In The NewsNew Jersey Federal Court Grants Preliminary Injunction to Muslim Group Seeking to Build Mosque
Posted on 12/2/13 by Evan Seeman and Dwight Merriam
Al Falah Center (“Al Falah”) sought a permanent home for a mosque in the Town of Bridgewater, New Jersey (the “Town”). In the fall of 2010, Al Falah acquired title to property formerly used as a hotel on which it sought to construct a mosque (the “Property”). The Property was particularly attractive to Al Falah because it would not be required to obtain a variance under the then existing zoning regulations to operate a mosque thereon. Al Falah rented space that did not allow it to adequately exercise its religion, namely by preventing it from performing many of the communal prayers described in the Qu’ran.
On January 6, 2011, Al Falah submitted an application to the Town’s Planning Board to use the Property as a mosque. Al Falah submitted with the application a traffic impact analysis that showed that the proposed mosque would cause only a moderate increase in traffic. Two weeks later, members of Al Falah met with the Town’s planner, engineer, and traffic consultant to discuss the project. They did not identify any traffic related issues during the meeting.
The mosque proposal was met with anti-Muslim animus. In response to a January 17, 2011 article describing the proposal, one reader commented: “Just another place for terrorists to assemble under the guise of freedom of religion.” Further, between 400 and 500 people attended the first public hearing on January 24, 2011 to oppose Al Falah’s application, with some members of the public telling Al Falah to, among other things, “[g]et out of Bridgewater.”
Immediately prior to January 24 meeting, the mayor scheduled a “pre-meeting” to develop a plan for a report to be drafted that would recommend a new condition on houses of worship that would allegedly undermine Al Falah’s pending application by denying conditional use status for a house of worship at the Property. The new condition was premised on the ground that houses of worship in residential neighborhoods could cause traffic issues. Just two days later, the Town’s planner, without the benefit of an expert report, produced a draft report that houses of worship in residential zones could adversely affect traffic conditions. While the Township Planner described the draft report as a “quickie,” Al Falah viewed it as a pretext to deny its application. The Town’s Planning Board adopted the report and nine days later (February 17, 2011), the Township Council proposed a zoning ordinance that would deny conditional use status for a house of worship at the Property. The Town adopted the zoning ordinance (the “Ordinance”) on March 14, 2011, requiring Al Falah to obtain a variance to operate a mosque at the Property.
Al Falah sued the Town, claiming that the Town expeditiously enacted the Ordinance to avoid the time of application law, pursuant to which ordinances enacted after May 5, 2011 would not be considered in applications then pending. Conversely, zoning ordinances enacted before May 5 would be considered in pending applications. Al Falah asserted claims under the state and federal constitutions, RLUIPA, and state law.
The District Court granted a preliminary injunction in favor of Al Falah, finding that Al Falah was likely to succeed on the merits of its claim that the Town’s enactment of the Ordinance violated RLUIPA’s substantial burden provision. In particular, the District Court found that Al Falah had shown that the Town’s actions substantially burdened its religious exercise because there are no alternative sites for Al Falah to operate a mosque and the rented space it has used for the past decade does not allow it to effectively exercise its religious tenets. In addition, the temporal nexus between Al Falah’s application and the enactment of the Ordinance undermines the Planning Board’s claim that the Ordinance was in furtherance of a compelling government interest. Even if the Town had a compelling governmental interest, the Ordinance does not constitute the least restrictive means of furthering that interest because it was not clear what, if any alternatives the Town considered before expeditiously passing the Ordinance. In granting the preliminary injunction, the District Court ordered the following:
· Pending the final disposition of this action, Defendant is hereby enjoined, restrained and prohibited from enforcing [the] Ordinance  against Plaintiff.
· Pending the final disposition of this action, Defendant is hereby directed to resume consideration of Plaintiff’s January 6, 2011 Site Plan Application (as amended) without consideration of [the] Ordinance .
