In The News‘Tis The Season For Nativity Scenes & Satanic Displays: Happy Holidays from RLUIPA Defense
Posted on 12/22/14 by Karla Chaffee, Dwight Merriam, and Evan Seeman
Ah the holiday season—a time for family, friends and overeating. While most individuals grapple with balancing a love for holiday treats and some modicum of self-control, the Nation is faced with a perennial balancing act: Protecting both the right to religious expression and the separation of church and state. PBS Newshour recently reflected on the “December Dilemma” and how schools can encourage holiday celebration without favoring one set of religious beliefs over others.
The December Dilemma, however, is a predicament that reaches beyond public schools. Virtually any public space decorated for the holiday season must be garbed without crossing the sometimes precarious line between holiday cheer and religious favoritism. Several news stories from across the country this holiday season have all of us at RLUIPA Defense contemplating some of our favorite questions: When does the right to religious expression overstep the rights of others? May a town hall display a Kinara, Menorah, or Manger? Must it display all three? What about winter celebrations outside of the commonly recognized Kwanzaa, Chanukah and Christmas? Will Dwight deck the Hartford-office halls in a Santa costume this year?
Satan needs a home too: Floridians wishing to publically worship Satan this holiday season are now in luck. After a 2013 denial, the state has allowed the Satanic Temple to erect a display of an “Angle in Hellfire” in the state Capitol Rotunda. The display portrays an angel falling from the sky into a fiery pit. The Satanic Temple’s application was denied last year because it was deemed “grossly offensive.”
This year, however, the Temple filed its display application along with a letter from Americans United for the Separation of Church and State (“AUSCS”). According to AUSCS, Florida had opened the capital to private religious displays, and in 2013 allowed the erection of a nativity scene, an atheist-themed message, a “Festivus Pole” and a rendering of the Pastafarian Flying Spaghetti Monster. AUSCS advised the State Department of Management Services that a denial of the Satanic Temple’s display would violate the Temple’s freedom of speech, freedom of religion, and right to equal protection under the law.
According to the “Official Website of The Satanic Temple”:
"The mission of The Satanic Temple is to encourage benevolence and empathy among all people, reject tyrannical authority, advocate practical common sense and justice, and be directed by the human conscience to undertake noble pursuits guided by the individual will. Civic-minded, The Satanic Temple has been involved in a number of good works including taking a stand against the controversial and extremist Westboro Baptist Church, working on behalf of children in public school who have been subject to corporal punishment and more."
This year, Michigan officials received a similar request from the Satanic Temple of Detroit. After the Michigan State Capitol Commission approved a request for a Christian Nativity Display, it also approved the Satanic Temple’s request to erect a holiday display. The display “depicts a snake wrapped around the Satanic cross presenting a book as a holiday gift.” The cross is inscribed, “The greatest gift is knowledge.” A member of the Detroit chapter, Jex Blackmore, explained that “the Satanist display ‘provides some poignant commentary about the diversity of beliefs represented by Michigan citizens.’”
Thomas More versus Satan in Michigan—and Across the Nation? The Thomas More Society (“TMS”)is a “not-for-profit, national public interest law firm dedicated to restoring respect in law for life, family, and religious liberty.” TMS has taken a stand against the Detroit Satanic Temple’s Capital display by planning a nativity scene to rival the Satanic display. Special counsel for TMS and chairman of the Michigan Nativity Scene Committee, recently commented that “[t]he nativity scene at the Michigan State Capitol will demonstrate the true meaning of Christmas in a joyful and hopeful manner…. The Satanic display – by stark contrast – will merely serve to highlight the positive message of Christmas.”
Also this year, TMS has backed a temporary nativity scene in the Illinois Capitol building. According to one news source, TMS has provided legal support for “placing nativity scenes in public places in 21 states, including capitols in Illinois, Florida, Georgia, Missouri, Rhode Island and Texas, and in front of the governor's mansion in Oklahoma.”
Does everyone really love Brookville’s Nativity scene? The Satanic Temple and AUSCS aren’t the only institutions seeking to reduce the prominence of Christian-only holiday displays in the public arena. The American Civil Liberties Union (“ACLU”) of Indiana, on behalf of the Freedom From Religion Foundation and two county residents, filed a lawsuit contending “that the display on the grounds of the Franklin County Courthouse in Brookville, Indiana—a nativity scene that includes no non-Christian religious or secular holiday symbols—violates the Establishment Clause of the First Amendment.”
