise for the purpose of RLUIPA “only if it ‘pressures’ or ‘forces’ a choice between following religious precepts and forfeiting certain benefits, on the one hand, and abandoning one or more of those precepts in order to obtain the benefits, on the other.” Id. at 465-66. See also Guru Nanak Sikh Soc. v. County of Sutter, 456 F3d 978, 988-89 (9th Cir 2006) (a land use regulation imposes a substantial burden on religious exercise when it is “ ‘oppressive’ to a ‘significantly great’ extent” and imposes a “significantly great restriction or onus upon such exercise”) (quoting San Jose Christian College v. Morgan Hill, 360 F3d 1024, 1034 (9th Cir 2004)); Midrash Sephardi, Inc., 366 F3d at 1227 (determining that a “substantial burden” on religious exercise is more than an inconvenience and is “akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly,” that is, pressure to forgo religious precepts or pressure that mandates religious conduct); Civil Lib. for Urban Believers v. City of Chicago, 342 F3d 752, 761 (7th Cir 2003), cert den, 541 US 1096 (2004) (holding that, in context of RLUIPA’s broad definition of religious exercise, a land use regulation that imposes a substantial burden on religious exercise is one that renders that exercise “effectively impracticable”). See generally Daniel P. Lennington, Thou Shalt Not Zone: The Overbroad Applications and Troubling Implications ofRLUIPA’s Land Use Provisions, 29 Seattle U L Rev 805 (2006) (reviewing history of RLUIPA; collecting cases interpreting and applying “substantial burden” test in land use context).

The Oregon Supreme Court then assessed the consequences of the city’s denial of a conditional use permit in that case. The court determined that the city’s denial did not impose a substantial burden on the church because the further action required by the denial — submission by the church of a new permit application — although it would involve costs and delays, would not pressure the church to forgo or modify the expression of a religious belief. Corp. of Presiding Bishop, 338 Or at 467. Finally, the court noted that, because the city’s denial did not constitute a substantial burden on religious exercise, the court needed not consider whether the denial was justified by a compelling governmental interest or was the least restrictive means of furthering that interest. Id. at 467-68.

We turn to the application of RLUIPA to petitioner’s property. Again, the county approved petitioner’s requested special use of its property for a church and an associated day care facility. However, because petitioner’s proposed school did not meet the criterion established in CDC § 430-121.3— requiring that rural schools “be scaled to serve the rural population,” in that the proposed student body primarily would be taken from urban areas — it denied petitioner’s requested special use of the property for a school to be attended by petitioner’s members’ children. Specifically, the county and, subsequently, LUBA concluded, in effect, that it was incumbent on petitioner to purchase property on which its desired use would be permitted outright and that the cost of selling its existing property in order to now do so was not a substantial burden.

We disagree with the first part of that reasoning and reject it with dispatch. Nothing in RLUIPA requires a religious institution, in order to take advantage of its provisions, to purchase only property on which the desired use is permitted outright.¹² It follows that the dispositive question is whether implementation of CDC § 430-121.3 in relation to petitioner’s property imposes a substantial burden on petitioner’s religious exercise for the purpose of RLUIPA, that is, whether it forces petitioner to choose between adhering to a religious practice and obtaining a desired government benefit. We understand the relevant religious practice to be the operation of a school that is to be attended by petitioner’s members’ children and that is located on the same property as petitioner’s church. The government benefit at issue is, of course, approval of that school use.

In this case, the county has attempted to apply a special use standard that would prevent petitioner, as it would any other applicant, from building a school on its rural property, where the school would serve a predominantly urban population. To the extent that other land that would have accommodated the desired combined uses was available within the area when petitioner applied for its permit, that factor logically is important to the determination whether, by applying the special use standard in this case, the county imposed a substantial burden on petitioner’s religious exercise. However, there is no persuasive evidence in the record to suggest that such land was not available. As we now explain, we agree with LUBA’s conclusion that petitioner failed to make an adequate showing that it could not reasonably acquire other property that met its requirements and, therefore, failed to demonstrate a substantial burden.

The departure point for our analysis is the Supreme Court’s decision in Corp. of Presiding Bishop. In that case, the court described the pressure required to establish a substantial burden with reference to the Second Circuit’s decision in Westchester Day v. Village of Mamaroneck, 386 F3d 183 (2d Cir 2004), where a religiously affiliated school challenged, on RLUIPA grounds, the village’s denial of a permit that would allow the school to construct a new building and renovate others. In Westchester Day, the Second Circuit found that the denial did not create a substantial burden on the school’s religious exercise because the village

“did not purport to pronounce the death knell of the School’s proposed renovations in their entirety, but rather to deny only the application submitted, leaving open the possibility that a modification of the proposal, coupled with the submission of satisfactory data found to have been lacking in the earlier proceedings, would result in approval.”