· Plaintiff is not required to post a bond pursuant to Rule 65(c) because this suit involves the enforcement of important federal rights and Defendant will not be harmed by the entry of this preliminary injunction.
The District Court denied the Town’s motion for summary judgment as to its federal claims, but granted it in part as to certain state law claims.
The decision in Al Falah Center v. Township of Bridgewater (D. N.J. 2013) can be accessed here.
Atheist “Mega-Church” Coming to a Town Near You
Posted on 11/29/13 by Evan Seeman and Dwight Merriam
The Sunday Assembly is a self-described “godless congregation that celebrates life.” Its motto is “live better, help often, wonder more” and its vision is “a godless congregation in every town, city and village that wants one.” The inaugural Sunday Assembly in Los Angeles recently attracted more than 400 attendees of like-minded Atheists in what may have appeared to many to be a Christian mega-church. Similar to Sunday mass, the atheist attendees heard inspirational music (including the Beatles’ “Here Comes the Sun” and Bill Withers’ “Lean on Me”), a sermon, and several readings followed by quiet reflection. At the conclusion of the “service,” volunteers passed around cardboard boxes for donations while attendees gathered together over coffee.
This raises an interesting question -- could places of assembly for atheists to share their beliefs be considered “religious exercise” protected by RLUIPA? An “atheist” is defined as “one who believes that there is no deity.” One definition for “religion” is “an interest, a belief, or an activity that is very important to a person or group.” Under this definition, must a group believe in a deity to be considered a religion? Would courts interpret RLUIPA to reach claims brought by atheists? As more atheist “mega-churches” appear throughout the country (they already have in San Diego, Nashville, and New York), a court may someday be faced with this perplexing issue.
For now, you can learn more about the Sunday Assembly at the organization’s website by clicking here.
Temple Plans to Sue New York Town Following Denial of Proposal to Construct Religious School
Posted on 11/25/13 by Evan Seeman and Dwight Merriam
The Orthodox Sephardic Congregation Beth Eliyahu applied in 2012 to the Town of North Hempstead Zoning Board of Appeals for variances to construct a religious school for up to 350 students in a vacant commercial building across the street from its other facilities in a residential neighborhood. According to the Board, the Congregation “sought to expand a nonconforming commercial building for use as an educational facility with insufficient off-street parking, insufficient number of loading zones, parking located off-premises, elimination of a required buffer strip and a playground and building addition within a Parking District – not a permitted use.” The Congregation’s proposal included three mini-buses dropping off students in the morning and picking up students in the afternoon, using a staggered schedule to minimize any disruption. The proposed bus drop-off would be 20 feet from an intersection.
Since 2012, the Congregation has faced opposition for its proposed school from a group of villages, residents, and even politicians, raising traffic concerns. In a December 6, 2012 letter to the Board, Nassau County Legislator Judi Bosworth stated:
I take this relatively unusual step of expressing my views publicly with respect to a pending BZA case, because of the detrimental impact that approval of this application is almost certain to have on the quality of life in the residential neighborhoods near the subject property, especially the immediately adjacent Allenwood community.
Bosworth claimed that the Congregation’s alleged failure to identify “pick-up/drop-off” areas for school buses had the potential to create a traffic “nightmare,” as the adjacent streets are inadequate to handle the numerous buses (Read more here). The villages and an association of neighborhood residents called the Allenwood Civic Association funded a traffic study at a cost of approximately $15,000 which detailed their concerns. The Association claims to oppose the proposal “based solely on the safety of the children that would attend the school and the people who live in the neighborhood.
In September 2013, the Board denied the Congregation’s proposal and stated in its decision: “It is unlikely the neighborhood will be able to absorb, without severe disruption, the impacts associated with the introduction of stopped buses and cars.” It also found that the proposal would impede emergency services from accessing an intersection 20 feet away from the proposed school bus drop-off zone.
