In June 2014, Plaintiff Hope Rising Community Church sought to establish a place of worship in Penn Hills, Pennsylvania.  According to its complaint, Pastor Harry Hoff met with Penn Hill’s planning and code enforcement officials, discussed Hope Rising’s plan to locate at a warehouse in a non-residential zone, and was told Penn Hills had no objection to that use.  After meeting with municipal officials, Hope Rising entered a three year lease and spent over $7,000 on renovations plus approximately $10,000 in donated material and equipment.  In September 2014, the municipality, after inspection, issued Hope Rising an occupancy permit.IMG_20150821_070935520_HDR

In January 2015, Penn Hills ordered that Hope Rising cease holding assembly services at the warehouse property.  On March 9, Hope Rising applied for a variance but was denied after the Zoning Hearing Board, according to Hope Rising, “improperly inferr[ed] that the Church misled the City as to the use of the building….”  Currently, Hope Rising is allowed to use the property for clothing distribution, a food bank, small meetings for church volunteers, and individual counseling.  But it is still prohibited from conducting religious worship services at the property.

Hope Rising claims that since March 2015, it has been forced to meet in inadequate locations, significantly reducing attendance for religious services.  Given Penn Hill’s enforcement notice and variance denial, Hope Rising claims it is substantially burdened in violation of RLUIPA.  Hope Rising also pleads a facial RLUIPA Equal Terms violation. According to the complaint, churches and religious assemblies are allowed only as conditional uses within residential districts.  Other non-religious assemblies and institutions such as lodges, clubs, meeting halls, educational institutions, planned industrial developments, parks and playgrounds are allowed by right in other zones within Penn Hills.

In a third RLUIPA claim, Hope Rising alleges a violation of RLUIPA’s Unreasonable Limitations provision.  Additionally, Hope Rising claims a violation of  Equal Protection under the U.S. Constitution and a violation of the Pennsylvania Religious Freedom Protection Act.

Approximately two weeks after filing its complaint, Hope Rising filed a motion for a preliminary injunction, claiming a high likelihood of success on both its RLUIPA Unreasonable Limitations and Equal Terms claims.  It asserts that RLUIPA’s Unreasonable Limitations provision is violated when a municipal zoning ordinance does not allow places of worship in any zoning district by right.  Further, Hope Rising claims that there is no property available in Penn Hill’s residential zones, the only zones where places of worship are conditionally allowed.

Hope Rising also claims a high likelihood of success on its Equal Terms claim, correctly noting that the Third Circuit uses a strict liability standard for Equal Terms violations—if religious uses are treated unequally, such diversity in treatment cannot be justified by a narrowly tailored, compelling government interest.  (See Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir. 2007)).

Hope Rising’s complaint and brief in support of its motion for a preliinary injunction are available here and here, respectively.

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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.