Local resident, Wayne Monroe, said that he came up with the idea for the nativity scene 50 years ago and “everybody loves it.” An online campaign, established to “Save the Brookville Indiana Courthouse Nativity Scene,” boasts over 10,000 members (although only about 800 people have so far signed a petition in support of the cause).
The complaint in Freedom From Religion Foundation, et al. v. Franklin County, Indiana, 1:14-cv-02047-TWP-DML was filed on Dec. 16, 2014 in the U.S. District Court for the Southern District of Indiana, Indianapolis Division, and is available here. According to a recent report, the ACLU and Franklin County reached a temporary agreement after a preliminary injunction hearing on Friday. The scene will be taken down on December 26, but the litigation will continue after the holiday. ACLU senior staff attorney Gavin Rose commented that “[t]he display has been up for more than 50 years and obviously there’s still a constitutional issue. This just takes the immediacy out of the issue.”
Santa has Rights Too. Sometimes Santa needs to unwind after all the work that goes into delivering toys around the globe. Enter SantaCon, “an annual flash mob of thousands of drunken revelers in red costumes and white beards on a pub crawl across New York City.” Opponents object to the group because “over the years it has grown out of control and left participating neighborhoods in shambles,” with reports of public urination and vomiting of those participating in the pub crawl. For the second year in a row, the Metropolitan Transportation Authority has banned beer, wine, and liquor from its usually alcohol tolerant trains. Last year, police enforced the prohibition at Grand Central Terminal and even boarded trains to issue summonses punishable by $50 fines and 30 days’ jail time. All of this has prompted SantaCon to hire a lawyer, Norman Siegel, former chief counsel for the New York Civil Rights Liberties Union, to protect its right to drink. Attorney Siegel said of SantaCon: “They have a right to express their views, pro-Christmas or anti-Christmas, wear their costumes; the content of their message cannot be censored.” The Daily Show reports on the controversy.
St. Anthony, Minnesota to Pay $200,000 to Settle RLUIPA Suit Brought by Department of Justice
Posted on 12/18/14 by Evan Seeman and Dwight Merriam
Earlier this year, we reported on the lawsuit filed by the U.S. Department of Justice (“DOJ”) against the City of St. Anthony Village, Minnesota (“City”) over the City’s denial of Abu Haraira Islamic Center’s (“Center”) conditional use permit to develop a 15,000 square foot religious and cultural center in the basement of a property located in the light industrial zone (prior post here). Less than four months after the DOJ sued the City under RLUIPA, the parties have settled. The City will allow the Center, whose members are mostly Somali immigrants, to develop its religious and cultural center while paying $200,000 in attorneys’ fees, $50,000 of which will come from the City as a co-pay and deductible, with the League of Minnesota Cities paying the remaining $150,000 from its trust fund. According to the U.S. Attorney’s Office for the District of Minnesota, “[t]he agreement also indicates that elected leaders, managers, and certain City employees will participate in educational training about requirements of RLUIPA. The City of St. Anthony Village will also make RLUIPA information available to the public through its website and will report periodically to the Justice Department.” The City Council will vote on the proposed settlement at its December 23, 2014 meeting.
According to the Complaint in United States of America v. City of St. Anthony Village, Minnesota (D. Minn. 2014), the City’s denial of the conditional use permit substantially burdened the Center’s religious exercise because the Center was left with limited worship site options. In addition, the DOJ claimed that other sites in South Minneapolis could not adequately accommodate the Center’s religious exercise because these locations were too small and would require the members to pray in hallways or entryways. The DOJ also alleged that the City’s zoning code violated RLUIPA’s equal terms provision by treating religious uses worse than secular assembly and institutional uses.
The City’s mayor, Jerry Faust, praised the settlement as a “compromise” and stated, “We welcome the Islamic Center to the City of St. Anthony.” Faust added, “Sometimes, you just need to take a look at it and say, what is best for the community, how do we move forward, how do we commence the healing, and how do we make it better for all parties involved to the best of our ability?” At a conference to announce the settlement, Center Imam Sheikh Ahmed Burale thanked Faust and said, “[W]e want to forgive one another. No hard feelings.” Mayor Faust responded with the same and added, “You will be accepted by this community.”
Daniel P. Dalton, a lawyer who frequently represents religious organizations in RLUIPA actions, called the deal a “reasonable compromise,” but a victory for the Justice Department, and stated the $200,000 payment and training program was “a little heavy-handed.” Municipal officials who want to learn more about RLUIPA, may wish to visit RLUIPA Defense’s Resources Page.
