Ninth Circuit to Consider Effect of Hobby Lobby in Land Use Context

We previously reported on the lawsuit filed by Harbor Missionary Church against San Buenaventura, California involving the City’s denial of a conditional use permit to allow the Church to continue to operate a soup kitchen in a residential neighborhood. The U.S. District Court for the Central District of California denied the Church’s motion for a preliminary injunction and the Church appealed to the Ninth Circuit (prior post available here). The Church’s appeal of that decision is significant because of the possibility that the Ninth Circuit will weigh-in on the effect of Burwell v. Hobby Lobby in the land use context. We previously reported on the potential effect of the Supreme Court’s decisions in Holt v. Hobbs and Hobby Lobby here.

One preliminary issue on appeal is which order the Ninth Circuit should review. Although the District Court issued a short order from the bench on July 9, 2014 denying the Church a preliminary injunction on the ground that there was no substantial burden on religious exercise since an alternate location was available to the Church, it invited the City to prepare a more substantive order for it to consider and issue at a later date. Nine days later, the City submitted a 14 page proposed order that the District Court adopted in full, with the addition of one sentence – “The Court has read the proposed order denying plaintiff’s motion for preliminary injunction and finds the proposed order totally consistent with the Court’s order of July 9, 2014 …” The Church, however, contends that the July 18 order is not consistent with the District Court’s bench ruling, because the July 18 order considered the issues of compelling governmental interests and least restrictive means:

Here, the City considered less restrictive means – the issuance of a CUP subject to conditions – but ultimately determined, based on years of experience with Harbor’s program, that Harbor’s use was so incompatible with the neighborhood, and so detrimental to the health, safety, and welfare of its neighbors, that outright denial of the permit was the only way of achieving its compelling governmental interest.

On appeal, the Church argues that the Court’s July 9 order should be reversed because there is no evidence in the record that alternative sites exist for the Church to minister to the homeless, and, relying on Hobby Lobby, the risk to the Church in the form of a $1,000 penalty and imprisonment to continue its religious ministry is a substantial burden. In Hobby Lobby, the Supreme Court found a substantial burden in part because a privately held corporation risked facing a penalty of $100 per day for each employee to whom it refused to supply insurance for contraceptives under Obamacare.

The Church also claims the July 18 order should be reversed because less restrictive means are available to the City, including through use of the police force to protect against crime. The Church in its brief provides examples of what less restrictive means were available to the City:

Suppose, for example, that the City had limited the homeless ministry’s hours of operation to just one hour at lunchtime, and had permitted the Church to provide only traditional prayer and a meal, and only to five homeless people a day. Or suppose the City had also restricted the Church to serving only those five homeless people it picks up with its van at a location outside the neighborhood and transports back to that same location after the ministry.

Again, the Church relies on Hobby Lobby to note that protecting religious freedom guaranteed by RLUIPA may require the government to take action and to bear the cost of that action:

[B]oth RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs.

The Ninth Circuit heard oral argument in this matter on February 2, 2015. A video of the hearing is available here. The Church’s brief is available here.

Check Out Our New Look! RLUIPA Defense’s Re-Grand Opening!

RLUIPA Defense has had a makeover! The authors of RLUIPA Defense will continue to bring you breaking news and analysis of cases and controversies influencing the confluence of religion and land use—but now with a more refined, easy to use format. No need to worry, because our archive of resources, library of cases, and older posts are still easily accessible.

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American Bar Association Mid-Year Conference’s “Religious Land Use Litigation Since 2000”

On February 5, 2015, the American Bar Association’s State & Local Government Law Section sponsored the program “Religious Land Use Litigation Since 2000,” held in Houston, Texas. I participated in the program, along with Daniel Dalton of Dalton & Tomich, Dean Patricia Salkin of Touro Law School, and Noel Sterett of Mauck & Baker. The panelists discussed the state of religious land use litigation under RLUIPA since its enactment in 2000 and the different approaches the U.S. Circuit Courts of Appeal have developed to analyze claims brought under the statute. The panelists also offered advice to both religious applicants and local governments bringing and defending against such claims, including what it takes to constitute a “substantial burden” under the statute, examples of “comparators” under the equal terms provision, the statute’s “safe harbor” provision, planning for religious use, educating local officials, and how the Supreme Court’s recent decisions in Burwell v. Hobby Lobby and Holt v. Hobbs may affect the religious land use litigation landscape. A copy of the presentation PowerPoint is available here. Houston is the largest city in the U.S. without any zoning ordinances. Time in the city made me consider, is lack of a zoning code another way local governments could avoid RLUIPA claims? Following Houston’s approach may be another – albeit extreme – example of a potential RLUIPA-avoidance technique.

