In The NewsNew RLUIPA Suit: River Hills Community Church of Sauk Prairie, Inc. v. Village of Sauk City, Wisconsin (W.D. WI 2014)
Posted on 3/6/14 by Evan Seeman and Dwight Merriam
River Hills Community Church of Sauk Prairie, Inc. (Church) has sued the Village of Sauk City, Wisconsin (City) under RLUIPA, the U.S. Constitution, and state law concerning the City’s refusal to permit it to use a building owned by a bank for religious assembly.
As alleged in its complaint, the Church was formed in 2005 and started out as a lunch gathering on the shores of Devil’s Lake and then transitioned to meeting in members’ backyards. Its byline is “when you’ve given up on religion, but not on God, there’s River Hills.” Aside from religious worship services, the Church provides child character development programing, a peer support group for new mothers, community meals to the lonely and homeless, and lessons on financial responsibility.
As the Church began to grow, it sought a larger space to accommodate its members. It leased the Sauk Prairie Community Center, but left that space due to various problems, mostly involving scheduling conflicts. From there, the Church leased for three years vacant space consisting of 20,000 square feet and then moved to the River Arts Center, where it has been conducting Sunday worship services ever since. Since relocating to the River Arts Center, the Church has experienced a precipitous drop in attendance, from annual highs of 172 down to 104, a 40% reduction; even more in its ministry for children, slashed by nearly 80%. Numerous parents have told the Church leaders they love its programing, but its facilities are inadequate for children.
At the same time, the Church rented other space in the City for office use and an activity center, as opposed to the River Arts Center space that it used for religious worship services. When the Church learned that it would no longer be able to rent this space for office use and an activity center, it began to look for a permanent home. “The Church has looked at every existing, available, possibly suitable building in Sauk City and in Prairie du Sac: a former library, warehouse, office buildings, but nothing has worked.” Finally, the Church found a suitable location in the City owned by the Church’s bank, consisting of approximately 5,500 square feet on 2 acres of land (Property). Notably, the Property is located immediately in front of the 20,000 square foot space it previously leased.
Churches are not permitted as-of-right in any of the City’s zoning districts; they are allowed only as conditional uses. Because the specific zoning district in which the Property is located does not allow churches as a conditional use, the Church applied to rezone the Property so that it could apply for a conditional use permit. Although the Church paid the $500 conditional use application fee, the City decided that it would be wiser to amend the zoning ordinance to allow churches in the specific zone. Nevertheless, the City rejected the proposed amendment, which would have allowed church uses as conditional uses in all residential, business, and industrial districts.
The Church alleges that the City’s zoning code violates RLUIPA’s equal-terms provision in that churches must have a minimum lot size of 2 acres of land while other conditional public assembly uses – community centers, libraries, cultural use/centers, governmental uses, clubs, funeral homes, fraternities, lodges, and non-commercial meeting places – have no minimum lot size. It also alleges violations of RLUIPA’s total exclusion and unreasonable limitations provisions on the grounds that the City has impermissibly excluded and unreasonably limited churches from locating within the City. It claims that the City’s actions have also substantially burdened its religious exercise by causing delay, uncertainty and expense and by causing the size of its membership to suffer. The Church’s federal constitutional claims include violations of the free exercise of religion, free speech, and the Equal Protection Clause. It also alleges violations under Wisconsin law. The Church seeks injunctive relief, and declarations that the City’s actions and its zoning code violate RLUIPA, compensatory damages, and reasonable attorneys’ fees.
On January 31, 2014, the District Court entered an order allowing the Church to “use and occupy the Property for religious assembly (church use) immediately after the Church closes its contract to purchase the Property on or about January 31, 2014, during the pendency of this litigation and until the conclusion of the above-captioned proceeding, whether by settlement, final judgment, or any other means.” However, “[i]n the event that it is determined that plaintiff is not entitled to use the Property for religious assembly (church use) upon conclusion of the above-captioned proceeding by an order which is non-appealable or not appealed, plaintiff will upon 30-days notice cease using the Property for such purposes.”
If the City chooses to vigorously defend against the Church’s claims, it appears that it will be in for protracted and costly litigation. On top of paying its own legal fees, the City may also have to pay the Church’s legal fees if the Church prevails. When faced with these types of claims, municipalities may wish to consider whether it would be wiser to explore whether a compromise can be reached with the religious institution that, while seeking to protect the public health, safety, and welfare of the community, would also avoid potentially costly and emotionally-charged litigation.
Eleventh Circuit Dismisses RLUIPA Suit After Mosque Settles Dispute With City of Alpharetta, Georgia
Posted on 3/3/14 by Evan Seeman and Dwight Merriam
The United States Department of Justice Civil Rights Division reports the following in its February 2014 edition of Religious Freedom in Focus.
On December 30, 2013, the U.S. Court of Appeals for the Eleventh Circuit dismissed the appeal of a Georgia mosque's suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), after the mosque reached a settlement with the City of Alpharetta and the City Council approved its expansion plans.
As reported in Volume 52, the Civil Rights Division filed a friend-of-the-court brief and argued before the trial court that the court below had erred in granting summary judgment to the city. After oral arguments in February 2013, the Court of Appeals ordered the parties to attempt to settle the dispute.