Kennesaw Reverses Course and Approves Mosque
Posted on 12/17/14 by Karla Chaffee and Dwight Merriam
Earlier this month, we reported that Kennesaw, Georgia’s City Council voted 4 to 1 to deny a land use application by Suffa Dawat Center (the “Center”) to establish an Islamic place of worship and education center in a retail shopping plaza. On Monday, Councilmembers Leonard Church, Tim Killingsworth, Jim Sebastian and Debra Williams—all who had previously voted against the mosque—collectively moved for the Council to change its December 1 denial to an approval of the mosque proposal. A summary of the December 15 City Council meeting is available here.
After the denial, the Center’s attorney stated that the initial decision was discriminatory and violated RLUIPA. The City was also ridiculed by some who thought the denial was based on anti-Islam protests instead of sound zoning principles. The City at first responded to the criticism by explaining that it was concerned with traffic issues and preserving retail space. Reportedly, the United States Department of Justice (“DOJ”) was monitoring the mosque proposal and may have considered filing a lawsuit to enforce RLUIPA if the City Council did not reverse itself. RLUIPA expressly provides that “The United States may bring an action for injunctive or declaratory relief to enforce compliance with [the statute].” 42 U.S.C. § 2000cc-2(f). Although the City Attorney denied that the DOJ had threatened to sue, the Center’s lawyers allegedly were keeping the DOJ informed of the situation.
With the December 15th decision, the Center will now be allowed to operate in a 2,200-square-foot shopping center storefront for 24 months without conditions. Although Councilmembers did not comment on their reversal at the meeting, Councilwoman Debra Williams later noted that the decision came down to costs and the threat of an expensive federal lawsuit. Williams also remarked to the Marietta Daily Journal that “RLUIPA trumps.”
Mosque Sues Bensalem Township, Pennsylvania Over Denial
Posted on 12/16/14 by Evan Seeman, Dwight Merriam, and Karla Chaffee
The Bensalem Masjid Inc. (“Masjid”) has sued Bensalem Township, Pennsylvania (“Township”) and the Township’s Zoning Hearing Board (“Board”) for denying approval to construct a mosque. Nine months after the application was submitted and after multiple public hearing sessions, the Township denied the proposed 16,900 square foot place of worship, a 500 square foot conference room, a 4,000 square foot multipurpose room in the basement, and 154 parking spaces.
According to Masjid’s Complaint, Masjid’s 200 families, whose beliefs require them to pray five times a day, currently meet to worship for Friday prayers in a 2,400 square foot rented fire hall. Masjid claims the physical aspects of the fire hall prevent it from fully exercising its religion because (a) Masjid’s religious beliefs require that its members pray in a mosque, not a fire hall; (b) the space does not adequately allow the separation of men and women at prayer services, consistent with mainstream Islam; (c) it is not large enough to provide religious education to all children; (d) members with small children cannot attend prayer services because there is no separate area for infants and younger children; and (e) the building is not oriented toward Mecca and lacks architectural elements important for a mosque, such as a dome and minaret. In addition, “[t]he fire hall lacks the religious, cultural and social experience of a mosque. For example, the fire hall does not have the facilities for the Masjid’s Members to perform wuda, a necessary ritual ablution before services that includes the washing of the feet.”
For six years, Masjid searched for property in the Township to build a mosque to meet its religious needs. The Township, which has a population of approximately 60,000 people, does not have a mosque within its jurisdiction. Religious uses are permitted only in the Institutional zone on a lot with a “net lot area” (defined as the “area contained within the property lines of individual parcels of land, excluding any area within an existing or ultimate legal right-of-way for public streets, and including the area of any easement”) greater than four acres in size and a minimum lot width of no less than 300 feet. There are 35 parcels in the Institutional zone, of which 20 are used by other religious institutions, four are park and recreation areas, five are cemeteries, and six are occupied by schools and institutional residential uses. There is only one undeveloped parcel in the Institutional zone, and that lot is owned by the Township and intended for future use as a recreational complex.
