Thursday, December 29, 2011

Stumblin', bumblin, mumblin . . . air conditioning unit?

The Tennessee Court of Appeals recently decided one of those petty neighborhood disputes that so often arise out of alleged codes infractions. In Pearson v Ross (Tenn App Dec 28, 2011), Pearson sued Ross for nuisance arising out of the noise made by his air-conditioning unit.the two homes were constructed in a zero lot line residential development, and were only 7 feet apart. The placement of the air-conditioning unit was directly outside the bedroom of the plaintiff. She complained that it was extremely noisy and winds up suing her neighbor for nuisance.

The plaintiff evidently complained to the Shelby County Codes Department, but got no help from them. There was testimony at the trial (at which the defendant represented himself) that Ms. Pearson was overly sensitive to noise, and frankly not very considerate of her neighbors in any case. For example, a neighbor testified that Pearson complained constantly about perceived problems with her small dog barking inside her home or how her grass was cut, and repeatedly reported her to the police and submitted a complaint
to the environmental court about the dog barking in her home. After a hearing, she said, the judge of the environmental court told Pearson she had unusually sensitive hearing. Prior to Pearson moving into the neighborhood, the neighbor said, all of the neighbors would socialize in their yards and be friendly; this changed after Pearson moved in, put up “no trespassing” signs in her yard, and put cameras in her windows to record the activities outside. After living in the neighborhood for eight years, the neighbor testified, once Pearson moved into the neighborhood, the neighbor sold her home for less than it was worth in order
to move away from Pearson.

As any experienced attorney can tell, a lot of hearsay testimony which was likely inadmissible was not objected to by either party. The trial court finally concluded that the plaintiff was indeed overly sensitive to the noise, denied relief and dismissed the case.

On appeal, the plaintiff argued that the evidence was improperly admitted, but the Court of Appeals noted that there had not been any objection, and so the evidence was properly admitted because of the lack of objection.

The Court of Appeals noted that  noise is not a nuisance per se because “no one is entitled to absolute quiet in the enjoyment of his property.” Lawful activities are not to be adversely affected “on account of every trifling or imaginary annoyance, such as might offend the taste or disturb the nerves of a fastidious or over refined person.” In order to be considered a nuisance, “noise must be so excessive that it is unreasonable in light of all the circumstances and must cause injury to the health and comfort of ordinary persons in the vicinity.”  The determination of whether a particular noise constitutes a nuisance should not be based on the subjective sensitivities of particular plaintiffs, but rather on an objective standard based on reasonableness.

“Whether a particular noise is sufficiently excessive to constitute a nuisance is ordinarily a question of degree and locality—in essence a question of fact to be considered in light of all the attending circumstances.”

The court noted that the trial court heard all the witnesses and concluded that the plaintiff was overly sensitive to the noise. The Court of Appeals found nothing in the record which would require a different conclusion.

This is an interesting case that serves once again to demonstrate that first nuisance law is not effective for the adjustment of neighborhood concerns ordinarily, and second, that not every wrong has a remedy.

Thursday, December 22, 2011

Judicial Review of Jackson Law Decisions

The Tennessee Supreme Court yesterday issued its decision in Brundage v Cumberland County, concluding that review of a decision made pursuant to the Jackson law, Tenn. Code Ann. §§ 68-211-701 to 707, may be obtained by filing either a statutory writ of certiorari or a declaratory judgment action and that the courts should liberally construe a pleading so that review may be obtained. For example, in this case, a petition for review was filed which did not meet the requirements of the statutory writ of certiorari. Rather than construing it as a declaratory judgment action, the trial court dismissed the case. On appeal, the Supreme Court reversed, ordering that the pleading be construed as a declaratory judgment action and that de novo review of the decision by the local legislative body be obtained thereby.

The decision of the Supreme Court in this case is consistent with its past construction of cases in which common law writs of certiorari were filed where a declaratory judgment action should have been, Fallin v. Knox Cnty. Bd. of Comm’rs, 656 S.W.2d 338, 342 (Tenn. 1983) and cases in which declaratory judgment action was filed but a common law writ of certiorari should have been, McCallen v City of Memphis, 786 S.W.2d 633, 640 (Tenn. 1990). The decision here seems to follow that flexible approach to construction of pleadings.

