In an interesting special exception case out of Indiana, House of Prayer v Rush County Board of Zoning Appeals, 2018 WL 414862 (Ind. Appeals January 16, 2018), a religious land use adjacent to a farm which asked for a permit to operate a concentrated animal feeding operation (CAFO) with 1400 cattle lost as a result of the fact that the agricultural use, even in its intensive form, was both expected and encouraged in the zoning district.
House of Prayer argued that its property should be protected as a result of the Indiana Religious Freedom Restoration Act and the RLUIPA, but the court concluded that there was no protection under the federal act as a result of the fact that the House of Prayer did not have an interest in the property which was regulated, a requirement under the federal act. As far as the state act goes, the court concluded that while there was some evidence of a burden on its religious exercise, because the owner of the farm promised to control the runoff and odor, the court found no substantial burden.
I have not seen too many cases yet where state religious freedom statutes are important in the outcome. It is interesting here that the Indiana court deferred to the local zoning board even in the face of an allegation implicating the Indiana statute.
Showing posts with label RLUIPA. Show all posts
Showing posts with label RLUIPA. Show all posts
Tuesday, March 20, 2018
Saturday, February 24, 2018
Discriminatory Zoning Decisions: Islamic Mosques
I saw this interesting post a few days ago discussing this issue of discriminatory zoning decisions, which comes up from time to time and over the last few years has been especially troublesome in the context of Islamic Mosques. We have certainly had a very significant case here in Tennessee, but the same concerns and issues have come up all over the country. I have commented on these issues on several posts in this blog. Unfortunately, the issues seem to veer away from the relevant land use planning and zoning principles into concerns with which have no place in administrative proceedings.
Tuesday, July 25, 2017
Livingston Christian Schools v Genoa Charter Township
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.
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.
Monday, August 1, 2016
Hindu Temple and the Tenn RFRA
The Tennessean reported last Thursday that the Metro Board of Zoning Appeals will hear an application for a special exception for a Hindu temple, of approximately 500 seats in size, on 5.8 acres to be located at 355 Haywood Lane here in Nashville. It will be interesting to see how this process works out; the zoning board certainly hears a good many cases involving religious uses but a Hindu temple is certainly a little unusual for Nashville.
In addition, there is the potential application of the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407, which places the burden of proof on the local government when dealing with a religious institution, and requires that there be some “compelling governmental interest” in order to deny an application.
Although I hardly have a list of religious institutions which have been approved by the board over the past five or 10 years, I don’t recall too many being turned down. Possibly because of the impact of the Religious Freedom Restoration Act.
The board will hear the case on August 4, 2016 at 1 PM. It may be interesting to watch if you have time; the proceedings before the board are broadcast on Metro Channel 3.
In addition, there is the potential application of the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407, which places the burden of proof on the local government when dealing with a religious institution, and requires that there be some “compelling governmental interest” in order to deny an application.
Although I hardly have a list of religious institutions which have been approved by the board over the past five or 10 years, I don’t recall too many being turned down. Possibly because of the impact of the Religious Freedom Restoration Act.
The board will hear the case on August 4, 2016 at 1 PM. It may be interesting to watch if you have time; the proceedings before the board are broadcast on Metro Channel 3.
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.
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.
Friday, May 31, 2013
The Islamic Mosque: Adequate Notice Given
The Tennessee Court of Appeals released an interesting opinion on Wednesday relating to the well-known Islamic Mosque controversy in Murfreesboro. As you may recall, the Rutherford County Regional Planning Commission approved a site plan for the development of the mosque. A group of neighbors sued the planning commission alleging various constitutional law violations as well as a violation of the Tennessee Open Public Meetings Act, Tenn. Code Ann. §8-44-101 et seq. Fisher v Rutherford County Regional Planning Commission, Tennessee Court of Appeals, May 29, 2013; copy posted here.
The trial court dismissed all claims but the Open Public Meetings Act challenge and refused to issue a temporary injunction. But after the final hearing, concluded that there was in fact a violation of the Open Public Meetings Act, and enjoining the county from issuing any further permits with respect to the development of the property.
