In The NewsTexas Court Rules Against Homeowners’ Association Seeking To Enjoin Rabbi From Using Home As Synagogue
Posted on 4/14/14 by Evan Seeman and Dwight Merriam
Updating our previous post, a Texas court, in Schneider v. Gothelf, No. 429-04998-2013-00 (Collin Co. TX Dist. Ct.), has ruled against a homeowners’ association which sought a temporary injunction to stop a synagogue, Toras Chaim, from holding services a couple of times a day for 25 worshippers in a single-family residence subject to the association's deed restrictions. The association alleges the synagogue use violates the deed restrictions limiting homes to residential use. David Schneider, an association homeowner, sued his neighbor Rabbi Yaakov Rich, for using a 3,700-square-foot home as an Orthodox synagogue. Mr. Schneider also claims the synagogue use has reduced the value of his property and he wants $50,000 in compensatory damages. The homeowners’ association intervened and moved for a temporary injunction to enjoin the single-family home’s use as a synagogue.
Rabbi Yaakov Rich, represented by the Liberty Institute (the Institute describes itself as: “an influential non-profit law firm, dedicated to defending and restoring religious liberty across America”), has asserted the Religious Land Use and Institutionalized Act (RLUIPA) in defending using his home as a synagogue. Although the court did not consider whether RLUIPA applies to private agreements between private individuals, such as those in a homeowners’ association, the court was not persuaded by the association that the synagogue has changed the character of the neighborhood and denied the motion for a temporary injunction. Reportedly, Toras Chaim had been operating elsewhere in the neighborhood for three years without objection.
The Liberty Institute lawyer representing Toras Chaim says that: "There are tens of thousands of Americans who have prayer meetings and small groups at their homes. We think those rights should be protected for everyone, whether it's a Christian family or a Jewish congregation." The Liberty Institute’s brief in opposition to the association’s motion for a temporary injunction can be accessed here. For local coverage of the story, click here.
U.S. Supreme Court Mulls Petition for Certiorari Involving RLUIPA Land Use Case
Posted on 4/10/14 by Evan Seeman and Dwight Merriam
The United States Supreme Court has never granted certiorari in a Religious Land Use and Institutionalized Persons Act (RLUIPA) case involving land use. But might it now? Eagle Cove Camp & Conference Center, Inc. (Eagle Cove), whose RLUIPA claims were rejected by the Seventh Circuit, requests in its petition for a writ of certiorari that the high court provide clarity regarding the varying interpretations and applications of RLUIPA among the Courts of Appeal.
In our previous post, we discussed Eagle Cove’s RLUIPA claims arising out of its zoning application to operate a year-round Bible camp on 34 acres of land it owned on Squash Lake in Woodboro, Wisconsin. The Seventh Circuit in Eagle Cove Camp & Conference Center, Inc. v. Town of Woodboro (7th Cir. 2013), rejected Eagle Cove’s claims that the County of Oneida and the Town of Woodboro violated RLUIPA’s substantial burden, equal-terms, and total exclusion provisions in denying Eagle Cove’s application. Now, Eagle Cove is requesting that the Supreme Court review the Seventh Circuit’s decision both (1) because it erred in concluding there were no RLUIPA violations and (2) to resolve the conflict among the Courts of Appeal for this and apply RLUIPA in the land use context.
Eagle Cove challenges the Seventh Circuit’s decision that the denial of its application did not substantially burden its religious exercise because it could operate the camp elsewhere. Although the Seventh Circuit found that Eagle Cove’s religion requires it to operate the year-round Bible camp on the subject property, the court concluded that because Eagle Cove could operate the camp elsewhere its religious practice was not substantially burdened by the zoning denial. Eagle Cove points out the apparent inconsistency in the Seventh Circuit’s decision:
The Court of Appeals also held that no substantial burden within the meaning of [RLUIPA] upon Petitioners’ religious exercise arose because the Petitioners “had the opportunity to seek out other properties on which to build their camp” elsewhere in the County other than the Town of Woodboro “but chose not to do so.” As noted above, the court acknowledged that forgoing the conversion of their own property to religious use in favor of such a search for other properties elsewhere in the County would have been contrary to their religious beliefs.
