RLUIPA Round-Up (Thanksgiving Edition)

turkey float

Many view Thanksgiving week as a time for reflection and gratitude.  Whether looking forward to the next turkey or reminiscing about the last, take some time for our semi-regular summary of news items involving local government, religion, and land use—the round-up:

  • The Massachusetts Supreme Judicial Court, in Trapp v. Commissioner of the Department of Corrections, SJC-11863, unanimously held that closure of the sweat lodge at the Souza-Baranowski “Supermax” Correctional Center (SBCC) in Shirley, Massachusetts violates prisoners’ rights under RLUIPA. A previous guest post by Joseph N. Schneiderman regarding oral argument in the case is available here.  A more detailed post on the decision will follow.  The Boston Globe also reported on this case.
  • The Concord Monitor reports that Pembroke New Hampshire’s zoning board reversed its September denial to Next Level Church and is now allowing the Church to locate within a commercial zone. The Board Chairman cited RLUIPA’s equal terms and nondiscrimination provisions as the reasons for the reversal.
  • The Concord Monitor also reports that the attorney representing Next Level Church plans to file a separate lawsuit on December 1 against Pembroke in an unrelated RLUIPA matter. Earlier this fall, the Concord Monitor reported on the efforts of the Hillside Baptist Church, in collaboration with “Signs For Jesus,” to erect an 8 by 4 foot electronic sign along Route 3 in Pembroke, in a zone that where electronic signs are prohibited.  Pembroke Academy, located within the same zoning district but exempt for municipal land use regulation, erected an electronic sign “against the wishes of the town.”  Citing RLUIPA, the Church’s attorney argues that it is unlawful to treat the Academy more favorably than the church.
  • Time reports that after an initial denial, a Massachusetts woman was granted a religious exemption, as a member of the Church of the Flying Spaghetti Monster, to wear a colander on her head in her driver’s license photo.
  • It’s Nativity Scene-Controversy Season again! BreitBart reports that the Freedom from Religion Foundation (“FFRF”) will erect a Bill of Rights Nativity scene, featuring George Washington, Benjamin Franklin, Thomas Jefferson and Lady Liberty with the Bill of Rights in a manger at the Franklin County, Indiana Courthouse. Last year, we featured a lawsuit filed by FFRF against the County challenging the display of a “traditional” nativity scene on the Courthouse lawn: “Tis The Season For Nativity Scenes & Satanic Displays: Happy Holidays from RLUIPA Defense..”
  • The Arizona Daily Star reports that the Ninth Circuit heard argument in Mesquite Grove Chapel v. Pima County Bd of Adjustment, where the plaintiffs appealed the District Court’s grant of summary judgment to Pima County. The plaintiffs claim that the District Court improperly interpreted RLUIPA’s substantial burden provision to require they prove that no site was available in the County for their proposed use.  The parties also dispute whether the plaintiffs’ use was primarily religious or primarily an event venue, holding up to 75 weddings a year.  A video recording of argument before the Ninth Circuit is available here.

West Virginia Church Sues Development Authority

Summit Church, founded in 1991 in Elkins, West Virginia, is suing the Randolph County Development Authority for thwarting the Church’s plans to purchase property for its religious use.  The Church already owns property in Elkins, but it claims that it is not large enough to accommodate the Church’s needs and that it must hold religious worship services elsewhere.  Since 2012, the Church has leased space in a local movie theater to hold Sunday morning religious services. The movie theater is a venue for all types of performances, including music and variety shows, Christmas concerts, and bluegrass concerts.

The Church and the owners of the movie theater property entered into a sale-leaseback arrangement whereby the Church would purchase the property and then lease it back to the theater for five years.  According to the Church, use of the theater property would remain largely unchanged after the sale.

