Suit by “Interested,” Neighboring Municipalities to Enforce SEQRA Requirements Does Not “Impose or Implement” a Land Use Regulation or Constitute a “Government Practice” and does not Violate RLUIPA

On March 27, 2015, the Southern District of New York granted summary judgment in favor of all defendants in the consolidated action Bernstein v. Wesley Hills, 08-CV-156; 12-CV-8856 (KMK), (the “Wesley Hills” Action). The court’s 76-page decision begins with a recitation of the long procedural history of the case and the separate 2004 action filed by four Villages within the Town of Ramapo: the Village of Wesley Hills, the Village of Chestnut Ridge, the Village of Montebello, and the Village of Pomona (the “Chestnut Ridge Action”). In the Wesley Hills Action, the plaintiffs (religious corporations and individuals affiliated with the Chofetz Chaim sect of Orthodox Judaism) claim the Villages (that were plaintiffs in Chestnut Hill Action) discriminated against them in attempting to stop development of a proposed religious educational center and multi-family housing development, and in allegedly colluding to bring the Chestnut Ridge Action.

The Chestnut Ridge Action

The Chestnut Ridge Action was filed after the Town of Ramapo issued a negative declaration under the State Environmental Quality Review Act (“SEQRA”) for development plans prepared by a predecessor to a Wesley Hills plaintiff, which included a religious school, community center, and 60 units of multi-family housing. The development, known as Kiryas Radin, was proposed to be built on the former U.S. Army Nike Ajax antiaircraft missile site (Nike Battery NY-99) operational from 1956 to 1963 (the “Nike Site”). The Chestnut Ridge Action also concerned the Villages’ challenges to the Town of Ramapo’s adoption of an Adult Student Housing Law (“ASHL”), which allowed more-dense housing development if accessory to a postsecondary educational use. The ASHL increased the development potential of the Nike Site, which under the previous single-family residential zoning was limited to eight housing units.

In the Chestnut Ridge Action, the trial court granted the plaintiffs a preliminary injunction to prevent the Kiryas Radin development. However, the Chestnut Ridge plaintiffs were unable to post the court-mandated financial assurance and the developers proceeded to complete the project. Two years later, the New York State Appellate Division considered the case (appealed based on the Villages’ standing) and issued another injunction that prohibited the occupation of Kiryas Radin. On remand, the lower court dismissed all charges based on adoption of the ASHL but found that Ramapo violated SEQRA when it failed to take a “hard look” at the potential environmental impacts of Kiryas Radin. Ramapo appealed that decision and the Appellate Division reversed the court’s SEQRA finding and dismissed all of the plaintiffs’ claims without ruling on the Chestnut Ridge defendants’ counterclaims.

The Wesley Hills Action

In the Wesley Hills decision, the court explains that “[t]he heart of Plaintiffs’ case is their allegation that Defendants colluded to file the Chestnut Ridge action….” Therefore, the court determined that the Wesley Hills plaintiffs’ claims were dependent on whether there was an equal protections violation. The Wesley Hills defendants would have to show that the Chestnut Ridge plaintiffs (now the Wesley Hills defendants) did not bring legal challenges against development projects that were not run by members of the Hasidic community but similar in all other material respects. Since filing the Chestnut Ridge Action was a protected First Amendment activity, the Wesley Hills defendants (formerly the Chestnut Hill plaintiffs) were entitled to qualified immunity unless their actions violated the Equal Protection Clause.also b/c I comments on your last post a

As an initial matter, the court dismissed the Wesley Hills plaintiffs’ contention that the Second Circuit’s decision in, Fortress Bible Church v. Feiner, 694 F. 3d 208 (2d Cir. 2012) (discussed here) eliminated the requirement that plaintiffs provide evidence of a similarly situated comparator if defendants inappropriately employed SEQRA. The court did not agree, holding that Fortress Bible considered the question of when SEQRA review constitutes the implementation of a land use regulation under RLUIPA, and did not consider or in any way limit Defendants’ qualified immunity when pursuing First Amendment-protected activity.