It also notes the split among the Courts of Appeal in their interpretation of what constitutes a substantial burden on religious exercise under RLUIPA. At one end of the spectrum is the Seventh Circuit, which considers whether the alleged offensive conduct has rendered the religious institution’s religious practice “effectively impracticable.” Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003). On the other end of the spectrum, the Second Circuit has found a substantial burden on religious exercise where the land use agency rejected a land use application on arbitrary grounds, which “coerced” the religious institution to modify its religious practice. Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2d Cir. 2007).
It next asserts that the Seventh Circuit, in analyzing its equal-terms facial challenge, “adopted an extremely narrow view that the only non-religious ‘assembly or institution’ to be compared with the religious assembly or institution at issue is the ‘most comparable,’ in this case secular recreation camps.” Further, Eagle Cove notes the split among the Courts of Appeal in their varying approaches to determine secular comparators under equal-terms challenges. For example, the Eleventh Circuit has adopted an expansive approach to determine comparators in which it considers whether a specific use constitutes an “assembly” use as that term is understood in its “natural and ordinary” meaning, Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004), whereas the Third and Ninth Circuits look to the specific use in light of its “regulatory purpose” or “accepted zoning criteria,” respectively. Lighthouse Institute for Evangelism v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007); Centro Familiar Cristiano Buenas Neuvas v. City of Yuma, 651 F.3d 1163 (9th Cir. 2011). Even though the Seventh Circuit, in River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367 (7th Cir. 2010), established a variant of the Third Circuit’s test in which it examines the “[objective] zoning criteria rather than the purpose behind the land use regulation,” the court in Eagle Cove instead looked for the “most comparable” secular use and disregarded other permitted secular uses.
Finally, Eagle Cove argues that the Supreme Court should review the Seventh Circuit’s interpretation of RLUIPA’s total exclusion provision. The Town of Woodboro ceded zoning authority to the County of Oneida, but retained certain local powers, including the ability to advise the County as to zoning matters. In rejecting Eagle Cove’s total exclusion claim, the Seventh Circuit considered whether there were other locations for Eagle Cove to operate its camp in Oneida County rather than the Town of Woodboro. In its petition for a writ of certiorari, Eagle Cove cautions that this finding could establish dangerous precedent:
The holding of the Court of Appeals is that RLUIPA’s total exclusion provision is not transgressed if the County totally excludes all religious assembly uses from all but one of the nineteen towns lying within the County and permits only one type of religious assembly use (e.g., assembly at a religious shrine) in the twentieth town. The District Court, whose “total exclusion” interpretation the Court of Appeals fully adopted, admitted this result would pertain from its interpretation of the statute. Under this reasoning, a state government exercising direct zoning authority over its entire jurisdiction could totally exclude all religious assembly uses from the entire state except for just one subordinate jurisdiction, allow just one type of religious assembly use (e.g., assembly at religious shrines) in that one subordinate jurisdiction, and yet be found not to have transgressed RLUIPA’s “total exclusion” provision, even though houses of worship and religious educational institutions were banned from the entire state.
This raises the issue of the interpretation of the term “jurisdiction” under the total exclusion provision, which provides: “No government shall impose or implement a land use regulation that – (A) totally excludes religious assemblies from a jurisdiction . . . .”
Eagle Cove’s petition outlines clearly the inconsistencies among the Courts of Appeal in their interpretation of RLUIPA. These varying approaches may cause confusion for all interested parties, particularly in circuits where the law is less developed than others. At some point, the Supreme Court may have to weigh-in to provide clarity. Whether it will do so in the context of Eagle Cove’s case remains unclear.
Eagle Cove’s petition can be accessed here. The County of Oneida and Town of Woodboro have filed waivers indicating that they will not file briefs in opposition to the petition.
Second Circuit: New York City Board of Education Can Refuse to Allow Religious Worship Services in School Facility After School Hours
Posted on 4/5/14 by Evan Seeman and Dwight Merriam
In a potentially significant decision, the U.S. Court of Appeals for the Second Circuit, in The Bronx Household of Faith v. Board of Education of The City of New York, No. 12-2730-cv (2d Cir. 2014), has ruled that the Board of Education of The City of New York (“Board”) did not violate the Free Exercise and Establishment Clauses of the First Amendment when it permitted certain groups to use school facilities outside school hours, but would not allow religious worship services.