But the Randolph County Development Authority, which assists businesses in Randolph County through real estate development and in other ways, nixed the proposed sale.  Back in 1997, the Authority had purchased the former CSX rail-yard, subdivided it, and then sold individual parcels to buyers subject to covenants with the express purpose of redeveloping the former rail-yard  “as a commercial mixed-used district that reflects the history and culture of the site.”  The covenants also require that the rail-yard area “shall be used for commercial businesses, public and private offices, residential developments with certain restrictions, common areas (e.g. Town Square), and recreational purposes only.”  The movie theater property was a part of the former rail-yard and thus is subject to the covenants.

On October 26, 2015, the Authority held a special meeting and concluded that the church was not an acceptable land use in the former rail-yard and that the sale to the church for that use would violate the covenants.  The Authority gave the owners of the theater 14 days to acknowledge that they would not convey the property, and threatened a lawsuit if the owners did not comply.  Instead, the owners, along with the Church, sued the Authority.  They allege that the Authority has violated the First Amendment’s Free Exercise Clause, the Fourteenth Amendment Equal Protection Clause, and substantive due process rights guaranteed by the Fourteenth Amendment, as well as state law

The complaint in Summit Church v. Randolph County Development Authority (N.D. WV 2015) is available here.

Magistrate Judge Recommends Issuance of Preliminary Injunction to Hope Rising Church

Plaintiff Hope Rising Community Church is one step closer to obtaining a preliminary injunction against Penn Hills, Pennsylvania, as U.S. Magistrate Judge Robert C. Mitchell issued a Report and Recommendation to allow the Church to use certain property for religious assembly and worship.  The Magistrate Judge found that the Church “is likely to succeed on its RLUIPA Equal Terms claim.”  For more background on the case, see our earlier post about the filing of this lawsuit. IMG_20150821_070935520_HDR

The subject property is located in Penn Hill’s Light Industrial District.  While religious institutions are allowed as conditional uses in residential districts, they and are not allowed by right in any district.   Unlike religious institutions, educational institutions and parks and playgrounds are permitted uses in a Light Industrial District.

Hope Rising argued that it was entitled to an injunction based on its RLUIPA Equal Terms and Unreasonable Limitations claims.  First considering the Unreasonable Limitations claim, the court recognized that religious assemblies are not allowed by right in any district, but found that “limiting churches to a conditional use in residential districts does not unreasonably limit religious assembly because this restriction does not foreclose a church’s right to assemble.”

Next, relying on the Third Circuit’s decision in Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir. 2007), the Magistrate Judge noted “that ‘the relevant analysis under the equal terms provision of RLUIPA must take into account the regulation’s objectives: 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.”  The Magistrate Judge also found that parks, playgrounds and educational institutions are “assemblies” for the purposes of an RLUIPA equal terms analysis.  According to the Magistrate Judge, Penn Hills “failed to show how a religious institution would cause greater harm to the Light Industrial District and its objectives than parks, playgrounds and educational institutions.”

After concluding that Hope Rising had already suffered irreparable harm given its temporary loss of First Amendment freedoms, the court recommended issuance of the preliminary injunction.  On November 10, Penn Hills filed written objections to the Report and Recommendation, arguing that it was improper to conclude that parks, playgrounds and educational institutions are appropriate nonsecular comparators.  Additionally, Penn Hills contends that the plaintiff is required to provide specific proof  of irreparable harm given Third Circuit case law.

Update: Nomadic Church and Delanco Township Consent Order

Original Photography by Don O'Brien (Licensed)

On November 3, we reported that My Father’s House Ministry, Inc. (Church) sued Delanco Township, New Jersey after denial of the Church’s application for a use variance . (See our November 3 post).  Based on the parties stipulation, the court issued a Consent Order Preliminarily Enjoining Delanco Township from preventing the Church from using the property it rents as a religious assembly.  The Consent Order requires that the Church members park only in its existing parking lot and not along the adjacent, main thoroughfare.

The Consent Order does not resolve the merits of the case.  It may indicate, however, that the parties are willing to work together and negotiate a solution that would accommodate all parties.


