Religion, land-use ruling at odds
LYNDON -- To Richard and Joan Downing, the 24-foot-tall cross on a hilltop on their property is an expression of their faith. To a state commission that regulates land use, it is out of character with the natural beauty of the rural neighborhood and should come down.
It’s a conflict that has cropped up around the country, pitting religious freedom enshrined in the Constitution’s First Amendment against the local zoning authority and state land-use control laws.
The Downings, lifelong Roman Catholics in their late 70s, own about 800 acres outside the village of Lyndonville. In 2005, they opened a chapel on their property to serve their family: seven children, three of them adopted, and the 35 foster children they raised, mainly at their other home in Sherborn, Mass.
Their website makes clear the chapel is open to the public, however, offering "those seeking peace and spiritual growth a sanctuary of grace and beauty."
The couple decided two years after building the chapel to add a Cross of Love of Dozule, named for a small French town where some Catholics believe Jesus appeared to a local resident and gave specific instructions about the cross.
Three other Dozule crosses have been built in Vermont; the locations are believed to be divinely inspired, according to papers filed in the Vermont Environmental Court by Downing lawyer Brooke Dingledine.
But from where David Gascon lives downhill, the cross is something else altogether.
"It’s very large, and when they first put it up it was extremely bright, as bright as three full moons," Gascon said. "It’s hard for me to see it as a necessary practice of religion. To me, it seems they’re just being showy."
He and neighbor Barbara Irwin argue that the religious significance of the cross should not be a major issue. Instead, the cross should be viewed like a neon sign for a business, they say.
Gascon and others complained to town zoning officials, who limited the structure’s nighttime illumination to several weeks around Christmas.
But the Downings said the instructions relayed by the French visionary said in part that "these Crosses must become lights in order to question hearts that are obscure."
The issue went before the District 7 Environmental Commission, and the commission ruled that the Downings would need an amended permit for the cross. When the Downings applied, the commission denied the amended permit, saying that under Vermont’s land-use law, the cross would create "an adverse effect on the scenic or natural beauty of the area ...."
The Downings then appealed to the Environmental Court, citing federal and state guarantees of religious freedom and federal laws to further the constitutional provisions.
Dingledine argues in court papers that the compelling interest the state is trying to protect is a matter of aesthetics, "the most subjective of any criteria." She says denying the Downings a permit "substantially burdens" them because they are not allowed "to fulfill the action required by their faith."
Assistant Attorney General Robert McDougall, representing the state, says that when the issue is religious liberty, the courts usually try to see whether restrictions pose a "substantial burden" on someone’s free exercise of their faith.
In court filings, he said, the Downings have not claimed "that without that symbol (the cross) they are unable to practice their faith or required to act contrary to their religious beliefs."
Another round of legal arguments is expected this month.
National experts differ on how they expect the case might play out.
Patricia Salkin, an Albany Law School professor who maintains a blog on land-use law, said the circumstances are similar to a person wanting to post a sign on his or her property saying "I hate the president." The sign is protected speech. But "if it’s a sign so out of scale with the character of the community, the municipality might say it can’t be bigger than X-dimension," Salkin said.
Eric Rassbach of the Washington, D.C.-based Becket Fund for Religious Liberty said the religious person’s burden is usually weighed against a claim by the government that it has a "compelling interest," such as public safety, in restricting a specific behavior. He said any scaling back of the cross or its illumination would be a burden for the Downings.
"They are following something that from their point of view is a revelation," he said.
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