The Second Circuit, in reversing the District Court, rejected the Bronx Household congregation’s argument that the Board’s policy violated the Free Exercise clause because the congregation could not afford to gather as a full congregation at any other location without having to curtail other religious practices:
In the District Court’s view, because Bronx Household and its congregants have a constitutional right to worship as they choose without interference from government, and cannot afford to pay for a large enough site to accommodate the entire congregation, the Free Exercise Clause obligates the Board to provide them with a subsidized facility in which to exercise the right. The Free Exercise Clause, however, has never been understood to require government to finance a subject’s exercise of religion.
In addition, the Second Circuit clarified that strict scrutiny review was not appropriate in this case because the Board’s purpose in prohibiting religious worship services is to avoid the perception that it has endorsed one religion over another:
[The Board was] motivated by the government entity’s reasonable interest in complying with the Establishment Clause. . . . [R]ules and policies designed to keep a governmental entity in conformity with its obligations under the Religion clauses must of necessity focus on religious subject matter. If the focus is not religious, the Religion Clauses have no application. Such focus on religion is neither an invidious discrimination nor constitutionally suspect. To the contrary, it is inevitable.
The Second Circuit observes, however, that it does “not mean to imply that merely by claiming the motivation of observing interests favored by the Establishment Clause a governmental entity gets a free pass, avoiding all scrutiny.” Rather, the court “recognize[s] that a school authority’s prohibition of a religious practice, even if explained as an attempt to comply with constitutional responsibilities, can in some circumstances represent a suspect discrimination of religion, which violates one or both Religion Clauses.”
Judge Walker dissented from the majority opinion, concluding that the Board policy “violates the Free Exercise Clause because it plainly discriminates against religious belief and cannot be justified by a compelling government interest.” He opines that the policy is neither neutral nor generally applicable, as it burdens and targets only religious conduct. Further, in Judge Walker’s view, “forcing the Bronx Household to relocate or suspend its services sufficiently burdens the free exercise of religion. . . .” For these reasons, he concludes that strict scrutiny review must apply, and believes that “the Board’s interest in enforcing [the policy] to avoid an Establishment Clause violation is not compelling because it does not violate the Establishment Clause to allow Bronx Household to worship in public school facilities made broadly available to the public on neutral terms.”
Reportedly, a petition for a writ of certiorari to the United States Supreme Court may be in store.
City Council Members in Des Plaines, Illinois Immune from Islamic Organization’s Religious Discrimination Claims
Posted on 3/31/14 by Evan Seeman and Dwight Merriam
In an important decision for municipal officials across the country, the United States District Court for the Northern District of Illinois, in American Islamic Center v. City of Des Plaines, No. 13-C-6594 (N.D. Ill. 2014), ruled that city council members alleged to have discriminated against an Islamic organization in its application to rezone certain property are entitled to absolute legislative immunity.
The American Islamic Center (AIC) provides religious and educational services to Muslims throughout the Chicago metropolitan area. The AIC, which had been looking for a permanent facility to conduct these activities since 2011, contracted to buy certain property in Des Plaines, Illinois in a manufacturing zoning district to conduct these activities in February 2013. The contract to purchase the property was conditioned on it being rezoned to an industrial zoning district where religious and educational activities are permitted. In June 2013, the Des Plaines Plan Commission conducted a public hearing at which it found that rezoning the property would neither significantly harm traffic and parking patterns nor require the expansion of public facilities. It recommended that the Des Plaines City Council adopt the proposed amendment. In July 2013, however, the City Council denied the proposed amendment by a vote of 5 to 3.
The AIC sued the City of Des Plaines and the five members of the City Council in their individual capacities who voted against the rezoning request. The AIC sued under RLUIPA, the United States Constitution, and state law. The only claims brought against the City Council members were violations of the free exercise of religion and the equal protection clause, under the First and Fourteenth Amendments to the U.S. Constitution.