Original Photography by Don O’Brien (Licensed)

Nomadic Church Sues New Jersey Township Over Denial of Use Variance

A predominantly African American Church of about 25 members known as My Father’s House Ministry, Inc. (Church) is suing Delanco Township, New Jersey over allegations that the Township violated both the Religious Land Use & Institutionalized Persons Act (RLUIPA) and the U.S. Constitution by denying the Church’s application for a use variance.

The Church used to operate out of a hotel in Westhampton, New Jersey but found that the space impeded its religious mission in several ways, including lack of privacy, inadequate space for ministry, an inability to meet during the week, an inability to attract new congregants and lack of flexibility.  It began operating from buildings used by other ministries, but encountered similar problems and could no longer use those buildings.  When the Church began meeting at a local shopping mall, the mall informed the Church that it would no longer be permitted to meet there.  Since September 2015 the Church has met at Beverly City Elementary School.  However, the Church alleges that this space is also inadequate and it does not know for how long it will be allowed to continue to meet there.

According to the complaint, “Since its founding in 2012, the Church has never had a permanent place to worship. Throughout its nomadic existence, the Church has continued to serve the people of New Jersey by preaching, teaching, and helping the lost.”  Without an adequate meeting place, the Church states that it has had to forego several of its ministries.

In March 2015, the Church found property in Delanco Township that it believed could meet the needs of its congregation.  The property, which has been vacant for the past two years but was used by a church for 10 years prior to that, consists of a 10,000 square foot building and is located at 989 Coopertown Road in the Township’s General Industrial District (I-2).  The Church asserts that its income is only $2,400 per month, limiting the buildings it can afford to rent.  The Delanco Township property, according to the Church, is the only space that would both accommodate its needs and is affordable with a rent of $1,600 per month.

The Church entered into a 5-year lease to rent 2,300 square feet of the building’s 10,000 square feet.  It submitted a continued certificate occupancy application to put the Property to church use in March 2015, but was told by zoning administrators that it would need a use variance to be able to use the property.  The Church obliged and submitted an application for a use variance.

At the public hearing, neighbors spoke in opposition to the application, some complaining about the prior church, and related NIMBY objections.  The Township’s Joint Land Use Board denied the application on the ground that approval would compromise the intent of the master plan and zoning ordinance.  The Board also noted that churches are allowed in every zone except industrial, and that granting the application would have an adverse economic impact since it would be difficult to attract industrial and commercial uses to the area.

The Church disputes that the zoning ordinance permits it to locate in any other district, and claims that churches are allowed as-of-right in only one other zone, and as conditional uses in several other zones.

The Church alleges that the Township violated RLUIPA’s equal terms provision both on its face and as-applied.  It also claims violations of RLUIPA’s substantial burden and unreasonable limits and exclusions provisions and the First and Fourteenth Amendments to the U.S. Constitution.  The Church requests that the court enter an injunction to allow the Church to use the Property; award damages for violation of its constitutional and statutory rights; and award attorneys’ fees.

Local coverage, including the complaint, is available here.

Round Two: DOJ Sues Pittsfield Charter Township


Earlier this year, we reported on the dismissal of Michigan Islamic Academy’s (“MIA”) RLUIPA suit against Pittsfield Charter Township. According to the District Court for the Eastern District of Michigan, MIA did not have a sufficient property interest to maintain its RLUIPA claims because it never acquired a legally cognizable property interest in accordance with Michigan law.

This controversy began after MIA sought to develop a religious school on 26 acres of undeveloped land (the “Property”) zoned as a residential planned unit development (“PUD”).  According to the DOJ’s complaint, the Property was transferred to MIA for $1 on May 30, 2015 (approximately two months after MIA’s suit was dismissed because it lacked a legal interest in the Property).

MIA’s current facility in Ann Arbor provides Islamic religious education to 190 students in grades pre-K to 12.  The DOJ’s complaint explains that MIA’s current facilities are inadequate and MIA has been forced to utilize trailers for additional classroom space, and such trailers have had reoccurring issues with mold and no reliable heat.