As the Court of Appeals explained, shortly after the trial court's final decision, suit was filed in federal court under the terms of the Religious Land Use and Institutionalized Persons Act, and a federal court in Nashville issued a mandatory injunction requiring the County to allow completion of the mosque.
The appeal in this case was brought by the county itself, concerned that the trial court’s determination that it had violated the Open Public Meetings Act might have a lasting effect on how it conducted business. The trial court had concluded that at least under the circumstances of this particular case, the use of the Murfreesboro Post to give notice was inappropriate, and that the terms of the notice in the Post under the circumstances was also deficient.
The Court of Appeals reversed. The court first examined the issue of mootness, concerned that because the federal court had already ruled that construction could be completed under the terms of the federal act, that the case no longer could serve as a means of providing relief. The court however concluded that because of the public interest in this matter, that the exception to the mootness doctrine applied.
As anyone who has ever dealt with the Tennessee Open Public Meetings Act, Tenn. Code Ann. §8-44-101 knows, the statute is not particularly helpful in so far as understanding what notice must be given. In fact, §103 only indicates that “adequate public notice” must be given. There’s not a whole lot of direction there.
But as the Court of Appeals points out, the adequate public notice is of the meeting, not of the items on the agenda of the meeting. The trial court seemed to conclude that because of the great public interest in the Islamic Mosque, that there was some higher degree of notice which must’ve been provided by the county. Of course, it’s difficult for the county to know before hand which cases may engender the most public interest. There must be some basic notice which is adequate under the terms of the statute, and which does not change based on the nature of the application.
In any event, the Court of Appeals concluded that the fact that the notice did not specify that the Islamic Mosque would be considered on the agenda within the terms of the notice, was not a defect.
In addition, the court also concluded that the circulation of the Murfreesboro Post was too small and limited to suffice in terms of adequate public notice. However, in a similar case involving the Nashville Record, the Court had looked at four factors in order to conclude that it was a newspaper sufficient for the purposes of notice. Those included (1) whether it is published at regular intervals; (2) whether it is intended for circulation among the general public; (3) whether it contains matters of general interest; and (4) is it in the form of a newspaper? The court concluded that the Murfreesboro Post met these requirements and summarized:
The trial court dismissed all claims but the Open Public Meetings Act challenge and refused to issue a temporary injunction. But after the final hearing, concluded that there was in fact a violation of the Open Public Meetings Act, and enjoining the county from issuing any further permits with respect to the development of the property.
As the Court of Appeals explained, shortly after the trial court's final decision, suit was filed in federal court under the terms of the Religious Land Use and Institutionalized Persons Act, and a federal court in Nashville issued a mandatory injunction requiring the County to allow completion of the mosque.
The appeal in this case was brought by the county itself, concerned that the trial court’s determination that it had violated the Open Public Meetings Act might have a lasting effect on how it conducted business. The trial court had concluded that at least under the circumstances of this particular case, the use of the Murfreesboro Post to give notice was inappropriate, and that the terms of the notice in the Post under the circumstances was also deficient.
The Court of Appeals reversed. The court first examined the issue of mootness, concerned that because the federal court had already ruled that construction could be completed under the terms of the federal act, that the case no longer could serve as a means of providing relief. The court however concluded that because of the public interest in this matter, that the exception to the mootness doctrine applied.
As anyone who has ever dealt with the Tennessee Open Public Meetings Act, Tenn. Code Ann. §8-44-101 knows, the statute is not particularly helpful in so far as understanding what notice must be given. In fact, §103 only indicates that “adequate public notice” must be given. There’s not a whole lot of direction there.
But as the Court of Appeals points out, the adequate public notice is of the meeting, not of the items on the agenda of the meeting. The trial court seemed to conclude that because of the great public interest in the Islamic Mosque, that there was some higher degree of notice which must’ve been provided by the county. Of course, it’s difficult for the county to know before hand which cases may engender the most public interest. There must be some basic notice which is adequate under the terms of the statute, and which does not change based on the nature of the application.
In any event, the Court of Appeals concluded that the fact that the notice did not specify that the Islamic Mosque would be considered on the agenda within the terms of the notice, was not a defect.