Masjid offered to buy any one of the properties owned and occupied by the other religious institutions in the Township, but no other religious group was willing to sell. Ultimately, Masjid found property comprised of three separate parcels, totaling 4.58 acres, in three separate zones – the Business Professional zone, the R-11 residential zone, and the R-A residential zone. While religious uses are prohibited in these zones, Masjid claims other secular assembly and institutional uses are allowed: (a) the BP zone allows “Business and professional schools,” “College and university,” “Professional services,” and “Business services limited to offices for licensed real estate brokers, stock and bond brokers and accountants;” (b) the R-A zone allows “Municipal building and municipal use,” “Railway passenger station,” “Private educational institution for general educational purposes,” “Convalescent home or sanitarium,” and “Child, adult or senior citizen day center;” and (c) the R-11 zone allows “Municipal building and municipal use” and “Child, adult or senior citizen day care center.”
Masjid currently leases the subject property and has an option to purchase the property upon the granting of a variance or other zoning approval to develop the property as a mosque. On October 24, 2013, Masjid applied to the Township’s Building and Planning Department to use the subject property as a mosque, but the Department denied its application on the ground that the proposed religious use was not a permitted use in three zones. Masjid then applied to the Board for a use variance. After multiple public hearing sessions, the Board voted to deny the application. Masjid alleges that in recent years the Board granted use variances to at least five non-Muslim religious groups and the denial of its proposal was the first time the Board has ever denied a use variance for a religious institution. Reportedly, one member of the Board “stated that he had greater concerns about the Plaintiff’s proposed use because he was not familiar with the uses of a mosque.”
Masjid alleges the Township’s denial of its mosque proposal violates the Religious Land Use and Institutionalized Persons Act’s (RLUIPA) substantial burden, nondiscrimination, unreasonable limitations, and equal terms provisions. It also alleges that the zoning ordinance and variance approval process are prior restraints on expressive religious speech and conduct in violation of the First Amendment to the U.S. Constitution, and violate the Free Exercise Clause, the Equal Protection Clause and state law.
The Complaint in Bensalem Masjid Inc. v. Bensalem Township (E.D. PA 2014) is available here.
Township of Bridgewater, NJ to Pay $7.75 Million to Settle RLUIPA Suit Against Muslim Group
Posted on 12/12/14 by Evan Seeman, Dwight Merriam, and Karla Chaffee
The Township of Bridgewater, New Jersey has agreed to pay nearly $8 million to settle a lawsuit over claims that its denial of Al Falah Center’s proposal to construct a mosque violated the Religious Land Use & Institutionalized Persons Act (RLUIPA). The Center, which sought to use a former hotel on Mountain Top Road as a mosque, has agreed to re-locate to a 15-acre site between Routes 202-206 and Route 287. The Township will pay $2.75 million for the 15-acre site and its insurance carrier will cover $5 million for alleged damages, costs, and attorneys’ fees. The $7.75 million is believed to be the most ever paid to settle a RLUIPA suit.
The lawsuit began in 2010 after the Township denied the Center’s proposal to use the former hotel property as a mosque. The proposal allegedly was met with “anti-Muslim prejudice within the community, including internet postings and e-mail correspondence.” In response to a January 17, 2011 article describing the planned mosque, one reader commented: “Just another place for terrorists to assemble under the guise of freedom of religion.” The Center alleged that after it had submitted its application, the Township quickly enacted a new zoning ordinance (Ordinance 11-03) to thwart its proposal. The new ordinance required that “houses of worship” in residential zones have “principal access on a State Highway or County road,” or certain other major roads. The Township used the new ordinance to deny the mosque proposal, since the Mountain Top Road property, which is in a residential zone, lacks principal access to any of these roads. The Township claimed the new ordinance was meant to protect residential neighborhoods from traffic issues. The Center asserted the ordinance was pretextual and that behind it all was the intent to stop the mosque from being built. The District Court agreed and, in 2013, granted a preliminary injunction after finding the Center was likely to prevail on its claim that the Township’s actions substantially burdened the Muslim group’s religious exercise (court decision available here and prior post here).
The Center’s settlement follows another notable RLUIPA settlement involving a mosque – this past September, the City of Norwalk, Connecticut agreed to pay $2 million to Al Madany Islamic Center of Norwalk for Al Madany to find a new location for a house of worship (prior post here). It also surpasses the $6.5 million paid by the Town of Greenburgh, New York to settle a RLUIPA suit brought by Fortress Bible Church (prior post here).