To further its desired development in the residential PUD zone, MIA was required to submit a petition for a zoning amendment.  After a lengthy hearing process and several reiterations of MIA’s plans to address concerns of the Township, the Planning Commission voted to recommend denial of the application.  According to the complaint, at least one member of the Commission lives in a neighborhood next to the Property and actively organized residents to oppose the MIA development.  The Township’s Board of Trustees later unanimously voted to deny MIA’s application without discussion.

The DOJ’s complaint states that the recommended denial was without a factual basis and contrary to the evidence presented in the hearing process.  Denial of the application, according to the DOJ, imposes a substantial burden on MIA.  The DOJ’s complaint is available here.

A Lesson in Judicial Ripeness: Homeless Shelter’s Suit Dismissed

A federal court has dismissed a lawsuit brought by New Life Evangelistic Center, Inc. against the City of St. Louis because New Life’s claims are not yet “ripe” for review.  In order for a court to have jurisdiction to hear the merits of a case, the case must be ripe.  The ripeness doctrine is meant to prevent courts from deciding claims that have been prematurely brought.  Generally, constitutional and other federal claims involving land use regulation will not be deemed ripe “until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.”  Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186 (1985).  A variance may also be required to satisfy the ripeness requirement.

Because New Life had applied for a zoning permit that had not yet been decided by the City’s land use agency, the Court concluded that New Life’s claims were not ripe for review.

New Life is an interdenominational Christian church that operates a homeless shelter serving approximately 225 people on average (and 300 people on a cold night).  It has been operating since 1976 under a hotel permit allowing it to have 32 beds.  After receiving a citizens’ petition, the City declared the shelter a detriment to the neighborhood and said it would revoke the hotel permit unless New Life either proved that it complied with the 32-bed requirement for at least 30 days or that it obtained the necessary permit to continue to operate.

New Life sued the City in March 2015 alleging violations of the Religious Land Use and Institutionalized Persons Act (RLUIPA), the U.S. Constitution and state law.  In July 2015, New Life applied for a new permit and reported to the Court that its communications with the City had been productive.  New Life even stated at a September hearing that it would stay its lawsuit pending resolution of its application.  The City moved to dismiss the lawsuit on the ground that New Life’s claims were not ripe for review until a final decision had been made with respect to the zoning permit application.

For additional information on New Life’s petition, see our prior post here.

New Life argued that its case should not be dismissed because applying for the zoning permit was futile.  According to New Life, the application was futile because it would be unable to meet certain requirements necessary for approval.  For example, it claimed that it could not obtain a permit because the ordinance prohibits a homeless shelter from being located next to a school or a church, and New Life is a church and the shelter is next to a school.  The futility exception allows a court to consider the merits of an otherwise unripe claim if seeking zoning relief would be a futile effort.  The Court rejected this argument, finding that “the City has the authority to issue variances and has repeatedly indicated a willingness to work with New Life to promptly address its application including any requests for variances.”

The Court also considered whether New Life had suffered a sufficiently defined immediate injury that required judicial intervention before a final decision on the zoning permit application had been rendered, and determined that it had not: “any claim of immediate injury is suspect given the numerous options afforded New Life upon issuance of the Board Order and Plaintiff’s current willingness to stay the action in order to proceed with the new application.”

The court also suggests that even if the zoning permit itself has not been decided, and even if the application for the zoning permit is futile and therefore the action would be ripe, the very fact that New Life could still apply for and be granted a variance from the zoning requirements of the zoning permit may be sufficient in and of itself to sustain the ripeness defense.

This case may serve as an important reminder for local governments facing the threat of RLUIPA and other federal suits.  When a lawsuit is brought, it may be a worthwhile exercise to examine the local zoning code to determine whether the plaintiff has sought a variance or has otherwise obtained a final decision.  In the case of New Life, the Court stated that it “cannot determine that the City has definitively barred New Life from using the building as it wishes until the City has evaluated a complete application and determined how it will apply its land use regulations to the [building].”

