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New RLUIPA Suit: Mount Zion Church of God in Christ v. City of Garden City, Kansas
Posted on 11/19/14 by Evan Seeman and Dwight Merriam          

Garden City, Kansas is being sued under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the U.S. Constitution, and state law over allegations that it has discriminated against a local church, Mount Zion Church of God in Christ (Church).  The Church alleges the following in its complaint.

The Church, which consists of about thirty members, has been operating for ten years at the same location in the City’s Central Business District, where it leases a building consisting of approximately 10,000 square feet. The Church provides the following services and ministries to the local community: (a) weekend services; (b) assistance with medical needs; (c) financial and housing support; (d) outreach activities for disadvantaged youth; (e) educational assistance for single mothers; and (f) assistance to veterans, the mentally and physically disabled, the elderly and single-family mothers.  During its ten years of operating at this location, there have been no incidents or complaints from neighbors.

On September 29, 2014, the City Attorney sent a letter to the Church “instructing the Church to cease its use of the property as a church or other area of worship.”  The City asserts that the Church has been operating illegally in the Central Business District because religious uses are prohibited there, and has threatened to prosecute the Church unless the religious use ceases.

The Church alleges that the City’s zoning code violates RLUIPA’s equal terms provision on its face because it treats religious uses worse than secular assembly uses.  While religious uses are prohibited from the Central Business District, the following uses are allowed as of right: (a) amusement places; (b) auditoriums; (c) business or commercial schools, including dancing and music; (d) hotels and motels; (e) libraries and museums; (f) meeting halls; (g) court buildings; (h) private clubs, fraternities, sororities, and lodges; and (i) theaters.  The Church also brings an equal terms as-applied challenge, contending that the City’s application of its zoning code has treated the Church worse than other secular assembly uses, as well as a claim under the Fourteenth Amendment’s Equal Protection Clause.  Further, it claims that the City’s actions violate the First Amendment’s Free Exercise Clause and state law.

On November 14, 2014, the Court issued a Consent Order Preliminarily Enjoining Garden City.  The Order states: “By agreement of the parties, Garden City is preliminarily enjoined from prohibiting or interfering with Plaintiff’s use of the property at 606 N. Main Street, Garden City Kansas (the “Property”) as a church and for religious assembly and from enforcing its zoning code to treat Plaintiff’s use of the Property as a church as a ‘prohibited’ or ‘illegal’ use of the Property until further order of the Court.”

The Church’s Complaint is available here.  The Consent Order is available here.

Audio/Video Available from ABA Webinar: Litigating Religious Land Use Cases
Posted on 11/11/14 by Evan Seeman          

On November 6, 2014, Daniel P. Dalton, John F. X. Peloso, Jr. and I participated in the webinar “Litigating Religious Land Use Cases,” hosted by the ABA’s State & Local Government Section.  We discussed the state of the Religious Land Use & Institutionalized Persons Act (RLUIPA) as it nears its fifteen birthday, and provided practical tips for lawyers on both sides of the fence about how to bring, avoid, and defend against RLUIPA claims.

For the next month, you can download a free copy of the webinar by going here (note: it takes about ten minutes to download).

Man Smashes Car into Ten Commandments Monument After Oklahoma Court Ruling
Posted on 11/5/14 by Evan Seeman          

The Associated Press reports that an Oklahoma state court, in Prescott v. Capitol Preservation Commission, (OK Cnty Dist. Ct., Sept. 19, 2014), has ruled that a six-foot tall Ten Commandments monument on the grounds of the Oklahoma State Capitol did not violate the Establishment Clause because of its historical value.  The monument is part of a 100-acre area on state grounds that has 51 other monuments.  Cases involving challenges to such monuments have been in the news of late.  We previously reported on another decision, in Felix v. City of Bloomfield, (D. NM Aug. 7, 2014), where a New Mexico federal court found that a five-foot tall granite Ten Commandments monument outside city hall violated the Establishment Clause “[i]n view of the circumstances surrounding the context, history, and purpose of the Ten Commandments monument.”