Wednesday, December 21, 2011

Define Family?

The definition of the term “family” is almost always a key provision to focus on any zoning ordinance. If that definition is for some reason legally indefensible, it may subject the entire zoning ordinance to a challenge. Usually, the biggest issue in such definitions has to do with the number of unrelated persons who may live together as a family.

Metro Nashville’s definition of family is is fairly typical:

"Family" means one of the following:

1. An individual, or two or more persons related by blood, marriage or law, or, unless otherwise required by federal or state law, a group of not more than three unrelated persons living together in a dwelling unit. Servants and temporary nonpaying guests having common housekeeping facilities with a family are a part of the family for this code;

2. A group of not more than eight unrelated mentally retarded, mentally handicapped, or physically handicapped persons, including two additional persons acting as houseparents or guardians, living together as a single housekeeping unit in accordance with Tennessee Code Annotated § 13-24-102. For purposes of this subsection, 'mentally handicapped' and 'physically handicapped' includes persons being professionally treated for drug and/or alcohol dependency or abuse. For the purposes of this subsection, "mentally handicapped" does not include persons who are mentally ill and, because of such mental illness, pose a likelihood of serious harm as defined in Tennessee Code Annotated § 33-6-501, or who have been convicted of serious criminal conduct related to such mental illness.

3. A group of not more than eight unrelated persons over the age of sixty-five, including two additional persons acting as houseparents or guardians, living together as a single housekeeping unit.

Limiting the number of unrelated persons living together to three is a fairly standard approach. Notice that in the third section of Metro’s definition, if the unrelated people are over the age of 65, eight persons are permitted to live together as a single housekeeping unit. I’ve never seen any case law on this, but I wonder whether the restriction in part 1 is somewhat undone by the provisions of part 3. More specifically, does the discrimination in favor of the elderly in part 3 have the effect of creating an equal protection violation when compared with part 1? Maybe someday the courts will give us an answer.

Recently, in McMaster v. Columbia Bd. of Zoning Appeals, 2011 WL 6156995 (S.C. 12/12/2011), the South Carolina Supreme Court upheld a provision similar to Metro’s part 1. The zoning ordinance in Columbia, South Carolina defined “family” as "an individual; or two or more persons related by blood or marriage living together; or a group of individuals, of not more than three persons, not related by blood or marriage but living together as a single housekeeping unit."

The important constitutional question raised in these cases, and there are quite a few of them, is whether there is a violation of the individual’s right to privacy by virtue of the zoning restrictions. As Justice Marshall said, in dissent, in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974):

The choice of household companions—of whether a person's "intellectual and emotional needs" are best met by living with family, friends, professional associates, or others—involves deeply personal considerations as to the kind and quality of intimate relationships within the home. That decision surely falls within the ambit of the right to privacy protected by the Constitution.

Notice I said in dissent: the US Supreme Court upheld the municipal ordinance which limited a family to to unrelated individuals. The ordinance read as follows:

"[o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family."

In any event, after this US Supreme Court decision, a large number of state Supreme Court’s got involved with a result turning generally on the perspective of the various courts. For example, in New Jersey, in State v. Baker, 81 N.J. 99, 405 A.2d 368 (1979), struck down an ordinance limiting to four the number of unrelated persons:

One (1) or more persons occupying a dwelling unit as a single non-profit housekeeping unit. More than four (4) persons * * * not related by blood, marriage, or adoption shall not be considered to constitute a family.

Actually, the New Jersey Supreme Court seemed to rely less on the right of privacy, and more on the fact that the classification system did not seem to work in the overall zoning context. For example,

The fatal flaw in attempting to maintain a stable residential neighborhood through the use of criteria based upon biological or legal relationships is that such classifications operate to prohibit a plethora of uses which pose no threat to the accomplishment of the end sought to be achieved. Moreover, such a classification system legitimizes many uses which defeat that goal. Plainfield's ordinance, for example, would prohibit a group of five unrelated "widows, widowers, older spinsters or bachelors — or even of judges" from residing in a single unit within the municipality. On the other hand, a group consisting of 10 distant cousins could so reside without violating the ordinance. Thus the ordinance distinguishes between acceptable and prohibited uses on grounds which may, in many cases, have no rational relationship to the problem sought to be ameliorated.

