Original Photography by Kevin Dooley (Some Rights Reserved)
Original Photography by Kevin Dooley (Some Rights Reserved)

The U.S. District Court for the Eastern District of Michigan, approximately two weeks after it denied Livingston Christian Schools’ (“LCS” or “School”) request for a temporary restraining order (“TRO”), has issued a written decision that explains why Genoa Charter Township, Michigan’s (“Township”) denial of a permit that would allow LCS to operate a private school is unlikely to substantially burden its religious exercise.  As we reported previously, LCS had entered into a lease with Brighton Church of the Nazarene to use the Church’s property as a religious school.

LCS claims that the building it had used for the past nine years is not large enough for its current needs. Denial of the Church’s application, according to the School, has substantially burdened its religious exercise, as well as the religious exercise of its students.  Five days after commencing suit, the School filed an emergency motion for a TRO to allow it to use the leased property to begin the new school year. But after filing its emergency motion, the School found another location and entered into a short-term lease.

On August 31, the Court denied the School’s emergency motion without a written decision. On September 15, the Court issued a written decision, primarily detailing why LCS is unlikely to prove it was substantially burdened.

First, the court concluded that LCS does have standing to challenge the denial of the Church’s special use permit. Although LCS was not the applicant, the “denial of the church’s amended special use permit directly impacts LCS’s ability to operate its school at the location it desires.”

Next, the court considered the merits of LCS’s RLUIPA claim and whether it had a strong likelihood of success in showing the permit denial caused a substantial burden. The court relied heavily on the reasoning provided in Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x 729 (6th Cir. 2007):

Applying the substantial burden standard articulated in Living Water, LCS is required to show that, “though the government action may make religious exercise more expensive or difficult, . . . the government action place[s] substantial pressure on [it] to violate its religious beliefs or effectively bar[s] [it] from using its property in the exercise of its religion[.]” …. At this juncture, LCS has not made a strong showing of a substantial burden. LCS can still operate its school at the Pinckney location, and, more recently, has found a second location where it plans to operate for the 2015-16 school year.

Further, when “it may be less convenient or more expensive for LCS to operate its school from a different location, Living Water instructs that this does not equal a substantial burden on LCS’s ability to freely exercise its religious tenets.”  Since LCS had “ready alternatives” to operate its religious school, the Township’s denials is unlikely to burden its religious exercise.

Will the recent decision encourage the parties to seek an out of court settlement?  Prior to the written decision, LCS firmly stated that it continued to incur damages in the form of rental payments and had experienced “significant de-enrollment” that has caused a loss in tuition: expenses, plus attorneys’ fees, it seeks to recover in this case.

The Court’s decision in Livingston Christian Schools v. Genoa Charter Township (E.D. MI 2015) is available 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.