Friday, February 14, 2014

Zoning for Taxes: Religiously Discriminatory?

In a very interesting RLUIPA case decided by the Eastern District of Michigan, a church which desired to buy property in a highway commercial zoning district for use as its main place of worship lost its argument that the Michigan Township violated its First Amendment protections and/or RLUIPA. Alger Bible Baptist Church v. Township of Moffatt, 2014 WL 462354 (E.D. Michigan Feb 5, 2014). Religious uses are conditionally permitted in four of the six zoning districts within the township, but unfortunately, the church made a deposit on the property located in the highway commercial district (which does not permit such uses) before understanding that the zoning ordinance precluded the use.

For the most part, the church’s argument was that similar secular businesses were permitted in the highway commercial district, and that this violated both the First Amendment and RLUIPA (the equal terms clause primarily). The township defended on the basis that this zoning district was a neutral law of general applicability and designed only for tax paying land uses. The court found the zoning ordinance to be a neutral law of general applicability and further that the church did not allege a single instance where a non-secular institution which was tax-exempt but was nevertheless permitted to operate in the highway commercial district. “It follows that ABBC has not pled sufficient facts to demonstrate that the Zoning Ordinance impermissibly targets religious conduct for distinctive treatment. Indeed, a church has no constitutional right to be free from reasonable zoning regulations nor does a church have a constitutional right to build its house of worship where it pleases.”

The claims under the Michigan Constitution were also dismissed. Inasmuch as there was no reference made to a statutory cause of action under Michigan law, I presume that Michigan does not have a state Religious Freedom Restoration Act.

However, this interesting Michigan case which may well be appealed to the Sixth Circuit, and likely would have a different ending here in Tennessee. Tennessee RFRA puts the burden of proof on the government to demonstrate by clear and convincing evidence that the zoning regulation is essential to a compelling governmental interest and that the  regulation is the least restrictive means of accomplishing that compelling interest if the regulation impinges or curtails religious freedom. As I have said many times on this blog, that is a very high burden of proof to place on the government, and most likely impossible to sustain in most if not all zoning cases. As a result, it seems to me that the result in the Michigan case, if transferred somehow magically to Tennessee, would be reversed because of the Tennessee Religious Freedom Restoration Act.

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