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U.S. DOJ Investigating James City County, Virginia for Possible RLUIPA Violation
Posted on 7/30/14 by Evan Seeman          

The The United States Department of Justice (DOJ) has notified James City County, Virginia that it has opened an investigation over the County’s 2013 refusal to allow Peninsula Pentecostal (Church) to operate as-of-right in the County’s industrial zone following a 2012 amendment to its zoning ordinance.  In 2013, the Church met with the County’s planners to outline its proposed 130,000 square foot facility (that is about the floor area of a Home Depot with a garden center) that would include two worship areas, classrooms, a nursery, offices, gym, meeting rooms, kitchen, reception hall, day care center, convenience store, and fuel station along with a 7,200 square foot garage and storage shed. The church’s school, day care and supporting facilties could accommodate 115 children.  At this meeting, the Church was informed by County officials that, based on a recent amendment to the County’s zoning ordinance, churches were allowed as-of-right in the industrial zone. 

In 2013, the County alleges that it became aware of “a large formatting error” with regard to the zoning ordinance amendment.  It claims that it inadvertently included approximately 40 non-industrial uses – including a church use (“places of assembly”) – as permitted uses in the industrial zone.  The County’s Planning Commission approved the proposed correction to the “formatting error,” but recommended that churches continue to be allowed as-of-right in the subject zone.  The Board of Supervisors disagreed, and voted to approve the correction to the ordinance in its entirety.  Now, the Church would have to submit an application to rezone its property for its intended use.  A memorandum issued by the County’s zoning administrator and planner documenting the history of events is available here.

The DOJ has requested that the County provide its attorneys with a slew of information within 21 days, including “all letters, emails, correspondence, staff memos, notes, drafts, studies, resolutions, agendas, minutes and recordings regarding changes to the limited business/industrial and general industrial zoning districts.”  It also seeks any other land use request made by a church in the past 10 years, as well as applications and decisions involving non-religious places of assembly (i.e., schools, museums, theaters, indoor amusements parks).  The DOJ notes that its “investigation is preliminary in nature, and we have not made any determination as to whether there has been a violation of [the law] by James City County.”

For more information about the DOJ’s involvement in RLUIPA cases, click here.  For local coverage, click here.

New RLUIPA Suit: Bayview, Texas Sued Over Zoning Ordinance Prohibiting Churches & Religious Schools
Posted on 7/28/14 by Evan Seeman and Dwight Merriam          

On July 22, 2014, Cornerstone Church by the Bay (Church) and Laguna Madre Christian Academy (Academy) sued the Town of Bayview, Texas (Town) under the Religious Land Use & Institutionalized Persons Act (RLUIPA), the Texas Religious Freedom Restoration Act (TRFRA), and the U.S. and Texas constitutions over a zoning ordinance it claims prohibits it from operating a church and religious school on property it owns in the Town’s Single-Family Dwelling District.

Plaintiffs allege the following in their Complaint.  Previously, the Church and the Academy paid to rent property in Laguna Vista, Texas.  They then acquired property in the Single-Family zone and sought to operate a church and religious school there, but soon became aware that such uses were prohibited in this zone.  The property was formerly used as a community center with a gymnasium, a swimming pool, meeting facilities, and office space.  Plaintiffs allege that following several communications with the Town and its officials, they applied to amend the zoning ordinance to permit churches and schools as allowable uses in the zone.  They asserted that the zoning ordinance violated RLUIPA and TRFRA, and were told by Defendants that the best course of action would be to submit a draft of a new zoning ordinance that would remedy the alleged violations.  Plaintiffs submitted a proposed draft ordinance, but the Town took no action on it and, instead, rejected the zoning amendment request.  On June 26, 2014, Defendants sent a letter to Plaintiffs advising them of the decision to reject the zoning amendment, informing them that they are not allowed to operate a church or religious school on the property, and the Church and the Academy would face legal action if they did so.

