Federal Order Allows Mosque to Open

Federal District Court Judge Todd Campbell ordered yesterday that the Islamic Mosque in Murfreesboro be permitted to open in time for Ramadan. As has been widely reported before, the mosque was about 98% complete, but unfortunately the Chancery Court in Rutherford County had previously issued an order prohibiting occupancy, based upon that court's conclusion that the Tennessee Open Public Meetings Act, TCA §8-44-101 et seq., had been violated.

Of course, any violation of the act was not attributable to the Mosque. In fact, the Islamic Mosque had complied with each and every requirement of the County government. At the same time, the County's hands were tied by the Chancery Court order.

Judge Campbell had little difficulty concluding that there was a substantial burden under the terms of the federal RLUIPA, and that a temporary injunction should issue.

The continuing appeal up to the Tennessee Court of Appeals will present the interesting issue of what is "adequate notice" under the terms of the Open Public Meetings Act. Although in the past, I have always felt that the act requires only the bare minimum in terms of notice, Chancellor Corlew in Rutherford County obviously felt that more was required under the circumstances of the Islamic Mosque case. The Court of Appeals decision may at least clarify some of those issues.

It is however certainly appropriate that the Mosque can open in time for the religious holiday, especially when it is clear that the Mosque complied with all the requirements of the law.

A copy of the Rutherford County Chancery Court decision may be found here.

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:

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.

Vested Rights and the Mosque

Another interesting twist on the Murfreesboro Mosque case is the potential applicability of the so-called vested rights/equitable estoppel doctrine here in Tennessee. I summarize this doctrine as requiring a building permit and substantial construction. Howe Realty Company v City of Nashville, 176 Tenn. 405, 141 S.W. 2d 904 (Tenn. 1940). Technically, a building permit may not be necessary but some substantial change of position by the applicant based on assurances from the city/County is certainly necessary.

Of course, under the circumstances presented in the Mosque case, there is no doubt that substantial construction is taking place. The real question is whether or not the building permit could be relied upon for purposes of the doctrine. The building permit was issued based upon the approval of the site plan by the County planning commission. And of course, the site plan has now been declared void ab initio as a result of the inadequacy of the public notice.

However, this doctrine of equitable estoppel or vested rights is based on fairness, not strict observance of the legal rules. Under the circumstances presented here, a strong argument could be made that the Mosque relied to its detriment on the issuance of that building permit, no one knowing that the court would invalidate the site plan eventually, and that since the plaintiffs never named the Mosque as a defendant, they weren’t really even when actual notice of any problem. This argument is made all the stronger when you consider that the site plan was approved by the planning commission and met all of the requirements for site plan approval in the County. Under those circumstances, to penalize the applicant seems extremely foolhardy.

Of course, as I have mentioned previously, there is also the potential applicability of the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407. When you add together both of these legal doctrines, revocation of the building permit seems unwarranted.

Chancellor finds Mosque notice insufficient

The long-awaited decision by Chancellor Robert Corlew was handed down yesterday, concluding that the notice provided by the County in the Murfreesboro Post was insufficient public notice pursuant to the Tennessee Open Public Meetings Act, TCA  § 8-44-101 et seq. Chancellor Corlew evidently relied upon the smaller circulation of the Post in the County, as opposed to its more brisk circulation within Murfreesboro itself, as well as the fact that there was no Internet notice, and no notice by public television.

The statute, §8-44-103 requires "adequate public notice" of public meetings. In the past, fairly simple notice, indicating the date, time, and place, as well as the name of the board or commission, has been deemed sufficient. The difficulty here, from the perspective of the court, evidently was the circulation of the newspaper itself.

The mosque is almost complete and because the mosque was not a party to the litigation, no injunction issued against further construction.

There is one further interesting aspect of this decision. The Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. §4-1-407, subsection (c)(1), provides that "no governmental entity shall substantially burden a person's free exercise of religion" unless essential to a compelling governmental interest. Of course, the state of Tennessee, through the Open Public Meeting Act, requires "adequate public notice" of all public meetings, but if the application of that statute "substantially burdens" the free exercise of religion under the circumstances of this case, shouldn't there be some demonstration that there is some compelling governmental interest?

I haven't considered the application of the Tennessee Religious Freedom Restoration Act from this standpoint, and of course, before the act applies at all, there must be a substantial burden on freedom of religion. But the act defines the term "substantial burden" as anything that inhibits or curtails religiously motivated practice, and under the circumstances presented here, it seems as though the Open Public Meetings Act itself may inhibit or curtail religiously motivated practice. Under normal circumstances, certainly, adequate public notice as required by the Open Public Meetings Statute would not be seen as a potential violation of the Religious Freedom Restoration Act, but as applied here, it seems as though it might have the potential to violate the provisions of the Religious Freedom Statute.

And if there is a substantial burden, then there must be some demonstration of a compelling governmental interest to justify the notice required by statute. I'm sure that an interesting argument can be made that adequate notice of public meetings is compelling, but I'm less than sure about that given the fact that Tennessee state and local governments existed for 150 years without requiring such notice. Furthermore, recall that this application was for site plan review, basically a glorified building permit. Public notice of the meeting to consider such an application seems unwarranted in the first place.

This is just another complexity that the Religious Freedom Restoration Act adds to the already complicated system of land use controls we have here in Tennessee.