As to the merits of the equal protection claim, the court found that the Wesley Hills plaintiffs failed to present any evidence of a comparator development “similarly situated in all material respects” to Kiryas Radin. On that basis alone, plaintiffs’ equal protect claims failed. The court, however, also found that the Wesley Hills plaintiffs failed to raise an issue of material fact with respect to the Villages’ discriminatory intent, although the court did not question the sincerity of plaintiffs’ allegations:

Having lived and worked with residents and officials from the Villages during these many years, Plaintiffs firmly believe that they have been targeted because of their religious beliefs, even if they cannot point to discriminatory statements by Defendants. The Court is sympathetic: who would know better than the Parties in this case whether the current dispute is a product of the decades-long tension between the Hasidic community and the Villages of Ramapo? However, the Court’s role in evaluating competing motions for summary judgment is not to take the Plaintiffs (or Defendants) at their word, however sure Plaintiffs might be; rather, the Court must evaluate the evidence, if any, in support of their claims. Because Plaintiffs have offered almost no evidence in support of their claims, and certainly not enough to raise a contested issue of material fact, the Court must grant summary judgment in favor of Defendants.

Finally, the court considered the Wesley Hills plaintiffs’ substantial burden [§2000cc(a)(1)] and nondiscrimination [§2000cc(b)(2)] RLUIPA claims, which were initially raised as counterclaims in the Chestnut Ridge Action. Applicability of these RLUIPA claims, however, hinged on two questions: (1) in filing the Chestnut Ridge Action, did the Defendants “impose or implement” a land use regulation, and (2) if not, did Defendants take a “government action” in violation of RLUIPA? The court answered each question in the negative, finding that the application of RLUIPA did not reach so far. Since Ramapo was the “involved agency” (as defined by SEQRA) that actually implemented and controlled SEQRA review of Kiryas Radin, it was the only entity that could have “implemented” such regulation, as opposed to the individual village defendants. Because Congress made no mention of “enforcing” or “litigation relating to” land use regulation in the text of RLUIPA, the court reasoned that its holding was consistent with the intent and plain language of RLUIPA. Likewise, the court did not find that RLUIPA’s mention of a “government practice” under the section of that statute that governs judicial relief [§2000cc-2] could be interpreted to define a distinct cause of action. The use of the term “government practice” in §2000cc-2 merely refers to the types of violations outlined in §2000cc.

Court Finds Muslim Group Lacks Property Interest and Tosses RLUIPA Suit; Pittsfield Charter Township Wins.

A federal court in Michigan has ruled against a Muslim group in its RLUIPA suit against Pittsfield Charter Township after finding that the group lacked a legally cognizable property interest to sustain its claims.  To establish a RLUIPA claim, a plaintiff must have “an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.”  42 U.S.C. § 2000cc-5(5).  This case – Muslim Community Association of Ann Arbor v. Pittsfield Charter Township (E.D. MI March 20, 2015) – is noteworthy because it is not often that the validity of a real property interest is an issue in RLUIPA litigation.  Here, the Muslim group, Michigan Islamic Academy (“MIA”), had permission to use the property by the owner, but never acquired a property interest in accordance with state law.

MIA is a school that provides secular and Islamic religious education to preschool through grade twelve.  MIA believed that its existing 10,000 square foot facility was too small to accommodate its religious needs and began looking for a new site to use as a school.  It eventually found a new site, consisting of more than 26 acres of undeveloped land zoned as planned unit development (“PUD”).  To further its development in the PUD zone, MIA submitted a petition for a zoning amendment and an area plan– even though it claimed that it did not need to do so – but the petition was ultimately denied.  Thereafter, MIA brought suit, contending that the denial of its petition violated: (a) RLUIPA’s substantial burden, nondiscrimination, and equal terms provisions; (b) the Establishment Clause under the state and Federal constitutions; and (c) the state and federal Equal Protection Clause.