Plaintiffs claim that the Town treats it worse than other secular assembly uses because while the zoning ordinance prohibits religious uses from the subject zone, it allows other secular assembly uses – golf courses, farms, truck gardens, orchards, green houses and nurseries.  They also claim they have been substantially burdened in their religious exercise because they are prohibited from operating on the property as a result of the zoning ordinance, and would face enforcement action if they do so.  Additional claims include violations of RLUIPA’s nondiscrimination provision for the purposeful discrimination against religious institutions and RLUIPA’s unreasonable limitations provision because the zoning ordinance “substantially and unreasonably limited the ability of religious institutions from operating within Bayview, and is both unwarranted by any legitimate government interest and unreasonable.” 

To review the rest of Plaintiffs’ claims in Cornerstone Church by the Bay v. Town of Bayview, Texas (SD TX 2014), you can view the Complaint here.  The Town’s zoning ordinance and zoning map can be accessed here and here.  The Liberty Institute has issued a press release which available here.

Lake County, Illinois “Hat Trick”* Defeats Religious Meditation House in Federal Suit
Posted on 7/23/14 by Evan Seeman and Dwight Merriam          

In MAUM Meditation House of Truth v. Lake County, Illinois, No. 13-cv-3794 (N.D. Ill. 2014), the United States District Court for the Northern District of Illinois ruled that Lake County, Illinois did not violate MAUM Meditation House of Truth’s religious exercise under state or federal law by requiring that it comply with certain building code requirements in connection with its proposed conversion of a home to a mixed-use home and meditation center comprising two rooms for small group meditation.  MAUM estimated that approximately 20 people per day, two to five at a time, would use the facility to practice their religion.  It argued at the local level that such a use should be deemed an “accessory use” under the building code rather than a “change of use,” because under the latter MAUM would be required to undertake certain renovations to comply with the code.  MAUM alleged that these renovations, which included the addition of 10 parking spaces and the installation of two accessible restrooms of about 70 square feet, would cost approximately $200,000 and substantially burden its religious exercise. 

MAUM sued Lake County for its failure to deem the use of the meditation center an accessory use, and brought claims under the Free Exercise clauses of the U.S. and Illinois constitutions; the Illinois Religious Freedom Restoration Act (IRFRA); the Equal Protection Clause of the Fourteenth Amendment; the Due Process Clause of the Fourteenth Amendment; and free speech and free association protections of the First Amendment.  On July 16, 2014, the Court dismissed MAUM’s claims and denied its request for a preliminary injunction.

The District Court first concluded that dismissal was appropriate because MAUM had failed to exhaust its administrative remedies by seeking state court review of the Zoning Board’s decision under Illinois’ Administrative Review Law (65 ILCS 5/11-13-13).  MAUM argued that it did not have to exhaust its remedies because it asserted a bona fide equal protection claim, which requires a showing of “governmental action wholly impossible to relate to legitimate governmental objectives.” (citation omitted).  Because the Court determined that MAUM’s equal protection claim was insufficiently pled (discussed below), MAUM was not excused from the requirement that it exhaust the state court remedy.

Next, the District Court found that dismissal was appropriate because MAUM’s claims were insufficiently pled.  Notably, the District Court concluded that MAUM failed to allege a substantial burden under IRFRA – an essential element for such a claim – because its claims were based only on the financial implications of Lake County’s decision.  While noting that the term “substantial burden” holds the same meaning under IRFRA as it does under the Seventh Circuit’s interpretation of it under RLUIPA, the District Court explained that “[i]t is well established that there is no substantial burden placed on an individual’s free exercise of religion where a law or policy merely operates so as to make the practice of [the individual’s] religious beliefs more expensive.”  (citations omitted).

The District Court dismissed MAUM’s Free Exercise claims for failure to allege that Lake County made an individualized assessment of the building code that would subject Lake County’s actions to strict scrutiny.  It is interesting to note that the Court did not consider whether MAUM had adequately pled these claims to invoke any lesser form of judicial scrutiny, such as rational basis review.  The Equal Protection claim failed because MAUM did not allege that the City intentionally treated it worse than any other individual or organization making a similar request, and because it never alleged that Lake County lacked a rational basis for deeming MAUM’s mixed-use house/meditation center a change of use.

