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An agenda item brought before the Board of Mayor and Aldermen by Alderman Jenna Amacher at the March 27 meeting was passed as a resolution, despite City Attorney Stephen Worsham recommending the board to postpone voting.

The agenda item raised by Amacher would create an exemption for setback requirements applicable to structures on property owned/actively used by churches and/or religious institutions. The current city setback requirements were established by ordinance to affect the city’s zoning ordinances.

According to Worsham, the only manner in which an ordinance can be amended is through passing another ordinance, which must be approved through two rounds of voting in separate meetings of the board. He recommended that the board consider voting to direct staff to prepare an ordinance, rather than voting to approve the resolution outright.

Amacher disagreed with Worsham’s remarks, stating that her item would not affect the zoning ordinances, as it was only relevant to religious organizations in the city. She then passed out a copy of her resolution for the board to read.

She cited Tennessee Code annotated 4-1-407, the Tennessee Religious Freedom Restoration Act, which provides further protections for religious liberty in the state. She further cited the Religious Land Use and Institutionalized Persons Act (RLUIPA), which prohibits the imposition of burdens on the ability of prisoners to worship as they please and gives churches and other religious institutions a means to avoid zoning law restrictions on their property use.

“I am not asking to change anything,” Amacher said. “And in fact, I will give two more examples of why the resolution is what we need to adopt, rather than an ordinance change.”

She yielded the floor to Worsham, who spoke on his professional disagreement with Amacher’s interpretation.

“I do believe that the effect of this would be to change our ordinance as it is, and I don’t believe that it would be valid,” he said. “But that’s up to you.”

Alderman Daniel Berry spoke on the interpersonal and professional background behind the item being added to the agenda. Berry had previously recommended at the beginning of the meeting that this item be removed from the consent agenda and be added to the new business portion of the agenda, to allow discussion.

“It would be easy for Mr. Worsham or any of us to have not known what Alderman Amacher meant, because what [she] did was, at the last minute, put this item on our consent agenda without any information being provided to us, to the city attorney or to the interim city administrator,” he said.

He asked whether the city attorney had been given the opportunity to review the phrasing of the item that Amacher passed amongst the board during her explanation of the resolution, which Worsham confirmed he had not.

“I don’t intend to be argumentative about this, and I’m not addressing the merits of the meaning of this resolution at all,” Worsham said. “There’s no reason why a resolution like this couldn’t be enacted into law in the appropriate way; but the appropriate way to do that is by ordinance, because the effect of this is in fact an amendment to the zoning ordinance.”

He recommended that the board postpone voting on the resolution until he had time to research the relevant laws and accomplish the intent of the item through ordinance rather than resolution.

City Planning Director Mary Samaniego echoed the recommendations of the city attorney.

“You cannot change a zoning ordinance with a resolution,” she said. “I’ve been doing this for more than 30 years. Any exemption or variance or relief from the zoning ordinance affects people’s constitutional property rights, and they’re allowed due process. I’m actually relatively shocked at the idea that we would add an exemption to the zoning ordinance without any public input or public comment.”

She then referred to Amacher’s citation of RLUIPA and the state code, sharing that the laws were established, historically, in order to prevent overly strict restrictions to be placed on public institutions to prevent them from organizing halfway houses, food banks and other humanitarian projects, despite potential public response to the impact on adjoining neighborhoods and businesses.

“Religious institutions of all manner have the right to do their religious practice on their property,” Samaniego explained. “The public and the government have the right to regulate it at the base level to the minimal extent possible, which means at the base level comparable with everybody else. They have to meet setbacks like everybody else, they have to be in zoning districts like everybody else, etcetera.”

Samaniego restated her opinion that the board should pass the resolution as an ordinance, should it be passed, as well as recommending the board receive public input on the matter.

A motion by Berry to postpone voting on the resolution failed 4-3, with Berry, Mayor Ray Knowis and Mayor Pro-Tem Jerry Mathis for postponement. The resolution was approved 5-2, with Knowis and Berry against.