The district court entered summary judgment in favor of the Township after concluding that MIA did not have a sufficient property interest to maintain its RLUIPA claims.  Although MIA had permission to use the property to develop a school, it never acquired a legally cognizable property interest to do so in accordance with Michigan law.  Specifically, under Michigan law, “[a] conveyance of an interest in land must be in writing and comport with the statute of frauds.”  Marina Bay Condos., Inc. v. Schlegel, 167 Mich. App. 602, 606 (1988).  Here, there was no evidence that the alleged conveyance was ever made in writing, as required by state law, regardless of any promise by the owner to allow MIA to use the property.  Accordingly, the court rejected MIA’s RLUIPA claims.

MIA’s claims (RLUIPA and constitutional) failed for the additional reason that they are not ripe.  To satisfy ripeness, MIA must seek a decision from the Zoning Administrator as to whether it must submit a petition to amend the PUD or whether its proposed school is a “small-scale school,” as argued by MIA, and therefore permitted on the property as presently zoned.

The Township may have dodged a bullet, because the court describes in its decision some troubling behavior by one of the Township’s Planning Commissioners who voted to recommend denial of the petition.  This member not only lived in the neighborhood of the proposed school, but she also actively encouraged community members to oppose MIA’s proposal.  She admitted in her deposition that she went from house to house and knocked on doors to distribute opposition materials to residents.  She also coached community members on how to effectively oppose the petition and shared specific talking points and arguments to this end.

This may not be the last we hear of this case, as the court carefully notes that MIA may reassert its claims if it acquires a legally cognizable interest in the property or another person or entity that does have such an interest in the property may assert these claims.  The court also states that if the Zoning Administrator concludes that MIA cannot build a school on its property as presently zoned, the case may be reopened with an amended complaint naming the new plaintiff.  The saga continues.

Guest Commentary: Seventh Circuit Hears Oral Argument Again in World Outreach Conference Center v. City of Chicago

*By Noel W. Sterett of Mauck & Baker

On March 31, 2015, the nearly 10 year old case of World Outreach Conference Center v. City of Chicago was back before the Seventh Circuit Court of Appeals for oral argument. The case involves the City’s efforts to keep World Outreach from acquiring and using a four story community center that the YMCA put up for sale in the summer of 2005. After the local alderman was unable to force the YMCA to sell to one of his preferred developers, he immediately moved to rezone the property manufacturing and placed a hold on all permits for the property. While this type of action is foreign to most municipalities, it is routine in Chicago where aldermen have long enjoyed and often abused what is dubbed “aldermanic privilege” or “courtesy” over zoning and permitting in their wards. The Illinois Policy Institute recently published an article on the corruption fostered by “aldermanic privilege” that can be read here.

In World Outreach’s case, the alderman’s hold kept them from receiving the licenses they needed to continue making the building’s community center and 168 single room occupancy units available to those in need–just as the YMCA had been doing for decades. The alderman’s hold also caused World Outreach to lose out on the opportunity to house over a 100 victims of Hurricane Katrina and state funds they could have received to do so.

The litigation began after the property was rezoned in 2005 over World Outreach’s objection that it was entitled to continue the uses as legal nonconforming uses. The City filed suit in state court in December 2005 asserting that World Outreach had to obtain a special use permit to continue the uses. Since the City’s claim was frivolous and contrary to its own code, the City voluntarily dismissed the suit right before World Outreach was to file its counterclaim. When the City still refused to issue permits in 2006, World Outreach filed suit and the case was then removed to federal court. The case eventually made its way before the Seventh Circuit in 2009, and in a strong opinion, the Court held that World Outreach had sufficiently stated a claim under the substantial burden provision of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et seq. (RLUIPA). The Court chastised the City for its specious demand for a special use permit and its frivolous state suit (holding that the suit alone was a substantial burden on World Outreach’s religious ministry).The Court held that since the uses were clearly legal nonconforming uses, which the City had long licensed at the property, World Outreach should have been entitled to continue those uses without more.  The Seventh Circuit’s decision is available here.