Mediation at an Impasse: Attorneys’ Fees near $700K in Jacksonville Beach Case

Late last year, a federal court in Florida issued a decision in favor of Church of Our Savior, which wished to build a place of worship on Beach Boulevard (“Property”) in Jacksonville Beach, Florida. In Church of Our Savior v. City of Jacksonville, (M.D. FL 2014), the Middle District Court of Florida found the City violated RLUIPA’s equal terms provision (as applied), but rejected the Church’s RLUIPA substantial burden, unreasonable limits, and facial equal terms claims. The district court agreed with Our Savior that one of the two schools it presented as equal terms comparators was sufficiently similar to demonstrate that the City had implemented a “land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1). The court found that Discovery Montessori School was a similarly situated, equal terms comparator because: (1) both uses were similarly small and relatively low-impact; (2) the surrounding properties were not strictly low-density, single family homes; and (3) both applicants faced objections by neighbors and questions from Department members regarding “traffic, fit with the neighborhood, and the impact on property values.” The City also failed to establish a compelling interest that was narrowly tailored to justify the “unequal” treatment. For a complete discussion of the court’s holding and case facts, see our December 8, 2014 post. The court’s decision noted its intention to order the City to grant the Church a conditional use permit. However, the court requested that the parties meet and discuss what “reasonable” conditions might be appropriate. As part of the court’s order, it encouraged “the parties to take this opportunity to discuss settlement of the entire case without further court involvement.” The court also explained that it would hear requests for attorneys’ fees or costs at a later date, if not resolved by the parties. Religious applicants that are successful in RLUIPA litigation are generally entitled to attorneys’ fees. In January, the court ordered that the parties enter mediation with a previously appointed mediator. On February 2, the mediator reported that the parties’ discussions had “reached an impasse” regarding the establishment of reasonable permit conditions and other matters—including attorneys’ fees. One news source reports that fees now equal $694,018. According to the latest court order, a status conference with the court is scheduled for February 10. In anticipation of the status conference, attorney for Our Savior, Dan Dalton, commented, “the Church truly desires to amicably settle this matter and is hopeful a just resolution will result from the hearing with the Court.” We also requested comments from the attorneys representing Jacksonville Beach. They have not yet responded, but we will update our post if we receive any comment.

Holt v. Hobbs Aftermath: Supreme Court Remands Native American Prisoners’ RLUIPA Claims

Less than a week after its decision in Holt v. Hobbs, the Supreme Court in Knight v. Thompson, No. 13-955 (2015), granted the petition for a writ of certiorari, vacated and remanded the Eleventh Circuit’s rejection of Native American prisoners’ claims challenging prison policy requiring all male inmates to have a “regular hair cut,” defined as having the hair “off neck and ears.”  Although the Eleventh Circuit found that “long hair has great religious significance for many Native Americans,” it concluded, like most other courts, that the prison policy was in furtherance of a compelling safety interest.  Here, there was evidence of (a) a prisoner escaping and drastically changing his appearance by cutting his hair; (b) reports that inmates have hidden ice picks, handcuff keys, wires, bolts, and other contraband items in their hair, including a razor which cut the hands of prison staff while searching an inmate’s hair; and (c) “an incident in which a black widow spider wove a nest in an inmate’s dreadlocks . . . .”  The Eleventh Circuit observed that

Although the RLUIPA protects, to a substantial degree, the religious observances of institutionalized persons, it does not give courts carte blanche to second guess the reasoned judgments of prison officials.

According to the Eleventh Circuit, the “regular hair cut” policy was the least restrictive means of furthering the prison’s safety interest, because: “The RLUIPA asks only whether efficacious less restrictive measures actually exist, not whether the defendant considered alternatives to this policy.  As already explained, the [prison] has shown that no efficacious less restrictive measures exist and has therefore carried its burden.”  The Eleventh Circuit’s decision is available here. The Supreme Court, in its January 26, 2015 Order List (available here), granted the prisoners’ petition for a writ of certiorari, vacated and remanded the decision back to the Eleventh Circuit “for further consideration in light of Holt v. Hobbs” in which the Court refused to blindly defer to prison policy based on the specific facts of the case. We previously reported on Holt v. Hobbs and the impact it may have on local governments defending zoning decisions involving religious uses (post available here).  Could this be the first of many post Hobbs decisions trimming the deference usually afforded local governments in preserving public health and safety?

New Article re How to Avoid and Defend Against RLUIPA Claims

The recent issue of West’s Zoning and Planning Law Report features an article by Evan Seeman that will be of special interest to our readers: RLUIPA Defense Tactics; How to Avoid & Defend Against RLUIPA Claims.  The article is available here.  Early reviews of the article include these:

  • “An excellent article for the municipal practitioner, demonstrating that with proper planning, knowledge of the law, and education, it is possible for local governments to reasonably regulate religious institutions, and still prevail in the inevitable lawsuit that will be filed when they do.”  Steven Elrod, Holland & Knight.
  • “Evan’s article is a ‘must read’ for any local government zoning official or attorney who wants to avoid expensive and lengthy RLUIPA litigation.  The article is full of practical tips for governments, such as carefully and deliberately planning for religious uses in the community.”  Julie Tappendorf, Ancel Glink.
  • “Evan has offered several clear and practical suggestions as to how to avoid and defend RLUIPA cases.  This article is worth your time to read.”  Daniel Dalton, Dalton & Tomich.