MAUM’s free speech and free association claims also failed, so much so that the District Court characterized them as “nonsensical” due to MAUM’s misapprehension as to the meaning of content-neutral versus content-based speech or assembly.  That is, MAUM claimed that “Lake County’s application of the building code is contrary to the text and therefore a content-based determination.”  To the extent the building code incidentally regulates speech or assembly within places of worship, the Court stated “such regulation is motivated not by any disagreement that Chicago might have with the message conveyed by the church speech or assembly, but rather by such legitimate, practical considerations as the promotion of harmonious and efficient land use.”  (quoting Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 765 (7th Cir. 2003)).  It also dismissed the due process claim on the ground that MAUM did not use the channels available to it to appeal the Zoning Board’s decision to state court.

MAUM’s Motion for a Preliminary Injunction – which requires a showing of a likelihood of success on the merits – was denied for failure to demonstrate the same.

* “a series of three victories, successes, or related accomplishments.” Merriam-Webster (www.m-w.com).

U.S. Supreme Court to Review Sign Ordinance for Possible Free Speech Violation
Posted on 7/22/14 by Evan Seeman and Dwight Merriam          

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.

Members of the Church believe that “the Bible commands them to go and make disciples of all nations, and that they should carry out this command by reaching out to the community to meet together on a regular basis.  To do so, they display signs announcing their services as an invitation for those in the community to attend.”  The Town of Gilbert, allows only 4 such signs to be placed by the church – which it classifies as Temporary Directional Signs – for up to 12 hours per day.  The Church placed 17 signs around its place of worship to announce the time and location of its services, but in 2005 was informed by the Town that it was in violation of the sign ordinance.

As reported by Alliance Defending Freedom, the town imposes other less restrictive conditions on other types of signs:

Under . . . Gilbert’s ordinance, political signs can be up to 32 square feet, displayed for many months, and unlimited in number.  An ideological sign can be up to 20 square feet, displayed indefinitely, and unlimited in number.  The church’s signs can only be six square feet, may be displayed for no more than [12] hours, and are limited to four per property.

Relying on the U.S. Supreme Court’s decision in Hill v. Colorado, 530 U.S. 703 (2000), the Ninth Circuit concluded that the sign restrictions, including the distinctions among them, were content-neutral for purposes of free speech:

[T]he distinction between Temporary Directional Signs, Ideological Signs, and Political Signs are content-neutral.  That is to say, each classification and its restrictions are based on objective factors relevant to Gilbert’s creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign. . . .  It makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted.  Accordingly, as the speaker and event determinations are generally “content-neutral,” Gilbert’s different exemptions for different types of noncommercial speech are not prohibited by the Constitution.

In Hill, the Supreme Court upheld the constitutionality of a Colorado statute regulating speech-related conduct within 100 feet of an entrance to a healthcare facility.

The Ninth Circuit also found that the sign ordinance was narrowly-tailored to serve the government’s legitimate interests to preserve aesthetics and safety:  “[T]he restrictions on Temporary Directional Signs are reasonable.  There are no limits on the number of events that a person or entity may hold, and no limit on the number of signs that may be erected (other than no more than four on any single piece of property).  Also, the 12-hour limitation seems reasonable as a person is unlikely to seek directions to an event more than 12 hours before the event.” 

The Court briefly considered and rejected the Church’s claim that the sign ordinance violated its free exercise of religion because the ordinance “is a generally applicable law, and it does not substantially interfere with any of Good News’ tenets. . . .  Furthermore, while Good News’ members may be obligated to spread their message and advertise their events, there is no suggestion that they do so in any particular way.”  It also rejected the Church’s claims that the sign ordinance violated the Church’s right to equal protection and was unconstitutionally vague.

Judge Watford dissented from the majority opinion, arguing that the town’s sign ordinance violates the First and Fourteenth Amendments “by drawing content-based distinctions among different categories of non-commercial speech.  The most glaring illustration is the ordinance’s favorable treatment of ‘political’ and ‘ideological’ signs relative to the treatment accorded the non-commercial signs plaintiffs seek to display.”  Judge Watford finds support for his dissent in the Hill decision – the same case relied on by the majority – noting that the majority opinion misapplied that case. 

Notably, the U.S. Supreme Court recently considered the Hill case in McCullen v. Coaxley, No. 12-1168 (2014), which found that a Massachusetts statute modeled after the Colorado statute in Hill violated the First Amendment because, while content-neutral, it was not narrowly tailored to achieve the government’s interests (read our prior post about the case). 