About a month after the Oklahoma state court ruling, Michael Tate Reed was arrested for smashing his car into and destroying the Ten Commandments monument.  When interviewed by federal agents, Mr. Reed “told them he was directed by Satan to urinate on and destroy the monument at the Capitol.”  (AP reports)  Oklahoma Governor Mary Fallin condemned the act:

“This monument was built to memorialize the historical significance of the Ten Commandments in guiding our own laws and lives.  It is absolutely appalling that someone would vandalize anything at the Oklahoma State Capitol – the People’s Building – much less a monument of such significance.”

This comes after a Satanist group raising more than $28,000 to construct a seven-foot statue of Baphomet – complete with a goat head, angel wings, and beard, and surrounded by two small children – that it seeks to place on the same state grounds where the Ten Commandments monument previously existed (photograph available here).  A Satanic Temple spokesman has said the statue is meant to “celebrate our progress as a pluralistic nation founded on secular law.”  Reportedly, the Oklahoma Capitol Preservation Commission has yet to consider the Satanist statue proposal because of a moratorium on any new monuments.

A separate federal lawsuit challenging Oklahoma’s Ten Commandments monument remains pending.  Last spring, a federal court in Oklahoma denied the State’s motion to dismiss the case.  The Atheist group alleges the monument violates the Establishment Clause and the Equal Protection Clause.  Click here to read our prior post on the case – American Atheists, Inc. v. Thompson, No. CIV-14-42-C (W.D. OK 2014).  It is not clear how, if at all, the destruction of the monument will affect the federal case.

ABA Webinar – Litigating Religious Land Use Cases
Posted on 11/3/14 by Evan Seeman          

The State & Local Government Section of the American Bar Association is hosting a webinar that may be of interest to our readers – “Litigating Religious Land Use Cases.”  Here is a description of the program:

This program will explore and analyze legal principles and issues related to litigating religious land use cases. It will cover the kinds of religious land use claims that religious entities can bring under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), state Religious Freedom Restoration Acts and the Free Exercise Clause of the First Amendment. When religious expression is hindered by local zoning laws, RLUIPA has proven to be a valuable tool that not only benefits both the government and religious entities by promoting the viability of social growth in the community, but also increases religious tolerance and inclusion. The panelists will provide practical tips for attorneys on both sides of the fence through municipal review and litigation in state or federal court.

I will be participating in the program, along with Daniel P. Dalton of Dalton & Tomich PLC and John F. X. Peloso, Jr. of Robinson & Cole.

The webinar is scheduled for November 6, 2014 from 1:00 PM to 2:30 PM ET.  For more information about the program, including registration, click here.

Can the Flying Spaghetti Monster Reshape RLUIPA?*
Posted on 10/28/14 by Evan Seeman and Dwight Merriam          

By Kristina Doan Gruenberg of Burke, Williams, Sorensen LLP

Stephen Cavanaugh, an inmate incarcerated by the Nebraska Department of Corrections, filed a civil rights lawsuit alleging that prison staff repeatedly discriminated against him by not allowing him to meet for worship services and classes, or to wear religious clothing and pendants. Cavanaugh says that he is a “Pastafarian.” According to the church’s website, Pastafarians believe that the Flying Spaghetti Monster created the world and pirates were its initial followers. They are also known to wear cooking colanders on their heads.

Prison officials denied Cavanaugh’s requests, finding that Pastafarians were a parody. However, Cavanaugh asserts that the religion is real and that he was a Pastafarian even before he came to prison, with tattoos as proof. Cavanaugh alleges that the only reasons his religious requests were denied was because they do not conform to the ‘traditional’ Abrahamic belief structure.

Cavanaugh isn’t the first Pastafarian to challenge the government. In Kansas, a Pastafarian protested the Kansas Board of Education’s decision to allow intelligent design to be taught in public schools and demanded that Flying Spaghetti Monsterism be taught in schools. In Oklahoma, a woman was allowed to wear a colander on her head in her driver’s license pictures because she said it was part of her religious headgear.

Although the public may laugh off Cavanaugh’s complaint as another frivolous inmate lawsuit, his complaint demonstrates the challenges that the Religious Land Use and Institutionalized Persons Act (RLUIPA) have caused for prisons.

RLUIPA states that no government shall substantially burden an inmate’s religious exercise unless the government shows that the burden is the least restrictive means toward a compelling government interest.

