The Sixth Circuit Court of Appeals decided an interesting new RLUIPA case early last month. The local government denied an application for a special use permit for the use of a school and suit was brought under the federal statute. The school was attempting to relocate from an outer lying area to a new property, which was already improved with an existing church, albeit one unconnected to the school itself. Although the Planning Commission recommended approval, the Township board disapprove based on neighborhood concerns about traffic and previous compliance issues by the church.
The school entered into a short-term lease thereafter and also leased their property for income purposes to another charter school.
The interesting aspect of this case is the meaning of the phrase "substantial burden" under the terms of the federal statute. Remember, that the Tennessee statute provides an explicit definition which is a fairly low burden to meet: under Tennessee law, substantial burden means anything that inhibits or curtails. Given the definition here from the Sixth Circuit, even though the relevant phrase, "substantial burden" is the same under both statutes, the interpretation of that phrase by the two sets of courts could not be more dramatically different.
The federal statute does not define the term. There have only been a few cases from the six circuit, the most prominent of which is the Living Water Church case decided in 2007. After reviewing its president, this panel of the Sixth Circuit relied on factors from other circuit courts to make this decision. One of those factors was the availability of a alternative feasible location, and another is whether the religious land use would suffer substantial delay uncertainty and expense. The court also was concerned as to whether the plaintiffs own actions caused some of the burden.
Ultimately the court simply found unavailing the schools insistence that the outer lying property wasn't in adequate location for its purposes. The court found that the school put forth only conclusory evidence that the outer lying property was in adequate and did not allege that any of its core religious functions could not be carried out at that property despite its remote location.
The school did demonstrate a drop in enrollment, but there was no evidence as to why the drop took place. The court suggested that testimony concerning the drop as a result of denial of the special use permit, would have been at least somewhat persuasive. But no such proof was admitted.
By way of conclusion, the court indicated that traveling the roughly 12 miles to the outer lying property is not unduly burdensome to the schools students. There was simply no substantial hardship.
Under the circumstances, would a Tennessee court applying the Tennessee statute agree? Certainly, the Tennessee statutory provision would make it a lot harder to rule similarly; on the other hand, perhaps 12 miles is just too short distance to characterize as a substantial burden.