The question presented for the Supreme Court is: “Does Gilbert's mere assertion of a lack of discriminatory motive render its facially content-based sign code content-neutral and justify the code's differential treatment of Petitioners' religious signs?”  Professor Daniel R. Mandelker of Washington University School of Law, and author of Free Speech Law for On Premises Signs,* offered the following about the Supreme Court’s decision to review the case: “I hope the Court uses this case to revisit the issue of content neutrality, and finds that facial distinctions in an ordinance are not decisive when there are legitimate reasons for them other than the suppression of speech, which is the view taken by the Ninth Circuit.”

*[Note:  As stated in the referenced article, Professor Mandelker's publications include “Street Graphics and the Law (2004), published by the American Planning Association as Planning Advisory Report No. 527, a text and model code on regulations for on premise signs that has been widely followed, and Sign Regulation and Free Speech: Spooking the Doppelganger in Trends in Land Use Law from A to Z (American Bar Association, 2001). His articles include Decision Making in Sign Codes: The Prior Restraint Barrier, Zoning and Planning Law Report, Sept. 2008.”]

Atheist Opens Town of Greece Board Meeting with Secular Invocation
Posted on 7/21/14 by Evan Seeman and Dwight Merriam          

On May 5, 2014, we reported on the U.S. Supreme Court’s decision in Town of Greece v. Galloway, which ruled that religious prayer before government meetings did not violate the Establishment Clause to the U.S. Constitution.  Last week, the Town of Greece opened its board meeting for the first time ever with a secular invocation given by an atheist, Dan Courtney.  Mr. Courtney used the Declaration of Independence as inspiration for his invocation in which he stated:

We, as citizens, the beginning and the end, the Alpha and the Omega of our destiny, are not, as the great philosopher Immanuel Kant warned, mere means to the ends of another, but we are ends in ourselves (watch Mr. Courtney deliver the invocation here).

Since the Town of Greece decision, the American Humanist Association has launched a program to encourage humanists and others who are non-religious to request the opportunity to lead secular invocations, which they explain are “short speech[es] that solemnize[] a meeting or event by appealing to the audience’s shared human values instead of a deity.”  Read more here.

There have been several other notable reports involving local governments and invocation requests since the Supreme Court’s decision.  Here are some highlights:

  • As previously reported, a Florida Satanist requests the opportunity to offer a Satanist prayer before a town council meeting in Deerfield Beach, Florida.  Read more here.
  • Huntsville, Alabama City Council revokes Wiccan priest’s invitation to open meeting with religious prayer.  Read more here.
  • City council meeting in Portsmouth, Virginia opens with first ever Hindu blessing in Sanskrit.  Read more here.
  • Chesterfield, Virginia asked to rescind policy of permitting only “ordained religious leaders of monotheistic religions” to deliver invocations at board meetings.  Read more here.
  • The Rowlett chapter of the Metroplex Atheists seeks to lead a secular invocation before the Rowlett City Council in Rowlett, Texas.  Read more here.

ABA’s Land Use, Planning & Development Forum
Posted on 7/7/14 by Evan Seeman and Dwight Merriam          

On July 15-16, the American Bar Association’s State & Local Government Section will be sponsoring three upcoming webinars as part of its first ever Land Use, Planning & Development forum that may be of interest to our readers.  Below are descriptions of the programs (click the links for more information on each program).  Register for all three programs to receive a 20% discount.

Heirs Property, Legal Planning, and Social Justice

July 15, 2014 12:00-1:30 p.m. ET

This program examines "heirs property," a term connoting the devolution of land within families without benefit of probate or deeds. Occurring largely in the South, and largely among African-American families, heirs property has been the subject of opportunistic acquisition by outsiders who acquire small factional interests, and then use partition by sale to acquire the rest. While some descendants of the original owners live on the family "home place," many others are undetermined and difficult to locate. Family members often lack educational or financial resources to obtain fair resolutions of the tugs of family needs and interests of developers. The ABA has worked with groups aiding families to deal with these problems, and partly through its efforts the Uniform Law Commission recently has promulgated the "Uniform Partition of Heirs Property Act" (UPHPA) which already has been adopted in several states.