However, after the case was sent back to the District Court for further discovery, the City succeeded in convincing the District Court that the delay in permitting was primarily due to World Outreach’s alleged failure to “prove” the uses were legal nonconforming uses–even though the City had voluminous records and inspection reports showing how the YMCA used the property. As a result, the District Court limited World Outreach’s recovery to the costs and fees incurred for having to defend against the City’s frivolous state suit and analyzed the various burdens imposed by the City in isolation rather than in their totality–finding each to be less than “substantial.” The parties then filed cross-appeals challenging the District Court’s analysis of World Outreach’s claim under the “substantial burden” provision of RLUIPA. The same three judge panel (Judges Posner, Rovner, and Cudahy) that heard the case in 2009 was reconstituted to hear the case again. The panel was very engaged at oral argument and pressed the City on its knowledge of the YMCA’s uses, the alderman’s actions, and the frivolous lawsuit it had filed in 2006.  The March 31 oral argument before the Seventh Circuit is available here.

John Mauck, who argued on behalf of World Outreach, began his argument by explaining that, “What’s at stake is not only the civil rights of World Outreach but the people that are being served, the children at risk, the teenagers at risk, the near homeless that are put out on the streets because the City empowers the Alderman to keep them down.”

*This is a guest commentary from Noel W. Sterett of Mauck & Baker, which represented the plaintiff in this case. Mr. Sterett is not affiliated with Robinson + Cole, and is not responsible for the content of this post.

Upcoming Webinar: Ethical Rules and Considerations for Planners, Planning Commissioners, and Lawyers

On April 8, 2015, the Planning and Law Division of the American Planning Association is hosting the webinar “Ethical Rules and Considerations for Planners, Planning Commissioners, and Lawyers.”  This program may be of interest to many of our readers.  While ethics always matter in the planning context, they may be especially critical in the context of a local government’s consideration of proposed religious uses.  As we have reported many times before, questionable comments by local officials, and even members of the public, can be used by religious applicants to support claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Here’s a description of the PLD’s program:

Please join this important, informative, and engaging webinar, sponsored by APA’s Planning and Law Division, on the ethical rules and considerations governing planners, planning commissioners, and lawyers who work with planners and appear before planning commissions. The webinar will cover the primary sources of ethical rules, common ethical mistakes, and procedures to correct common mistakes. In addition, the webinar will have an interactive component that will enable participants to interact with the presenters and other participants on ethical scenarios.

Program panelists are:

  • David Silverman – Attorney, Ancel Glink (moderator)
  • Hiram Peck, FAICP – Director of Planning and Community Development, Town of Simsbury, CT
  • Brian Smith – Attorney, Robinson and Cole, LLP
  • Evan Seeman – Attorney, Robinson and Cole, LLP

For more information, including registration, click here.

Transgender Native American Prisoner Denied Access to Sweat Lodge and Unsatisfied with the Alternative Sues under RLUIPA: More on Less Restrictive Means

Normally, we would not report on an institutionalized person’s claim under RLUIPA, but we do so in Stover v. Corrections Corporation of America (Dist. Idaho 2015) because the decision reflects a recent trend in RLUIPA cases: close judicial scrutiny as to whether a compelling government interest is furthered by “the least restrictive means” available. As noted in our previous post, the recent Supreme Court cases, Burwell v. Hobby Lobby and Holt v. Hobbs have directed attention to the question: how can local governments prove that their actions constitute the least restrictive means of advancing a compelling government interest?

Plaintiff Jessie E. Stover, a Native American male-to-female transgender prisoner in the custody of the Idaho Department of Correction (“IDOC”), has been diagnosed with Gender Identity Disorder (“GID”). She receives hormone therapy and has female physical characteristics, but remains in a male prison because she has not undergone sex reassignment surgery and remains anatomically male. In early 2011, shortly after Stover arrived at Idaho State Correctional Institution (“ISCI”), she informed prison officials that she wished to participate in “Native American religious practices.” Stover requested use of ISCI’s sweat lodge, but her request was denied. According to the Deputy Warden of Operations, Stover was not allowed use of the lodge because portions of the sweating ceremony are performed by inmates inside the lodge and out of view of prison staff. Since Stover self-identifies as female, ISCI officials determined that it would be unsafe for her to use the sweat lodge in the company of the male inmates.