There has been a trend of the courts to bypass an analysis of whether an inmate’s claimed religion is actually a legitimate religion and whether their claimed belief is actually a tenet of that faith. Typically all an inmate has to do, for many courts, is say is that he “sincerely” has a religious belief, and then the burden shifts to the prison to show that 1) they have a compelling government interest in regulating the inmate’s religious beliefs; and 2) that it is the least restrictive way to do so. The courts have often rejected budget concerns as a compelling government interest, and only allow prisons to regulate religious requests if there are security concerns (ignoring the fact that budget concerns and safety are often intertwined).

For example, in one case, an inmate claimed that he was a Theravada Buddhist and needed a vegan diet with vegan food prepared in a vegan kitchen. Even though the inmate had no authority showing that Theravada Buddhism requires a vegan diet, the court bypassed this issue and went directly to whether the prison lawfully rejected the inmate’s requests for these meals. Further, although the prison presented undisputed evidence that it would have to go to Whole Foods to specially fulfill the inmate’s request and it would cost over 30 times as much as a regular inmate meal (including travel of a prison employee), the court denied the prison’s motion for summary judgment.

In sum, the problem with the current state of RLUIPA is that the courts’ understandable reluctance to examine whether a religion or religious belief is legitimate (which would create other First Amendment issues) has opened the floodgates to costly inmate requests. This has put prisons in the impossible situation of trying to accommodate various religious requests or fear being sued. For example, in Nebraska, where Cavanaugh sued based on Pastafarianism, the Department of Corrections already recognizes 20 different religions, including the House of Yahweh, Rastafarianism, and Satanism. California similarly recognizes dozens of religions.

Currently, the Supreme Court is evaluating the application of RLUIPA in the Holt v. Hobbs case. In that case, the issue is whether the Arkansas Department of Correction’s grooming policy violates RLUIPA. With inmate RLUIPA cases getting more attention, it might be a good time for the courts and Congress (who initially wrote and passed RLUIPA with overwhelming bipartisan support) to reassess the state of the law. They need to realize that requests like Cavanaugh’s are not uncommon and are becoming the norm in many prisons. As we have mentioned in previous newsletters, in various lawsuits there have been Native American inmates claiming that they cannot have food touched by menstruating women, House of Yahweh inmates claiming that their Kosher meals must include produce that has been picked from a tree of at least three years of age, and Odinist inmates requesting to drink mead. These examples demonstrate the need for reform.

If courts are not going to scrutinize a religion to determine if it is genuine and what its tenets are, and only consider whether the inmate sincerely believes the request, then prison officials should be given more deference as to whether accommodating each request poses an undue administrative or fiscal burden on the institution.

*This article is reprinted with the permission of Kristina Doan Gruenberg

ALI-CLE 2015 Eminent Domain and Land Valuation Litigation & Condemnation 101 Agendas And Faculty Announced
Posted on 10/23/14 by Evan Seeman and Dwight Merriam          

The agendas and faculty lists have been released for the 2015 ALI-CLE Eminent Domain and Land Valuation Litigation (the "masters" program, now in its 32nd year), and Condemnation 101: How to Prepare and Present an Eminent Domain Case (the boot camp or refesher course on eminent domain fundamentals).  The program will take place from February 5-7 in San Francisco.  Information about registration is available here.

Robinson & Cole lawyers Dwight Merriam and Edward O’Hanlan will be speaking at what looks to be a promising program.  Highlights of the program are below.

Denominators and Bright Lines: The Search for the Relevant Parcel in Eminent Domain and Regulatory TakingsBradford B. Kuhn, Nossaman LLP, Irvine, California, Dwight H. Merriam, Robinson & Cole LLP, Hartford, Connecticut, and Mark M. Murakami, Damon Key Leong Kupchak Hastert, L.C., Honolulu.

