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Board reverses land-use decision

Oregon churches could have more options for where they can build under a ruling from the state Land Use Board of Appeals on a Jackson County couple's request to establish a church on their rural ranch.

LUBA has determined that Jackson County erred in denying Scott and Sulara Young's request to build a church on their 96-acre property at 3300 Butler Creek Road. LUBA said the county's decision violated a federal law that requires state and local officials to treat religious organizations on equal terms with secular users.

State land-use laws prohibit new church construction on land zoned for exclusive farm use that lies within three miles of an urban growth boundary, but allow other community-based uses such as golf courses and public parks. LUBA determined that the distinction violates the federal Religious Land Use and Institutionalized Persons Act of 2000, also known as RLUIPA.

"We're very pleased our constitutional and religious rights have been upheld," Sulara Young said Monday.

Ross Day, the Youngs' attorney, said the ruling is important because it overthrows a land-use provision that discriminated against free exercise of religion.

"It's something we've been trying to challenge for a long time," said Day, an attorney for Oregonians in Action, the Beaverton-based property-rights organization.

The Youngs practice an animistic faith developed by the Huichol Indians of Mexico. Scott Young is a plastic surgeon and shaman. His wife, also known as Robin James, practices massage therapy at his office. They call the ranch Circle of Teran in memory of a son who died at birth, and they have said they were guided to the proposed church site by spiritual forces.

They have had disputes with Jackson County over buildings on the site that were erected without permits, and workshops that were presented there in apparent violation of county codes.

The validity of their spiritual practice has not been an issue in the their five-year effort to establish a church on their land. In 2003, the county denied their request to use an 11,000-square-foot dwelling on the property as a church because it violated a state land-use provision that prohibits new church construction within three miles of a city's urban growth boundary. The Youngs' residence lies just over two miles from the Ashland urban growth boundary.

The Youngs took their case to LUBA, which rejected their appeal because they had not exhausted all their remedies at the county level in that they had not sought an exception to the three-mile rule.

Jackson County rejected the Youngs' request for an exception in April 2008, in part because the couple failed to demonstrate that the proposed church could not be located elsewhere on their acreage, some of which lies beyond the three-mile limit. The county based its rejection on the notion that moving the church site would not impose a substantial burden on the Youngs' religious exercise, and therefore did not violate RLUIPA.

The Youngs once again petitioned LUBA, which ruled last week that the county's decision violated the provision of RLUIPA which provides that "No government 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."

Since land-use law allows parks, golf courses and living history museums on farmland that lies within the three-mile limit, LUBA ruled that denying the same opportunity to churches amounted to less than equal treatment.

However, LUBA remanded the case back to Jackson County for review rather than reversing the decision. The Youngs will have to bring their request to the county for review, and the county will have to consider whether the proposed church fails to comply with any plan or zoning ordinance provision that is independent of the three-mile rule.

Jackson County Commissioner C.W. Smith said he had not had the chance to discuss LUBA's latest ruling with county counsel, but he noted that the case turned more on the state land-use law than Jackson County's decision.

"Hopefully, we'll finally get this issue clarified," Smith said.

The property that includes the church site has been listed for sale at $6.7 million since last summer.

Day, the Youngs' attorney, said the LUBA ruling would give churches more options for where they could site new buildings. He said it was unlikely the ruling would stimulate the creation of new religions to take advantage of the change, because the courts have a series of well-established criteria to screen bogus faiths.

He said bona fide religions typically must have real religious tenets, some kind of historical record, and strictly held beliefs, among other things.

"You get into a real touchy situation when you question somebody's religious beliefs," he said. "Do you want to err on the side of land-use law, or on the side of the First Amendment? I'd rather err on the side of the First Amendment."

Reach reporter Bill Kettler at 776-4492 or e-mail bkettler@mailtribune.com.

Board reverses land-use decision