Returning to the South Carolina Supreme Court, it basically relied upon the US Supreme Court decision: “as many other states have found, we find the rationale of Belle Terre persuasive and find there is a rational relationship between the Ordinance's definition of "family" and the legitimate governmental interests the Ordinance seeks to further”.

The ordinance was rational and the court found no privacy interest in the householders that would require a more exacting standard of review. As a result, the South Carolina ordinance was upheld.

While my thought is that these ordinances should be drafted differently and that a restriction on the number of people who wish to reside in a home as a family is inappropriate, the Tennessee Supreme Court most likely would follow a more traditional view and like the South Carolina Court, most likely uphold the Metro Nashville ordinance, and others similar to it. Maybe one day we’ll get a case here in Tennessee and get a chance to see what the Supreme Court holds.

Friday, December 16, 2011

When to file the appeal: MS and TN

In interesting case out of Mississippi, comparable to the cases here in Tennessee, the Mississippi Court of Appeals recently reiterated that the 10 day time limit for an appeal from a decision of a local land use board begins on the date of the hearing before the board, not the date on which the minutes are approved. Alias v. City of Oxford, 70 So. 3d 1114, 1116 (Miss. App. 2010), reh’g denied (May 24, 2011), cert. dismissed, 69 So. 3d 767 (Miss. 5/24/2011). The court cited its earlier decision in Rankin Group v. City of Richland, 8 So. 3d 259, 261 (Miss. Ct. App. 2009), which held similarly, based on the statute, Mississippi Code Annotated section 11-51-75 which provides:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision . . .

 The appellant argued that the judgment or decision was not final until the minutes of the local zoning board or planning commission are approved at a subsequent meeting. The Mississippi Court of Appeals was having none of it: both in the original Rankin case and in this case, the court concluded that the appeal had to be filed within 10 days of the date on which the judgment was rendered (to use Tennessee language) as opposed to when the judgment was actually entered by means of the minutes.

As we have discussed here several times, the well-known Tennessee case,  Advanced Sales v Wilson County, 1999 WL 336305 (Tenn. App. 1999) holds somewhat similarly. There is an important difference in that Judge Cantrell, writing for the Tennessee Court of Appeals, concluded that there was a writing signed by the secretary of the board, with a checkmark indicating that the case had been denied, and that the writing memorializing the decision of the board sufficiently so that the 60 day timeframe within Tennessee began to run on the date of the meeting. Absent such a document (really, a scrap of paper), under Tennessee law, the 60 days would not begin to run until the entry of the minutes.

However, as I have said on so many occasions, attorneys for parties wishing to appeal cannot rely on the customary procedure of adopting minutes at a later meeting. Given the conclusion in Advanced Sales, to be safe, any attorney filing an appeal from a local land use decision should file within 60 days of the date on which the decision was orally announced by the board. Otherwise, there is a risk that a scrap of paper similar to the one in Advanced Sales might have been signed and included in the record on the date of the hearing, meaning that any appeal must be filed within 60 days of that date. The risk is too great to ignore this possibility and so all appeal should be filed within 60 days.

Finally, I have written and anticipate that a new piece of legislation, the Tennessee Land Use Review Act, will be introduced before the Tennessee General Assembly at its next session. The Land Use Review Act, if passed, will replace the common law writ of certiorari as the mechanism by which to file an appeal from a local land use administrative board. Hopefully, it will make the process much less complicated and clarify issues such as this one. Section107 of the proposed act addresses this issue, retains the ruling in Advanced Sales capitalize advanced sales, and extends it so that a petition for land use review must be filed within 60 days of the date of the meeting at which the administrative land use decision was made… without regard to whether any writing memorializing the decision has been created, entered, or approved. Although quite frankly, I have always disagreed with the holding of Advanced Sales, it has been the wall of the state for at least 10 years and most land use planning attorneys are well familiar with the by now. Rather than change the rules again, it seemed to me in drafting the Land Use Review Act that all we really needed was uniformity in the application of the 60 day timeframe, so that it didn’t make any difference when the 60 day started, so much as it was clear as to when it does start.

As a result, the Land  Use Review Act attempts to make clear that, like the holdings by the Mississippi Court of Appeals, in Tennessee, the 60 day time for filing an appeal begins to run on the date of the meeting where the ruling is announced, and not from the date of the adoption of the minute entry.