Id. at 188. The court noted that the denial of a specific proposal may constitute a substantial burden when the denial seems disingenuous, when curing the problems that formed the basis for the denial “would impose so great an economic burden as to make amendment unworkable,” or when the cure itself directly affected religious exercise. Id. at 188 n 3. However, the court found that in that case a mere denial, without more, did not constitute a substantial burden.

In Corp. of Presiding Bishop, the court also discussed Midrash Sephardi, Inc., and stated that

“the city sought to enjoin synagogues from holding services in a hotel meeting room and a conference room leased from a bank. The injunction would have required the synagogues to relocate farther away from their congregants. The synagogues argued that the injunction would constitute a substantial burden because the religious beliefs of the congregants required them to walk to synagogue. The Eleventh Circuit held that requiring the congregants to walk the extra blocks did not constitute a substantial burden.”

338 Or at 466. The court continued:

“We agree with the reasoning of the cases discussed above, and, on that basis, we conclude that a government regulation imposes a substantial burden on religious exercise only if it ‘pressures’ or ‘forces’ a choice between following religious precepts and forfeiting certain benefits, on the one hand, and abandoning one or more of those precepts in order to obtain the benefits, on the other. See Sherbert [v. Verner], 374 US [398,] 404, [83 S Ct 1790, 10 L Ed 2d 965 (1963)] (stating that test)."

Id.

Corp. of Presiding Bishop is highly instructive but it, alone, does not resolve the present case without reference to the federal decisions, and their progeny, on which the court relied. That is so, for among other reasons, because this case, unlike Corp. of Presiding Bishop, involves an outright denial of a proposed land use based on the application of an objectively framed special use standard.

The cases addressing alleged infringements of free exercise rights may be usefully categorized into two groups. On the one hand, courts routinely find substantial burdens where compliance with a statute itself violates the individual’s religious beliefs and noncompliance may subject him or her to criminal sanctions or the loss of a significant government privilege or benefit. See Wisconsin v. Yoder, 406 US 205, 92 S Ct 1526, 32 L Ed 2d 15 (1972) (compulsory high school attendance law contrary to Amish religious beliefs); Sherbert, 374 US 398 (denial of unemployment benefits to Seventh Day Adventist who refused to work on Saturday Sabbath). On the other hand, courts often have been more reluctant to find a violation where compliance with the challenged regulation makes the practice of one’s religion more difficult or expensive, but the regulation is not inherently inconsistent with the litigant’s beliefs. See Lakewood, Ohio Cong, of Jehovah’s Witnesses, Inc. v. City of Lakewood, Ohio, 699 F2d 303, 306 (6th Cir), cert den, 464 US 815 (1983) (holding that “[inconvenient economic burdens on religious freedom do not rise to a constitutionally impermissible infringement of free exercise”); see also Episcopal Student Foundation v. City of Ann Arbor, 341 F Supp 2d 691, 706 (ED Mich 2004) (quoting Lakewood, 699 F2d at 307).

In view of those distinct branches of authority, it is useful to review the Supreme Court decisions that have shaped free exercise jurisprudence. In Sherhert, the Supreme Court considered whether the denial of unemployment benefits to a Seventh Day Adventist whose employment was terminated for refusing to work on her Sabbath constituted a substantial burden on her religious free exercise. 374 US 398. The Court concluded that it did because the state’s denial “force [d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other[.]” 374 US at 403-04. The Court held that “to condition the availability of benefits upon this applicant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.” Id. at 406.

In Yoder, 406 US at 218, the Supreme Court addressed the issue of whether a compulsory school attendance law that conflicted with Amish religious beliefs, and that imposed criminal sanctions for noncompliance, violated the Free Exercise Clause. The Court held in the affirmative. In particular, the Court stated that “[t]he impact of the compulsory-attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs.”¹³ Id.

Applying the principles set out in Sherbert and Yoder, in Lakewood, the Sixth Circuit addressed a congregation’s challenge to its city’s comprehensive zoning plan, which prohibited the congregation from constructing a place of worship on land owned by the congregation. 699 F2d at 305-08. Under the zoning plan, only 10 percent of the city’s property was designated as land on which a church could be built. The Sixth Circuit observed that the Lakewood ordinance did not prohibit the congregation, or any other faith, from worshiping in the city altogether. The congregation remained free to practice its faith through worship “whether the worship be in homes, schools, other churches, or meeting halls throughout the city.” Id. at 307.