Last month, the Congregation’s lawyer said that he plans to sue the Board in December 2013 or January 2014 on behalf of the Congregation for violating RLUIPA in denying the school proposal. He stated that there was no rational basis for the Board’s denial and the Board “caved to pressure.” Prior to the Board’s decision, the lawyer bluntly expressed his view of the opposition: “If three minibuses . . . are a traffic problem, I’d like to know what you smoke.”
We will report back once the lawsuit is filed. For now, you can read more here.
Zoning Amendment by New Jersey Town Raises Eyebrows and Threat of RLUIPA Litigation
Posted on 11/18/13 by Evan Seeman and Dwight Merriam
We previously reported about the Bernards Township Planning Board’s review of the Islamic Society of Basking Ridge’s proposal to construct a 4,252-square-foot mosque on a 4.3 acre parcel of land it purchased in Bernardsville, New Jersey (click here to read our previous post). Now, the Planning Board has raised eyebrows over a new zoning ordinance that will make it more difficult for institutional uses, including religious uses, to locate. The new ordinance would toughen bulk requirements for religious land uses as follows:
· Increase the minimum lot size from 3 acres to 6 acres
· Lower the maximum lot coverage from 30% to 15%
· Lower the maximum floor area ratio from 15% to 10%
· Raise the building setback to the nearest property line from 75 feet to 100 feet
· Prohibit outdoor activities after 8:00 p.m.
· Prohibit non-security exterior lighting after 11:00 p.m.
While religious uses had been permitted as of right in the residential zone, under the new ordinance they would be allowed in the zone only as “conditional uses” if they satisfy certain criteria to show that the proposal is appropriate for the subject property. Existing religious institutions will be “grandfathered,” but subject to the new ordinance if they seek to expand.
The new ordinance will not affect the Islamic Society’s pending application to construct the mosque, however reports suggest that the ordinance was enacted in response to calls for tougher standards on religious institutions in residential zones. There is some concern that the new ordinance may face a lawsuit on the ground that it violates RLUIPA. To read more about the new ordinance, click here. As for the Islamic Society’s proposal, the Planning Board has scheduled a December 3, 2013 meeting to consider the issue. It will be the eleventh meeting on the subject. To read more about the mosque proposal, click here.
New Jersey Zoning Board Approves Hare Krishna Temple
Posted on 11/15/13 by Evan Seeman and Dwight Merriam
For the past 30 years, the International Society of Krishna Consciousness of New Jersey (the “Society”) has been worshipping in a nearly century-old mansion in Towaco, New Jersey. The Society draws about 120 worshippers each week. The high cost of maintenance and upkeep of the mansion, however, has prompted the Society’s leaders to seek a new temple to meet their needs. Further, the design of the mansion has prevented the Society from following its religious beliefs in some respects. For example, followers are required to walk a circle around the temple, known as circumambulate, but the design of the mansion forces them to walk in an L-shape.
In 2009, the Society submitted an application to the Parsippany Township Zoning Board of Adjustment (the “Board”) for a use variance to construct a Hare Krishna temple on nearly three acres of land. The Society planned to not only worship on the property but to host educational and cultural programming there, and provide lodging for pilgrims from around the word. The Society seeks to locate in Parsippany because approximately forty percent of its congregation lives in the Township.
Neighbors immediately opposed the proposed temple, citing concerns about the increase in traffic and cars parking on the narrow street, as well as the size of the temple structure. The site of the proposed temple is located near historic homes, such as the Isaac Beech House, built in 1795. In response to the neighbors’ concerns, the Society made several concessions, including downsizing the eastern and western wings of the proposed temple to decrease the structure’s “visual impact,” reducing the number of residential rooms, removing the museum, decreasing the number of classrooms, and adding a vegetated buffer to shield a proposed parking lot from the neighbors’ view.