The case, Islamic Center of North Fulton v. City of Alpharetta, arose out of the city's denial of a permit for the Islamic Center to expand on a site it has occupied since 1998. The suit alleged that the denial of the permit imposed a "substantial burden" on the religious exercise of the mosque, which had outgrown its space as its congregation has grown. The suit also alleged violation of RLUIPA's nondiscrimination provisions, focusing on the county's approval of several similarly sized church projects in recent years.
In the appeal, the United States argued that the district court applied the wrong standard for "substantial burden" under RLUIPA, and should have examined "whether the denial of the permit, viewed against the totality of the circumstances, actually and substantially inhibits the Center's religious exercise, rather than merely inconveniencing it." The United States also argued that the trial court should have applied the standard laid out by the Supreme Court in Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977), which looks at the totality of the circumstances, including procedural irregularities and differential outcomes of similar projects, in evaluating zoning discrimination claims.
The DOJ previously reported on this case in its June 2012 edition of Religious Freedom in Focus.
On June 12, the Civil Rights Division filed a friend-of-the-court brief with the U.S. Court of Appeal for the Eleventh Circuit arguing that a federal trial court erred in granting summary judgment to a Georgia city in a mosque's suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA). The suit, Islamic Center of North Fulton v. City of Alpharetta, arose out of the city's denial of a permit for the Islamic Center to expand on a site it has occupied since 1998.
RLUIPA, enacted in 2000, contains a number of different provisions protecting churches, synagogues, mosques, temples, and other places of worship from discrimination and undue interference with religious exercise through application of zoning and landmarking laws. It also contains a section protecting the religious exercise of persons confined to institutions.
The Islamic Center of North Fulton currently worships in a 2,500 square foot mosque that it built after it acquired the property in 1998. Since then, its congregation has grown from 25 to approximately 600 members. It sought a permit in 2010 to build a 12,000 square foot mosque and a 1,910 square foot fellowship hall on the 4.2 acre site. The space was needed to have enough room for worship, facilities for ritual washing before prayer, spiritual counseling, a religious library, and youth activities. The Islamic Center identified several similarly sized church projects that the county has approved in recent years, and noted that it is comparable in size and neighborhood impact to two churches on the same road. After the County council denied the Islamic Center's application in May 2010, the Center filed a federal suit in the U.S. District Court for the Northern District of Georgia. On January 25, 2012, the court granted summary judgment for the County.
The United States' brief argues that the district court erred in the standard it used to evaluate the mosque's claim that the permit denial imposed a "substantial burden" on its religious exercise in violation of RLUIPA Section 2(a), as well as its claim that it was subject to religious discrimination in violation of RLUIPA Section 2(b)(2).
For the substantial burden claim, the trial court held that the Center had not demonstrated that its members were "forced or coerced into abandoning, modifying, or violating their religious beliefs." Surveying the case law in the Eleventh Circuit, the United States concludes that this was an inappropriate standard. Rather, in evaluating substantial burden, a court should examine "whether the denial of the permit, viewed against the totality of the circumstances, actually and substantially inhibits the Center's religious exercise, rather than merely inconveniencing it." The center alleged facts that could show this, and thus their claim should be permitted to go to trial.
The United States' brief also contends that the trial court erred in holding that to prove religious discrimination under RLUIPA Section 2(b)(2), the Islamic Center must show that another place of worship that is "prima facie identical in all relevant respects" was treated more favorably. The district court found that while the Center had pointed to churches and a synagogue that were similar, they were not identical. The United States' brief argues that this was an inappropriate standard to use. Rather, the court should have used the standard the Supreme Court laid out for evaluating whether facially neutral zoning actions are in fact the result of racial discrimination in Village of Arlington Heights v. Metropolitan Housing Development Corp. (1977). Under Arlington Heights, courts perform "a sensitive inquiry into such circumstantial and direct evidence as may be available," such as substantial disparate impact, procedural and substantive departures from norms, and the administrative history of the decision, to determine if discrimination was in fact the motivating factor. The United States' brief argues that under Arlington Heights, the court below should have examined all of the surrounding factors to determine whether religion was the motivating factor of the County's decision to deny the Islamic Center's permit.
Mixed Use Meets RLUIPA: A Combination Church/Music Venue/Tattoo Parlor In Indiana Obtains Zoning Approval Over Fear of Violating RLUIPA
Posted on 2/26/14 by Evan Seeman and Dwight Merriam
In a controversial proposal, the Relevant Authentic Worship Church (RAW Church) in Crown Point, Indiana has obtained a variance to operate a church, music venue, and tattoo parlor in an industrial zone. RAW Church is a non-denominational church that is intended for people who do not feel comfortable in more traditional church settings. It seeks to bring in young, marginalized people first with music with the hope that they will eventually attend worship services.
Neighbors and members of the Board of Zoning Appeals were concerned that the music venue would be incompatible with the surrounding area. RAW Church maintained that the music venue is an essential part of its ministry and the church’s mission. During the course of the public hearing to consider the application, Crown Point’s attorney warned the Board that it would have to be mindful of federal laws, including RLUIPA, to avoid discriminating against a religious facility.
