In what appears to be the largest amount ever paid to settle RLUIPA litigation, the Town of Greenburgh, New York has agreed to pay Fortress Bible Church (“Church”) $6.5 million to resolve its claims that the Town violated RLUIPA.  We reported on this case last year and noted that it was of particular interest in light of the Second Circuit’s finding that in some circumstances environmental review may amount to a zoning action within the reach of RLUIPA, particularly when there is evidence of bad faith on the part of a municipal agency.

The Second Circuit affirmed the decision of the district court, finding that the Town had substantially burdened the Church’s religious exercise in violation of RLUIPA by acting in bad faith and using the SEQRA review process as a way to block the Church’s proposal:

By its terms, however, RLUIPA also applies to ‘the application of’ a zoning law. 42 U.S.C. § 2000cc-5(5). Although SEQRA by itself is not a zoning law, in this case the Town used the SEQRA review process as its vehicle for determining the zoning issues related to the Church’s land use proposal. The fact that these issues were addressed during the SEQRA review process rather than the Town’s normal zoning process does not transform them into environmental quality issues. We therefore conclude that, in these circumstances, the Town’s actions during the review process and its denial of the Church’s proposal constituted an application of its zoning laws sufficient to implicate RLUIPA [because:] (1) the SEQRA review process was triggered because the Church was required to obtain three discretionary land use approvals; (2) the Town intertwined the SEQRA review process with its zoning regulations; (3) when review was underway, the Town focused on zoning issues rather than traditional environmental issues; and (4) holding that RLUIPA is inapplicable to what amounts to zoning actions under statutorily mandated environmental review, such as SEQRA, would allow municipalities to insulate zoning decisions from claims of violations under RLUIPA.

The case all started as a result of the Church’s request to construct a larger religious facility in the Town than it had been operating in Mount Vernon.  The property, which consists of 6.53 acres, would have 125 parking spaces, occupying 1.45 acres.  The proposed church would accommodate 500 people and its religious school would enroll up to 150 students.

Reportedly, the Town’s insurance will cover only $1 million of the $6.5 million it has agreed to pay.  The Town’s citizens will have to fund the balance, paying $1.1 million per year in principal plus interest over a five-year period beginning in 2015.  In light of this case, municipalities may wish to seriously consider offering comprehensive training programs on RLUIPA and other constitutional issues that may arise during the course of an agency’s review of a land use application.

You can read the Second Circuit decision in Fortress Bible Church v. Feiner (2d. Cir 2011), by clicking here.

To read more about this story, click here.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.