Legal Pickles, Planning Tools, and Case Studies in Urban Agriculture

July 15, 2014, 2:00-3:30 p.m. ET

The urban agriculture movement has been sprouting up in municipalities across the country at a range of scales and using a variety of methods for production and distribution, from urban gardens to commercial farms, from rooftop greens to front-yard farm stands. This program will discuss policy and planning tools that can enable municipalities to effectively permit and encourage urban agriculture. The speakers will also address certain legal obstacles that arise in the urban ag setting, including nuisances and zoning issues. Case studies of successful urban agriculture policies and programs, specifically Fayetteville, AR; Detroit, MI; and Asheville, NC, will also be discussed.

Hot Topics in Land Use Law

July 16, 2014, 2:00-3:30 p.m. ET

Panelists will keep your practice current, detailing the most cutting-edge legal issues in land use planning and zoning. Topics covered will include:

  • Exactions and impact fees
  • Land use litigation
  • Takings and eminent domain
  • Energy and preemption
  • Distressed housing
  • Ethics and land use planning
  • Comprehensive planning

Pagan Church and City of Beebe, Arkansas Embroiled in Religious Exercise Dispute
Posted on 7/1/14 by Evan Seeman and Dwight Merriam          

“To err is human; to forgive, divine.”  An Essay on Criticism, Part II (1711) by Alexander Pope (1688-1744). We all make mistakes. And fortunately, many of our transgressions are forgiven.  Sometimes, however, the Rule of Law will not permit certain behavior to be disregarded.  Such may prove to be the case in the central Arkansas city of Beebe (pop. 5,300), where a Pagan group is trying to obtain zoning approval to open a church.  When Bertram and Felicia Dahl, High Priest and Priestess of Seekers Temple, sought the assistance of a local alderman to help them use their home as a pagan temple, he refused.  Reportedly, this alderman stated in public that he refused to help because “that man’s God isn’t my God.”

The Dahls opened Seekers Temple in 2008 in El Paso, Arkansas.  They moved to Beebe in 2014 and sought to open a church from their home.  The Dahls claim that Beebe Mayor Mike Robertson was initially supportive of their efforts to relocate their church, but that all changed when Mayor Robertson learned that the Dahls were Pagans – not Christians.  In 2010, Mayor Robertson publicly stated that “government has allowed non-believers far too many liberties taking God out of our daily lives.”

The city issued a cease and desist order against the Dahls, even though their church was not yet operational.  The city attorney stated in an interview that places of worship were permitted in the subject zoning district (R-2) only by special permit or conditional permit, and the Dahls had not applied for either.  When the Dahls attempted to obtain an application, they claim they were refused:

We had been turned down without even applying, but we thought we would officially apply anyway.  The secretary called the mayor and said on the phone “He is standing right here in front of me.”  And after a few moments of listening to him, she hung up and told me the mayor said “We will not be granting any permit of any kind to you.”  We were then informed (though they would not put it in writing) that we could not have any application, that there would be no permit of any kind for us and that we could not speak with the city attorney as previously promised.  We were convinced by this that we had a clear case of religious persecution.

The Dahls also met with the mayor to try to resolve what they believed was a misunderstanding, and recount this meeting:

As he had encouraged us with our church before, we felt there must be some misunderstanding.  During this meeting, the mayor told us we would not be opening a Pagan anything in his town.  When we told him we wanted to talk to the town counsel [sic] about this, he told us that if we showed our face at the town meeting, we would not be on the docket and we would not be heard.  We told the mayor that this seemed like religious persecution and he responded with “I don’t care, it’s not going to happen.”

But the Dahls were heard at the July 23 city council meeting, and their request for relief was denied on the ground that they are prohibited by zoning from operating a church on the same property they live.  High Priest Dahl, however, claims that 46 other properties in Beebe are combination places of worship/residence uses.  During the meeting, Mayor Robertson stated “There have been allegations that this is a civil rights issue.  This is no more than a zoning issue.”

Will this “zoning issue” turn into a civil rights issue, and more specifically, a RLUIPA claim?  For clips of the meeting, click here and here.  To read the Dahls’ personal account of these events, click here.