The court also rejected the congregation’s claim that the zoning ordinance imposed a substantial burden because land in commercial zoning districts (in which churches were permitted uses) was more expensive and less conducive to worship than the lot owned by the church. Although the “lots available to the Congregation may not meet its budget or satisfy its tastes,” the Sixth Circuit held that the Free Exercise Clause “does not require the City to make all land or even the cheapest or most beautiful land available to churches.” Id. The court summarized its conclusion that the zoning ordinance did not impose a substantial burden on the congregation’s free exercise by stating:

“[The ordinance] does not pressure the Congregation to abandon its religious beliefs through financial or criminal penalties. Neither does the ordinance tax the Congregation’s exercise of its religion. Despite the ordinance’s financial and aesthetical imposition on the Congregation, we hold that the Congregation’s freedom of religion * * * has not been infringed.”

Id. at 307-08.

Of similar import is Christian Methodist Episcopal Church v. Montgomery, CV22322, 2007 WL 172496, at *8-9 (DSC Jan 18, 2007). In that case, the court held that a municipal zoning ordinance that required a property owner or its tenant assignee to apply for a special land use approval did not impose a substantial burden under RLUIPA. In reaching its conclusion, the court relied on a Fourth Circuit decision that was decided under the First Amendment before the passage of RLUIPA. What the court said about that case bears emphasis here:

“In Christ College, Inc., et al v. Board of Supervisors, Fairfax Co., et al, 944 F2d 901, 1991 WL 179102 (4th Cir 1991) (unpublished) [cert den, 502 US 1094, 112 S Ct 1169, 117 L Ed 2d 414 (1992)], Christ College alleged that the Board of Supervisors of Fairfax County violated the College’s free exercise of religion as a result of the Board’s denial of the College’s application for a special exception to the County’s zoning laws to build and operate a schoolhouse in an area zoned residential. The County permitted a school to operate on a property zoned for commercial or industrial use as a matter of right; however, it required a school to obtain a special exception to the zoning laws before it located in a[n] area zoned for residential use.

“The Fourth Circuit held that the College failed to establish the first element of a free exercise claim; it did not prove that the zoning laws burdened its exercise of religion. The Court determined that the County’s zoning provisions did not absolutely prohibit operation of private or parochial schools because the provisions permitted such a school to be located in either commercial or industrial zones without any special exception. Additionally, with a special exception, such schools could locate within residential zones. The College did not show that conformance to the County’s zoning regulations would impair any aspect of its free exercise of religion. ‘They have not shown how their rights may only be exercised in a facility located in a residential zone, nor that conforming to the special exception requirements laid down by Fairfax would in any constitutionally significant way burden those rights.’ 1991 WL 179102 at *4.

“The Court acknowledged that the County zoning laws made it more difficult for the College to be located on the property of its choice; however the fact that local regulations limit the geographical options of a religious school * * * does not prove that any party’s right to free exercise is thereby burdened. There must at least be some nexus between the government regulation-here, a zoning law-and impairment of ability to carry out a religious mission. It is not enough that an entity conducting a religious program of mission would prefer to be located on residential property. That preference must be linked to religious imperative. No such [link] was proved here and the court was correct in concluding the zoning regulations did not burden appellants’ free exercise of religion.”

Montgomery, 2007 WL 172496 at *8-9.

Also pertinent is the Seventh Circuit’s observation that:

“Application of the substantial burden provision to a regulation inhibiting or constraining any religious exercise * * * would render meaningless the word ‘substantial/ because the slightest obstacle to religious exercise incidental to the regulation of land use — however minor the burden it were to impose — could then constitute a burden sufficient to trigger RLUIPA’s requirement that the regulation advance a compelling governmental interest by the least restrictive means.”

Civil Lib. for Urban Believers, 342 F3d at 761 (emphasis in original). In that case, an association of area churches challenged a city ordinance, alleging that it violated RLUIPA. Id. at 755. The court decided that the plaintiffs had not met the requirement of showing a substantial burden and held that a regulation must bear “direct, primary, and fundamental responsibility for rendering religious exercise * * * effectively impracticable” in order to impose a substantial burden. Id. at 761.

The Seventh Circuit’s standard for showing a substantial burden under RLUIPA apparently was relaxed somewhat in New Berlin. In that case, the court held that the defendant municipality had created a substantial burden by requiring a church to “search! ] around for other parcels of land” rather than rezone property the church already owned. New Berlin, 396 F3d at 901. Other churches had facilities in the same area as the subject land. However, the city in that case was concerned that, if the property were rezoned, a subsequent owner might build a school or other nonreligious facility, and the church thus agreed to a restrictive covenant disallowing such an arrangement. Id. at 900-01. The court concluded that the city had no legitimate concerns on which to base its denial of the rezoning but that it nevertheless had swamped the petitioner with a tide of “incompetent” red tape that the court excoriated as unjustified. Id. at 900 (describing the city as “flaunting as it were its own incompetence”). Bluntly, the court was concerned that the municipality had given the petitioner the bureaucratic run around and that the standardless discretion that inhered in its decisional process could mask a discriminatory motive. Id.