The Board approved RAW Church’s application, subject to certain conditions. First, the application was approved for what might be called a “probationary period.” That is, RAW Church must appear before the Board in six-months to report on its operations and address any complaints, including those related to noise and traffic. It is not clear, however, what action could be taken to address such complaints. Further, no more than 200 audience members are allowed at any music event, and worship services are limited to 250 people. In addition, RAW Church must hire two off-duty Crown Point police officers to work as security and direct traffic at its music events. Finally, the building will have to be sound-proofed. Apparently, RAW Church’s operation of the building as a tattoo parlor was of minimal concern. Reportedly, the tattoo parlor is to be located in leased space in the church building and not associated with RAW Church itself.
Local coverage of this story has thoughtfully added that, in addition to drinking and pyrotechnics, fighting will not be allowed, not even of the turn-the-other-cheek variety. Go figure.
The approval of RAW Church’s application is illustrative of ways that municipalities may attempt to avoid the threat of RLUIPA litigation. RLUIPA’s substantial burden provision, perhaps the most frequently litigated of all of RLUIPA’s provisions, protects against a municipality imposing or implementing a land use regulation in a manner that substantially burdens the religious exercise of an individual or a religious institution. If a municipality imposes a substantial burden on religious exercise, it must demonstrate a compelling governmental interest in so doing, and, importantly, it must demonstrate that it has done so in the least restrictive means possible. Thus, a land use agency may be more likely to avoid RLUIPA litigation if it conditions approval to address its particular concerns and the concerns of neighbors who may be affected instead of denying an application outright. While religious institutions may still challenge conditions of approval on the ground that the conditions are onerous and restrictive, such approvals may be easier to defend than complete rejection of a religious institution’s proposal, at least in terms of a municipality maintaining that it has used the least restrictive means possible to protect its interests.
Dallas Rabbi Using Home As Synagogue Uses The Religious Land Use And Institutionalized Persons Act In Defense Of A Neighbor’s Lawsuit
Posted on 2/20/14 by Evan Seeman
David Schneider, a Dallas resident, has filed a lawsuit against his neighbor, Rabbi Yaakov Rich, for using his 3,700 square foot home as an Orthodox synagogue known as Congregation Toras Chaim in what he alleges to be a violation of homeowners’ association rules. In addition, Mr. Schneider complains that the Rabbi’s use of the home as a synagogue has lowered his property value. Schneider seeks as relief “$50,000 in compensatory damages due to decline in the value of Schneider's home, as caused by defendants." Apparently, the synagogue conducts religious worship services for approximately 25 Jews one to two times per day. Other neighbors have raised concerns about traffic generated by religious worship services, as well as the appearance of the home looking more like a synagogue than a private residence. Some neighbors have posted signs on their property reading “keep us residential only” to oppose the use of the home as a synagogue. Reportedly, Rabbi Rich does not live at the home, but instead rents it to someone else.
The Liberty Institute represents Rabbi Rich and has asserted the Rabbi’s right to use the home for religious worship services pursuant to the Religious Land Use and Institutionalized Persons Act (RLUIPA). Justin Butterfield, the lawyer from the Liberty Institute handling the case, stated that “[t]he Religious Land Use and institutionalized Persons Act . . . protects religious land use. And that can be anything from a church to a person having a Bible study in their home." The Liberty Institute writes on its blog “Alarmingly, houses of worship —including small bodies like Congregation Toras Chaim—have been increasingly victimized in recent years by unreasonable regulation and litigation that frequently violates their rights.” The full blog post can be accessed here.
Rabbi Rich stated “We just want to have our religious freedom to be able to pray and to study in this house.” This is not the first time that a court may be asked to consider whether RLUIPA affords religious protection to individuals to conduct religious worship services for themselves and others from their home. See Konikov v. Orange County, Florida, 410 F.3d 1317 (11th Cir. 2005); Murphy v. New Milford Zoning Commission, 402 F.3d 342 (2d Cir. 2005). Reportedly, 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.
Michigan Federal Court Dismisses Alger Bible Baptist Church’s RLUIPA Suit
Posted on 2/11/14 by Evan Seeman and Dwight Merriam
In an important decision for municipalities across the country, the United States District Court for the Eastern District of Michigan has ruled that excluding religious institutions from certain zoning districts on the grounds that they do not generate tax revenue is a legitimate exercise of zoning power if (1) the intent of the district is to produce revenue and promote commercial growth and (2) other secular uses are excluded for the same reason.
Alger Bible Baptist Church (Church), which has existed in Michigan’s Moffat Township communities for approximately 30 years, sought to relocate to a new location to hold religious worship services because the small size of the dilapidated space it had been leasing restricted its ability to attract new parishioners. Also, because the Church did not own the space, it could not make much needed repairs, including repairing the roof which was unable to protect its congregants from rain water leaking through. The Church’s pastor believed that its location inhibited its ability to grow beyond its current membership and thus sought to relocate elsewhere to operate from a larger facility in a more prominent location.