Entry Statutes: A Taking or a Free Pass? Norman E. Matteoni, Matteoni O’Laughlin & Hechtman, San Jose, California, Edward V. O'Hanlan, Robinson & Cole LLP, Stamford, Connecticut, and Michael F. Yoshiba, Richards, Watson & Gershon, P.C., Los Angeles

Eminent Domain National Law Update – Robert H. Thomas, Damon, Key, Leon, Kupchak, Hastert and Amy Brigham Boulris, Gunster, Yoakley & Stewart, P.A., Miami (and me)

Five Simple Rules for Partial TakingsChristian F. Torgrimson, Pursley Friese Torgrimson, Atlanta

When Fourth Amendment Seizures Become Fifth Amendment TakingsHerbert W. Titus, William J. Olson, P.C., Vienna, Virginia

Running the Case: A Team Approach to Working with All the Players –  William E. RyanMichael W. Ryan, and Lauren E. Ryan, Ryan & Ryan, Chicago

When Judges Overstep Their Authority: What To Do in the Courtroom – Edward G. Burg, Manatt, Phelps & Phillips, LLP, Los Angeles

Condemnors’ Special Considerations When Using Outside Counsel – David L. Arnold, Pender & Coward, P.C., Suffolk, Virginia, and Brandee L. Caswell, Faegre Baker Daniels LLP, Denver

Pipelines and Immediate Possession: The Looming Circuit Split Controversy – Justin Hodge, Johns Marrs Ellis & Hodge LLP, Houston and Jeremy P. Hopkins, Waldo & Lyle, P.C., Norfolk, Virginia

Contaminated Land: The Impact on Use, Utility, Value and Mitigation Darius W. Dynkowski, Ackerman Ackerman & Dynkowski P.C., Cleveland; Thomas L. Stokes Jr., Stokes Environmental Associates, Norfolk, Virginia

Equal Access to Justice Act: Recovering Attorney's Fees if Uncle Sam Condemns –  Stephen J. Clarke, Waldo & Lyle, P.C., Norfolk, Virginia

The Red-headed Step Child: Overcoming Reluctance to Take Relocation Cases ­– Jaclyn Casey Brown, Lewis Roca Rothgerber LLP, Denver, Robert Denlow,Denlow & Henry, St. Louis, and Michael Sullivan, Range West Consultants LLC, Prescott, Arizona

What's Wrong with the Law of Valuation in Eminent Domain: Four Rules to ChangeJohn C. Murphy, Murphy & Evertz, LLP, Costa Mesa, California

How Jury Instructions Frame Your CaseAndrew Prince Brigham, Brigham Property Rights Law Firm PLLC, Jacksonville, Florida and Jack R. Sperber, Faegre Baker Daniels LLP, Denver

Challenging the TakeDana Berliner, Director, Institute for Justice, Arlington, Virginia, Janet Bush Handy, Deputy Counsel, Assistant Attorney General, Maryland State Highway Administration, Baltimore and Matthew W. Fellerhoff, Strauss Troy Co., LPA, Cincinnati

How to Simplify Valuation in the CourtroomLeslie A. Fields, Faegre Baker Daniels LLP, Denver, Susan Macpherson,Senior Litigation and Jury Consultant, NJP Litigation Consulting, Minneapolis, Minnesota, Richard Marchitelli, MAI, Executive Managing Director, Valuation and Advisory, Cushman & Wakefield, Charlotte, North Carolina, and Joe Waldo

Proving Your Case: Staying Focused - H. Dixon Montague, Vinson & Elkins LLP, Houston

Entry Statutes: A Taking or a Free Pass? Norman E. Matteoni, Matteoni O’Laughlin & Hechtman, San Jose, California, Edward V. O'Hanlan, Robinson & Cole LLP, Stamford, Connecticut, and Michael F. Yoshiba, Richards, Watson & Gershon, P.C., Los Angeles

§ Valuation of Temporary Construction Easements – Keith M. Babcock, Lewis, Babcock & Griffin, LLP, Columbia, South Carolina and Randall A. Smith, Smith & Fawer, L.L.C., New Orleans

Severance Damages in Partial Takings Cases: Lessons Learned and Future Considerations - Anthony F. Della Pelle, McKirdy & Riskin P.A., Morristown, New Jersey

Cross Examining Appraisers: Taking Apart the Key Witness – Jill S. Gelineau, Schwabe, Williamson & Wyatt, P.C., Portland, Oregon and Michael Rikon, Goldstein, Rikon, Rikon & Houghton, P.C., New York

Dropping the Bomb: Challenging Highest and Best UseMark D. Savin, Fredrikson & Byron, P.A., Minneapolis