In addition, the court also concluded that the circulation of the Murfreesboro Post was too small and limited to suffice in terms of adequate public notice. However, in a similar case involving the Nashville Record, the Court had looked at four factors in order to conclude that it was a newspaper sufficient for the purposes of notice. Those included (1) whether it is published at regular intervals; (2) whether it is intended for circulation among the general public; (3) whether it contains matters of general interest; and (4) is it in the form of a newspaper? The court concluded that the Murfreesboro Post met these requirements and summarized:
In reaching the conclusion that publication in the MURFREESBORO POST was insufficient, the trial court cited evidence “that few opportunities existed for those who lived near the proposed site to receive a copy of the MURFREESBORO POST because there was no home delivery in the area, and the nearest free distribution rack was some three miles away.” The evidence also showed, however, that the newspaper was published weekly, was intended for circulation to the general public, and contained matters of general interest. Over 21,000 copies were distributed throughout the county on Sundays in May 2010. This was the customary location for the county planning commission’s notices, and any interested person could obtain a copy at a distribution rack or on the newspaper’s website. We conclude that the county’s publication of the notice in the MURFREESBORO POST was sufficient under the [Open Public Meetings Act].The failure to publish the agenda, and the use of the Murfreesboro Post, both were sufficient under the terms of the Open Public Meetings Act. The court reversed the trial court to the extent that it had held that the notice given contravened the act, but upheld the other holdings of the trial court.
Wednesday, November 28, 2012
ICFG RLUIPA case settled for $2.3 million
In an interesting case from California, a city which had prevented the location of a church in an industrial zoning district agreed to pay $2.3 million in settlement of the case against it. The city did get significant concessions: the original industrial site cannot be used for religious purposes; the church may continue to search for an eligible site properly zoned, but cannot see the city for any denial outside the appropriate zoning districts. The city released a statement in September 2012 announcing the agreement.
The city, in the press release, maintained that it had a strong position to defend the litigation but given the unpredictability of litigation, and the potential for a large loss, settlement was the most prudent course of action.
Once again, it is extremely interesting to note that this result was obtained by the church under the terms of the federal act; it would certainly seem that a church in Tennessee given similar facts, would have an easier time under the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407. Certainly the payment by the city, $2.3 million, is a significant settlement.
The 9th Circuit Court of Appeals had reversed a dismissal of the case by the trial court. 2011 WL 505028 (2/15/2011). The settlement was agreed to after the appellate court decision.
Wednesday, November 21, 2012
RLUIPA Jury Awards $1.1 million
In Academy of Our Lady of Peace v. City of San Diego, a jury has awarded over $1.1 million to a religious school which was unable to expand because the local council in the city of San Diego overturned approvals given by the city staff and the city planning commission. Whenever the local legislative body overturns decisions made by professional staff, you immediately begin to get concerned that politics has interfered in the process. Most of the time, that’s not any difficulty: politics in the city Council’s not unexpected certainly. But when you’re dealing with the federal statutory right, such interference inexorably leads to substantial jury will awards. And that’s just what happened here.
Monday, November 19, 2012
Murfreesboro Mosque Opens!
The Nashville Tennessean today reported that the Islamic Mosque in Murfreesboro, Tennessee, finally opened this past Saturday. It took a long while to get it done, but it is finally complete and open for services. Ultimately, it took a federal district court order to get it open, and the issue concerning the continuing viability of the use of the Murfreesboro Post as the newspaper of record for notices of County meetings is still suspect as a result of the local court ruling. The last I had heard, the County had appealed that decision and I guess we will get a resolution from the Tennessee Court of Appeals.
Tuesday, September 18, 2012
Homeless Shelters at Green Street Church
The Tennessean reported this morning that the Green Street Church of Christ has been cited by the Metro Department of Codes Administration for a zoning violation by allowing homeless people to live in tents adjacent to the church. The church is in an industrial zoning district and surrounded by industrial uses, but the homeless "camp" does not comply with zoning. The comments from the Metro Legal Department (Tom Cross) sound as though the city would like to accommodate the church’s mission if possible.
This is another one of those areas where the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407, would seem to apply. The attorney for the church, Tripp Hunt, mentioned the applicability of RLUIPA, the federal act, but as we have discussed here in the past, the Tennessee version is much more powerful. Again, the main reason is that under the federal act, you must demonstrate that there is a substantial burden on religious activities, and the federal courts interpret the phrase “substantial burden” as a fairly high burden which is somewhat difficult to overcome.