The Church identified a former ice cream shop sitting on approximately 5.5 acres in Alger’s Highway Commercial zoning district as ideal space to relocate. The Church’s pastor “strongly felt that God had called [him] to relocate the Church and the congregation to the new location.” The Church paid a deposit to purchase the property, but only after putting down the deposit did it learn that the Highway Commercial zone precluded churches and other religious buildings. Despite allegations that the Township’s zoning ordinance violated RLUIPA, the Township denied the Church’s use variance application, as well as its applications to rezone the property and also for a special land use permit.
The Church sued, alleging that the Township violated RLUIPA’s Equal Terms Clause, RLUIPA’s Nondiscrimination Clause, RLUIPA’s Exclusion and Limits Clause, the First and Fourteenth Amendments to the United States Constitution, and the Michigan Constitution. The Church sought a preliminary injunction and the Township moved to dismiss for failure to state a claim on which relief could be granted.
The Court rejected the Church’s claim that the zoning ordinance on its face violated the First Amendment’s Free Exercise Clause. Specifically, the Court found that the zoning ordinance was neutral on its face:
“Although churches and other religious buildings are not permissible by right in any of Moffatt’s six zoning districts, the same is true for many secular institutions: cemeteries, landfills, day care facilities, lodges and clubs, stables, kennels, bed and breakfasts, and natural resource extraction operations . . . . And just like churches and other religious buildings, none of these structures are permissible, even conditionally, in Moffatt’s two commercial districts. Even schools – both private and public – are excluded in Moffatt’s commercial districts.”
Although facially neutral zoning ordinances may still violate the Free Exercise Clause if they “target religious conduct for distinctive treatment,” the Court found no such illegal targeting in the Township’s zoning ordinance: “For even if the Township Supervisor stated ‘that he did not want [the Church] to operate at the Property because it would not generate any tax revenue,’ this statement does not impermissibly target religion; instead, the statement aligns with the Zoning Ordinance’s purpose: promoting taxpayer’s commercial retail services in conjunction with a major highway interchange area.” Although the Church contended that secular institutions, such as theatres and commercial recreational uses, are permitted in the Highway Commercial zone while religious institutions are not, those secular uses “fall directly in line with Moffatt’s goal of ‘encourag[ing] the development of general retail’” in the Highway Commercial zone. Further, the Court found it significant that the Church did not advance any non-secular institutions that do not produce some form of tax revenue.
In sum, the Court stated: “Moffatt’s Zoning Ordinance is a facially-neutral law that is applied generally to all citizens; only structures that promote commercial retail and generate revenue are permissible in the highway commercial district. Thus, the Zoning Ordinance does not violate the Free Exercise Clause, and [the Church’s] claim is without merit.”
The Court also rejected the Church’s claim that the zoning ordinance prevents it from practicing its religion in the precise location where it seeks to do so in violation of the First Amendment’s protection of freedom of speech. Relying on Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006), the Court concluded that “a church has no ‘constitutional right to build its house of worship where it pleases.’”
The Church’s Equal Protection claim failed because the Church did not identify a similarly-situated secular institution treated more favorably than religious institutions. While the Court dismissed this claim, it did so without prejudice, allowing the Church the opportunity to re-plead to identify similarly situated religious institutions.
Finally, the Court dismissed the Church’s claims under RLUIPA’s: (1) Equal Terms Clause; (2) Nondiscrimination Clause; and (3) Exclusion and Limits Clause. First, the Court determined that the Church’s Equal Terms Clause claim failed because it did not identify a similarly situated comparator, as discussed above. In so doing, the Court declined to adopt a test to identify comparators, simply noting the Church’s failure to identify one. It also concluded that the zoning ordinance is facially neutral: “Importantly, the fact that Moffatt’s Zoning Ordinance prohibits all churches and other religious buildings, in addition to other secular uses, from commercial zones is not inconsistent with facial neutrality. On the contrary, the Zoning Ordinance prohibits any use in its commercial districts – religious or otherwise – if the institution does not produce revenue and promote commercial growth.” The Court dismissed this claim without prejudice, allowing the Church the opportunity to replead to identify comparators.
Because the Church did not put forth any evidence to raise an inference that the Church’s rezoning request was denied specifically because of its religious beliefs, its Nondiscrimination Clause claim failed. The Church’s Exclusion and Limits Clause claim also failed because religious institutions are allowed in the Township’s six zoning districts, just not in its two commercial districts. Further, the Court found significant that Township officials had actually suggested an alternate site for the Church to locate. The Court dismissed the Church’s claims under the Michigan Constitution for the same reasons it dismissed its claims under the federal constitution.
Daniel Dalton, attorney for Alger Bible Baptist Church, and an experience RLUIPA litigator, has indicated that an appeal may soon be filed:
“While we respect the Court, we disagree with the decision as it conflicts with not only the clear congressional intent of RLUIPA, but also a body of case law developed over the past 15 years. Congress, and the Courts, have clearly and unequivocally stated that local governments cannot use the loss of a tax basis for the reason to deny zoning to a Church. This decision is a devastating loss to this religious body who exist solely to worship God and provide for this poor community. The decision hurts all religious uses in Michigan, and beyond, who seek to find a place of worship. Given the gravity of the case, we have no other choice but to appeal this decision.”