Opening and Closing: Laying Out Your Case and Bringing It Home Joseph P. Suntum, Miller, Miller & Canby, Chartered, Rockville, Maryland

Update on Regulatory Takings Jurisprudence: Decisions that Hit Close to Home – Michael M. Berger, Manatt, Phelps & Phillips, LLP, Los Angeles

Novel Takings Theories: Testing the Boundaries of Property Rights – James S. Burling, Director of Litigation, Pacific Legal Foundation, Sacramento

National Forum: Issues Facing Practitioners Around the Nation and Discussion of Stop and Seizures - plenary session, open forum

One highlight not listed above is the Friday keynote session with Gideon Kanner (Professor of Law Emeritus, Loyola Law School, Los Angeles) and Michael M. Berger (Manatt, Phelps & Phillips, LLP, Los Angeles), The Last 30 Years of Eminent Domain Jurisprudence and its Impact on Today's Practice.  There will also be a session on Ethics, so you can fulfil your bar association's mandatory ethics CLE requirement, if you have one

Conn. Killer's Kosher Request Illustrates National Debate*
Posted on 10/16/14 by Evan Seeman and Dwight Merriam          

Isaac Avilucea, The Connecticut Law Tribune

October 13, 2014

A Muslim prisoner has taken Arkansas prison officials to the U.S. Supreme Court for refusing to allow him to grow a one-inch beard for religious purposes. In New Mexico, a prisoner sued corrections officials for not allowing him to practice Satanism.

Here in Connecticut, convicted Cheshire home invasion murderer Steven Hayes recently made headlines when he sued the state for access to kosher food because, he claims, he is now an Orthodox Jew.

In these cases, experts say, the legal questions go beyond whether the religious requests are reasonable or even if prisoners such as Hayes are actually legitimate members of the Jewish faith. The question is whether prison officials are violating the Religious Land Use and Institutionalized Persons Act (RLUIPA). Enacted in 2000, the law is usually discussed in Connecticut in connection with zoning disputes involving religious groups seeking to build houses of worship. But another provision gives inmates enhanced protection for their religious beliefs.

For several reasons, legal experts said, prisoners are especially vulnerable to religious belief abuses. Often, they don't have the financial means to hire lawyers to represent them in religious abuse cases. Then there's public sentiment which, in the Hayes case and other instances, tends to lean in favor of prison officials.

But Hope Metcalf, executive director of Yale's Orville H. Schell Jr. Center for International Human Rights, said the legal community must take prisoners' claims seriously, regardless of why they're imprisoned.

"There are some cases that stand out for seeming unsympathetic or even frivolous," Metcalf said in an email to the Law Tribune. "The procedural bars faced by any pro se litigant—and particularly prisoners—are incredibly high, and judges have all kinds of tools to weed out meritless claims."

David McGuire, staff attorney at the American Civil Liberties Union of Connecticut, couldn't speak to the exact number of prisoners in Connecticut who make religious rights claims. But generally speaking, he said those that do so are self-represented. In cases where prisoners make RLUIPA claims, he said decisions hinge on "how deferential judges are to prisons' reasons for limiting religious expression."

In the case before the U.S. Supreme Court, for example, the growing consensus is that Gregory Holt, also known as Abdul Maalik Muhammad, will win. During oral arguments, the justices peppered attorneys representing Arkansas prison officials with questions about why Holt, who says Allah commands him to wear a beard, hasn't been allowed to honor the Muslim practice.

Forty states already allow Muslims to grow beards, and Holt even offered to compromise with prison officials by keeping his beard an inch long. But prison officials claimed his beard hampered officials from identifying prisoners and jeopardized other prisoners' safety at the jail. The justices seemed skeptical, with Justice Samuel Alito questioning why Holt couldn't just comb the beard to alleviate prison officials' concerns about contraband or weapons being smuggled in by the whiskers.

"If there's anything in the beard, such as a tiny revolver, it'll fall out," Alito said.