Municipalities reviewing applications for religious uses may wish to carefully consider whether their actions could subject them to RLUIPA litigation. In many situations, they may have legitimate defenses to such claims while in others they may not. To learn more about these types of claims, municipal officials may wish to read the articles A $6.5 Million Lesson in RLUIPA Defense, published by the Planning & Law Division of the American Planning Association, and One (1) Ounce of RLUIPA Prevention, published by the International Municipal Lawyers Association.
St. Michael, Minnesota’s Cinemagic Theater: Riverside Church’s New Home? No, Says City Council
Posted on 12/11/14 by Karla Chaffee, Dwight Merriam, and Evan Seeman
The City of St. Michael, Minnesota, after several months of negotiations, has denied Riverside Church’s application to modify the City’s General Business Zoning District (“GBD”). The zoning amendment would have allowed Riverside to locate a “satellite campus” to a former, 15-screen Cinemagic Theater located in the GBD with access to Highway 241. Although it is currently unknown whether Riverside will file an action against the City, Riverside’s attorney has stated that denial of the application would violate RLUIPA.
In November, 2014 the City Planning Commission and City Council considered Riverside’s application to allow Assemblies, Religious Institutions and Places of Worship in the GBD by right if the following conditions were met:
- The applicant submitted for site plan review;
- Minimum lot size of three acres;
- Thirty foot side and rear setbacks;
- Located on a collector or minor arterial road;
- “Adequate” on-site parking;
- Screening from Residential uses;
- The use is located in a building “designed for public gatherings;”
- The site is served by sewer and water; and
- No more property is required than is necessary to accommodate the religious use and associated parking.
According to local reports, the City and Riverside had been in discussions regarding the Cinemagic property since April, 2014. On November 19, the City provided Riverside with a Draft Site Plan Agreement that would have allowed Riverside’s proposed place of worship, subject to several conditions, including: that the facility is limited to 1,200 seats; Riverside provide traffic mitigation measures at the intersection with State Highway 241; and Riverside make bi-annual tax increment financing (“TIF”) payments to the St. Michael Business Center, LLC (“SMBC”), in accordance with the 1998 TIF Agreement between the City and SMBC.
On November 25, Riverside’s Senior Pastor sent a letter to the City stating that it was withdrawing from all future negotiation. (see letter at page 84, here) According to Riverside, the City’s proposed settlement “is a fundamental violation of Riverside’s constitutional and statutory rights….”
In response to Riverside’s letter, the City issued a Finding of Facts and Decision, denying Riverside’s application. According to the Decision and a statement issued by the City, the City had worked in good faith to reach an agreement with Riverside. However, according to the City, Riverside would not agree to an enforceable, 1,200-person per service limit, which was a sticking point for the City.
The City has urged all interested parties to review the complete record of negotiations between the City and Riverside. The record of all communications is available here.
What’s a “Similarly Situated” Comparator under RLUIPA’s Equal Terms Provision? Florida Federal Court Explains in Finding Against City of Jacksonville.
Posted on 12/8/14 by Evan Seeman, Dwight Merriam, and Karla Chaffee
Few courts have identified what it means to be a “similarly situated” comparator under RLUIPA’s equal terms provision. Recently, in Church of Our Savior v. City of Jacksonville, (M.D. FL 2014), a federal court in Florida identified some factors used to determine the issue. The Court’s decision may serve as an important guide for future litigants.
Church of Our Savior (“Church”) was founded in 2006 and is the only Anglican church in Jacksonville Beach and other surrounding seaside communities. It leases space at the Beaches Museum Chapel in Jacksonville Beach, a historic chapel, as well as two adjacent buildings owned by the Beaches Area Historical Society (“Chapel Property”). The lease allows the Church to use the Chapel Property for only 4 hours per week on Sunday mornings for worship services, nursery, and Sunday school. According to the Church, the time and space limitations on the Chapel Property “constrain its ability to grow and to fully exercise its religion by performing its sacraments and worshipping together in one service.” To better exercise its religion, the Church began to look for new property that would satisfy three main “criteria”: (a) affordability (the Church’s budget was $300,000 to $500,000); (b) visibility (the Church sought an “attractive” church on a main thoroughfare that would be recognizable as a church to passersby); and (c) accessibility (the Church wanted any new property to be centrally located in the Jacksonville Beach, Neptune Beach, Atlantic Beach, and Ponte Vedra Beach areas, and on the east side of the intracoastal waterway).