By the way, my original reason for disagreeing with the holding of Advanced Sales, was that I have always believed that having a copy of the minutes which indicate clearly the reason for the decision by the local administrative body makes for a better decision as to whether to file an appeal in the first place. If the decision of the board is well thought out and recorded in its minutes, it may be that I conclude that there is no reason to file an appeal because I probably can’t reversed the board in any event, especially given the fact that the standard of review in such appeals is quite high (illegal, arbitrary and capricious, or beyond its jurisdiction). A scrap of paper, on the other hand, signed by the Secretary, with the word denied circled on it, fails to give that level of specificity, and leaves the attorney in doubt as to what the basis of the ruling might’ve been.

If the attorney was not at the hearing before the zoning board or planning commission, unless a transcript of the hearing is prepared, the attorney will have very little knowledge as the basis upon which the board made its decision. That was true back in 1999, but today, many of the zoning board some planning commissions record their meetings digitally and these recordings can be obtained by counsel for a very small fee. For example, Metro Nashville will provide a DVD of the zoning board meeting for a dollar. As a result, even if you don’t have the benefit of a minute entry or an order from the administrative tribunal, the attorney can frequently obtain a copy of the digital recording and see what actually happened at the zoning board. As a result, the lack of a minute entry these days is less difficult to overcome.

In any event, keep your eyes out for the Tennessee Land Use Review Act, which will hopefully be introduced before the Tennessee General Assembly in January. Once the bill is introduced, we will discuss its provisions in more detail.

Monday, December 12, 2011

Failure to Exhaust and the Tn NCFPA

Sometimes I’m sure I sound like a broken record but the Tennessee Court of Appeals recently released yet another case dealing with the failure to exhaust administrative remedies in the context of an interpretation of the Tennessee Non-Conforming Properties Act, Tenn. Code Ann. § 13-7-208. Prime Locations v Shelby County (Tenn. App. 2011). We’ve discussed this issue several times, most recently on August 5, 2011, and while there certainly cannot be any question but that the Tennessee appellate courts have given us plenty of notice that you must first exhaust administrative remedies before pursuing an action involving interpretation of the TNCPA, we still seem to file cases which are lost because of a failure to exhaust those administrative remedies.

In this most recent case, Prime Locations sued over an interpretation of the TNCPA as applied to billboards. The company applied for permits but was denied, and rather than appeal the decision to the local zoning board, the company filed a declaratory judgment action seeking a determination that the TNCPA controlled and that they were entitled to their permits. The trial court found that the TNCPA did apply. The Tennessee Court of Appeals reversed. Essentially, the court held once again, that the case had to be dismissed for failure of the company to exhaust its administrative remedies. The court cited to Thomas v. Shelby County, 2011 WL 3558171 (Tenn. Ct. App. July 21, 2011), which held similarly. Actually, it is a little interesting to note that the Thomas case involved an appeal under the state Administrative Procedures Act, whereas this case came up under the local planning jurisdiction and the common law doctrine of failure to exhaust. The court seems to confuse the two somewhat, but certainly the practical impact of the cases is the same.

And once again, as I said back on August 5, while the decision certainly is grounded amply by Tennessee precedent, I still contend that the result is incorrect. In its simplest form, the argument is that zoning boards don’t have the power or jurisdiction to construe Tennessee state law. They do have the power to construe the local zoning ordinance. But §208 is not part of the local zoning ordinance. It’s the Tennessee state statute and should be construed only by the courts of Tennessee.

There is however another way to approach this situation. Applied to the board of zoning appeals, and assuming a that the board rules against the applicant, file a petition for a statutory writ of certiorari, which allows the court to substitute its judgment for that of the zoning board. The statutory writ of certiorari is not usually available in zoning cases, but in a situation where you are arguing that the use is legally nonconforming, a strong case can be made that the administrative decision-maker cannot take away a vested right and that the court is permitted to review the decision and base its decision on what the court thinks is appropriate. Contrast this situation with a variance request: there, the applicant is asking for a special relaxation of the rules as applied to his property. He’s asking for a favor in effect. But in the case of a legally nonconforming use, the property owner is asking for no favor. He is saying that he has a right which existed prior to the effective date of the applicable zoning ordinance, and that it simply illegal to take that vested right away from him. Under those circumstances, somewhat like the revocation of a law license or a medical license, the court under the certiorari process, would be entitled to review it de novo and make its own decision.