The District Court found in favor of the City Council members in their motion to dismiss the claims brought against them because they were entitled to absolute legislative immunity. The AIC argued that the City Council members’ actions were administrative or executive in nature and not entitled to immunity, as opposed to legislative acts taken in their legislative capacity which are entitled to immunity. In concluding that the City Council members were acting legislatively, thus entitling the members to absolute legislative immunity, the District Court observed:
There is no question that the denial of the proposed zoning amendment had its most direct and immediate impact on AIC. But the impact of the denial was not limited to AIC. It also affected the property’s owner, who lost the opportunity to sell the property to AIC. In addition, the property that AIC wished to buy will remain zoned for manufacturing activity regardless of who comes to own it, unless and until the city council’s actions are properly characterized as legislative, not executive or administrative. When the council denied the zoning amendment and passed the later resolution rejecting the amendment, it was engaging in legislative acts.
Although the court in this instance found that the local officials were entitled to absolute immunity because they were acting in their legislative capacity, what is “legislative,” “administrative,” or “quasi-judicial” may not always be obvious and varies among the states. In view of the Des Plaines decision, local government lawyers may wish to review the classification of decision-making and its impact on immunity, and then spend some time briefing local decision-makers.
City’s Prohibition of Donation Bins Prompts Constitutional Lawsuit
Posted on 3/18/14 by Evan Seeman and Dwight Merriam
The City of St. Johns, Michigan is facing a lawsuit – Planet Aid v. City of St. Johns, Michigan, Docket No. 1:14-cv-00149 (W.D. Mich. 2014) – as a result of an amendment to its zoning ordinance to prohibit donation bins throughout the City. The City justifies its actions on the ground that several “for-profit companies” were operating donation bins in the City without first obtaining permission to do so. The Ordinance states that its purpose is to prevent blight, protect property values, avoid nuisances and criminal activity, and ensure the safe and sanitary maintenance of properties in the City.
The City is not being sued by a for-profit corporation; instead, it is being sued by Planet Aid, a non-profit corporation whose mission it is to reduce poverty and aid vulnerable children. Planet Aid seeks to achieve its mission in part by placing donation bins at various sites in Michigan and other states at which it collects clothing, shoes, and textiles. It then sells the donated items and uses the proceeds to fund development programs in impoverished communities in Latin America, Africa, and Asia.
In furtherance of its mission, in December 2012, Planet Aid placed donation bins at two locations in the City. Approximately one month later, the City demanded that the donation bins be removed because they allegedly constituted a “nuisance.” In February 2013, the City removed the bins and refused to allow Planet Aid to challenge its findings through an appeal to an administrative agency. In December 2013, the City discussed a proposed ordinance to prohibit the operation of donation bins within the City. The Ordinance passed on January 27, 2014 and prohibits any organization – for-profit and non-profit – from operating donation bins within the City.
Notably, the Ordinance includes a “grandfather” clause to exempt donations bins that existed prior to its adoption. Because Planet Aid’s donation bins were removed by the City prior to the adoption of the Ordinance, it is unable to take advantage of the “grandfather” clause.
Planet Aid argues that the City’s actions violate both the state and federal constitutions. It alleges that the Ordinance is unconstitutional because it prohibits Planet Aid from receiving charitable donations, an activity protected by the First Amendment to the U.S. Constitution. Charitable organizations that operate permanent structures, such as Salvation Army and Goodwill, are unaffected by the Ordinance and can solicit and accept charitable donations.
Planet Aid seeks a temporary restraining order and preliminary injunction to enjoin the City from prohibiting the operation of donation bins. Argument is scheduled for April 29, 2014.
Although this case does not involve a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the mission of many religious institutions is to provide free food, clothing, and other charitable services to the poor and homeless. Many do so through the use of donation bins such as those outlawed by St. Johns, Michigan. Planet Aid’s lawsuit may serve as an important reminder for municipalities to first consider whether their contemplated actions may be susceptible to RLUIPA and/or constitutional challenges and, second, whether they have a compelling governmental interest to justify such actions. If municipalities fail to fully understand the risks associated with their actions, they may be in for a costly legal battle.