Hayes' case isn't as clear-cut. He is on death row at Northern Correctional Institute in Somers after being convicted of killing Jennifer Hawke-Petit and her daughters, Hayley and Michaela, in 2007. He says he's losing weight because he refuses to eat prison food that's not kosher. He claims in his lawsuit that prison officials have denied requests since May 2013 for kosher food. He says he has instead been offered "kosher-like food," prepared on the same surfaces and in the same pots and pans as nonkosher food. That food, however, is contaminated, in Hayes' view, because it's mixed with nonkosher food. "Kosher-like is not kosher," Hayes said in the lawsuit.

Some Jewish groups have questioned Hayes' sincerity. They say he isn't truly Jewish because his mother wasn't Jewish (the religion passes from mother to children) nor has he converted with the help of a rabbi. Hayes acknowledges that he is "self-converted."

Rabbi Menachem Katz, the director of prison programs at the Aleph Institute, a Florida-based group that advocates for Jewish prisoners' rights, said his organization isn't involved in, and takes no position on, Hayes' lawsuit. But his experience is that Connecticut is notoriously bad at accommodating kosher food requests. And he doesn't see that changing soon.

"It has a lot of work to do on the kosher food front," Katz said. "It's gonna take a bona fide Jewish inmate to sue them and win. That's the only language they understand. They don't wanna play ball [with us]."

For the nearly 5,000 Jewish prisoners housed in U.S. prisons, Katz said refusal of kosher meals is the most commonly cited complaint. Other gripes deal with lack of access to prison chapels and religious services. Most prisons require that a handful of prisoners be from a denomination before services can be scheduled.

Self-converted Jewish prisoners such as Hayes must pass a sort of sincerity test used to root out impostors, which could include an interview with a prison chaplain, Katz said. "If they say they're [originally] from the Catholic faith and they need a kosher diet, they're gonna be laughed off the stage," he said. "The government can't decide, 'You are Jewish; you are not Jewish.' But the [Department of Correction] can decide when someone is playing them."

Most experts agree that Hayes faces an uphill battle in convincing judges he is a true follower of the Jewish faith. McGuire said each such claim is "incredibly fact-specific," further complicated because prisoners usually aren't well versed in law. "The courts are left in poorly briefed issues," he said. "The prisoners are not clear in what they need to prove."

If inmates can demonstrate the sincerity of their religious beliefs, the burden shifts to prison officials to explain why rules prohibiting prisoners' religious expression is of a "substantial government interest," McGuire said, citing the language of RLUIPA.

Usually, these issues are decided through informal prison grievance processes. McGuire said only the most egregious claims of religious rights abuses make it to court. And when they do, he said, "a lot of these don't really go anywhere because the prisoners can't properly construct arguments."

Metcalf, the Yale expert, said, "outlier cases" can steal the headlines because they have "entertainment value." They also run the risk of alienating people from paying attention to prisoners' rights abuses. That's why courts play a vital role in "trying to ensure that our prisons represent our values of dignity and fair treatment for all people," she said.

*This article is reprinted with the permission of the Connecticut Law Tribune.

Upcoming Webinar: “Sex, Guns, and Drugs: Planning for Controversial Land Uses”
Posted on 10/15/14 by Evan Seeman and Dwight Merriam          

The American Planning Association’s Planning & Law Division is hosting a webinar on October 22, 2014 that may be of interest to many of our readers and to others looking for a break from RLUIPA.  Here is a description of the program:

The U.S. Constitution guarantees freedom of expression, freedom of religion, and the right to bear arms.  But it’s not that simple.  Businesses that rely on these constitutional guarantees continue to generate controversy in communities across the country.  To compound matters, state legislatures from Arizona to Massachusetts have been busy granting new — and in many cases, previously unheard of — rights to marijuana and firearm retailers. 

This has rapidly drawn planners and zoning practitioners into the debate over how these businesses best fit into their communities, and whether their communities are legally obligated to accommodate these uses in the first place.  Spend an hour learning about the issues and regulatory strategies from around the country.

It will be presented by Daniel J. Bolin and Gregory W. Jones of Ancel Glink.  Registration is $20 for PLD members, $40 for nonmembers, and $45 for webinar registration plus a Planning & Law Division membership.  For more information, including registration, click here.

2d Cir Extends Williamson County Ripeness "Final Decision" Requirement To ADA Claims
Posted on 10/14/14 by Evan Seeman and Dwight Merriam          

[Editors' Note: This posting is reprinted with permission from the Inverse Condemnation blog.]