The Tennessee act however defines “substantial burden” as anything that “inhibits or curtails religiously motivated practice.” At least to me, that seems like a much easier burden to overcome. If part of the Green Street Church of Christ’s religious mission is to help accommodate and care for homeless people, then a zoning ordinance which prevents them from helping them on-site may very well inhibit or curtail the church’s religious practice.
Obviously, one of the difficulties here is that since most churches are located in residential areas, and since many residential neighborhoods would object to having homeless people moving alongside them, there is a conflict that will surely arise.
In any event, this Codes case certainly seems like an interesting case to watch. It will be even more interesting if the church employs the Tennessee Religious Freedom Restoration Act in its defense as well as the federal act.
Wednesday, August 15, 2012
Delay in granting permit
In a very recent decision by a District Court in New Jersey, the provisions of RLUIPA have been applied to a city which allegedly delayed the approval of a necessary variance for approximately 4 years. The city defended by saying that most of the delay was the fault of the church, but on this motion to dismiss, the court had to accept as true the allegations of the complaint, and based on those allegations, the court found there was clearly a substantial burden on religious exercise.
This case, Israelite Church of God v City of Hackensack, presented some other interesting issues such as whether individual defendants could be held liable under the terms of the federal statute. Given appropriate pleadings, the court held that they could be, broadly based along the same lines as the federal Civil Rights Act, 42 USC §1983.
It is a very interesting case, and one can only speculate that the Tennessee state statute could also be applied in the same way; that is, a delay in obtaining the permit for that period of time would be seen as a substantial burden on religious exercise.
This case, Israelite Church of God v City of Hackensack, presented some other interesting issues such as whether individual defendants could be held liable under the terms of the federal statute. Given appropriate pleadings, the court held that they could be, broadly based along the same lines as the federal Civil Rights Act, 42 USC §1983.
It is a very interesting case, and one can only speculate that the Tennessee state statute could also be applied in the same way; that is, a delay in obtaining the permit for that period of time would be seen as a substantial burden on religious exercise.
Saturday, May 19, 2012
Church faced substantial burden
In an interesting case from the Northern District of Illinois, a federal district court has ruled that there was sufficient proof of a substantial burden under the federal RLUIPA to send a church’s claim of religious discrimination to a jury.
In Liberty Temple Church v Town of Bolingbrook, 2012 WL 1230728 (N.D. Ill. 4/12/2012), the facts do seem somewhat egregious. First, when the church inquired about the possibility of renting not just at one location but at a second location as well, the owner of the property was skeptical that the local mayor would permit a church not only at that location, but anywhere in the town. Allegedly, the mayor made similar statements directly to members of the church itself.
In addition, at least at the second location, the church had already consulted be published documents constituting the town’s zoning regulations, and had determined that they were in an area zoned for religious land uses. However, when they apply for a permit, the town turn down the application based on its claimed that the maps were in effect erroneous.
The court relying on several Seventh Circuit decisions concluded:
Based on the Village's own published map and zoning ordinance, a jury could reasonably find that the church reasonably believed a SUP was not legally needed. Moreover, based upon Mayor Claar's representation on February 28, 2011 to Plaintiff's attorney, a jury could construe it as a definitive pre-emptive denial of any SUP Plaintiff might have filed. Therefore, Plaintiff was not obligated to go bang its head against a wall and apply for a permit it was told it would never get. In respect to the SUP, this case is almost a fact-for-fact parallel of the World Outreach case.The town’s motion for summary judgment was denied, and the case is going to a jury.
Remember, that under the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. §4-1-407, the standard for proving a substantial burden is significantly less than it is under the federal act. As a result, certainly the comments of the mayor alone would have doomed the town's case here in Tennessee.
Thursday, December 30, 2010
2nd Circuit reviews the "equal terms" provision of RLUIPA
In an interesting new case, the Second Circuit Court of Appeals has ruled that the City of New York violated the equal terms provision of RLUIPA. This provision prohibits a “government [from] impose [ing] or implemt[ing] a land use regulation in a manner that treats a religious assembly on less than equal terms with a nonreligious assembly or institution." Keep in mind that the new Tennessee RFRA does not contain such a provisison: it only affects a regulation which "substantially burdens" religious exercise.