The Court’s decision in New Life Evangelistic Center, Inc. v. City of St. Louis, Missouri (E.D. Missouri 2015) is available here.

Bike Lanes, Jedi, Medicine Men, Cowboys and More: This Week’s RLUIPA Round-Up

yoda street art

What is Religious Exercise? remains a prevalent question in religious land use news this week.  Below, find our semi-regular summary of news items involving local government, religion, and land use.

  • A District of Columbia church, the United House of Prayer, recently claimed that plans to designate a protected bike lane in front of its place of worship would unconstitutionally burden its parishioners, the Washington Post reports. A letter written by the law firm DLA Piper on behalf of the church, included in the Post article, claims the lanes would also violate RFRA and RLUIPA.  Plans for the bike lanes are not finalized, but the City has considered making the bike lane unprotected in front of the church.
  • “May the Force be with the Military” sign and several more (“Allah bless…,” “Goddess bless…,” “Satan bless….,” etc.) may grace a Marine base in Hawaii in addition to an existing sign that reads, “God bless the military, their families and the civilians who work with them.” According to Inquisitr, the Military Religious Freedom Foundation has requested that the base add at least nine new signs representing a variety of belief systems, “ranging from Islam to Jedi.”
  • A member of the Oklevueha Native American Church, which considers marijuana a sacrament, raised his right to free exercise and protections of RFRA as a defense to federal prosecution for growing “hundreds of marijuana plants.” After the district court rejected his argument, the defendant entered a guilty plea to the manufacture of more than 50 marijuana plants, Michigan Live reports.
  • The Alliance Defending Freedom issued a press release announcing that it has filed a federal lawsuit on behalf of His Healing Hands Church that wished to use community rooms within Lansing Housing Commission public housing developments for religious worship. According to the press release, “the commission allows a wide variety of both religious and non-religious community groups to use the rooms,” but has denied access to the church.
  • The Freedom From Religion Foundation and American Civil Liberties Union filed a lawsuit on behalf of a student and his father against the Concord Community Schools in Elkhart, Indiana, which includes a “live Nativity Scene” in a yearly “Christmas Spectacular” presentation, Christianity Today reports.
  • Residents abutting land owned by the Denton County Cowboy Church have filed a lawsuit seeking a permanent injunction to prevent the church from building an indoor rodeo arena in an area zoned for single family residential use, the Denton Record-Chronicle reports. The Cowboy Church has already erected an eight-foot wooden fence and other improvements without, according to the plaintiffs, obtaining the proper permits or zone change.

Original photography by Dan DeLucasome rights reserved

What is Religious Exercise Under RLUIPA?

In last week’s, RLUIPA Round-Up we reported about the case Hale v. Federal Bureau of Prisons (D. CO 2015) in which the court found that the Church of the Creator – a white supremacist movement that advocates “total racial segregation so as to stop the mixture, and hence destruction, of White culture and genetic stock” – may qualify as a religion under the First Amendment to the U.S. Constitution.

Why do we think it is worth mentioning the decision in a second post?  After all, our focus at RLUIPA Defense is religious land use and zoning.  When considering a land-use application for a proposed religious use, it is important for planners and local officials to know how to treat a use that might not, at first blush, appear religious in nature.

The Religious Land Use & Institutionalized Persons Act (RLUIPA) defines “religious exercise” broadly as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”  It adds that “[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.”