On November 6, 2013, the Board granted the Society a use variance, with the chairman noting that the Society has made “numerous concessions” since submitting its original proposal. The next step is for the Board to approve a resolution to finalize the project, which is expected to occur in early 2014. By approving the proposal, it appears that the Board will avoid a potential RLUIPA claim by the Society. It is not clear whether the neighbors will seek judicial review of the approval.
Seventh Circuit Rejects Religious Institutions’ RLUIPA Claims Over Bible Camp Denial
Posted on 11/14/13 by Evan Seeman and Dwight Merriam
The United States Court of Appeals for the Seventh Circuit, in Eagle Cove Camp & Conference Center v. Town of Woodboro, Wisconsin (7th Cir. 2013), has ruled that the County of Oneida’s (the “County”) and the Town of Woodboro’s (the “Town”) denial of plaintiff’s (“Eagle Cove”) applications to construct a year-round Bible camp on Wisconsin’s Squash Lake did not violate RLUIPA or the federal or state constitutions. A summary of the case follows.
In 1998, the Town adopted a Land Use Plan to “encourage low density single family residential development for its lake and river front properties.” The Town surveyed its approximately 750 residents and found that the majority wanted to maintain the Town’s rural and rustic character. The zoning around Squash Lake reflects the goals set forth in the Land Use Plan and survey. All but seven parcels around the lake are zoned for single-family residential use.
In 2001, the Town voluntarily subjected itself to the County’s Zoning and Shoreline Protection Ordinance (the “County Ordinance”), which established zoning districts throughout the entire County. By subjecting itself to the County’s Ordinance, the Town relinquished its zoning authority to the County. The County Ordinance permits churches and religious schools on 60% of the County’s land and forty percent of the Town’s land. It also permits seasonal recreational camps on 72% of the land in the County and a year-round Bible camp would be allowed on 36% of the County’s land.
Eagle Cove sought to construct a Bible camp on 34 acres of land it owned on Squash Lake in Woodboro (the “Property”). Eagle Cove believes that its religion requires it to operate the Bible camp on the Property and that it must do so on a year-round basis. Part of the Property is zoned single-family residential and the other part is zoned residential and farming. The County Ordinance states that the purpose of the single-family residential zone is “to provide an area of quiet seclusion for families. This is the County’s most restrictive residential zoning classification. Motor vehicle traffic should be infrequent and people few.”
In 2005, Eagle Cove submitted to the County a petition to rezone the Property from single-family residential/residential and farming to a recreational zone to construct the Bible camp. The County sent a copy of the petition to the Town for its review and comment. After a series of meetings, the Town recommended that the County deny the petition because the proposed Bible camp would, in its view, be inconsistent with the goals of maintaining the Town’s rural and rustic character and would conflict with the existing single-family development surrounding Squash Lake. In 2006, the County denied the petition on the grounds that it would conflict with the majority single-family usage around the lake and would also be inconsistent with the regulations set forth in the Town’s Land Use Plan. In denying the petition, the County considered RLUIPA and the potential adverse impact of a denial on Eagle Cove’s religious exercise, if any, and determined that there would be none.
In 2008, Eagle Cove submitted to the County an application for a conditional use permit to operate the Bible camp at the Property. The proposed camp would include a lodge of more than 106,000 square feet for up to 348 campers with another 60 people at outdoor camping sites. The Town recommended that the County deny the application, again on the grounds that the proposed camp would not conform to the zoning goals in the district. In addition, the Town claimed that the camp would be incompatible with the single-family residential use around Squash Lake and the purposes and the goals of the Town’s 2009 Comprehensive Plan. The County denied the application, which denial was upheld by the County’s Board of Adjusters on appeal.
In 2010, Eagle Cove sued the County and the Town in the United States District Court for the Western District of Wisconsin, alleging that the County and the Town violated its rights under RLUIPA, federal and state constitutions, the Americans with Disabilities Act, and the Rehabilitation Act. The District Court granted summary judgment on all counts in favor of the County and the Town. Eagle Cove appealed the District Court’s decision on all claims except for those under the Americans with Disabilities Act and the Rehabilitation Act.