The Church found vacant land for sale along Beach Boulevard (“Property”), consisting of between 1.34 and 1.7 acres, that it believed would meet its 3 criteria. The Property, located in the “Residential, single family (RS-1)” zone, is surrounded by a 6-lane highway, commercial property, and a small neighborhood of houses. The RS-1 zone allowed “[s]ingle family dwelling,” “[p]ublic and private parks, playgrounds and recreational facilities,” and “Type I home occupation” as of right. “[R]eligious organizations” and “[p]ublic and private elementary and secondary schools and technical institutes, excluding trades schools and vocational schools” were allowed as conditional uses. According to the comprehensive plan, “future institutional uses (schools, churches, government buildings, fraternal groups, cemeteries, and health and public safety facilities) . . . shall be located outside of areas proposed for low-density residential use . . . .”
On March 8, 2013, the Church applied to the City’s Planning and Development Department (“Department”) for a conditional permit for its proposed religious use. Although, the City Planner recommended that the application be approved, the Department voted to deny the Church’s proposal. During the public hearing, at which neighborhood residents expressed their opposition, Department members expressed concern over (1) the proposed “Children’s Play Area;” (2) the close proximity of the project to nearby homes; (3) the project’s potential adverse impact on property values; (4) its consistency with the neighborhood; and (5) the plan for the main structure.
Four months later, the Church submitted a second CUP application, which re-designated the play area on the south parcel as a “public park.” The City Planner again recommended approval, but the Department again denied the proposal, this time on three grounds: (1) based on testimony from neighborhood residents that the proposal is inconsistent with the character of the immediate vicinity; (2) the proposal is inconsistent with the comprehensive plan, which requires that churches be located outside of low-density residential areas; and (3) changing the designation of the children’s play area to a public park would violate the zoning code’s requirement that the building not exceed the 35% lot coverage.
Thereafter, the Church filed suit and alleged violations of RLUIPA’s equal terms, substantial burden, and unreasonable limits provisions. The Middle District of Florida found the City violated RLUIPA’s equal terms provision (as applied), but rejected the remaining claims.
Equal Terms (As-Applied Challenge)
The Church claimed two schools were equal terms comparators. The Court agreed with its assertion in one instance, but not the other. First, the Church alleged that the City’s 1995 approval of the Duval County School Board’s proposal to replace an existing 60,000 square foot facility with a new 90,000 square foot facility on a twenty-acre lot in an RS-1 zone was evidence of unequal treatment. The Court found that the fact that both uses qualify as “assembly” and/or “institution” under RLUIPA was not enough for it to be deemed a similarly situated comparator, since “the Duval County School Board’s CUP application [was] too dissimilar in size, intensity of use, location, fit with the surrounding neighborhood, and public support . . . .”
Discovery Montessori School, however, was found to be a similarly situated comparator. In 1994, the school obtained CUP approval to build a private school on a 1.9 acre parcel in the City’s RS-1 zone. In 2014, the school obtained another CUP to expand the school to two residential lots and build an 18,000 square-foot facility to accommodate up to 175 more students. The Court found this school to be a similarly situated comparator because: (1) both uses were similarly small and relatively low-impact; (2) the surrounding properties were not strictly low-density, single family homes; and (3) both applicants faced objections by neighbors and questions from Department members regarding “traffic, fit with the neighborhood, and the impact on property values.” While the Court noted that “remoteness in time” might be an important factor in some cases, “considering the potential for the sensibilities of the community and the policies of the local government to change,” it was not applicable in this case because the City had approved a 2014 CUP for Discovery Montessori School.
The City failed to carry its burden of establishing that its compelling interest (preserving the character and safety of its residential zones) was narrowly tailored, since the Department flatly rejected the CUP.
Equal Terms (Facial Challenge)
The Church claimed the City’s zoning code violated the equal terms provision on its face because, at the time of the CUP applications, “religious organizations” were conditional uses, but “[p]ublic and private parks, playgrounds and recreational facilities” were permitted as of right. On September 15, 2014, two days before trial began, the City amended the zoning code to reclassify parks, playgrounds, and recreational facilities as conditional uses. The Court found the City’s amendment rendered moot the facial challenge. Although the Court acknowledged such a claim may not be moot if there was evidence that the City would repeat its allegedly wrongful conduct in the future, there was no such evidence in this case.