Supreme Court Holds Prison Grooming Policy Violates RLUIPA: Did Local Government Take a Haircut in the Process?

Remember the scene in Home Alone where Kevin McCallister (Macaulay Culkin) shaves for the first time, applies aftershave, and then screams in pain from the sting of the alcohol touching his skin (watch it here)?  Local governments may similarly feel the burn after reading the Supreme Court’s decision in Holt v. Hobbs, decided on January 20, which considered the portion of the Religious Land Use and Institutionalized Persons Act (RLUIPA) that governs religious exercise by institutionalized persons (Section 3, 42 USC § 2000cc–1).  Although the case does not discuss the land use provisions of RLUIPA, the Court’s interpretation of the standard applicable to governmental action imposing a substantial burden on religious exercise—whether the government furthered a compelling interest through the least restrictive means—could have a major influence on all RLUIPA substantial burden decisions and make defending land use decisions more difficult for local governments.  Continue Reading

Wiccan Prisoner Seeking 14 Feet of Rope, Combustible Oils, and Candles Loses First Amendment, RLUIPA, and Equal Protection Challenges

Ronald Reiske, a Wiccan prisoner incarcerated in a Connecticut prison, thought it reasonable that the correctional facility provide him with the necessary materials and equipment to practice his Wiccan religion – including 14 feet of rope, candles, oils, a three-by-two-foot pile of wood, a pendant cord, and a “summoning horn.”  Should he have such things in prison?  What threat might rope, candles, combustible oils, a pile of wood, and the rest of the items pose in such a facility? Reverend Anthony Bruno, Director of Religious Services for the Department of Corrections (DOC), found that they were indeed a substantial threat and denied many of the requests.  Requests for less threatening items were also denied because similar items were already available for purchase in the commissary.

Displeased with the result, Reiske – whose record includes charges for fighting, gang affiliation, security tampering, flagrant disobedience, and possession of contraband – did what many other inmates do when they don’t get what they want.  He sued.  According to Reiske, the DOC’s denial substantially burdened his practice of his Wiccan religion in violation of the First Amendment and the Religious Land Use and Institutionalized Persons Act (RLUIPA).  He also asserted an Equal Protection violation under the Fourteenth Amendment. Continue Reading

The High Court Hears Argument: Is Gilbert’s Sign Ordinance Content-Neutral? What Standard of Review Should Apply?

Last summer, we reported that the U.S. Supreme Court granted Good News Community Church’s (Church) petition for a writ of certiorari to review the decision of the U.S. Court of Appeals for the Ninth Circuit in Reed v. Town of Gilbert, No. 11-15555 (9th Cir. 2013). The case involves a sign ordinance in the Town of Gilbert that the Church alleges violates its right to free speech.  The Supreme Court heard argument in Reed on Monday, January 12, 2015 and a transcript from the hearing is available here.

Although the justices did not consider a Religious Land Use and Institutionalized Persons Act claim, or a specific “religious speech” issue, the Court’s decision will likely have a large impact on how local governments approach sign regulation.  Professor Daniel R. Mandelker[i] of Washington University School of Law, observes,

The case is critical to sign regulation as it applies to land use law, as it deals with the standard of judicial review and should provide direction on how local governments can include exceptions in sign ordinances. Continue Reading

Kennesaw, Georgia Back in the News: Suffa Dawat Center Files Preventative Lawsuit

In December, we reported that Kennesaw, Georgia’s City Council reversed its initial decision to deny an Islamic place of worship and education center in a retail shopping plaza.  Despite the approval, the applicant, Suffa Dawat Center at Kennesaw (the “Center”) filed a lawsuit in the Northern District of Georgia, Suffa Dawat Center v. City of Kennesaw, Case No. 1:14-cv-04110 (N.D. GA 2014).  The complaint is available here.

The lawsuit was filed to protect the Center’s right to challenge the City’s initial denial if the approval is challenged and invalidated. The lawyer for the Center, Doug Dillard, explained to one news source, “If the opposition to the mosque filed a lawsuit and for some reason the vote that [the City Council] took on December 15 was declared and void, then all we’ve got to fall back on is their actions on Dec. 1.”  According to Dillard, there is still a possibility that the approval may be challenged within 30 days of the Council’s December 15 decision.

Also according to Dillard, the Center is moving full speed ahead to obtain all other necessary permits and approvals to modify the 2,200-square-foot suite in a shopping center as an Islamic prayer and education facility.  “If the 30-day appeal period goes by and there is no appeal, we can always dismiss the lawsuit, but we had to file it as a preventative measure just in case someone challenged the December 15 action,” Dillard said.

The complaint seeks declaratory and injunctive relief, as well as attorneys’ fees for claimed violations of the  First, Fifth, and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and state law.  The Center claims that the City violated RLUIPA’s substantial burden, equal terms, nondiscrimination, and limitations and exclusions provisions.