The Sixth Circuit decided an interesting RLUIPA case late last year, Miles Christi Religious Order v. Township of Northville, 2010 WL 5151645 (6th Cir. Dec 21, 2010) , concluding that even though the church had been sued by the township, there was no final decision sufficient for a claim under RLUIPA. The 6th Circuit felt that the church had a duty to go to the zoning board requesting whatever relief might be available. The case is available here.
It is an interesting case from the perspective of the new Tennessee RFRA, Tenn Code Ann § 4-1-407. Will the Tennessee courts, require that the permit applicant apply to the local zoning board before filing suit under Tenn RFRA? While exhaustion of administrative remedies is not technically required under the writ of certiorari in Tennessee, requiring that the zoning board or for that matter, planning commission issue a final ruling would likely assist the courts in having a reasonably clear position from the city authorities of the positions of each party. It is also very possible that no writ of cert should be filed: simply a suit under the Tn RFRA (the procedures are so different under the Tn RFRA that adding them to a writ of cert seems unwise). In any event we will likely find out soon about how these cases should be brought here in Tennessee.
Interestingly, the 6th Circuit noted that the township's oral argument did not display great sensitivity on the topic of religious freedom, quoting the municipal attorney, "“[F]ootball parties and tailgate parties” do not change “the residential nature of the use; whereas, what they’re [church members] doing here, they’re doing religious education and they’re worshipping.” The point evidently being that football watching parties are accessory to the residential use but religious education and worship is not. The Court observed that "one will search in vain for a Freedom to Watch Football on a Sunday Afternoon Act," as distinguished from RLUIPA and the federal RFRA.