The Seventh Circuit recently distinguished that circumstance from one where the local government’s “discretion is narrowly circumscribed by [its] Zoning Regulations, which set forth the various factors to be considered by [it] in addressing an application for a special use permit.” Vision Church v. Village of Long Grove, 468 F3d 975, 990-91 (7th Cir 2006) (distinguishing New Berlin). The same distinction applies here, where the applicable use standard is clear and not subject to ad hoc manipulation. Nor is there any claim of incompetence or bad faith on the county’s part in this case. It is true that, in New Berlin, the Seventh Circuit implied that RLUIPA affords religious institutions greater protection than secular institutions. Id. at 900 (“A separate provision of the Act forbids government to ‘impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.’ ”). However, it is easy to overstate the significance of that point; it has limits, and the question is where they lie in cases like the present one.

The United States District Court for the Northern District of Illinois noted in a recent case interpreting Civil Lib. for Urban Believers and New Berlin that RLUIPA does not entitle religious groups to establish houses of worship anywhere they want. Petra Presbyterian Church v. Village of Northbrook, 409 F Supp 2d 1001, 1007 (ND Ill 2006). In that case, a church was not permitted to open in an industrial area, because that was prohibited by the zoning laws of the defendant city, and the church sued the city under RLUIPA. Id. at 1003. In holding for the defendant, the court noted that the plaintiff had failed to “account for other areas of Northbrook where churches are allowed,” including the “availability of land in * * * commercial districts where churches are allowed with a permit.” Id. at 1007. Other courts also have considered the availability of other land in the area as a factor in determining whether a substantial burden existed. See Lakewood, 699 F2d at 307 (although “[t]he lots available to the Congregation may not meet its budget or satisfy its tastes,” the Free Exercise Clause “does not require the City to make all land or even the cheapest * * * land available to churches”); see also Lighthouse for Evangelism v. City of Long Branch, 100 Fed Appx 70 (3rd Cir 2004), on remand, 406 F Supp 2d 507 (D NJ 2005) (finding no substantial burden where the institution was not completely excluded from the city and could have operated in other districts within the city by right, such as in a commercially zoned district); Episcopal Student Foundation, 341 F Supp 2d at 706; Christ College, Inc., 1991 WL 179102.

The foregoing cases are consistent with the standard adopted by the Oregon Supreme Court in Corp. of Presiding Bishop, 338 Or 453. Here, as noted, the county ultimately denied petitioner’s application, whereas, in Corp. of Presiding Bishop, the court determined that further applications were not foreclosed but were, indeed, encouraged. However, the court’s formulation of the substantial burden standard suggests that, at the least, it would require petitioner to demonstrate that it could not reasonably locate and acquire an alternative site for its desired combined uses. See Corp. of Presiding Bishop, 338 Or at 465-66. Although it is not possible to articulate a bright line test for what might constitute a sufficient showing that no reasonable alternatives existed in every case, such a showing must, at the least, demonstrate that a land use decision has forced the applicant to forgo its religious precepts.

That determination is made more difficult in this case because petitioner made little effort to clearly define its property selection criteria or to explain how the failure to satisfy those criteria would require it to forgo its religious precepts. For example, there was no evidence in the record that, in the absence of a particular “access to the property” or “exposure of property” — or, for that matter, a particular price or parcel size — petitioner would be required to forgo its religious precepts. Said another way, there was insufficient evidence that petitioner’s religious exercise would have been substantially burdened by buying one of the 29 properties on the market in January 2006 or one of the 16 parcels identified by the county.

Rather than undertake the task of clearly defining its property selection criteria and explaining how the failure to satisfy them would require it to forgo its religious precepts, petitioner essentially has taken the position that the need to look for and acquire other property is itself a substantial burden, because such a search would be time consuming and costly. However, such a showing is insufficient. There was no evidence that a reasonable search and acquisition would have required the interruption or cessation of the church’s present activities; it merely would have required a delay and some unknown expense. Moreover, a reasonable search and acquisition that would not require petitioner to forgo religious precepts might entail a balancing of petitioner’s preferences with respect to the size and location of potential sites, a not uncommon compromise in all property selection processes. In addition, it might be reasonable to seek out properties that were not listed for sale or take other steps that land developers commonly take in locating property. But the record does not elaborate on those or any other material factors in this case.

Because petitioner failed to demonstrate that upholding the county’s land use decision would force petitioner to forgo its religious precepts, we conclude that petitioner failed to show that the county has imposed a substantial burden under RLUIPA.

