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Published by the
Milwaukee Journal Sentinel,
June 10, 2005
Church
dispute could go back to court
Without a settlement, another appeal likely
in New Berlin case
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New Berlin -
A Greek Orthodox church's attempt to build a
multimillion-dollar facility on 40 acres is headed
back to federal district court after Friday's
deadline passed for the city to appeal its case to
the U.S. Supreme Court.
But
should the two sides, which have been fighting the
case in federal court for nearly three years, find
themselves unable to reach a financial settlement,
the case is likely to return to the same appeals
court, and perhaps become a test case for the law
at the Supreme Court.
A
lawyer for the church has said the city should pay
up to $1.8 million in damages the church suffered
because of increased building costs over the three
years of litigation.
The
case has the potential to become a legal showdown,
with a constitutional law expert the city retained
saying she plans to argue in federal court that
the land-use law is unconstitutional despite a
Supreme Court ruling last week that unanimously
upheld a related part of the same law that applies
to prisoners.
The
case between New Berlin and SS Constantine & Helen
Greek Orthodox Church dates to April 2002, when
the city denied the church's request to rezone 40
acres it owns near the corner of W. Cleveland Ave.
and Stigler Road.
The
church sued, arguing the city broke a 2000 law
that forces local governments to refrain from
implementing land-use regulations that impose a
"substantial burden" on the free expression of
religion unless the governmental units can show a
"compelling public interest" and that the
regulations are the "least restrictive means" of
furthering that interest.
The
law, the Religious Land Use and Institutionalized
Persons Act, forces local governments to refrain
from implementing land-use regulations that impose
a "substantial burden" on the free expression of
religion. Governments must prove there is a
compelling public interest in limitations, and
that the regulations are the least restrictive
means of furthering that interest.
The
law also extends the rights of prisoners to
express their religious beliefs.
In
February, Chicago's 7th Circuit U.S. Court of
Appeals ruled that when the city denied the
church's rezoning request, it placed a substantial
burden on the church. That conclusion reversed a
2004 decision made by U.S. District Judge J.P.
Stadtmueller.
Marci Hamilton, a constitutional law expert New
Berlin retained at $400 per hour, said that if the
case is not settled before the two sides meet in
district court, she will argue that the law is
unconstitutional.
"That is the issue that will be on the
plate at district court," she said. "The appeals
court never addressed that."
T.
Michael Schober, a New Berlin attorney who has
represented the church, said the issues the court
faced in its ruling last week are analogous to the
New Berlin case.
"It
would seem to me that for most clear-thinking
people, this most recent decision would serve as
encouragement to resolve the matter," Schober
said. "It seems very difficult to imagine a
situation in which the court would come to a
different conclusion" on the land-use issues.
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