Prison officials offered Stover the alternative of celebrating her religion in her cell alone in what is known as a “smudging” ceremony. A smudging ceremony involves the burning of a bundle of herbs wrapped together in the form of a “smudge stick.” The parties dispute whether or not Stover agreed that smudging in her cell was a reasonable alternative to sweating. Stover claims that it took too long (approximately 10 weeks after her oral request for a smudge stick) for ISCI to provide her with such a stick and the mechanism needed to light the stick (e.g., working matches) and burn the herbs. After the delay, Stover told prison officials that she was no longer satisfied with smudging only and requested “full ceremonial rights, including sweat, smudging and Pipe ceremonial rites.”

After denying Stover access to the sweat lodge, prison officials wrote to Stover:

Offenders in general population have access to the sweat lodge. There is no least restrictive alternative given the restrictions of a federal court order regarding wood for the fire and heating the rocks and time and staff limitations to have one offender use the sweat lodge. You are allowed to smudge in your unit and have been provided a smudge stick and the means to light it along with a memo for staff outlining the authorization and procedure.

In response, Stover claims she requested the right to use the sweat lodge after the male inmates had finished using the lodge and that a chaplain at ISCI volunteered to escort her. According to Stover, “this plan would have allowed her to use the sweat lodge by herself, without placing additional burdens on prison staff, but that the plan ‘was never implemented.’”

Prison officials also justified this denial of sweat lodge access by asserting that allowing a transgender person access to the sweat lodge, at any time, would violate the religious beliefs of other prisoners. According to defendants, “some Native American tribes believe that allowing a two-spirited person (an individual suffering from gender identify disorder or gender dysphoria) to enter a sweat lodge utilized by single-spirited individuals would desecrate the religious sanctity of the lodge.” Accordingly, they argued that prohibiting Stover from ever using the sweat lodge “was justified by the compelling penological interest of not burdening the religious practices of other inmates who wish to use the sweat lodge.”

Stover sued IDOC, Idaho Correctional Center, Corrections Corporation of America, and several individual prison officials under RLUIPA. She claimed the defendants had substantially burdened her religious exercise under RLUIPA by failing to: (1) timely provide her with a smudge stick so she could participate in a religious smudging ceremony at ISCI, and (2) accommodate her use of the sweat lodge at ISCI.

First Amendment Claims: The court dismissed Stover’s First Amendment claims based on the delay in obtaining a smudge stick and failure to provide access to the sweat lodge. Any delay in obtaining the smudge stick was considered a de minimus burden on religious exercise. In terms of the sweat lodge, the court recognized the prison’s legitimate interest in protecting Stover’s safety and that prohibiting the use of the lodge was reasonably related to that interest. The court noted that “[t]he First Amendment does not require prisons to use the least restrictive means in accommodating prisoners’ religious requests.” Also, smudging in her cell was found to be an “‘alternative means of exercising’ her religious beliefs.” The court entered summary judgment in favor of defendants on this claim.

RLUIPA Claims: The court again noted that any delay in providing a smudge stick was de minimus, therefore not a substantial burden, and dismissed Plaintiff’s RLUIPA claim based on the same. With respect to denying access to the sweat lodge, Defendants agreed that the denial imposed a substantial burden on Plaintiff’s religious beliefs. The court found that “[e]nsuring a vulnerable prisoner’s safety is obviously a compelling governmental interest.” However, there was no evidence in the record that prison officials actually considered and rejected the efficacy of Stover’s proposed less restrictive alternative of using the sweat lodge after male inmates and while escorted by a prison chaplain. Indeed, the court observed that Stover’s alternative access plan might well serve as a less restrictive alternative to complete denial. Relying on Holt v. Hobbs, the court also noted that “[i]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.”

The court also concluded that “Defendants have not establish[ed] that burdening one individual’s religious practice in an attempt to avoid burdening another’s religious practice is a compelling governmental interest under RLUIPA…. The Court is persuaded that government officials cannot avoid Plaintiff’s RLUIPA claim merely by citing other inmates’ religious concerns, particularly where, as here, the asserted justification is based on mere speculation as to what some other inmates might find religiously objectionable.”  It declined entering summary judgment in favor of defendants on this claim and allowed Stover’s RLUIPA claim regarding access to the sweat lodge to proceed.