The Church argued that the City’s denial of its CUP applications substantially burdened its religious exercise because (1) there is no other property that meets the Church’s three criteria; and (2) it is forced to use the Chapel Property where it cannot fully practice its religion. The Court disagreed. First, the Court found: “that other suitable land is not available in Jacksonville Beach at a price the Church can afford is a burden imposed by the market, not one created by the City denying the Church a CUP.” Second, the Court concluded that although the Chapel Property “is less convenient and less effective than the Church’s proposal would be” as far as exercising freely its religion, “a substantial burden must place more than an inconvenience on religious exercise.”
Lastly, the Church alleged the City’s treatment, combined with the Church’s limited budget, unreasonably restricted its ability to express its religious beliefs. The Court also found against the Church on this claim, noting that the focus of this provision “is not on the treatment of a particular landowner, but religious entities in general.” The Court also noted the existence of 19 churches currently located in the City and “that the great majority of land in the City remains open for use by religious organizations either by right or conditional use . . . .”
A Gun in Every Home, But Not a Mosque on Every Corner: RLUIPA Lawsuit on the Way?
Posted on 12/4/14 by Karla Chaffee, Dwight Merriam, and Evan Seeman
On December 1, the Kennesaw, Georgia City Council voted 4 to 1 to deny a land use application by Suffa Dawat Center (the “Center”) to establish an Islamic place of worship and education center in a retail shopping plaza. Kennesaw, population 29,783, is a suburb of Atlanta. Family Circle magazine selected it as one of the country’s "10 Best Towns For Families" in 2007. If the name sounds familiar, it may be because Kennesaw gained notoriety in 1982 as a champion of the Second Amendment when the City unanimously passed a law requiring “every head of household to maintain a firearm together with ammunition.” (See Kennesaw’s History) Now they have a First Amendment and possibly a RLUIPA issue.
The property at issue is zoned Highway General Commercial (“HGC”) where places of worship are allowed via special exception permit. In line with the recommendation of the City Planning and Zoning Administrator, the City Planning Commission voted in November to recommend approval of the application for 24 months, with the stipulation that the Center address several minor lighting and parking issues prior to issuance of a Certificate of Occupancy.
Minutes from the City Council meeting are not yet publically available and the reasons for the denial are not confirmed. However, Mayor Mark Mathews has publically stated that the City has never approved such a use in retail space. One local news source, however, observes that the City had voted, in June 2013 and July 2014, to approve the use of a 4,000 square-foot retail space by Redeemed Christian Fellowship Church. The Mayor later rebutted the comparison by explaining that the proposed mosque would create more conflicts with retail uses because of daily prayers and Friday service, a problem not presented by the approved Christian church.
“I wanted to exercise my First Amendment rights while I still can, and I wanted to protect the Christian community that I live in against infiltration by the enemy who has gone on record with the goal to destroy everything we stand for….”
In response to the City Council denial, the Center’s attorney, Doug Dillard, stated: “We think it’s discriminatory, and it violates equal terms…. They had no reason to deny this.” It’s also reported that Attorney Dillard will advise his clients to file a lawsuit, perhaps invoking the Religious Land Use and Institutionalized Persons Act.
The December 1 City Council agenda, including the Center’s application material is available here.
Federal Court Enters Injunctive Order Against Bayview, Texas in RLUIPA Suit Filed by Church
Posted on 12/2/14 by Evan Seeman, Karla Chaffee, and Dwight Merriam
We previously reported on the case Cornerstone Church by the Bay v. Town of Bayview, Texas, in which the Church and the Laguna Madre Christian Academy are suing the Town (population approx. 400) under the Religious Land Use & Institutionalized Persons Act (RLUIPA), the Texas Religious Freedom Restoration Act (TRFRA), and the state and federal constitutions over a zoning ordinance it claims prohibits it from operating a church and religious school on property it owns in the Town’s Single-Family Dwelling District (read prior post here). Among Plaintiffs’ claims is that the Town treats religious uses less favorably than other purported secular assembly uses, in violation of RLUIPA’s equal terms provision, because while the zoning ordinance prohibits religious uses from the subject zone, it allows other secular assembly uses – golf courses, farms, truck gardens, orchards, green houses and nurseries.
On November 24, 2014, an injunctive order was entered by agreement of the parties in which:
“Defendants in the above-cited cause, as well as any and all agents, attorneys, and employees of Defendants, and anyone acting under their control, are hereby enjoined from enforcing the Zoning Ordinance against the Church and its operations, and from any other kind of interference with its continued religious services or ministry on the Property located at 106 Madelyn Rose Boulevard, Bayview, Texas 78566. Defendants are further enjoined from preventing Plaintiffs from seeking a special-use variance, or other permits necessary for Plaintiffs to begin improving the above-referenced Property, and from interfering with Plaintiffs’ permitting efforts to establish a religious school at the Property.”