We conclude with a brief examination of the dissent’s treatment of the issues in this case. We confine our focus to four definitive problems.

First, we and the dissent divide over the issue whether a religious institution is substantially burdened merely because, in order to comply with an applicable land use regulation, it may be required to sell existing property and purchase alternative property. The dissent is somewhat inconsistent about the issue. At one point, the dissent states that it “do[es] not mean to suggest that implementation of a land use regulation in a manner necessitating the purchase of alternative property will always constitute imposition of a substantial burden * * 211 Or App at 483 n 10 (Wollheim, P. J., dissenting). However, the dissent never explains what would make purchasing alternative property a burden in some cases but not others. It cites a number of cases that recognize the significance of being required to sell existing property and purchase alternative property. 211 Or App at 481-83 (Wollheim, P. J., dissenting). But most of those cases are distinguishable on their facts from the circumstances here.

As discussed, the most sensible way to understand New Berlin focuses on the court’s concern that the municipality in that case improperly had exercised standardless discretion in its decisional process; any other understanding of the decision is difficult to square with the same court’s (albeit a different panel’s) decision in Civil Lib. for Urban Believers.¹⁴

The dissent also relies on the Ninth Circuit’s decision in Guru Nanak Sikh Soc. As the dissent points out, that case stands for the proposition that, to prove a substantial burden, a religious group need not show that there was no other parcel of land on which it could carry out the relevant religious exercise. We agree. However, that proposition does not resolve the issue at hand, which is what showing is required. As elaborated below, the dissent does not provide any assistance in that regard.

Most of the remaining cases on which the dissent relies are distinguishable because the petitioning religious institutions showed that locating and purchasing alternative property on which their proposed uses were permitted would create an unreasonable economic burden. See Living Water Church v. Charter Tp. Of Meridian, 384 F Supp 2d 1123, 1133-34 (WD Mich 2005) (substantial burden found where the petitioner was “a small church with limited funds”); see also Greater Bible Way Temple v. Jackson, 268 Mich App 673, 708 NW2d 756, 762 (2005), rev allowed, 474 Mich 1133, 712 NW2d 728 (2006) (substantial burden found where applicant submitted evidence showing that it could not afford to purchase different property).¹⁵

The dissent labors to distinguish some of the cases that we discuss because those cases, in turn, cited the Supreme Court’s decision in Braunfeld v. Brown, 366 US 599, 81 S Ct 1144, 6 L Ed 2d 563 (1961). As the dissent sees it, the effect of the regulation in Braunfeld (a Sunday business ban case), “was more ‘indirect’ * * * than the direct effect of the [one] at issue here.” 211 Or App at 477 (Wollheim, P. J., dissenting). The dissent pursues that theme for several pages, but its criticism perplexes us. We have not cited Braunfeld, because we appreciate that it is sensible to steer more closely to the land use problem at hand. The fact that some courts facing similar circumstances have seen fit to discuss Braunfeld is not, to our thinking, especially informative. Unlike the dissent, we see no benefit in speculating about which effect is more “indirect,” the effect in Braunfeld or the effect of the regulation in this case. Such a detour only serves to mask the evidentiary shortcomings in petitioner’s case.

Its failure to adequately confront that proof deficiency is the second definitive problem with the dissent’s analysis. At various points the dissent concludes that petitioner has been pressured or forced to forgo its religious precepts, 211 Or App at 472-73, 483-84 (Wollheim, P. J., dissenting), and that “locat[ing] and purchas[ing] new property where the school use is not conditioned on the criterion imposed under [the regulation is] a significant burden in and of itself * * Id. at 483 (Wollheim, P. J., dissenting). Yet the dissent never articulates what the record actually shows in that regard, that is, what evidence petitioner has offered to demonstrate the burden on its religious practices and the “pressure” or “force” that results from that burden. The dissent also appears to ignore the fact that petitioner rejected properties without clearly defining its criteria. In short, the dissent never confronts the vacuum of proof in the record that searching for or relocating to other property would require petitioner to forgo its religious beliefs.

Third, the dissent overplays the notion that implementation of the county’s regulation “has the effect of forcing Timberline Baptist Church to forgo or modify its religious practice of operating a school for the benefit of its members’ children at the same location as its approved church.” Id. at 483 (Wollheim, P. J., dissenting). In a real sense, the consequences of the implementation of the regulation are merely economic. There is no evidence that petitioner must forgo operating a school for the benefit of its members’ children in the same location as petitioner’s church; at most it may have to pay more money to do so. As LUBA pointed out, there is nothing of particular religious significance about the subject parcel of land; it merely was less expensive because it is not located within the UGB. The dispositive issue — despite the dissent’s focus on the impact of operating the school and church separately — is whether petitioner carried its burden of showing a substantial burden in the absence of a reasonable search for alternative properties where a school and church could be built.