The Tennessee courts may not accept this argument. It certainly has not been made so far as I know and there is no appellate court decision on point. But if you have a legally nonconforming use, and you are forced to go to the zoning board, if the zoning board decides against you, an appeal under the statutory writ is the ideal way of getting the court to review the case without the customary deferential standard to the conclusions of the board.

Wednesday, December 7, 2011

Board Findings: A Mask for Discrimination?

Yesterday, we discussed an interesting case from Virginia involving the RLUIPA. That discussion focused on the holding of the court that the RLUIPA furnished no protection because the day school under consideration there was secular in nature and hence not subject to the protections of the act. The case is Calvary Christian Center v Fredericksburg, 2011 WL 5843641 (ED Va 2011).

Today I'd like to address one other issue that is interesting to me within the context of that decision. Remember that the church applied for a special use permit but was turned down by the local legislative body. The reasons advanced for the denial included the number of group homes and group facilities already functioning in the Fredericksburg area; the propriety of Fredericksburg providing services to special-needs students from outside the area; the nature of the disabilities of the Fairwinds students; the operation of Fairwinds; and the safety of the day care students. My thought today is whether these reasons really amount to a valid basis for the denial.

First, the city contended that there were already too many group homes and facilities functioning in Fredericksburg. Why is this a decision that the local government is permitted to make? Is this not a society that depends on supply and demand to make these kinds of decisions? Perhaps the school will take students from other schools that are currently operating because it's a better school? For the city to make a decision based on the number of existing facilities has always struck me as improper. What essentially is happening is that the city is favoring businesses which are already existing and discriminating against new arrivals. The zoning power is not designed to keep people out particularly people where, as here, who suffer from emotional and mental disabilities.

Remember that the US Supreme Court has already invalidated the denial of a conditional use permit for a group home under somewhat similar circumstances. City of Cleburne v Cleburne Living Center, 473 US 432 (1985). in fact, as a result of that case, there is at least some thought that conditional use permit should not even be required for such activities, including a decision from the Sixth Circuit.

In any event, denying a conditional use permit because there are already too many similar facilities has always seemed to me as a mask for irrational decision-making and a way to hide discriminatory animus.

The second reason was because several of the students would come from outside of the city to attend this private school. Once again, this reasoning strikes me always as specious. I'll bet that the customers to the local malls who come in from outside the city are welcomed with open arms. There is no fear about those people bringing their money into the city. It strikes me as discriminatory and frankly almost unconnected with land use as to where the people come from. The question is what is the severity of the impact on surrounding land uses, not where the users may ultimately be from.

The third reason advanced was the nature of the disabilities of the students themselves. Once more, this certainly seems like a rationale motivated by discrimination and not any valid land use planning concept. unless there was some proof that the specific disabilities was somehow have an untoward impact on the surrounding land uses, the specifics of the disabilities are largely irrelevant. Again, part of the decision in the US Supreme Court decision, City of Cleburne, was that the reasons advanced for denial masked the real reasons which were an underlying discrimination. That is certainly what seems apparent in this third reason.

Finally, the fourth and fifth reasons, were the nature of the operations and the safety of the students. The opinion is not much more specific about this and so it's unclear as to what precisely was at issue here. Certainly, if there was any kind of safety issue, those would have to be addressed. However, one would certainly think that if the operation met the requirements of the International Building Code for this type of occupancy, the safety requirements would be completely met. Furthermore it's not clear what type of operations the city was concerned about and this may very well be simply another way of masking discriminatory animus.

Overall, the reasons advanced by the local legislative body, without regard to the RLUIPA, or the First Amendment to the federal Constitution, seem highly unlikely to support a decision denying this special use permit. Frankly, it seems to me that the District Court to easily accepted the rationale advanced by the city. As the United States Supreme Court held in the Cleburne case, unsubstantiated fears of the local citizenry are insufficient by themselves and fall under the rational basis doctrine of the Equal Protection Clause. So to should this denial by Fredericksburg. The reasons advanced, based on the information contained in the federal decisions, seem extraordinarily sketchy and written in a way to mask discriminatory motivations.