RLUIPA Total Exclusion Claims
Eagle Cove alleged that the Town violated RLUIPA’s total exclusion provision, which prohibits governmental land use regulations from totally excluding religious assemblies from a jurisdiction. 42 U.S.C. § 2000cc(b)(3)(A). However, because the Town had chosen to be subject to the County Ordinance, the Seventh Circuit examined whether it would be possible for Eagle Cove to operate the year-round Bible camp in other parts of the County as opposed to the Town in particular. Since it was undisputed that Eagle Cove could operate a Bible camp on 36% of the land in the County, it rejected Eagle Cove’s total exclusion claim.
RLUIPA Substantial Burden and First Amendment Free Exercise Claims
Eagle Cove alleged that the County’s denial of the conditional use permit application substantially burdened its free exercise of religion. In the Seventh Circuit, a substantial burden “is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable. The burden must be truly substantial, to hold otherwise would permit religious organizations to supplant even facially-neutral zoning restrictions under the auspices of religious freedom.” Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007). The Seventh Circuit concluded that the County’s denial of the application did not impose a substantial burden on Eagle Cove’s religious exercise because Eagle Cove itself admitted that there are other locations that it could go to construct and operate the camp. Therefore, “it is not the land use regulations that create a substantial burden, but rather Eagle Cove’s insistence that the expansive, year-round Bible camp be placed on the subject property.”
The Seventh Circuit also rejected Eagle Cove’s claim, premised on Sts. Constantine Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 901 (7th Cir. 2005), that the County and the Town “caused considerable delay, uncertainty, and expense in the execution of the rezoning application they submitted by leading them to believe that their permits would be granted.” The fact that Eagle Cove spent considerable time and money on rezoning applications does not constitute prima facie evidence of a substantial burden. The Town and the County maintained their positions that the operation of a year-round recreational camp at the Property would be inconsistent with the applicable regulations, goals, and policies. Further, while the Town would not permit the Bible camp at the Property, it indicated that religious exercise at the Property would be permitted in the form of a church or school.
RLUIPA Unreasonable Limitation Claim
“RLUIPA’s unreasonable limitation provision prevents governments from adopting policies that make it difficult for religious institutions to locate anywhere within the jurisdiction.” Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548, 560 (4th Cir. 2013). The Seventh Circuit determined that, based on the evidence before it, the County’s land use regulations cannot be said to “unreasonably limit religious assemblies, institutions, or structures[.]” 42 U.S.C. § 2000cc(b)(3)(B). The County seeks to uphold the rural and rustic character of the Town and in particular the area surrounding Squash Lake. Religious assemblies are permitted throughout the County and even on the Property. “While it may be said that Eagle Cove’s insistence on a year-round Bible camp on the subject property without seeking alternatives is unreasonable, Oneida County’s zoning regulations that seek to preserve the character of the area around Squash Lake are not.”
RLUIPA Equal Terms Claim
RLUIPA’s equal terms provision prohibits “governmental land use regulations that treat religious institutions on less than equal terms with similarly situated institutions that do not have religious affiliation.” 42 U.S.C. § 2000cc(b)(1). “The equal terms section is violated whenever religious land uses are treated worse than comparable nonreligious ones, whether or not the discrimination imposes a substantial burden on religious uses.” Digrugilliers v. Consol. City of Indianapolis, 506 F.3d 616, 616 (7th Cir. 2007). Eagle Cove alleged that the County’s land use regulations – not the County’s action in denying the conditional use permit application – violated RLUIPA’s equal terms provision. The Seventh Circuit, however, found otherwise, concluding that the County’s land use regulations do not treat religious land uses, in particular year-round Bible camps, less favorably than their non-religious counterparts.
The decision in Eagle Cove Camp & Conference Center v. Town of Woodboro, Wisconsin (7th Cir. 2013) can be accessed here.