Fourth, and finally, the dissent makes one further effort to surmount the foregoing problems. It asserts that, in addition to the burden of seeking and purchasing alternative property, the application of the county’s special use standard would result in another burden on petitioner’s religious precepts. Specifically, the dissent asserts:

“Timberline Baptist Church’s religious precept is the operation of a religious school on the same property as its church. The benefit is the county’s approval of the special use permit for the church and day care facility. Timberline Baptist Church is being ‘pressured’ or ‘forced’ to give up the approved church and day care facility on the property it owns, or to ‘abandon’ its religious precept of operating a church and religious school on the same property and keep the approval of building a church on its property.”

211 Or App at 473 (Wollheim, P. J., dissenting). Later, the dissent characterizes the “forfeit [ure]” of petitioner’s “previously obtained church use approval” as a substantial burden that would result from the separate burden associated with looking for and purchasing alternative property. Id. at 483 (Wollheim, P. J., dissenting).¹⁶ As the dissent apparently sees things, getting some benefits from the applicable land use regulations pertaining to a particular parcel of property, but not everything that it wants, would cause petitioner to forgo the precept that all of its desired uses should converge in a single facility and thereby would cause it to suffer a substantial burden under RLUIPA. We disagree.

The dissent’s argument is a bootstrap. By purchasing the subject parcel for the purpose of colocating all three of its desired uses, even though only two of those uses were authorized under the county’s special use standard, petitioner has undertaken to unilaterally determine the portions of the law with which it must comply. But things are not that simple. As it relates to the subject property, the benefit to which petitioner is entitled under the county’s special use standard is a limited one. That benefit is the right to build a facility that will accommodate two, not three, of petitioner’s desired uses. The fact that petitioner would like to treat the limits of that benefit as a substantial burden does not make it proper to do so. Neither petitioner nor the dissent has cited a single case in which a court has allowed a land use applicant to successfully characterize the limits of a land use benefit as a substantial burden in circumstances such as these.¹⁷ It follows that the dissent’s effort to characterize “the forfeiture of petitioner’s previously-obtained church use approval” as a separately cognizable substantial burden is misplaced.

To summarize, in order to establish that the county’s application of the county’s special use standard substantially burdened petitioner’s free exercise of its religious beliefs, petitioner had to demonstrate that the county’s decision would require it to forgo its religious precepts because it could not reasonably locate and acquire an alternative site for its proposed combined uses. Petitioner failed to make such a showing. More fundamentally, petitioner did not clearly define its property selection criteria or explain how the failure to satisfy those criteria would require it to forgo its religious exercise. Accordingly, petitioner failed to establish that the application of the county’s standard imposed a substantial burden under RLUIPA.

Affirmed.

1 RLUIPA provides that the substantial burden provision of 42 USC 2000cc(a)(l) applies when:

“the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.”

42 USC 2000cc(a)(2)(C). The parties have not addressed that issue in this case. For the purposes of this opinion, we assume without deciding that the application of the county’s decision constituted an individualized assessment as that term is used in 42 USC 2000cc(a)(2)(C).

2 Petitioner’s use of leased facilities for its school operation continued at all pertinent times.

3 The 7 5 percent rule of thumb is not an express requirement under any county regulation cited by the parties. The hearings officer’s order explained that, “the county hearings officer and Board of Commissioners have construed CDC 430-121.3 to require that at least 75 [percent] of the students attending a school in the rural area must reside in the rural area, in the absence of another basis for complying with that section.” In other words, the rule of thumb reflects the county’s interpretation of its ordinance. Petitioner does not assert that that interpretation has been applied to it in a discriminatory manner.

4 Preliminarily, LUBA noted that, in an earlier proceeding, it had determined that denial of a proposed church school under CDC § 430-121.3 did not violate the Free Exercise Clause of the First Amendment to the United States Constitution. Cf. Corp. of Presiding Bishop, 338 Or at 461-64 (explaining that RLUIPA is interpreted to embody jurisprudence under Free Exercise Clause). LUBA also noted, however, that the RLUIPA substantial burden test is fact-specific and is therefore not controlled by LUBA’s Free Exercise analyses in other cases.

5 As elaborated below, one of the analytical challenges in this case arises from the paucity of evidence pertaining to the nature and particulars of petitioner’s property selection criteria. The two properties sold apparently were included in the list of 16 properties that petitioner’s broker furnished. County staff stated that the properties were 13 acres and 13.5 acres in size, respectively. County staff also stated that the properties were subject to the FD-20 zone and indicated that, after being annexed to the city, the properties could be partitioned and any unneeded portion could be sold to a developer. The “FD” designation refers to Future Development.