Dalton has been involved in approximately 20 other RLUIPA lawsuits on the plaintiff’s side, obtaining favorable results either through court decision or settlement in each of those cases.
Marci Hamilton, the Paul R. Verkuil Chair of Public Law at the Benjamin N. Cardozo School of Law stated: "This is a hyperbolic response typical of those who litigate for extreme religious liberty. Congress never intended to create a presumptive right to trump zoning laws at will. The church here lacked evidence to prevent dismissal. It is nice to see the system working as it should." Professor Hamilton regularly defends municipalities in RLUIPA litigation.
The decision in Alger Bible Baptist Church v. Township of Moffatt (E.D. Michigan 2014) can be access here.
Petition for Certiorari to United States Supreme Court Raises RLUIPA and National Security Concerns
Posted on 1/31/14 by Evan Seeman and Dwight Merriam
A group of citizens in Murfreesboro, Tennessee have filed a petition for certiorari with the United States Supreme Court challenging the 2013 ruling by the Tennessee Court of Appeals that the Rutherford County Planning Commission did not violate Tennessee’s Open Meetings Act before approving May 2010 plans for the Islamic Center of Murfreesboro to construct a mega-mosque. For a detailed history of this case, read our 2012 post here.
While we still need to digest the petition for certiorari before reporting back, we leave you with the petitioners’ preface to the questions on which they seek the Supreme Court’s review:
Periodic warning from the U.S. Department of Homeland security of locally generated terrorist attacks compel a review by this Court to resolve due process issues raising conflicts between the Religious Land Use And Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”), and the public right to open government affirmed by the State Meetings Act. This case presents that conflict in a case acknowledged at all levels to be of great public interest, where there is a risk of terrorism officially and publicly identified in a prosecution by the U.S. Justice Department. On May 29, 2013, the Tennessee Court of Appeals issued its Order, challenged herein, reversing the June 1, 2012 Order of the Tennessee Chancery Court (“Chancery Order”) declaring that the approval by the Respondents of a site plan for the Islamic Center of Murfreesboro (“ICM”) void for failure of adequate notice under the “Open Meetings Act of 1974” . . . .
The petitioners ask that the Supreme Court consider the following questions, among others:
Whether An Islamic Center Is Entitled To Protection By RLUIPA When They Officially And Publicly Promote, Sponsor and Condone Illegal Behavior Or Terrorists And Their Teachings And Activities?
Whether Notice Of A Proposed Meeting Agenda Of Pervasive Public Importance Required By The Chancery Order Is An “Equally Applied” Exception Or A “Substantial Burden” Prohibited By RLUIPA?
While we express no opinion as to the petitioners’ allegations that the ICM is engaged in illegal behavior or promotes or sponsors terrorists, this case is sure to spark even greater controversy than it has already. We will report back on this case once we fully analyze the petition.
In the meantime, the petition can be accessed here.
President Obama Celebrates National Religious Freedom Day
Posted on 1/17/14 by Evan Seeman and Dwight Merriam
President Obama celebrated National Religious Freedom Day (January 16, if any of you missed it) by issuing a proclamation to commemorate the Virginia Statute for Religious Freedom, which was adopted by the state’s General Assembly in 1786, and which became the basis for the Establishment Clause. President Obama stated in part:
Today, America embraces people of all faiths and of no faith. We are Christians and Jews, Muslims and Hindus, Buddhists and Sikhs, atheists and agnostics. Our religious diversity enriches our cultural fabric and reminds us that what binds us as one is not the tenets of our faiths, the colors of our skin, or the origins of our names. What makes us American is our adherence to shared ideals -- freedom, equality, justice, and our right as a people to set our own course.
America proudly stands with people of every nation who seek to think, believe, and practice their faiths as they choose. In the years to come, my Administration will remain committed to promoting religious freedom, both at home and across the globe. We urge every country to recognize religious freedom as both a universal right and a key to a stable, prosperous, and peaceful future.
It is noteworthy that President Obama recognized atheists in his proclamation. Does the freedom to exercise one’s religious beliefs freely extend to atheists and their (non)beliefs? After you think about that question, read, our previous post in which we posed the same question. The complete text of President Obama’s proclamation is available here.
Joining in the celebration were Melissa Rogers, Special Assistant to the President and Executive Director of the White House Office of Faith-based and Neighborhood Partnerships, and Eric Treene, Special Counsel for Religious Discrimination at the Department of Justice. They authored the following blog post paying homage to RLUIPA’s effect on protecting religious freedom:
Today is Religious Freedom Day, marking the anniversary of the passage of Thomas Jefferson’s Virginia Statute for Religious Freedom, which ultimately provided the inspiration and framework of the First Amendment’s religion clauses. In his Religious Freedom Day Proclamation President Obama calls on us to “celebrate America’s legacy of religious liberty” and “resolve once more to advance religious freedom in our time.”
One way that the federal government seeks to ensure that these principles are put into practice is through enforcement of the Religious Land Use and Institutionalized Persons Act (RLUIPA). Passed by unanimous consent in 2000 with the support of a religiously and ideologically diverse coalition of groups, RLUIPA seeks to ensure religious freedom in two important areas: the ability of religious communities to build places of worship and other religious institutions, and the ability of prisoners and other persons confined to institutions to continue to practice their faiths.