The District of Idaho’s decision in Stover v. Corrections Corporation of America, Case No. 1:12-cv-00393-EJL, is available here.



New Article Explores RLUIPA’s “Safe Harbor” Provision

Evan recently wrote the article “Finding Salvation in Religious Law’s Safe Harbor; Municipal Governments Can Take Steps to Mitigate RLUIPA Claims,” published in the March 23, 2015 edition of the Connecticut Law Tribune. The article discusses an infrequently used provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA) – known as the “safe harbor” provision – that allows local governments to take corrective action to “avoid the preemptive force” of the statute:

A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.

While the plain language of this provision appears to limit it to substantial burden claims, the courts have found that it applies to all types of RLUIPA claims. It is surprising that there are only a handful of decision that reference the safe harbor provision or discuss corrective action that some local governments have taken in an attempt to mitigate liability under the statute.

The article explores several ways in which local governments may wish to utilize the safe harbor provision if slapped (or threatened to be slapped) with a RLUIPA suit. Municipal lawyers, officials, and all other RLUIPA stakeholders can access the article by clicking the hyperlink above.

Upcoming Webinar: “Lessons from the Sage Grouse: Impacts of the Endangered Species Act on Local Land Use Planning”

On March 31, the Planning and Law Division of the American Planning Association is hosting the upcoming webinar “Lessons from the Sage Grouse: Impacts of the Endangered Species Act on Local Land Use Planning” that may be of interest to our readers.  Here’s a blurb about the program:

Participants will learn the importance of fully understanding what a decision listing species on the ESA may mean for their communities. This includes land use planning and policies, economic impacts, as well as socio-economics issues. Participants will also learn about the value of voluntary conservation plans, which can make a difference in bringing along private land owners “to do the right thing” on their land where a large portion of habitat may exist and is not under federal control—ultimately what is best for the species (incentive driven). In addition, participants will learn whether, when, and how it is ok to question the scientific basis of state and federal policy, and why transparency is important for state and local officials and planners.

Speakers include Fred Jarman of the Building & Planning Department for Colorado’s Garfield County; John Harja of Utah’s Public Lands Policy Coordinating Office; Dr. Rob Roy Ramey of Wildlife Science International; and Damien M. Schiff of Alston & Bird.  Sorell E. Negro of Robinson + Cole will moderate the panel.

Registration is $20 for PLD members, $40 for nonmembers, and $45 for webinar registration plus a Planning and Law Division membership.  For more information, click here.

St. Louis Homeless Shelter Files RLUIPA Claim and Requests Preliminary Injunction to Continue Operations

Plaintiff, New Life Evangelistic Center, Inc., (“New Life”), an interdenominational Christian Church formed in 1972 by Reverend Larry Rice, recently sued the City of St. Louis, Missouri (the “City”) in the Eastern District of Missouri. According to the complaint, New Life operated out of a 50-foot trailer in the early 1970’s, rapidly grew, and then purchased a five-story YMCA building in 1975. By 1976, the Church received a hotel permit, authorizing 32 beds, and began offering religious services and emergency shelter for the homeless. Presently, New Life provides shelter to approximately 250, sometimes reaching 300, individuals a night. Its sheltering programs include 14-day or 30-day basic shelter, a 30-day transitional housing program, a 90-day program for women and veterans, as well as a two-year “leadership” program for individuals who volunteer full-time at New Life in exchange for free room and board.

New Life’s claims are based on a December 23, 2014 decision by the City’s Board of Public Service (“BPS”) that New Life constitutes a “detriment to the neighborhood.” BPS later issued an order stating that New Life’s hotel permit will be revoked on May 12, 2015 if New Life does not demonstrate, 30-days prior to that date, that it has reduced occupancy to 32 beds or has received all necessary permits and licenses to operate a larger facility. The City’s actions were prompted by a petition it received pursuant to Chapter 11.72.010 of the St. Louis revised Code, under which a majority of residents within 300 feet of a boarding house, rooming house, dormitory, or hotel may petition BPS to find the property is a “detriment to the neighborhood.”