6 LUBA explained, in part, that, in the absence of evidence that particular property has religious significance, it regarded undeveloped land as “relatively fungible”; it also noted that petitioner knew or should have known at the time it purchased the property that it was subject to CDC § 430-121.3.

7 LUBA noted that petitioner’s pastor, Lindsey, had testified that church doctrine requires church school students to have access to church staff and requires a church sanctuary to be “adjacent to the classrooms.” According to LUBA, that testimony established only that the church and school were required to be “in relatively close proximity.” Again, however, LUBA determined that it was not required to resolve that issue.

8 Again, as noted, the record includes testimony by the church’s pastor that it is important for students to have access during the school day to church staff and the church sanctuary; petitioner reiterated those points during oral argument before this court.

9 Petitioner also cites a committee report for the Religious Liberty Protection Act of 1999, the findings for which were incorporated into the record in support of RLUIPA, for the proposition that Congress intended for RLUIPA to apply to properties currently owned by a religious entity. HR Rep No 219,106th Cong, 1st Sess (1999).

10 In a separate provision, RLUIPA also provides that no governmental body “shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution,” 42 USC § 2000cc(b)(l), and that no governmental body “shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.” 42 USC § 2000cc(b)(2). This case involves only the “substantial burden” provision of RLUIPA set out at 42 USC § 2000cc(a).

11 The United States Supreme Court has addressed the facial validity of provisions of RLUIPA pertaining to the imposition of substantial burdens on the religious exercise of institutionalized persons. 42 USC § 2000cc-l(a)(l), (2). In Cutter v. Wilkinson, 544 US 709, 125 S Ct 2113, 161 L Ed 2d 1020 (2005), after inmates of Ohio state institutions sought accommodation of the exercise of their “nonmainstream” religious practices, prison officials mounted a facial challenge to the relevant portion of RLUIPA, arguing, in part, that it improperly advances religion in violation of the Establishment Clause. In unanimously rejecting that challenge, the Court explained that the Establishment and Free Exercise clauses of the First Amendment “express complementary values [but] often exert conflicting pressures” and that its previous decisions had recognized that the clauses provide “space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause.” Id. at 719. The Court concluded that the relevant provisions of RLUIPA constitute a “permissible legislative accommodation of religion” that is not barred by the Establishment Clause. Id. at 720. The Court recognized that a government entity properly applying the law must take adequate account of the burdens that a “requested accommodation” may impose on non-beneficiaries; it also must ensure that the law is “administered neutrally among different faiths” and does not single out a particular religious sect for special treatment. Id. The Court also noted that, in the institutionalized-person’s context, it did not understand RLUIPA to “elevate accommodation of religious observances over an institution’s need to maintain order and safety” and that it had “no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns.” Id. at 722. Concluding that RLUIPA “confers no privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment,” the Court held that, on its face, RLUIPA does not violate the Establishment Clause. Id. at 724.

12 By its terms, RLUIPA provides that “[n]o government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person!.]” 42 USC § 2000cc(a) (emphasis added). Logically, in an as-applied challenge, the prohibition stated in the emphasized phrase pertains to the property owner’s currently owned property, that is, the property as to which the governing body is seeking to “impose or implement” the regulation. Nothing in the Oregon Supreme Court’s discussion of RLUIPA in Corp. of Presiding Bishop indicates otherwise.

13 Applying the same principles, more recently the Supreme Court declined to find a substantial burden in Lyng v. Northwest Indian Cemetery Prot. Assn., 485 US 439, 108 S Ct 1319, 99 L Ed 2d 534 (1988), and Locke v. Davey, 540 US 712, 124 S Ct 1307, 158 L Ed 2d 1 (2004). In Lyng, various Native American groups challenged the construction of a paved road through federal public land, asserting that the construction would harm sacred areas traditionally used for religious rituals. Although the road “would interfere * * * with [the plaintiffs’] ability to pursue spiritual fulfillment according to their own religious beliefs,” 485 US at 449, the Court concluded it would neither coerce the plaintiffs into violating their religious beliefs, nor “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.” id.

In Locke, 540 US at 720-21, the Supreme Court held that a state scholarship program that prohibited the use of scholarship funds for students pursuing theology degrees did not violate the Free Exercise Clause. In so holding, the Court noted that the program “impose [d] neither criminal nor civil sanctions on any type of religious service or rite,” and did not “require students to choose between their religious beliefs and receiving a government benefit.”