U.S. Supreme Court Invalidates Massachusetts Abortion Clinic Buffer Zone Law
Posted on 6/30/14 by Evan Seeman and Dwight Merriam          

In a unanimous decision, the U.S. Supreme Court has stricken as a violation of the First Amendment to the U.S. Constitution a Massachusetts statute making it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any place (other than a hospital) where abortions are performed.  The statute was modeled after another similar statute in Colorado, which the Supreme Court upheld in Hill v. Colorado, 530 U.S. 703 (2000).  While the Supreme Court found that the Massachusetts statute was content neutral, it concluded that the Commonwealth of Massachusetts had available to it alternative means that were more narrowly tailored to achieve its governmental interest -- public safety-- than enacting the buffer zone law, which burdens substantially more speech that necessary to further the government’s legitimate interests.

While some individuals outside of Massachusetts’ abortion clinics can be described as protestors utilizing aggressive methods, including face-to-face confrontation, the petitioners instead “attempt to engage women approaching the clinics in what they call ‘sidewalk counseling,’ which involved offering information about alternatives to abortion and help pursuing those options.”  The petitioners “consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges.”  They believe that this approach is much more effective to dissuade women from having abortions than using confrontational methods such as shouting or brandishing signs. 

The petitioners claim that at three specific abortion clinics, the buffer zone law has significantly hampered their “sidewalk counseling” efforts.  While they are able to still conduct some counseling and distribute some literature outside the buffer zones, their conversations are far fewer and their ability to distribute literature far reduced.  They sued, alleging that the buffer zone law violated the First and Fourteenth Amendments to the Constitution, but the U.S. District Court for the District of Massachusetts and the U.S. Court of Appeals for the First Circuit rejected these challenges.  They found that the law was a reasonable “time, place, and manner” regulation and that petitioners had “ample alternative channels of communication.”

The Supreme Court reversed the decision of the First Circuit, concluding that the buffer zone law, though content-neutral, is not “narrowly tailored” to achieve Massachusetts’ public safety interest outside abortion clinics:

Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks – sites that have hosted discussions about the issues of the day throughout history.  Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities.  But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers.  It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes.  The Commonwealth may not do that consistent with the First Amendment.

Petitioners contended that the buffer zone law was content-based for two reasons.  First, they claimed that the law “discriminates against abortion-related speech because it established buffer zones only at clinics that perform abortions.”  The Supreme Court rejected this argument because the law does not draw content based distinctions, even though “by limiting the buffer zones to abortion clinics, the Act has the ‘inevitable effect’ of restricting abortion-related speech more than speech on other subjects.”  “[A] facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics,” since “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.”  The Supreme Court noted that “[t]he Act would be content based if it required ‘enforcement authorities’ to ‘examine the content of the message that is conveyed to determine whether’ a violation has occurred. . . .  But it does not.  Whether petitioners violate the Act ‘depends’ not ‘on what they say,’ . . . but simply on where they say it.  Indeed, petitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word.”

Second, the petitioners argued that the buffer zone law was content based because it exempted four classes of individuals from the effects of the law, including employees of abortion clinics.  Petitioners contended that by exempting clinic employees from complying with the law, the state favored one side in the abortion debate over the other, constituting viewpoint discrimination.  The Supreme Court also rejected this argument: “There is nothing inherently suspect about providing some kind of exemption to allow individuals who work at the clinics to enter or remain within the buffer zone,” and noted that the exemption also extends to employees such as maintenance workers and security guards.

Even though the buffer zone law was content neutral, it burdened substantially more speech than necessary to further the government’s legitimate interests.  The Supreme Court described the burden on the petitioners’ free speech as compromising their “ability to initiate the close, personal conversations they view as essential to sidewalk counseling.”  One petitioner explained that “she often cannot distinguish patients from passerby outside the Boston clinic in time to initiate a conversation before they enter the buffer zone. . . . .  And even when she does manage to begin a discussion outside the zone, she must stop abruptly at its painted border, which she believes causes her to appear untrustworthy or suspicious. . . .”  Due to these limitations, this petitioner “is often reduced to raising her voice at patients from outside the zone – a mode of communication sharply at odds with the compassionate message she wishes to convey,” and she is severely hampered from distributing literature to patients because the buffer zone pushes her so far back that there is little opportunity for her reach patients before entering the zone.  In short, the law deprives petitioners of their two primary methods to communicate with patients.