Prior to RLUIPA, Congress had found widespread discrimination against places of worship in local zoning decisions: discrimination against minority faiths, against Christian churches with members from racial minorities, and against smaller and newer churches. Congress also found that places of worship as a category faced discrimination, excluded from zones where nonreligious places of assembly, like fraternal organizations, theaters, and community centers were permitted.
As Senator Orrin Hatch and the late Senator Edward Kennedy, RLUIPA’s Senate sponsors, noted: “The right to assemble for worship is at the very core of the free exercise of religion. Churches and synagogues cannot function without a physical space adequate to their needs and consistent with their theological requirements.” Congress thus passed RLUIPA, which prevents discrimination against religious institutions in zoning and landmarking decisions, and also prevents application of these laws in ways that imposes a “substantial burden” on religious exercise without a compelling government reason. Suits may be brought by the affected religious institutions or individuals, as well as by the Department of Justice.
A Department of Justice report on the 10th anniversary of RLUIPA found that the law had a “dramatic impact in its first ten years on protecting the religious freedom of and preventing religious discrimination against individuals and institutions seeking to exercise their religions through construction, expansion, and use of property.” The report noted that these cases represented a wide range of religious groups, including Christians, Jews, Muslims, Sikhs, people who practice Native American traditional religions, and many others, and arose in a wide range of settings, including churches, synagogues, mosques and other places of worship, religious schools, prayer meetings in homes, and faith-based social services such as homeless shelters, group homes, and soup kitchens.
RLUIPA’s land use protections continue to protect a wide range of religious institutions. Recent cases include helping a small independent church in Mississippi and a large Hispanic Southern Baptist Church in Arizona to locate in downtown areas on an equal basis with nonreligious assemblies; winning a consent decree to permit a Buddhist congregation in Walnut, California to construct a temple; helping win the right for a small Hasidic Jewish congregation to locate in a residential neighborhood in Los Angeles; and obtaining a consent decree allowing an Islamic Center in Lomita, California, to replace its aging and inadequate complex with a single mosque building.
RLUIPA also protects the religious freedom rights of persons confined to prisons, jails, mental institutions and state-run nursing homes. While security and other unique needs of such institutions will mean that people in them do not have all the freedoms they have outside of them, Senators Hatch and Kennedy noted that “some institutions restrict religious liberty in egregious and unnecessary ways” and that “prison officials sometimes impose frivolous or arbitrary rules” such as denying matzo bread to Jews at Passover or refusing to allow prisoners to wear small crosses that did not pose security risks. In December 2013, the Department of Justice won a Preliminary Injunction against the State of Florida requiring it to offer Kosher meals to prisoners whose faith requires them, and the Department recently reached a consent decree with a county jail in South Carolina to allow prisoners to obtain religious texts, secondary religious materials, and religious items used in worship.
The values embodied in RLUIPA are universal ideals. Department of Justice attorneys have provided technical assistance on issues involving construction of places of worship to government officials in Spain, Indonesia, Bosnia-Herzegovina, and other countries wrestling with these same issues. In 2012, the Islamic Center of Murfreesboro, Tennessee won the right to move into its new mosque with the help of a RLUIPA suit brought by the Department of Justice. On the day of the court decision, the mosque’s Imam, Sheikh Ossama Bahloul, remarked that America’s dedication to religious freedom can serve as a model for others around the world, and added: “I think this is an opportunity for us all to celebrate the freedom and liberty that, in fact, exist in America and to teach our young people to believe even more in the U.S. Constitution.”
Ms. Rogers’ and Mr. Treene’s blog post can be accessed here.
New Jersey Town Amends Zoning Ordinance In Wake Of Court’s Ruling That Ordinance Violates RLUIPA
Posted on 1/13/14 by Evan Seeman and Dwight Merriam
We previously reported on the case Chai Center for Living Judaism, Inc. v. The Zoning Board of Adjustment for the Township of Millburn, No. ESX-L-9244-11 (New Jersey Superior Court 2013), in which the court found that certain of the Township’s zoning ordinances violated RLUIPA’s equal terms provision (click here to read the previous post). In particular, the court found that Millburn’s Zoning Ordinance treats houses of worship unequally as compared to private and public schools, both “conditional uses” in the residential zoning district. Although the Zoning Ordinance required that houses of worship be located on lot areas of at least three acres with one parking space for every three seats in the house of worship, it permitted private and public schools on lot areas of only two acres and imposed no minimum parking requirements. Chai Center sought zoning approval from the Zoning Board of Adjustment to construct a synagogue on 1.8 acres, but was denied on the ground that the 1.8 acres was too small for the proposed synagogue.
At the December 17, 2013 Township Committee meeting, an amendment to the Zoning Ordinance was passed to bring area requirements in line for educational and religious buildings. The amended ordinance also raises the minimum area required for a public or private school to 3 acres, the same amount of acreage as is required for houses of worship. In addition, the proposed ordinance would change the parking requirements as follows:
- Houses of worship must have one parking space for every three seats within the sanctuary or worship hall or five spaces per 1,000 square feet of gross floor area, whichever is greater
- Public and private schools must have two parking spaces per classroom for grades k-8 and three spaces per classroom for grades 9-12
- Places of assembly must have one parking space per three seats or five spaces per 1,000 square feet of gross floor area, whichever is greater.