In the 2nd Circuit case, the church wanted to rehabilitate its building but lacked funds. It arranged a deal with a catering company to allow the use of its facilities for catering events in return for the catering company to pay for the church improvements. The city said this use was beyond the permitted uses in the zoning district and issued a notice of revocation of the church's permit. The catering business appeared to be the principal use and not merely accessory.
The church contended that two hotels in the vicinity had a similar arrangement whereby caterers used hotel facilities for events. The city issued notices of violation for the hotel caterers but the trial court found that to be a very different remedy than revocation and concluded that there was a violation of the equal terms provision.
On appeal, the 2nd Circuit upheld the lower court. All the catering activities were within the same zoning category and neighborhood, and all were significant catering activities. The city never threatened to shut down the hotel operations as it had the church. That violated the act.
This outcome is somewhat odd. It seems that the city's argument was that the catering use was not accessory to the religious use of the property. On the other hand, the city felt like a catering operation was accessory to a hotel use. Those observations generally appear to be reasonable. The court ruled against the city because the certificates of occupancy for the two hotels did not expressly include the accessory catering use. Therefore, the court concluded that the accessory catering use was illegal at the hotel locations.
But surely that misses the point. Essentially, the city was arguing that the hotel catering functions were permitted, and only needed a technical amendment to the certificate of occupancy to be in total compliance; whereas, the church catering function was simply a ruse to utilize church facilities and shoehorn in a caterer in an area where was otherwise prohibited. The analysis of the Second Circuit Court is certainly not deferential to the planning function. On the other hand, perhaps we have to expect this in the application and administration of the RLUIPA.
Third Church of Christ v New York, 2010 WL 4869763 (2nd Cir. Dec 2010).
In the 2nd Circuit case, the church wanted to rehabilitate its building but lacked funds. It arranged a deal with a catering company to allow the use of its facilities for catering events in return for the catering company to pay for the church improvements. The city said this use was beyond the permitted uses in the zoning district and issued a notice of revocation of the church's permit. The catering business appeared to be the principal use and not merely accessory.
The church contended that two hotels in the vicinity had a similar arrangement whereby caterers used hotel facilities for events. The city issued notices of violation for the hotel caterers but the trial court found that to be a very different remedy than revocation and concluded that there was a violation of the equal terms provision.
On appeal, the 2nd Circuit upheld the lower court. All the catering activities were within the same zoning category and neighborhood, and all were significant catering activities. The city never threatened to shut down the hotel operations as it had the church. That violated the act.
This outcome is somewhat odd. It seems that the city's argument was that the catering use was not accessory to the religious use of the property. On the other hand, the city felt like a catering operation was accessory to a hotel use. Those observations generally appear to be reasonable. The court ruled against the city because the certificates of occupancy for the two hotels did not expressly include the accessory catering use. Therefore, the court concluded that the accessory catering use was illegal at the hotel locations.
But surely that misses the point. Essentially, the city was arguing that the hotel catering functions were permitted, and only needed a technical amendment to the certificate of occupancy to be in total compliance; whereas, the church catering function was simply a ruse to utilize church facilities and shoehorn in a caterer in an area where was otherwise prohibited. The analysis of the Second Circuit Court is certainly not deferential to the planning function. On the other hand, perhaps we have to expect this in the application and administration of the RLUIPA.
Third Church of Christ v New York, 2010 WL 4869763 (2nd Cir. Dec 2010).
Monday, July 12, 2010
Religion: River of Life Ministries v Village of Hazel Crest
There is another new interesting case concerning religious freedom, this time based on the "equal terms" provision of the federal act, RLUIPA. Take a look at my web site for a description of the religious freedom provisions and note the similarity to the TnRFRA.
This case however, involves alleged preferential treatment for non-religious activities with similar land use characteristics. A small church wanted to relocate to a new town, to a building in the commercial area of the city which does not permit noncommercial activities. The 7th Circuit in Chicago wanted to review the standard by which to judge such cases.