In its complaint, New Life challenges BPS’s finding that its witnesses at the public hearing conducted by BPS “were not credible.” It also seems to make an estoppel or waiver argument claiming that the City knew, since 1976, that New Life operated an emergency shelter substantially larger than 32 beds and considered at least 28 plumbing, electrical, and building permits submitted by New Life in 1993. Yet, the City did not, it alleges, in 1993 or at any other time, raise any issue about the number of occupants at the shelter. In Count I of its complaint, New Life alleges that BPS’s decision violated RLUIPA’s substantial burden provision. It also claims violations of the Missouri and the United States Constitutions (freedom of speech, assembly, and free exercise) as well as violation of the Missouri Religious Freedom Restoration Act.

New Life also seeks a preliminary injunction to allow it to continue to operate its homeless shelter during the litigation. In its memorandum of law in support of its motion, New Life argues that turning away the homeless from its shelter would only make the issues raised by residents worse because some of those individuals may now seek shelter on the streets. It also contends that the City has many alternative means to address the purported “nuisance” conditions, including heightened enforcement of municipal noise and loitering codes. This argument has particular bite after the Supreme Court’s decision in Burwell v. Hobby Lobby, where the Court considered RFRA, RLUIPA’s sister statute, addressing the least restrictive means standard applied to a substantial burden imposed in attempting to further a compelling governmental interest.

Although the Supreme Court has thus far refused to consider RLUIPA’s substantial burden provision in the land use context, it is clear that litigants have gleaned guidance from the Court’s RFRA and prisoner cases. As noted in our recent post concerning the Harbor Missionary Church case, the Ninth Circuit is positioned to soon rule on the potential impact of Hobby Lobby in the land use context. It has not taken long for RLUIPA plaintiffs to push for a favorable reading of both Hobby Lobby and Holt v. Hobbs, particularly when a local government must justify its actions with a compelling interest advanced in the least restrictive means based on the particular context of a given case. Local governments may wish to keep a close watch on this case and Harbor Missionary Church to see how, if at all, these courts interpret the Supreme Court’s observation in Hobby Lobby that the onus may be on the government to spend more money and go above and beyond to reduce potential burdens on religious applicants so as to demonstrate that government has indeed used the least restrictive means.

City of Dallas Sues Synagogue and Property Owners Who Use Home for Religious Worship Services

The City of Dallas is suing Congregation Toras Chaim, Inc. (“CTC”), a small Jewish Orthodox synagogue that operates out of a private residential home, to enforce the City’s local code and require the synagogue to obtain a certificate of occupancy (“CO”).  Reportedly, up to 25 congregants attend religious worship services at the synagogue on the Sabbath.  Mark and Judith Gothelf, who own the home, have also been named as defendants.  The City alleges that the defendants must renovate the subject property to comply with certain handicap accessibility, fire safety, and parking requirements to obtain a CO.  The City alleges in its complaint (available here) that defendants’ failure to “obtain[] a CO [for synagogue use] and comply[] with the life-safety requirements entailed therein, presents a substantial danger of injury or adverse health impact to persons and/or property of persons other than the Defendants.”

According to defendants, the cost of implementing the City’s demands would be between $160,000 and $240,000.  The defendants, who are represented by the Liberty Institute, informed the City on January 23, 2014 that they would apply for a new CO to avoid litigation.  More than a year later, after the defendants still had not applied for a CO, the City informed them that an application would have to be made by February 23, 2015 or they would be sued.  The City kept true to its word.

The Liberty Institute has vowed to vigorously defend the rights of CTC, and released a statement noting in part:

People have been meeting in homes to worship for thousands of years in virtually every nation on earth.  The only countries that prohibit such freedoms are nations like China, North Korea, Afghanistan, and Yemen.  We will not allow the United States to be added to that list.

If CTC sounds familiar, it should.  A year ago, we reported that a private homeowner had sued the synagogue to enforce certain homeowners association rules and deed restrictions purporting to bar the use of the home as a synagogue for daily prayer services.  Last month, on February 4, 2015, Collin County District Court Judge Jill Willis rejected the private homeowner’s argument that state and federal religious freedom statutes apply only to action by governmental entities, and threw out the case.