The Supreme Court found that there were alternative options available to Massachusetts to allow it to further its legitimate interests while imposing less of a burden on free speech.  Some alternatives the Supreme Court noted include enforcing generic criminal statutes or enacting new law, such as the federal Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. § 248(a)(1), to impose civil and criminal penalties against anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any other person or any class of persons from, obtaining or providing reproductive health services.”  It also pointed out an ordinance adopted by New York City “that not only prohibits obstructing access to a clinic, but also makes it a crime ‘to follow and harass another person within 15 feet of the premises of a reproductive health care facility.’”   Targeted injunctions, the Supreme Court stated, could serve as “alternatives to broad, prophylactic measures,” such as the buffer zone law.

Further, “[s]ome localities . . . have ordinances that require crowds blocking a clinic entrance to disperse when ordered to do so by the police, and that forbid the individuals to reassemble within a certain distance of the clinic for a certain period.”  Massachusetts already had in place similar ordinances to address congestion/obstruction for certain areas, including abortion clinics.  In short, Massachusetts, “has not shown that it seriously undertook to address the problem with less intrusive tools readily available to it.  Nor has it shown that it considered different methods that other jurisdictions have found effective.”

The Supreme Court’s decision in McCullen v. Coaxley, No. 12-1168 (2014) is available here.  Justice Scalia authored a concurring opinion joined by Justices Kennedy and Thomas.  Justice Alito concurred in a separate opinion.

What is noteworthy about this case is the Supreme Court’s analysis of alternatives that could still further Massachusetts’ legitimate interests while impinging less on free speech.  Under RLUIPA’s substantial burden provision, municipalities often raise public health and safety as governmental interests that justify an alleged substantial burden on religious exercise.  Notably, the Supreme Court found that enforcement of existing generic criminal laws and ordinances were alternatives that Massachusetts should have considered before enacting the sweeping buffer zone law.  Might religious institutions use the Supreme Court’s alternatives analysis to argue that municipalities should first consider enforcing existing criminal laws and other ordinances – particularly if the claimed governmental interest is public health and safety – under RLUIPA’s more exacting “least restrictive means” requirement?

Let There Be Light! City of Seattle Violates RLUIPA in Catholic High School’s Quest for 70-Foot Tall Light Poles for Athletic Field
Posted on 6/26/14 by Evan Seeman and Dwight Merriam          

On June 20, the United States District Court for the Western District of Washington ruled that the City of Seattle violated the Religious Land Use and Institutionalized Persons Act’s (RLUIPA) equal-terms provision by requiring a Catholic high school to apply for a variance to put up 70-foot high light poles for its athletic field in a residential, single-family zone, but not requiring the same of public schools in the same zone.  Because Seattle’s land use code imposes a 30-foot height limit for institutions located in this zone, the city asserted that the Catholic high school would have to obtain a variance for the lights.  Although the high school’s application was approved, it was subject to “21 detailed conditions to address impacts associated with lighting and increased field use, such as noise, traffic, parking demands, and light spill and glare, as well as imposing restrictions on the days and times during which Bishop Blanchet [High School] would be allowed to use its field lighting.”

The Catholic high school sued under RLUIPA’s equal-terms provision, contending that it had been treated worse than public schools, which in the same zoning district, were only required to get a special exception – not a variance – to install tall lighting fixtures on athletic fields.  In fact, two public schools in Seattle obtained special exceptions to install light poles – one obtaining approval for ten 82-foot poles and two 95-foot light poles, and, the second, for 39 field lights, including eight 89- to 90-feet in height.

The Court analyzed the equal-terms claim under the Ninth Circuit’s “accepted zoning criteria” test, under which “a religious institution cannot be treated less than equally with a nonreligious institution if the two institutions cannot be distinguished on the basis of ‘accepted zoning criteria’ that define the zone.”  Seattle claimed that the unequal treatment was justified by the accepted zoning criteria of “fostering the provision of public facilities by government agencies,” and relied on external sources – rather than the land use code – to justify its actions.  The District Court was not persuaded, and noted that the accepted zoning criteria that the city came up with “is a subjective statement that has no relation to the zoning concerns of a residential, single-family zone, the zone in which Bishop Blanchet and the Special Exception’s public schools are situated.”  After examining the “characteristics the residential, single-family zone is meant to preserve, and what characteristics of a lighted athletic field would justify its exclusion from the zone,” the District Court concluded that the city’s proffered zoning criteria appeared nowhere in the relevant sections of the land use code.