United States Supreme Court Declines To Review RLUIPA Case
Posted on 11/13/13 by Evan Seeman and Dwight Merriam
In August, we posted about the case Parish of Jefferson v. Daughters of St. Paul Inc. (La. App. Ct. 2013) (click here to read that post). In that case, the plaintiff, a non-profit corporation with a community of religious women who share their religious beliefs through media, claimed that a Jefferson Parish Ordinance, which regulated the Parish’s rights-of-way in the Commercial Parkway Overlay Zone and required that those using the Parish’s rights-of-way compensate it for such use, violated RLUIPA. Daughters of St. Paul operated a bookstore and used Parish land directly in front of its building for parking, but did not compensate the Parish for such use as required by the Parish Ordinance. The Parish sued Daughters of St. Paul requesting that the trial court order Daughters of St. Paul compensate it for use of the right-of-way.
Daughters of St. Paul alleged that the Parish Ordinance violated RLUIPA’s substantial burden provision because it made the use of its building “effectively impractical," as the choice of leasing the right-of-way from the Parish or forfeiting the use of the right-of-way “brings significant pressure that directly coerces it to conform its behavior or effectively bars it from using its building on the property in the exercise of its religion.” Although Daughters of St. Paul further alleged that it would be forced to change its religious practice by having to either start charging for certain services to increase its income or decrease the services and goods it provides pursuant to its religious beliefs, the Louisiana Appellate Court found that the Parish Ordinance did not substantially burden its religious exercise because (1) the financial burden of leasing the right-of-way did not infringe on Daughters of St. Pauls’ religious exercise; (2) the inconvenience of having to find alternate parking and having to possibly increase its revenue did not rise to the level of substantial burden under RLUIPA; and (3) ingress and egress to the bookstore would not be prohibited, only the parking spaces in front of the building would be prohibited for the parking of vehicles.
On June 14, 2013, the Louisiana Supreme Court denied Daughters of St. Pauls’ petition for certiorari to review the decision of the Appellate Court. Thereafter, Daughters of St. Paul petitioned the United States Supreme Court to review the decision and presented the following question for review:
Where the 2000 Religious Land Use and Institutionalized Person's Act is applicable to the petitioner's use of the Pauline Book Store, does the enforcement of a municipal ordinance known as the Comprehensive Zoning Ordinance for Commercial Parkway Overlay Zone impose a substantial burden on the petitioners' exercise of religion, where the Louisiana Fifth Circuit Court of Appeals has determined that denial of access to customers and communicants of the religious bookstore and chapel of the petitioners, other than being dropped off, is not a substantial burden under the provisions of RLUIPA?
On November 12, 2013, the United States Supreme Court declined to review the case (Docket No. 13-311). To date, the United States Supreme Court has not reviewed a RLUIPA case in the land use context.
Seventh Circuit Rejects Bible Camp’s RLUIPA Claims
Posted on 11/8/13 by Evan Seeman and Dwight Merriam
We have not yet had the opportunity to write up our thoughts about the Seventh Circuit’s decision in Eagle Cove Camp & Conference Center, Inc. v. Town of Woodboro, Wisconsin (7th Cir. 2013), but to tide you over until then, here is one aspect of the case that has caught our attention.
In upholding the District Court’s decision denying the plaintiff’s RLUIPA substantial burden claim, the Seventh Circuit concluded that the municipality’s denial of the plaintiff’s conditional use permit to operate the Bible camp did not impose a substantial burden on the plaintiff’s religious because:
“There are numerous locations within Oneida County for Eagle Cove to place its Bible camp. Eagle Cove concedes that there are four tracts of land, out of the ten put forth by the County, which would be suitable for their proposed camp. Despite this admission, Eagle Cove has insisted from the onset of this litigation that the camp must be built on the subject property. In fact, they have never even looked into operating the Bible camp on any other land in Oneida County, though several properties in the County that could have supported a year-round camp have been sold since 2006. It is not the land use regulations that create a substantial burden, but rather Eagle Cove’s insistence that the expansive year-round Bible camp will be placed on the subject property. See Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d at 846, 851 (7th Cir. 2007) (“When there is plenty of land on which religious organizations can build churches . . . in a community, the fact that they are not permitted to build everywhere does not create a substantial burden.”).
