I don't know whether the revisions would bring Massachusetts law closer to that of other states, but it seems evident that to the extent RLUIPA would prohibit an exercise of a zoning board's authority, for example, to demand more parking than the church could accommodate on its property, there might be problems. Does the enactment of this statute by itself bootstrap a "compelling interest" on the part of the state, or is that presumed in the case of zoning laws under RLUIPA analysis?
The material part of the text is as follows:
SECTION 5. Said section 3 of said chapter 40A, as so appearing, is hereby further amended by striking out, in lines 26-34 inclusive, the words "nor shall any such ordinance or by-law prohibit, regulate or restrict the use of land or structures for religious purposes or for educational purposes on land owned or leased by the commonwealth or any of its agencies, subdivisions or bodies politic, or by a religious sect or denomination, or by a nonprofit educational corporation; provided, however, that such land or structures may be subject to reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements. ".
SECTION 6. Said section 3 of said chapter 40A, as so appearing, is hereby further amended by striking out the third paragraph and inserting in place thereof the following paragraph: -Zoning ordinances or by-laws shall not prohibit the use of land or structures thereon for: a) educational purposes on land owned or leased by the Commonwealth or any of its agencies, subdivisions or bodies politic or by a nonprofit educational corporation; b) religious purposes by a religious sect or denomination; c) the purposes of operating a child care facility or d) the purposes of operating a community residential program. As used in this section the following words shall have the following meanings: a) "educational purposes" means public and nonprofit private primary, secondary and higher educational purposes; b) "child care facility" means a day care center or school age child care program, as those terms are defined in section 9 of chapter twenty-eight A; c) "community residential program" means a residential facility licensed by the Commonwealth to provide care or shelter or supervision or education to a maximum of eight (8) individuals with a mental or physical disability or to victims of crime, of physical or mental abuse, or of neglect in a small-scale residential setting with on-site or off-site supervision. The land or structures used for such purposes may, however, be subject to reasonable regulations regarding the bulk and height of structures, yard sizes, frontage, lot area, building coverage requirements, setbacks, floor area ratio, parking, access and egress, lighting, drainage, landscaping, buffering and open space, and similar matters. Compliance with such regulations may be determined as provided by ordinance or by-law in each city or town, including through site plan review under which reasonable conditions, safeguards, and limitations to mitigate the impact of a specific use of land or structures on the neighborhood may be imposed pursuant to section seven A of this chapter. In addition, the application of such regulations to particular land or structures used for such purposes may be waived in whole or in part by special permit, and reasonable conditions may be imposed as part of the special permit. The waiver may be granted if the special permit granting authority finds, based upon the evidence presented by the person seeking the waiver, that the waiver will not result in substantially more detriment to the neighborhood than the use of the particular land or structures for such purposes without the waiver. "
On 3/1/06, Volokh, Eugene <[EMAIL PROTECTED]> wrote:
-----Original Message-----
From: Marie A. Failinger [mailto: [EMAIL PROTECTED]]
Sent: Wednesday, March 01, 2006 11:41 AM
. . .
Ethan Burger, who is teaching at AU this year, passed on a discussion
idea----he says there is a piece of legislation introduced into the
Mass. legislature that would require churches to demonstrate what parts
of their property are actually used for nonprofit purposes before asking
for tax-exemption on them. He believes this bill is, in part,
retaliation for the Catholic Church's pedophilia scandal, but thinks
that it would be financially ruinous for the Church especially if other
states get the same idea. He thought it was a good topic for someone to
write on.
If it's not been discussed, perhaps you can post to the list. I haven't
investigated it to make sure I got the story all correct.
Marie A. Failinger
Professor of Law
Hamline University School of Law
1536 Hewitt Avenue
Saint Paul, MN 55104 U.S.A.
651-523-2124 (work phone)
651-523-2236 (work fax)
[EMAIL PROTECTED] (email)
Journal of Law and Religion website at www.hamline.edu/law/jlr
--
Vance R. Koven
Boston, MA USA
[EMAIL PROTECTED]
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