The amended ordinance also imposes the same buffer and setback requirements for houses of worship as it does for public and private schools. The full text of the amended ordinance can be accessed here.
Attorneys representing Chai Center, however, have stated that the amended ordinance violates RLUIPA’s exclusions and limitations provisions:
“Our planners [sic] testimony before the zoning board was clear, there really aren’t any available 3-acre parcels in the residential zone that also allow for all of the other conditions the proposed ordinance requires. By including conditions in the proposed ordinance that no new house of worship will be able to comply with, the township has gone from Judge Lombardi’s ruling that the old ordinance violated the equal terms provision of RLUIPA to proposing a new ordinance that clearly violates the exclusions and limitations provisions of RLUIPA. It appears to us that the Township has simply replaced one violation of federal law with another.”
RLUIPA’s exclusions and limitations provision is: “No government shall impose or implement a land use regulation that – (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.” 42 U.S.C. § 2000cc-(b)(3)(A), (B). To learn more about this provision, see the recent decision by the United States Court of Appeals for the Seventh Circuit in Eagle Cove Camp & Conference v. Town of Woodboro, No. 13-1274 (7th Cir. 2013) available here and our post about the case.
Federal Court Approves Settlement of RLUIPA Suit Involving Church Using Hallucinogenic Amazonian Tea in Santa Fe, New Mexico
Posted on 1/7/14 by Evan Seeman and Dwight Merriam
A little over a year ago, we reported on the case involving the O Centro Espirita Beneficente Uniao do Vegetal Church (UDV), which sought to build an 11,000 square foot temple on 2.5 acres of land (click here and here to read the posts). In accordance with its religious beliefs, the UDV drinks Amazonian tea that causes those who drink it to hallucinate. The Board of County Commissioners of Santa Fe County denied the application in part out of fear that the hallucinogenic tea would survive passage through septic tanks and contaminate the local water supply. Neighbors also opposed the application, citing as concerns public health, safety, and the UDV members’ use of the hallucinogenic tea. In response, UDV sued the County, claiming that its denial of the temple proposal violated its rights as protected by RLUIPA.
On November 13, 2012, the UDV and the County reached a settlement agreement to resolve the lawsuit. According to the County’s press release:
"Under the settlement UDV will dismiss its pending lawsuit against [the County] and waive any claims for damages. The order previously denying the application will be withdrawn and an order approving the application will be prepared for approval by the Board in a subsequent meeting. The settlement provides a number of measures to address the concerns of residents in relation to the construction of the proposed Temple. Among them are the following: (i) the County will provide water supply for the proposed Temple from the County utility; (ii) the County will provide an advanced sewage waste treatment; (iii) the UDV will conduct all of its services inside the proposed Temple and will limit activities as described in a document attached to the settlement agreement; (iv) the UDV will construct a wall to shield the neighbors from sounds and activities at the proposed Temple (including the sounds of automobiles and automobile lights)."
The water line and sewage treatment system that the County agreed to purchase for the temple would cost it $400,000. In addition, the County agreed to pay UDV an undisclosed amount of attorneys’ fees. To read the settlement approved by the County in public session, click here.
Several neighbors opposed to the temple sued the County about a month after it voted in public session to settle the lawsuit, objecting to the County spending $400,000 on the ground that it would be in violation of New Mexico’s anti-donation clause, as well as the U.S. Constitution’s separation of church and state protection. They also contend that approving the project would violate the County’s land use code.
On December 5, 2013, approximately one year after UDV and the County agreed to settle the case, the federal court accepted the agreement over the objections of neighbors. The neighbors filed an opposition to the entry of the settlement agreement, but the court found that because they had not sought to intervene in the case, and thus were not parties, it was not obligated to consider their objection. The court also denied the neighbors’ motion to consolidate the two cases. As part of the settlement entered by the court, the County must pay UDV $750,000 in attorneys’ fees, on top of the $400,000 it has already agreed to pay. To read the court’s order accepting the settlement, click here.
This case illustrates how expensive it may be for municipalities to settle RLUIPA litigation, which may be the better alternative to vigorously defending a claim when the outcome is uncertain and the potentially reimbursable plaintiff’s attorneys’ fees continue to mount. It is not clear how this settlement will affect the neighbors’ pending lawsuit or when construction of the temple will begin, but we’ll keep an eye out and report back. Please note the court’s point that the neighbors had not attempted to intervene.
Harvest Covenant Church Settles RLUIPA Suit Against City of Milwaukee
Posted on 1/2/14 by Evan Seeman and Dwight Merriam
After more than a year of litigation, Harvest Covenant Church (“Harvest”) and the City of Milwaukee, Wisconsin (“City”) have settled Harvest’s lawsuit alleging that the City’s zoning code and its actions in denying Harvest a special permit to operate a church violated federal and state law. It all started in October 2009 when Harvest’s pastor applied for a special use permit to operate a church on property that it was already using as a child development center serving up to 49 children between the ages of four and twelve. The property is located in the City’s Local Business District. The City’s comprehensive plan provides that the City “strongly discourages non-contributing or incompatible uses in former storefronts, i.e. uses that do not support the commercial focus of the business district or commercial corridor. For example: social service providers, storefront churches, etc.” (emphasis added).