The original zoning ordinance authorized “[a]ll general commercial and retail uses” in the B-2 District and also enumerated the following specific permitted uses: art galleries; automobile service stations; dry-cleaning establishments and laundries; funeral parlors; gymnasiums,
health clubs, and salons; hotels and motels; laboratories; medical and dental clinics; meeting halls; newspaper offices; business, professional, and public offices; resale or secondhand stores; restaurants; taverns or cocktail lounges; and accessory uses to the foregoing permitted uses. In addition, the ordinance authorized certain “special uses” (by permit) in the B-2 District: art galleries and museums; daycare centers; schools of any kind; public libraries; parking lots and storage garages; a variety of utility and public-agency buildings; recreational buildings
and community centers; and taverns, cocktail lounges, and restaurants featuring live entertainment. The ordinance also specifically prohibited church services from being held in any “business use” building; this restriction was applicable in all business districts in the village, including the B-2 District.
After the suit was filed, the Village amended its zoning ordinance in an effort to cure the rather obvious facial violation of RLUIPA's equal-terms provision. Note to local Tennessee local governments: it is difficult to allow meetings halls, community centers, and live entertainment and disallow churches in the same district.
The amended ordinance removed certain secular assemblies from the list of permitted and special uses authorized in the B-2 District-meeting halls, art galleries, museums, schools, libraries, recreational buildings, community centers, and certain other secular assembly uses-but continued to expressly permit commercial gymnasiums, health clubs, and salons; hotels and motels; restaurants and taverns; and day-care centers (as an allowed “special use”). River of Life maintains that these remaining permitted uses are “nonreligious assemblies” within
the meaning of § 2(b)(1) of RLUIPA, and that allowing these uses in the B-2 District while excluding churches like River of Life treats religious assemblies on “less than equal terms” than “a nonreligious assembly or institution” in violation of RLUIPA.
The 3rd Circuit (in Philadelphia) ruled in another case that "a regulation will violate the Equal Terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose." That is, if a secular assembly is allowed and the religious assembly banned even though the two assemblies don't differ in any way material to the regulatory purpose behind the ordinance, then neutrality has been violated and equality denied. Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir.2007).
The 11th Circuit took another approach. A zoning ordinance that permits any “assembly,” as
defined by dictionaries, to locate in a district must permit a church to locate there as well even if the only secular assemblies permitted are hospital operating theaters, bus terminals, air raid shelters, restaurants that have private dining rooms in which a book club or professional association might meet, and sports stadiums. Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214, 1230-31 (11th Cir.2004).
The 7th Circuit agrees with the 3rd Circuit's test, amending it slightly to consider the ordinance in terms of its regulatory criteria, as opposed to its underlying purpose, fearful that the purpose could be difficult to construe and manipulation. The 7th Circuit suggests instead that the Court should look at the criteria of land use, traffic, parking, and others. A cynic might suggest that those are just as susceptible to manipulation as the "purpose" but the 7th Circuit clearly felt more comfortable with those criteria. Indeed, one of the concurring opinions makes exactly that point.
The permitted land use that is most like the plaintiff's is a commercial gymnasium, and that's not close enough because a commercial assembly belongs in an all-commercial district and a noncommercial assembly, secular or religious, does not.
The court ends by reminding the reader that the "substantial burden" part of the RLUIPA is not before the court, and that if that section had been before it, the result might have been different.
In a lengthy dissent, Judge Sykes first explains that both approaches are flawed (and not significantly different in any event) and then why he disagrees with the majority.
This case however, involves alleged preferential treatment for non-religious activities with similar land use characteristics. A small church wanted to relocate to a new town, to a building in the commercial area of the city which does not permit noncommercial activities. The 7th Circuit in Chicago wanted to review the standard by which to judge such cases.
The original zoning ordinance authorized “[a]ll general commercial and retail uses” in the B-2 District and also enumerated the following specific permitted uses: art galleries; automobile service stations; dry-cleaning establishments and laundries; funeral parlors; gymnasiums,
health clubs, and salons; hotels and motels; laboratories; medical and dental clinics; meeting halls; newspaper offices; business, professional, and public offices; resale or secondhand stores; restaurants; taverns or cocktail lounges; and accessory uses to the foregoing permitted uses. In addition, the ordinance authorized certain “special uses” (by permit) in the B-2 District: art galleries and museums; daycare centers; schools of any kind; public libraries; parking lots and storage garages; a variety of utility and public-agency buildings; recreational buildings
and community centers; and taverns, cocktail lounges, and restaurants featuring live entertainment. The ordinance also specifically prohibited church services from being held in any “business use” building; this restriction was applicable in all business districts in the village, including the B-2 District.