Although the Town agreed to the injunctive order, including processing any zoning applications submitted by Plaintiffs, it has denied and continues to deny all of Plaintiffs’ allegations.
Church Pastor Hamilton Musser released the following statement of the injunctive order: “We are thrilled that the court upheld our right to use our building as a church. We look forward to working with the Town and are confident that the Town will approve the plans of our church school, so that we can continue to minister to the surrounding community and the children and families of Laguna Madre Christian Academy.”
Plaintiffs are represented by the Liberty Institute, whose “mission is to defend and restore religious liberty across America—in our schools, for our churches, inside the military, and throughout the public arena” (more on the Liberty Institute here). The Liberty Institute’s press release on the injunctive order is available here.
The injunctive order is available here.
Sale of Property for Secular Use Does Not Constitute “Religious Exercise”
Posted on 12/1/14 by Karla Chaffee and Dwight Merriam
The Northern District of California recently dismissed RLUIPA claims filed by the California-Nevada Annual Conference of the Methodist Church (the “Conference”) against the City of San Francisco. The case revolves around the sale of a Methodist Church located at 1601 Larkin Street in the Russian Hill area of San Francisco. The church was constructed after the 1906 earthquake and was home to a thriving congregation in the 1930s and 1940s. By the 1970s, however, the congregation had declined significantly, and by 2000 there were only eight members. By 2003, the church was no longer used for religious purposes.
In 2004, the Conference arranged to sell the church to Pacific Polk Properties, LLC (“Polk”) for the development of market-rate condominiums. The purchase price was $3,000,000, but as a condition of the sale, the existing church had to be demolished. The Conference and Polk sought to obtain the necessary permits and approvals for demolition, but the San Francisco Planning Department determined that the proposed demolition required an environmental impact report (“EIR”) under the California Environmental Quality Act (“CEQA”). The City issued a draft EIR in April of 2007 and then held a public hearing on the application. At the hearing, it was suggested for the first time that the church should be designated as a “landmark.”
Almost three years after the demolition application was filed, it was referred to the San Francisco Historic Preservation Board. The Conference subsequently sued in state court and in May, 2008, received an order requiring the City to cease landmark proceedings. The City appealed the decision, but the Court of Appeals unanimously affirmed, finding the City lacked authority to landmark the church.
In 2010, the permitting process for approval of Polk’s proposed development and the necessary demolition permit recommenced. After approximately three more years (ten since the original application), several revisions to the Draft EIR, modified design proposals and numerous committee and public hearings, Polk’s building permit and the demolition permit applications were granted. The Conference’s original complaint was filed on May 5, 2011, but later amended to incorporate subsequent events, including the April, 2014 approvals.
The Conference claimed that the City’s ten year delay in issuing a demolition permit substantially burdened its religious exercise in violation of RLUIPA and the First Amendment. Although its property would no longer be used for religious exercise, it claimed that the City “prevented it from converting the property into liquid assets that could then be used to further its religious mission.” For example, the Conference sought to use the money to “expand evangelical outreach programs, make needed repairs to buildings to provide safe places of worship, create new programs to expand Methodism in San Francisco, feed the poor and provide shelter for the homeless.” The court disagreed:
RLUIPA’s statutory language, its legislative history, and relevant case law establish that commercial endeavors such as that here – the sale of property for the construction of market rate condominiums – even if undertaken by the Conference in order to fund its religious mission, do not constitute “religious exercise” protected by RLUIPA.
The court did not, however dismiss the Conference’s First Amendment claim, which, unlike its RLUIPA claim, was “based upon a broader notion of unequal treatment.” Viewing the Conference’s first amended complaint in the most favorable light, the court found that the Conference may prove that the City acted with an intentional pattern and practice of discrimination, through approximately a decade of bureaucratic proceedings, as opposed to the RLUIPA claim, which was limited to the denial of the demolition permit. Finally, the court dismissed the Conference’s “course of conduct” regulatory takings claim, but granted the Conference leave to amend its complaint to specify what, if any decision by the City established a regulatory taking.
The decision in California-Nevada Annual Conf. of the Methodist Church v. San Francisco, No. 11-cv-02338 (N.D. CA 2014) is available here.