After a series of hearings on Harvest’s special use permit application, the City’s zoning board denied the application on June 17, 2010. As grounds for the denial, the zoning board found the following:
The West Side Comprehensive plan strongly discourages non-contributing or incompatible uses in former storefronts such as storefront churches or commercial corridor. The plan also discourages location of tax-exempt or noncommercial uses in buildings previously occupied by taxable or commercial uses. DCD therefore finds that the request to add a religious assembly hall to the premises is not consistent with the comprehensive plan.
The same evening that it denied Harvest’s application, the zoning board approved four special use permit applications of other churches.
In June 2012, Harvest sued the City, claiming that it was in violation of RLUIPA, the federal and state constitutions, and state law. Harvest alleged that the City’s zoning code violated RLUIPA’s equal terms provision on its face by treating churches on less than equal terms with other secular assemblies. While the zoning code requires that churches in the Local Business District obtain a special use permit to locate there, it permits as-of-right such uses as theaters, cultural institutions, monasteries, convents, rectories, colleges, libraries, parks and playgrounds, day care centers, and indoor recreational facilities. Further, the zoning code requires one parking space for every six seats in the assembly hall of religious assemblies while having no parking requirement for schools, colleges, specialty or personal instruction schools, libraries or cultural institutions (click here to read our previous post about a New Jersey Superior Court that found a similar provision in the Millburn Township’s zoning code to violate RLUIPA's equal terms provision).
In support of its equal terms facial challenge, Harvest relied on the Seventh Circuit’s decision in River of Life Kingdom Ministries v. Vill. of Hazel Crest, 611 F.3d 367 (7th Cir. 2010), in which Judge Posner found that to constitute a valid comparator in an equal terms facial challenge, the secular use must be similarly situated to the religious assembly with regard to “accepted zoning criteria.” Judge Posner added that “should a municipality create what it purports to be a pure commercial district and then allow other uses, a church would have an easy victory if the municipality kept it out.” (emphasis added).
Additionally, Harvest alleged that the City violated RLUIPA’s nondiscrimination provision, which provides that “[n]o government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.” Harvest asserted that the zoning code violated this provision on its face because the code “discriminates on the basis of religious denomination as it requires religious assemblies of certain denominations or faith expressions to obtain special use permits to locate in LB2 districts but allows convents, rectories and monasteries to locate in LB2 districts as a matter of right.” It also brought an as-applied challenge under this provision, contending that the City discriminated against it on the basis of religion because it denied Harvest its special use permit while granting such permits to four other churches the same evening, and allowing three other churches to operate within close proximity of Harvest’s desired location.
Harvest also claimed that the denial of its special use permit substantially burdened its free exercise of religion under RLUIPA, as applied, because it was relegated to conducting worship services in leased space not capable of adequately accommodating its religious needs. The Seventh Circuit in Vision Church v. Vill. of Long Grove, 468 F.3d 975 (7th Cir. 2006), provides that “a land use regulation imposes a ‘substantial burden’ on religious exercise if it ‘necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise – including the use of real property for the purpose thereof within the regulated jurisdiction generally – effectively impracticable.’” Id. at 997 (citation omitted).
It also brought a facial challenge against the City’s zoning code, claiming that it substantially burdened its free exercise of religion because
[F]orcing Harvest to go through the discretionary and arbitrary special use permit application process and have to wait an unspecified amount of time to learn whether the permit application would be approved or denied by a discretionary board of decision makers, the Defendant precludes Harvest and its members from preaching the Gospel of Jesus the Messiah, worshipping, ministering to others, and sharing their faith with others at the subject property, and thereby substantially burdens their sincerely held religious beliefs.
It added that the zoning code and the City’s actions have “caused Harvest delay in securing a worship space, rental expenses at the alternate location and for the unusable worship space at the Church Property, and have caused uncertainty as to whether or not Harvest will purchase the Church Property at the end of the lease period.” While courts have generally not been receptive to claims that requiring religious institutions to go through the zoning process constitutes a substantial burden, the Seventh Circuit, in Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005), found a substantial burden based in part on delay, uncertainty, and expense in having to continue to file zoning applications with the city. Id. at 901. Although that case appears to have involved only an as-applied challenge, it is unclear what effect, if any, it would have on a facial challenge. To read the rest of Harvest’s allegations, check out its Complaint.
In November 2013, the Federal District Court for the Eastern District of Wisconsin entered a settlement agreed to by the parties in Harvest Covenant Church v. City of Milwaukee, Docket No. 12-C-0549 (E.D. Wisconsin). As part of the agreement, Harvest will be permitted to operate a church and will receive $191,000.00 consisting of damages and attorneys’ fees. The settlement agreement is available here.
It is unclear whether the City will amend its zoning code in response to Harvest’s allegations that the code violates RLUIPA on its face, but we will keep an eye on the situation. To read more about this case, click here.