In our same post of about a year ago, we noted: “the City of Dallas has requested that the Rabbi obtain a certificate of occupancy to use his home as a synagogue.  Depending on the City’s imposition of its land use requirements on Congregation Toras Chaim, including a potential denial of the certificate of occupancy, it may soon find itself embroiled in the lawsuit defending against claims that it violated RLUIPA.”  Our prediction appears to have been correct, as the Liberty Institute, in correspondence dated December 3, 2014, stated that although the defendants do “not wish to litigate with the City of Dallas and do[] sincerely desire an amicable resolution of this dispute … banning the congregants of CTC from practicing their religion would require an aggressive defense of CTC’s rights.”

Illinois Appellate Court Interprets Equal Terms “Comparator” Favorably for Local Government

In an important decision for local governments, the Illinois Appellate Court on March 6, 2015 issued its decision in Joan Dachs Bais Yaakov Elementary School (“JDBY”) v. City of Evanston. The decision, particularly the Appellate Court’s assessment of comparators and its willingness to look past some boorish comments by a local official, may prove damaging to religious use applicants asserting claims under the Religious Land Use and Institutionalized Persons Act’s (RLUIPA) equal terms provision.

The case involves a proposed Jewish elementary school by plaintiff JDBY on property zoned for industrial use in the City of Evanston.  After the City denied its application to rezone the subject property, JDBY alleged the City treated it on less than equal terms with four others uses that had obtained rezoning approval from the City (townhomes, work-live condos, a gas station, and a shopping center).  While the Appellate Court assumed without deciding that these other uses were “assemblies,” it nonetheless concluded that they could not be deemed valid comparators because those other uses are taxable uses that continue to pay property taxes while the proposed school use would not be required to pay taxes.

Municipalities that treat religious uses unequally because of their tax exempt status often end up on the losing side of a RLUIPA case.  See, for example, Fortress Bible Church v. Feiner, 694 F.3d 208, 214 (2d Cir. 2012).  The concept that tax-paying uses may not be fair comparators is remarkable and in many instances will prove damaging to religious applicants.

By its very nature, an as-applied equal terms claim requires that a religious use be compared with a secular use.  In most municipalities, religious uses are exempt from real property taxes while most secular uses are not.  It appears that the Appellate Court’s property tax distinction now gives local governments a new shield to defend against some RLUIPA claims.

The Appellate Court also rejected JDBY’s nondiscrimination claim.  Such claims are similar to equal terms claims in that they may be supported by religious (as opposed to secular) comparators being treated better than the complaining plaintiff.  While establishing a comparator is not necessary to prevail on a nondiscrimination claim, evidence of discriminatory intent is a must.  In this case, JDBY pointed to an email from the City’s zoning administrator to an alderwoman regarding the proposed Jewish school as evidence of discriminatory intent:

Even though I am unconvinced by this rather un-kosher logic, the zoning ordinance makes it clear that it is the Council that determines a unique use, on recommendation from the Plan Commission. As Zoning Administrator, I am limited to reviewing the application for completeness and assessing if the applicant has standing.  I have been advised by the Law Department to accept a complete application (still waiting for this), and schedule it for a public hearing. We will, of course, submit a Staff report regarding the merits of the application versus the requirements and standards of the Zoning [Ordinance] (parting the Red Sea would be easier, I would say right now), but it looks like it will be up to you and your colleagues to make the determination.  (emphasis added).

However, even though the Appellate Court noted that the zoning administrator’s comments were offensive and inappropriate, it did not find them determinative because other agency members were ultimately responsible for deciding the rezoning application, and each testified that they were not influenced by the email.

Lastly, the Appellate Court was not persuaded by JDBY’s claim that Vineyard Christian Fellowship of Evanston, which had obtained a special permit to use property in the immediate vicinity of the proposed Jewish school as a church, was a valid comparator.  The Court reasoned that the distinction between the grant of special permit for the church use and the rezoning application for the proposed Jewish school were too dissimilar and necessitated rejection of any claim that the church was a valid comparator.

The trial court decision in this matter, affirmed by the Appellate Court, is available here.