Ah, Williamson County. We've ranted about it before, so we won't do so here (again). But takings mavens know that a property owner must meet two tests before she can raise a takings claim against a state or local government in federal court: the state or local government must have reached a final decision on the uses to which her property may be put, and she must seek (and be denied) just compensation via state procedures.

We've always viewed both parts of the test as very "takings-specific" and not really applicable to other areas. The rationale supporting the final decision requirement is that a court really can't tell whether property has been "taken" until it understands what uses may be allowed by the state or local government. Absent such a decision, the government may allow some economically beneficial use. Similarly, the state procedures test rationale is that a property owner has not had its property taken "without just compensation" until the state has denied recovery via an inverse condemnation or regulatorty takings claim in state court. We don't agree with that reasoning, but there it is.  But the courts have not read the final decision requirement of Williamson County so strictly, and have, as of late, applied it to a variety of non-takings claims, including  substantive due process, RLUIPA, and others. 

Now, the Second Circuit, has  extended it to claims under the Americans With Disabilities Act in Sunrise Detox V, LLC v. City of White Plains, No. 13-2911 (Oct. 2, 2014). There, the plaintiff was denied permission to operate a treatment facility, and it brought suit under the ADA, asserting intentional discrimination and failure to offer a reasonable accommodation on the part of the City, and seeking an injunction.  The district court dismissed because Sunrise had not sought a variance. The Second Circuit agreed.

While it acknowledged that Williamson County was a takings doctine ("The argument is not without appeal."), it held that because Sunrise was seeking an injunction and not money damages:

We need not address here whether a property owner who claimed that a local official vetoed his or her development project out of hostility based on the owner's race, gender, disability, or the like, in violation of federal statutory or constitutional law, could seek immediate recompense in federal court from that official for the dignitary or emotional harm inflicted by the official even in the absence of a final decision on the development proposal or without pursuing an administrative appeal of that action. That question is not presented in this case, because Sunrise does not seek compensatory damages from the official who it claims acted out of discriminatory motivation, but rather seeks an injunction blocking the disapproval and authorizing construction of its project. Regardless of the basis of the claim that the local action violated federal rights, the relief sought brings the case squarely within the compass of Williamson County and its progeny.

Even if it were true that the challenged rejection by the Building Department was the product of a discriminatory motivation on the part of the official who issued it, that illegal act would not necessarily require, as a remedy, the issuance of a permit to Sunrise. If Sunrise proceeds with its application, the rejection may be reversed, and the project may be permitted to proceed—or the application may be rejected on other, non-discriminatory grounds. Only after Sunrise completes the process will it be known whether the allegedly discriminatory decision of the official had any effect at all on Sunrise's application.

Slip op. at 12-13.

We can't quite agree with the statement that "[e]ven if it were true that the challenged rejection by the Building Department was the product of a discriminatory motivation on the part of the official who issued it, that illegal act would not necessarily require, as a remedy, the issuance of a permit to Sunrise." Why not? If the only reason the permit was denied was a bad one, then wouldn't an injunction requiring the Building Department to stop using that bad reason as the reason to deny a permit mean that the permit must be issued? And how is the availability of a "variance" or administrative relief from the Building Department’s denial -- if, indeed, the administrative process is even capable of remedying intentional misconduct by agency officials -- a true remedy for the (allegedly) discriminatory conduct? 

The court tried to carve out exceptions to this rule: 

We think, therefore, that a plaintiff alleging discrimination in the context of a land-use dispute is subject to the final-decision requirement unless he can show that he suffered some injury independent of the challenged land-use decision. Thus, for example, a plaintiff need not await a final decision to challenge a zoning policy that is discriminatory on its face, Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1541 (11th Cir. 1994), or the manipulation of a zoning process out of discriminatory animus to avoid a final decision, Groome Res. Ltd. v. Parish of Jefferson, 234 F.3d 192, 199–200 (5th Cir. 2000). In those cases, "pursuit of a further administrative decision would do nothing to further define [the] injury," and the "claim should not be subject to the application of the Williamson ripeness test." Dougherty, 282 F.3d at 90.

Slip op. at 13-14. 