14 The court in New Berlin was satisfied with the following explanation:

“The district judge inferred from language in our [Civil Lib. for Urban Believers\ decision * * * that to satisfy this requirement the Church would have to show that there was no other parcel of land on which it could build its church. But in [Civil Lib. for Urban Believers] the plaintiff churches were challenging Chicago’s zoning ordinance, which — unlike New Berlin’s — allows churches to build in areas zoned residential, though it requires them to obtain a permit to build in areas zoned commercial. The requirement of seeking a permit, given that churches don’t need one to build in a residential zone, seemed to the panel majority in [Civil Lib. for Urban Believers] not to place a substantial burden on the churches. Id. at 761-62. The Church in our case doesn’t argue that having to apply for what amounts to a zoning variance to be allowed to build in a residential area is a substantial burden. It complains instead about having either to sell the land that it bought in New Berlin and find a suitable alternative parcel or be subjected to unreasonable delay by having to restart the permit process to satisfy the Planning Commission about a contingency for which the Church has already provided complete satisfaction.”

396 F3d at 899-900 (emphasis added). In light of the emphasized language, we adhere to our understanding of the essential differences between the two cases.

15 The dissent also relies on Vision Church. 211 Or App at 482 (Wollheim, P. J., dissenting). Although, as the dissent notes, the Seventh Circuit in that case observed that the municipality merely had required modifications to, not ultimately denied, the church’s application, 468 F3d at 1000, its primary rationale for rejecting the church’s substantial burden argument undercuts the dissent’s reasoning. The court stated:

“Lastly, we turn to Vision’s contention that the enactment of the Assembly Ordinance constitutes a ‘substantial burden’ on its right to the free exercise of religion. The Assembly Ordinance is facially neutral; it applies to the new construction of all public use buildings, regardless of their purpose, including not only ‘religious institutions,’ but also ‘aquariums, libraries, museums, private schools, and other similar uses,’ * * *. According to Vision, despite its neutrality, the Ordinance was passed for the sole purpose of forcing Vision to reduce the size of its proposed complex, which, in turn, substantially burdens Vision’s potential success. Besides temporal proximity between Vision’s dispute with the Village over a special use permit and the enactment of the Ordinance, there is no evidence in the record to support this claim. Even if Vision was targeted by the Assembly Ordinance, this does not mean that it was targeted because of religion: The Plan Commission was concerned about the size of the church complex and its effect on the character of the Village, concerns separate and independent from the religious affiliation (or lack thereof) of the institution seeking to build on the land.”

Id. at 999 (emphasis in original). Thus, Vision Church is consistent with our rationale for distinguishing New Berlin from the circumstances here.

16 The dissent also may think of the following hypothetical scenario as describing a substantial burden as “[slpecifically, in order to obtain the requested school use approval, Timberline Baptist Church must either operate a school primarily for children other than the children of its members or must arrange for most of its members to move outside the [UGB] .”211 Or App at 483 (Wollheim, P. J., dissenting). Because there is no evidence that petitioner would, under any circumstance, do either of those things, we assume that the dissent raises that prospect only to emphasize that it is important for petitioner to operate in a facility that accommodates all three of its desired uses. Because there is no evidence that it is a realistic scenario, we do not address it further.

17 There is a Free Exercise principle that bears some, albeit only partial, resemblance to the dissent’s argument, but which actually undercuts that argument. Although the dissent has not mentioned it, that principle was discussed in Episcopal Student Foundation. The court in that case explained Sherbert and Lakewood in this way:

“In Sherbert, the Supreme Court considered whether the denial of unemployment benefits to a Seventh Day Adventist whose employment was terminated for refusing to work on her Sabbath constituted a substantial burden on her religious free exercise. The Court concluded that it did because the state’s denial ‘force [d] her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning the precepts of her religion in order to accept work, on the other[.]’ Sherbert, [374 US at 399-401], The Court went on to hold, ‘[to] condition the availability of benefits upon this applicant’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties.’ [Id. at 404-06.] The Sixth Circuit later characterized the infringement found in Sherbert as ‘severe, life-threatening economic sanctions.’Lakewood, 699 F2d at 306.”

Episcopal Student Foundation, 341 F Supp 2d at 702 (emphasis added). Of course, the emphasized principle makes sense as it was applied in Sherbert and as it was explained in Lakewood. However, nothing that would trigger its application has occurred in this case.

As discussed, petitioner offered no proof that it would suffer an unreasonable economic consequence by searching for or purchasing other property that would accommodate all three of its desired uses. Assuming without deciding that the Sherbert principle otherwise might apply to the present circumstances, in the absence of proof of such an unreasonable economic consequence, petitioner failed to show that the county conditioned the availability of two approved uses of the subject property on petitioner’s willingness to forgo a precept of its religious faith.