Check back for a full analysis of the case.
Zoning Code’s Definitions of “Land Use” and “Structures” Unduly Burdensome, Says Illinois Federal Court
Posted on 11/7/13 by Evan Seeman and Dwight Merriam
The plaintiff in The Life Center Inc. v. City of Elgin, Illinois (N.D. Ill. 2013), is a religious-based organization that provides services to pregnant women, including spiritual support, free reproductive healthcare information, and limited ultrasound services. Life Center describes its services as providing “a message of hope by sharing the truth of God’s love for them and the life they can find in and through Jesus Christ.” In 2010, Life Center began providing its services from a recreational vehicle that it parked in various commercial lots located throughout the City with the permission of the parking lot owners. Life Center asserts that its mobile facility is particularly well-suited to its cause because it provides a level of anonymity to women unwilling or unable to go to a permanent facility.
Life Center alleges that the City consistently approved its applications for temporary use permits to operate its mobile facility in parking lots in the City until August 2012, when a city employee instructed it to cease operations based on a recent amendment to the City’s zoning code. The amendment limited temporary use permits to a certain number of days each year.
The Temporary Use Provision, as amended, provides:
USE, TEMPORARY: A “land use” which is established for a fixed period of time with the intent to discontinue such use on the expiration of the time period . . . .
Number And Duration: No more than four (4) temporary uses shall be conducted on the same “zoning lot” within a calendar year. No single temporary use shall be established or operate for more than thirty (30) days, and the total number of days for all temporary uses established or operating on the same “zoning lot” within a calendar year shall not exceed sixty (60) days. . . . Except as provided for an “intermittent temporary use”, the days a temporary use operates or is otherwise open or available to the general public shall be consecutive, and each such time period shall constitute one of the four (4) allowable temporary uses within a calendar year.
The zoning code defines the term “land use” as “[t]he purpose or type of activity for which land, or the structure or building thereon, is designed and intended, or for which it is occupied or maintained.” The zoning code also defines the term “structure” as “[a]nything manufactured, constructed, or composed of parts joined in some definite manner that requires a location on the ground or that is attached to something that has a location on the ground,” and “[s]tructures shall include, but shall not be limited to buildings, antennas, signs, fences, and off street parking facilities.”
Life Center sued in federal court, alleging violations of RLUIPA, the U.S. Constitution, and state law. Relevant to the District Court’s analysis were Life Center’s claims that the Temporary Use Provision, based on the definitions of “land use” and “structures” in the zoning code, was unconstitutionally overbroad and vague. The District Court, citing Supreme Court precedent, observed that “[f]acial invalidation for technical overbreadth is a strong medicine, . . . and is inappropriately employed unless the statute substantially criminalizes or suppresses otherwise protected speech vis-à-vis its plainly legitimate sweep.” City Council v. Taxpayers for Vincent, 466 U.S. 789, 800-01 (1984). Further, the District Court stated that “[i]n the context of First Amendment protected speech, the Supreme Court has ‘recognize[d] a second type of facial challenge, whereby a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” United States v. Stevens, 130 S.Ct. 1577, 1587 (2010).
The District Court agreed with Life Center, concluding that the definitions of “structure” and “land use” in the zoning code and the Temporary Use Provision were overly broad and unduly burdensome. In particular, the Court provided as an example that
“[a] flag joined to the pole that is attached to a building might technically fall under the definition of structure that is governed by the Temporary Use Provision. The property owner would thus be required to pay a $190 fee to hang the flag and would be limited as to the number of days per year that the owner can hang the flag. The City has provided no justification for restricting such activity in such a broad and sweeping manner."