Tuesday, December 6, 2011

Secular Purpose Doctrine in the RLUIPA

An interesting decision from the Eastern District in Virginia, relating to the RLUIPA was handed down last month concluding that the provisions of the act did not protect a church which wanted to lease space to a small school which provided education to children with emotional and mental disabilities. Remember that the federal act (RLUIPA) is somewhat more restrictive then the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407. While the definition of religious exercise under both acts is similar (the federal act defines it as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 USCA § 2000cc (7)(A) and the Tennessee act, defines it as “exercise of religion under article I, § 3 of the Constitution of Tennessee and the first amendment to the United States Constitution”) the definition of "substantial burden" under the state act is much broader. Even without regard to the substantial burden definitions, one has to wonder whether a Tennessee judge might be a little more inclined to view religious activities on a broader scope.

In this case, Calvary Christian Center v Fredericksburg, 2011 WL 5843641 (ED Va 2011), the church applied for a special use permit from the local legislative body in order to allow the church to lease space to a private school, Fairwinds Day School, which has 12 students all with disabilities meriting private educational facilities. It is also worthy of note that the Fairwinds Day School operates on a for-profit basis. The local Planning Commission recommended approval of the application, but on presentation to the local legislative body, the application was denied. Several reasons were advanced, including the number of group homes and group facilities already functioning in the Fredericksburg area; the propriety of Fredericksburg providing services to special-needs students from outside the area; the nature of the disabilities of the Fairwinds students; the operation of Fairwinds; and the safety of the day care students.

The church filed suit in federal court on several grounds, but we will restrict our consideration only to the RLUIPA claim. Although the church alleged that operation of Fairways was an exercise of “sincere religious belief to minister to emotionally and mentally disabled children” the court concluded that the church had not pled any facts “demonstrating that the operation of a day school by a third-party is a religious exercise.” The District Court had noted previously, on an application for a preliminary injunction filed by the church in the same case, that there were insufficient facts to demonstrate that the curriculum and administration of the school were anything other than secular. The court quoted several federal cases, including the Living Water case from the Sixth Circuit, to the effect that “structures used by religious organizations for secular purposes are not necessarily protected as religious exercise.”

Certainly, secular use of religiously owned buildings does not implicate the RLUIPA. However, Living Water did not really turn on that particular issue; the Sixth Circuit did indicate that the RLUIPA was not a blanket immunity from local codes regulations. But from my perspective, the Sixth Circuit relied more on the idea that there was no “substantial burden” under the terms of the RLUIPA and not that the use of the buildings were secular.

Following up on that, perhaps the mistake made here was not offering some religious overtone in the curriculum of the schooling as well as renting out the space to a third party instead of simply either buying the third-party and operating the school on its own as part of the church activities. For example, if a large church with a large campus, rants a part of the campus to a school teaching chess, could that be said to be protected within the scope of the RLUIPA, or for that matter, the broader Tennessee Religious Freedom Restoration Act? Most probably not.

On the other hand, if the church operated the school itself, with a curriculum that included religious studies, it would appear to me that it would be impossible to argue that the use of the leased premises was secular. Under those circumstances, it would seem that most any court would conclude that the operation of the day school would be protected by the RLUIPA, assuming substantial burden imposed by local regulation.

Furthermore, suppose that the school least the premises to an independently run day school, as was the case here, but a part of the agreement was that the curriculum would include religious training consistent with the teachings of that particular church. Once again, one would think, that such activities would not be secular and that they would fall within the protection of the RLUIPA.

Finally, what impact did the fact that the day school was a for-profit business have on the determination this case? Certainly, it would seem to me, that a profit-making enterprise makes it easier for the court to reach a conclusion of a secular purpose or for that matter even a finding of no substantial burden under the RLUIPA. Certainly, if the church operated the school, and did so at a loss, that which strengthened the argument that the purpose was religious rather than secular. Once again, however, having a curriculum that provided for religious instruction strengthens the position of the religious institution. It may be that without such a curriculum, simply operating a day school is an insufficient basis for protection under into the federal or the Tennessee act.

We still have no decisions regarding land use activities under the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407. Until we get some decisions under the state act, we can only guess as to how broadly its provisions will be construed.