Religious Group Seeking Year-Round Bible Camp Petitions United States Supreme Court to Review Seventh Circuit’s Decision Rejecting RLUIPA Claims
Posted on 3/14/14 by Evan Seeman and Dwight Merriam
We previously reported on the Seventh Circuit’s decision in Eagle Cove Camp & Conference Center v. Town of Woodboro, Wisconsin (7th Cir. 2013) in which plaintiff Eagle Cove sought to construct a year-round Bible camp in a residential zone on Wisconsin’s Squash Lake. The Seventh Circuit found that the Town of Woodboro’s denial of Eagle Cove’s applications did not violate RLUIPA’s total exclusion, substantial burden, unreasonable limitation, and equal terms provisions. Our previous post about the Seventh Circuit’s decision is available here.
On March 10, 2013, Eagle Cove filed a petition for certiorari with the United States Supreme Court seeking review of the Seventh Circuit's decision. We will report back on the substance of the petition for certiorari after we have had a chance to review it. The petition may be accessed here.
As we recently noted, the United States Supreme Court has never considered a RLUIPA case in the land use context, although earlier this month it agreed to review an RLUIPA prisoner case.
United States Supreme Court to Hear RLUIPA Case Involving Prisoner’s Request to Grow Beard in Accordance with Muslim Faith
Posted on 3/13/14 by Evan Seeman and Dwight Merriam
Although not a land use case, a pending prisoner’s RLUIPA claim bears following because it may ultimately shed some light on how the U.S. Supreme Court interprets “compelling interest” and “least restrictive means.”
Gregory Holt a/k/a Abdul Maalik Muhammad is serving a lifetime sentence in Arkansas for burglary and domestic battery. Mr. Holt seeks to grow a beard in accordance with his Muslim faith, but Arkansas prison officials prohibited him from doing so, citing to state policy that allows only trimmed mustaches and ¼ inch beards for inmates with diagnosed dermatologic problems. The purpose of the state policy is to promote “health and hygiene,” to minimize “opportunities for disguise” and to prevent the concealment of contraband.
Mr. Holt is suing under the Religious Land Use and Institutionalized Persons Act, alleging that prohibiting him from growing a beard substantially burdens his religious exercise for which the prison has no compelling interest. Mr. Holt sought to grow a ½ inch beard as a compromise and obtained temporary relief from the District Court to do so. The District Court later concluded, however, that the Arkansas Department of Corrections had a compelling penological interest to uphold its prohibition on beards because (1) it helped prevent inmates from concealing contraband, drugs, or weapons, (2) an inmate who grew a beard could change his appearance by shaving; and (3) affording special privileges to some inmates but not others could cause them to become potential targets.
The United States Court of Appeals for the Eighth Circuit found that the Arkansas Department of Corrections and prison officials “met their burden under RLUIPA of establishing that [the Arkansas Department of Corrections’] grooming policy was the least restrictive means of furthering a compelling penological interest.” The Eighth Circuit’s decision in Holt v. Hobbs (8th Cir. 2013) is available here.
On September 27, 2013, Mr. Holt petitioned the United States Supreme Court for a writ of certiorari to review the decision of the Eighth Circuit. In the petition, Mr. Holt notes other court decisions that have stricken prison policies banning beards. The handwritten petition is available here. The Arkansas Department of Corrections opposed Mr. Holt’s petition by stating that weapons, such as homemade darts, and cellphone SIM cards could be concealed in ½ inch beards. They also stated they did not wish to monitor the lengths of inmates’ beards.
The Supreme Court agreed to consider the case, limited to the following issues:
(1) whether the Arkansas Department of Corrections’ no beard growing policy violates the Religious Land Use and Institutionalized Persons Act (RLUIPA) or the First Amendment; and
(2) whether a ½ inch beard would satisfy the security goals sought by the policy.
Although the Supreme Court has never considered a RLUIPA case in the land use context, Holt v. Hobbs may offer guidance as to the high court’s treatment of the “compelling interest” and “lease restrictive means” components of the substantial burden provision.
New 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.