Further, the District Court found that the Temporary Use Provision is unconstitutionally vague because “it fails to clearly indicate to the public how it may comply with the provision. As indicated above, the application of the Temporary Use Provision could be construed to apply to innocuous activities such as putting up a flag. A member of the public is thus left to speculate whether he or she is going to face prosecution by the City if he or she does not first obtain a $190 permit for the flag. This in turn makes it possible for the City to arbitrarily and selectively target members of the public by acting within the vague parameters of the Temporary Use Provision.” The District Court granted summary judgment in favor of Life Center.
This case, however, is not over and will certainly be on our “cases to watch list,” as the City has taken an appeal to the Seventh Circuit. The District Court’s finding that the definitions of “land use” and “structures” as found in the City’s zoning code are facially unconstitutional may have far-reaching implications for all municipalities, as those terms are found in many zoning ordinances across the country. For our municipal attorneys and planners out there, you may want to take a hard look at your zoning code to see how these terms are defined.
Second Circuit Vacates Lower Court’s Dismissal of RLUIPA Claims
Posted on 11/4/13 by Evan Seeman and Dwight Merriam
St. Vincent de Paul Place, Norwich, Inc. (“St. Vincent”) provides food, shelter, and other services to the poor and homeless in Norwich, Connecticut in accordance with its religious beliefs. On July 9, 2012, St. Vincent obtained a six-month temporary zoning permit to use a former religious school building (the “Property”) to perform these services. The Property is owned by The St. Joseph’s Polish Roman Catholic Congregation (“St. Joseph’s”), which operates a church building on property adjacent to the former religious school building. St. Vincent submitted a special permit application to the City of Norwich Commission on the City Plan (the “Commission”) to operate permanently at the Property. The Commission denied the application on December 18, 2012.
On January 4, 2013, St. Vincent and St. Joseph’s sued the Commission, the City of Norwich, and city employees, in their individual capacities, alleging that the denial of the special permit application violated their rights under RLUIPA, the federal and state constitutions, and other state law. On March 13, 2013, the District Court dismissed St. Vincent’s and St. Joseph’s claims for lack of subject matter jurisdiction for lack of ripeness. In particular, the District Court concluded that because the plaintiffs failed to file for a variance application prior to commencing litigation, their claims were not ripe under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985). Although St. Vincent and St. Joseph’s applied for a variance after bringing suit, the District Court found that their “injury [was] merely speculative and may never occur” because the variance application had not yet been decided. The District Court refused to apply the “relaxed ripeness inquiry” set forth in Dougherty v. Town of North Hempstead Board of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002). The District Court’s decision in St. Vincent de Paul Place, Norwich, Inc. v. City of Norwich (D. Conn. 2013) can be accessed here.
St. Vincent and St. Joseph’s appealed the District Court’s dismissal, arguing that their claims were ripe for review under the “relaxed ripeness inquiry,” pursuant to which a claim is ripe if “(1) . . . the [plaintiff] experienced an immediate injury as a result of [a defendant’s] actions and (2) [if] requiring the [plaintiff] to pursue additional administrative remedies would [not] further define their alleged injuries.” Murphy v. New Milford Zoning Commission, 402 F.3d 342, 351 (2d Cir. 2005) (citing Dougherty, 282 F.3d at 90)). During the pendency of the appeal, the City of Norwich Zoning Board of Appeals denied the variance application. In view of this, the Second Circuit vacated the District Court’s dismissal of the case and remanded it back to the lower court to determine whether the claims are now ripe following the variance denial. Although the Second Circuit did not decide whether the claims are ripe for review, it states in its Summary Order: “It thus appears that even under the more stringent ripeness inquiry of Williamson County, appellants’ claims are now ripe.” The Second Circuit’s Summary Order in St. Vincent de Paul Place, Norwich, Inc. v. City of Norwich (2d Cir. 2013) can be accessed here.
*Robinson & Cole represents parties in this case.