Finally, the Mosque might be well advised not only to appeal the decision of the trial court, but also to immediately request a new hearing before the county planning commission, this time with better notice to the public. Frankly, it would seem very difficult for the county planning commission to deny the application, although to be sure, the hearing room will be packed with opponents. In this way, the Mosque might get relief more quickly than it otherwise could through an appeal to the Tennessee Court of Appeals.

We'll just have to wait and see; I'm sure the coming months will bring some new twists and turns in this already interesting litigation.

Murfreesboro Mosque – continued

Another interesting detail that crops up following the decision of the Mosque case and the possible rehearing of the matter by the Rutherford County Planning Commission, is the impact of the prior decision by the Planning Commission.

Since the Commission approved the submitted site plan when it was first presented, and because site plan review is generally done without a public hearing (there is a public meeting, but ordinarily the public has no right to speak concerning the application), it is unclear as to how a different result could be obtained.

Certainly, the opponents are counting on the strength of their political opposition, and most assuredly, the Planning Commission will likely allow members of the public to speak. But it’s a foregone conclusion that most of those comments will have little or nothing to do with the actual merits of the application and have more to do with an attack on the issue of the religious entity itself. Since Chancellor Corlew has already ruled that the applicant is a religion, that approach before the Planning Commission won’t be very effective legally, although who knows about the political ramifications.

Ultimately, it seems as though the Planning Commission will be presented with a site plan which it has already approved, and it would seem that approval upon reconsideration is likely as well.

If the site plan is not approved, the Mosque will have recourse to the Tennessee Religious Freedom Restoration  Act, and unless some startling new proof is presented to the Planning Commission, it would be difficult for a reviewing court not find in favor of the Mosque, given the parameters of the statute.

As I said in my last post, only time will tell…

Religious Freedom and the Mosque

This morning's Tennesseean has a story about another Mosque, this one in Rutherford County, seeking approval from zoning authorities. We've discussed Tenn RFRA before, but it is worth reiterating that the new statute here in Tennessee makes it very difficult for a city or county to turn down a zoning application made by a religious entity. Still no litigation that I'm aware from Tennessee concerning zoning issues under the terms of the statute, but certainly we will see some very soon.

Sam Edwards and I are doing a short seminar down in Rutherford County, coincidentally, about Tenn RFRA in a couple of weeks. I'm sure we'll get a chance to discuss this and other similar issues.

The Mosque in the News

Over the weekend, there was an article in the Tennessean about the Chancellor's ruling in the Murfreesboro Mosque case. Larry Crain, a Nashville attorney who specializes in religious issues, commented that the ruling could have a significant impact nationwide if allowed to stand. While I'm not as certain about that (it does certainly mean that parties before local county commissions need to check on when and where the required notices are published, and possibly augment those by buying additional ads), Larry is certainly correct when he says that if the County Planning Commission reverses itself at any future hearing, there are some serious constitutional concerns. “This raises some significant constitutional issues about whether or not technicalities like characteristics of a publication can override access of a religious group to building a facility.”

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.

Recent Tennessee Cases: 2012

These cases were decided late last year, or during this year and are listed here for the benefit of my seminar participants. Click on the case name to view the court's decision:

Cheatham County v Cheatham Cty BZA

McBride v Farragut BZA,  2012 WL 5984887 

Loessel v City of Frankenmuth, 692 F. 3d 452 (6th Cir. 2012)

Wright v Shelbyville BZA, 2012 WL 5378267

Ready Mix v Jefferson County, 2012 WL 3757025

Carruth v City of Etowah, 2012 WL 3025863

Smith County RPC v Carver Trucking, 2012 WL 2859931

Depot Property LLC v Town of Arlington, 2012 WL 2849515
    previous decision here, 2011 WL 334472

Murfreesboro Mosque

Shore v Maple Lane Farms, 2012 WL 1245606

Gillham v Mount Pleasant, 2012 WL 1079333

SNPCO v Jefferson City, 363 SW 3d 467 (Tenn. 2012)

Abbington Center v Town of Collierville, 2012 WL 440701

Fielding v Metro Lynchburg, 2012 WL 327908

Brundage v Cumberland County, 357 SW 3d 360 (Tenn. 2011)

CK Development v Town of Nolensville, 2012 WL 38287

Prime Locations v Shelby County, 2011 WL 6140871 

411 Partnership v Knox County,  2011 WL 8106248

Murfreesboro News Journal Article on Tn RFRA

The Murfreesboro Daily News Journal carried an interesting article concerning the Islamic Mosque controversy in Rutherford County, and the seminar that Sam Edwards and I did for the local planning commission earlier this week. The article is here.

I am most interested in how the courts will interpret the Tennessee Religious Freedom Restoration Act (TnRFRA). As I have discussed here before, the Act is quite strongly worded and local governments will find it difficult to deny applications by churches and other religious uses. I should add that I am not the only attorney who has expressed this concern. Back in September of 2009, the Tennessee Municipal Technical Advisory Service, which helps local governments understand and implement their duties and powers, wrote that TnRFRA

will also diminish the authority of local governments to regulate land within their jurisdiction through zoning, direct the behavior of on-duty employees and protect the health and safety of its citizens. The full scope of the ramifications is limitless as any action that someone can claim is religious can be used to challenge even the most neutral and prudent law.

The MTAS reference document can be found here.