In other words, it's OK to intentionally discriminate in the land entitlement process, as long as the only harm is denial of the entitlement sought, and there's some possible administrative relief down the line that might correct the result in the issuance of the permissions.

Until then, don't come crying to federal court, at least not in the Second Circuit. 

Sunrise Detox V, LLC v. City of White Plains, No. 13-2911 (2d Cir. Oct. 2, 2014)

Second Circuit Restores Litchfield Synagogue's Lawsuit*
Posted on 10/13/14 by Evan Seeman and Dwight Merriam          

Jay Stapleton, The Connecticut Law Tribune
September 30, 2014

A lawsuit filed by a Litchfield Jewish organization has been reinstated, giving the group new hopes it will ultimately win approval to build a 20,000-square-foot synagogue and community center near the historic green.

Chabad Lubavitch filed its lawsuit against the Litchfield Historic District Commission in 2007, after the commission had rejected plans for the synagogue. Chabad and its lawyers met with a setback this past February, when U.S. District Judge Janet Hall granted a motion for summary judgment and dismissed the lawsuit. Hall found there was no evidence of religious discrimination in the zoning application process.

Lawyers for Chabad, including Kenneth Slater of Halloran & Sage in Hartford, appealed the ruling to the U.S. Court of Appeals for the Second Circuit, claiming the organization should have a right to proceed under provisions of the Religious Land Use and Institutionalized Persons Act. RLUIPA states that land use regulations may not impose a "substantial burden" on free exercise of religion, unless there is a compelling government interest to do so.

In a lengthy decision, a three-judge panel of the appeals court ruled on Sept. 23 that Hall was wrong to dismiss the lawsuit and remanded the case back to her for further consideration. The Second Circuit stated that Hall had erred when she held that Chabad needed to show evidence of discrimination, and also when she said Chabad failed to identify a religious group that received more favorable treatment in Litchfield after filing an application that was "identical in all relevant aspects" to Chabad's proposal.

"We conclude that the [Historic District Commission's] review of the Chabad's application was ... subject to RLUIPA's 'substantial burden' provision, and that the Chabad need not cite an 'identical' comparator to establish a claim under RLUIPA's nondiscrimination provision," the panel wrote.

The appeals court panel did uphold some of Hall's other rulings in the case, including her dismissals of Chabad Lubavitch's claims that its constitutional rights to freedom of religion and equal protection were violated.

Supreme Court Review?

Slater called the decision "extremely important" in that it reversed the district court ruling "that a religious organization can never succeed on a claim that an agency imposed a substantial burden on a religious institution without showing there was discrimination to a religious use."

As a result, the Second Circuit decision could benefit other religious institutions in future litigation, he said.

Slater said the court "wisely determined" that RLUIPA's substantial burden provision provides a remedy for religious institutions when a zoning board or other agency "could otherwise hide behind the fact that broad discretionary regulations may be applicable to other land uses to shield veiled discrimination of a religious land use."

"With this ruling," he said. "We are confident we can succeed on in this case."

However, C. Scott Schwefel, a lawyer for the Historic District Commission, said the case is far from over. He said the lawsuit will now return to U.S. District Court and, an appeal to the U.S. Supreme Court is possible. "We're confident that the district court will determine that there is still no genuine issue of material facts and will again dismiss the action," he said.

Chabad Lubavitch is a Hasidic movement within orthodox Judaism. The group has been active in Litchfield since 1996, and provides social service, educational and programs in the arts. According to court documents, the Historic District Commission ruled Chabad Lubavitch's proposed 17,000-square-foot addition to an 1870s Victorian house, which would be used as a synagogue and a residence for its rabbi, was too large and out of character for the Litchfield historic district, which features many homes from the late 18th and early 19th centuries.

But Rabbi Joseph Eisenbach of Chabad Lubavitch disputed the commission's use of the 17,000-square-foot figure, saying it included the basement and attic. He said the footprint of the two-story house and addition would be less than 4,000 square feet and the total area of the project should be listed as less than 8,000 square feet.

Last year, the Historic District Commission and the town zoning board approved Chabad Lubavitch's plans to use the same 19th-century building near the Litchfield Green for its religious and community activities, as long as Chabad did not expand the building.

*This article is reprinted with the permission of The Connecticut Law Tribune.

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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