The District Court granted summary judgment in favor of the Catholic high school.  The District Court’s decision in Corporation of the Catholic Archbishop of Seattle v. City of Seattle, No. C13-1589 (W.D. Wa. 2014) is available here.

What is especially interesting about this decision is the court’s implied rejection of the notion that government ought to be able to have and to apply lesser standards for some types of land development activities because it is the government and presumably can be trusted to act in the best interest of its citizens.  It is common that government is exempt from local land use regulation.  Might this decision be used in broader equal-terms claims?  Could a religious organization argue that a city violates the equal-terms provision by allowing without any discretionary land use review, for example, a public school with an auditorium (a place of public assembly), but requiring private places of public assembly (religious use, VFW, concert venues) to go through the usual and uncertain zoning and land use approval process?

Threat of RLUIPA Suit Prompts Plano, Texas to Revoke Cease & Desist Order Against Church Serving Women & Children in Need
Posted on 6/20/14 by Evan Seeman and Dwight Merriam          

On May 7, the City of Plano, Texas issued a cease and desist order to Agape Resource and Assistance Center, Inc., alleging that Agape was in violation of the City’s zoning ordinance (read the order here). A month later, the City revoked the order after Agape sent the City a demand letter threatening to sue under the Texas Religious Freedom Restoration Act, RLUIPA, and the state and federal constitutions, unless the City would allow Agape to continue to use its property according to its religious precepts (read the demand letter here).

Agape is a “faith-based holistic servant ministry of peace and justice committed to serve urgent unmet shelter and service needs of women, their children and dependents, and unaccompanied youth in poverty and crisis,” and believes that God has called upon it to minister to as many women and children in need as possible.  Agape provides various services – including food, fellowship, and ministry – to vulnerable women and children in group homes it operates.

Plano’s zoning ordinance requires that “household care facilities” provide residence to no more than 8 persons and 2 caregivers.  Agape complies with this ordinance.

The zoning ordinance also requires that care services be provided only to individuals who are residents of the specific group home facility, as it defines “household care facility” to mean:

A dwelling unit that provides residence and care to not more than eight persons, regardless of legal relationship, who are elderly; disabled; orphaned, abandoned, or neglected children; victims of domestic violence; or rendered temporarily homeless due to fire, natural disaster, or financial setbacks, living together with no more than two caregivers as a single household. 

See Zoning Ordinance, Section 1.600.   Agape concedes that it does not comply with this ordinance because it sometimes provides counseling and Bible study from one group home to women and children who reside at one of its other group homes.  Agape claims it is “commanded by God and the Bible to bring all of the residents it serves in all of its homes together from time-to-time for a gathering that includes food, fellowship, faith-based and life instruction and a sense of community and wholeness for the resident women and children.”  The City sought to prevent Agape from providing these services to non-residents, even though these non-residents lived in other Agape-run homes.

Agape’s demand letter asserts that enforcement of this ordinance by the City would violate RLUIPA’s substantial burden provision, since Agape would be forced to violate its religious beliefs and the City is without a compelling governmental interest to enforce the ordinance.  It also claims that the City had singled it out in violation of RLUIPA’s equal-terms provision because the City allows “household occupations,” which allows counseling services to both residents and non-residents in all residential zones as-of-right.  And, because the City's zoning ordinance prohibits "women and children in Agape homes from meeting together for one night a month in one home" while “there is nothing that prohibits any home in Plano from hosting a Super Bowl party, a Tupperware party or any other type of birthday or anniversary gathering," Agape alleged was further proof of unequal treatment.

On June 12, the City revoked its order: “It has come to the department’s attention that the aforementioned Notice was issued in error and should therefore be disregarded.  Please accept our apology for the misunderstanding.”  The City’s letter of revocation is available here.

For more on this story, click here

RLUIPA Defense is your one-stop comprehensive blog stocked with cases, trial materials, briefs and scholarly articles all about avoiding and defending against claims taken under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Dwight Merriam,
FAICP is a lawyer at the law firm of Robinson & Cole. More


is a lawyer at the law firm of Robinson & Cole. More



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