After the suit was filed, the Village amended its zoning ordinance in an effort to cure the rather obvious facial violation of RLUIPA's equal-terms provision. Note to local Tennessee local governments: it is difficult to allow meetings halls, community centers, and live entertainment and disallow churches in the same district.
The amended ordinance removed certain secular assemblies from the list of permitted and special uses authorized in the B-2 District-meeting halls, art galleries, museums, schools, libraries, recreational buildings, community centers, and certain other secular assembly uses-but continued to expressly permit commercial gymnasiums, health clubs, and salons; hotels and motels; restaurants and taverns; and day-care centers (as an allowed “special use”). River of Life maintains that these remaining permitted uses are “nonreligious assemblies” within
the meaning of § 2(b)(1) of RLUIPA, and that allowing these uses in the B-2 District while excluding churches like River of Life treats religious assemblies on “less than equal terms” than “a nonreligious assembly or institution” in violation of RLUIPA.
The 3rd Circuit (in Philadelphia) ruled in another case that "a regulation will violate the Equal Terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose." That is, if a secular assembly is allowed and the religious assembly banned even though the two assemblies don't differ in any way material to the regulatory purpose behind the ordinance, then neutrality has been violated and equality denied. Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir.2007).
The 11th Circuit took another approach. A zoning ordinance that permits any “assembly,” as
defined by dictionaries, to locate in a district must permit a church to locate there as well even if the only secular assemblies permitted are hospital operating theaters, bus terminals, air raid shelters, restaurants that have private dining rooms in which a book club or professional association might meet, and sports stadiums. Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214, 1230-31 (11th Cir.2004).
The 7th Circuit agrees with the 3rd Circuit's test, amending it slightly to consider the ordinance in terms of its regulatory criteria, as opposed to its underlying purpose, fearful that the purpose could be difficult to construe and manipulation. The 7th Circuit suggests instead that the Court should look at the criteria of land use, traffic, parking, and others. A cynic might suggest that those are just as susceptible to manipulation as the "purpose" but the 7th Circuit clearly felt more comfortable with those criteria. Indeed, one of the concurring opinions makes exactly that point.
The permitted land use that is most like the plaintiff's is a commercial gymnasium, and that's not close enough because a commercial assembly belongs in an all-commercial district and a noncommercial assembly, secular or religious, does not.
The court ends by reminding the reader that the "substantial burden" part of the RLUIPA is not before the court, and that if that section had been before it, the result might have been different.
In a lengthy dissent, Judge Sykes first explains that both approaches are flawed (and not significantly different in any event) and then why he disagrees with the majority.
There are a couple of reasons why this analysis is flawed. First, the unmistakable implication is that comparing the excluded religious assembly to a permitted commercial-i.e., for-profit-assembly is either categorically improper or will always defeat the claim. But nothing in the text of the equal-terms provision presumptively rules out using commercial secular assemblies and institutions for equal-terms comparison just because they are commercial and therefore “belong” in a commercial district. Second, the focus on other excluded assemblies has the analysis backward. A decision method that justifies excluding religious assemblies from a zone because nonreligious assemblies are also excluded turns the equal-terms provision on its head. The equal-terms provision is a remedy against exclusionary zoning; reading it to require equality of treatment with excluded secular assemblies-rather than included secular assemblies-gives religious assemblies no remedy at all. The statute plainly requires religious-group equality with permitted secular assemblies, not excluded secular assemblies.This is a quite interesting decision and the give and take between the majority and the dissent illustrates some of the difficulties of interpreting the federal statute. From my perspective, the 7th Circuit's idea that tax policy is a legitimate part of land use planning is suspect: land use issues should be decided on the impact of the land use on surrounding land uses, not how much tax is going to be generated by the permit. Once we begin to allow local governments to make decisions in zoning on that basis, the system is in serious trouble.
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