The courts have afforded religious protection to individuals with what some may describe as non-traditional religious beliefs.  In Kaufman v. Pugh, the Seventh Circuit found that Atheism should be treated on the same footing as other religious beliefs under the First Amendment.  Courts have also treated Wiccan beliefs as religious exercise under RLUIPA.  And many courts have found that social services and other activities that do not appear inherently religious can still be religious in nature.  Here’s a quick RLUIPA quiz.  Do you think the following activities are religious exercise?[1]

  • Running a food pantry
  • Allowing homeless individuals to sleep on the steps of a place of worship
  • Leasing space within a place of worship to pay for certain repairs to the building
  • Selling property to fund a religious mission
  • Operating a cemetery
  • A gathering place for swingers
  • Providing psychic services
  • Physical abuse of a fellow cult member
  • Operating a homeless shelter
  • Operating a Glee Camp

Courts and local governments should know that they cannot question the validity of one’s religious beliefs.  The Supreme Court stated in Employment Division v. Smith: “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”  But local governments can question whether the beliefs are sincerely held or if they have been manufactured for some ulterior motive.

In the land use context, a religious belief may not be sincerely held if it appears that an applicant is simply asserting the belief as a way to circumvent zoning regulations.  The example of the Georgetown frat brothers who incorporated as a nonprofit religious organization known as the “Apostles of Peace” comes to mind.  The Apostles had hoped to get around local regulations limiting the number of unrelated individuals in a single house, but were not successful.  In Church of Universal Love & Music v. Fayette County, a federal court in Pennsylvania found that there was some evidence to suggest that a religious group – which claimed its religious mission was to “advance religion through music and to provide a spiritual resource for all …” – seeking to use 150 acres to host music events had been created to bypass zoning requirements.

What might one make of all of this?  As a general rule, planners and local officials may be well advised to assume a use is religious if an applicant says it is.  It may be better to proceed cautiously and evaluate whether denial or partial approval of an asserted religious use could be deemed a burden on religious exercise, and whether other analogous religious uses have been approved by the municipality.  Otherwise, it is possible that challenging religious beliefs could be used to support a claim of discrimination.  Still, there are some situations, such as the Georgetown fraternity example and the Church of Universal Love and Music, where it may be obvious that the “religious beliefs” have been concocted for non-religious reasons.

[1] Courts have held; yes; yes; no; no; yes; still undecided; no; no; yes; still undecided.

DOJ Steps Up the Pressure Against Des Plaines

mosque (1)More than a year ago, we reported on an important decision for municipal officials by the United States District Court for the Northern District of Illinois, in American Islamic Center v. City of Des Plaines, No. 13-C-6594 (N.D. Ill. 2014) (the “AIC case”).  In our prior post, we explained that the court’s March 24, 2014 decision confirmed that city council members who voted against rezoning property owned by the American Islamic Center (“AIC”) were entitled to absolute legislative immunity.  According to the latest docket entry in the AIC case, the parties will be filing dispositive motions and replies this month and next.

Now, the Department of Justice (“DOJ”) has decided to step up the pressure on Des Plaines and has filed a complaint with allegations almost identical to those in the AIC case.  According to the complaints, AIC provides religious and educational services to Muslims throughout the Chicago metropolitan area.  The cases arise from AIC’s effort to permanently locate its operations at certain property in Des Plaines’ manufacturing zoning district,  which AIC had contracted to buy contingent on the property being rezoned to allow religious and educational uses. In June 2013, the Des Plaines Plan Commission conducted a public hearing on AIC’s rezoning request at which it found that rezoning the property would neither significantly harm traffic and parking patterns nor require the expansion of public facilities.  It recommended that the Des Plaines City Council adopt the proposed zoning amendment.  In July 2013, however, the City Council went against the Commission’s recommendation and denied the proposed amendment by a vote of 5 to 3.

Earlier this month, the DOJ moved to consolidate its case with the AIC case “for purposes of dispositive motions and trial.”  According to the DOJ, AIC does not object to consolidation. The DOJ also requests that the court suspend the summary judgment schedule in the AIC case until the DOJ “completes limited and targeted discovery.”

The DOJ’s involvement in this matter is significant because it signals that the United States has a special interest either in the facts at hand or an undecided point of law.  If you need a refresher on the DOJ’s involvement in RLUIPA cases, peruse “United States Department of Justice Report on the Tenth Anniversary of RLUIPA.”

Original photography by Wilson Salvador Netosome rights reserved