County of Ventura, California’s Permitting Scheme Stricken as Prior Restraint on Free Speech

The United States Court of Appeals for the Ninth Circuit has ruled that Ventura County, California’s conditional use permit (CUP) scheme for “temporary outdoor” events is an unconstitutional prior restraint on free speech.  Temporary outdoor events are defined in the County’s zoning code to include “[o]utdoor recreational events such as harvest festivals, amusement ride, historic re-enactments, animal events, art shows, concerts, craft fairs, weddings, and religious revival meetings.”  In this case, the plaintiff, Epona, LLC, owner of 40-acres in Ventura County, sought approval to host outdoor events, including weddings.  The Ninth Circuit determined that the zoning code lacked definite and objective guiding standards with respect to temporary outdoor events and afforded the County’s Planning and Zoning Commission (Commission) with unbridled discretion in violation of the First Amendment.

Epona, LLC sought a CUP for up to 60 temporary outdoor events per year, applied for a CUP, and obtained positive recommendations from county agencies reviewing the proposed use.  Zoning staff also recommended approval, but the Commission denied the application after neighbors complained, identifying the following reasons for denial:

(1) The venue is not compatible with the rural community …;

(2)  The venue has the potential to impair the utility of neighboring property or uses and is inconsistent with the finding set forth in the [zoning code]; and

(3)  The venue has the potential to be detrimental to the public interest, health, safety, and convenience, or welfare and is inconsistent with the finding set forth in the [zoning code]

Epona, LLC appealed the Commission’s denial to the Board of Supervisors.  This time, zoning staff recommended denial of the CUP application.  The Board’s vote was split evenly, having the effect of affirming the Commission’s denial.  Epona, LLC sued the County of Ventura, asserting that the zoning code violated the First Amendment on its face, as well as RLUIPA’s equal terms provision.

The Ninth Circuit found the CUP standards for temporary outdoor events to be without clear and definite standards, constituting a prior restraint on free speech.  The CUP standards are as follows:

(a) consistent with the intent and provisions of the County’s General Plan and of Division 8, Chapters 1 and 2 of the Ventura County Ordinance;

(b) compatible with the character of surrounding, legally established development;

(c) not [] obnoxious or harmful, [and must not] impair the utility of neighboring property or uses;

(d) not [] detrimental to the public interest, health, safety, convenience, or welfare;

(e) compatible with the existing and potential land uses in the general area where the development is to be located;

(f) on a legal lot; and

(g) approved in accordance with the California Environmental Quality Act and all other applicable laws.

The Ninth Circuit determined that while criteria (f) and (g) are objective, (a) through (e) are subjective and do not provide sufficient guidance to permitting officials.  The Court specifically took issue with criteria (c) and (d) (“have a harmful effect upon the health or welfare of the general public” or be “detrimental to the welfare of the general public … [or] to the aesthetic quality of the community or the surrounding land uses.”).  Even though the CUP scheme required specific factual findings, the Court stated that this was not “necessarily determinative of whether a statute confers excess discretion.”  The Court was also troubled that there was no time limit for the Commission to act on a CUP application.  The lack of a time limit, along with the lack of definite and clear standards, caused the Court to conclude that the CUP permitting scheme was not “content neutral” and was a prior restraint on free speech.

This decision is an important one for municipalities, as the conditional use permit criteria identified by the Ninth Circuit as granting unbridled discretion in county officials may be similar to criteria found in other zoning codes.  After all, an overarching purpose of zoning is to protect public health, safety, and general welfare.  It is not clear how this decision would have come out if there were, in fact, a time limit for the Commission to act on a CUP application.  Regardless, municipalities may wish to review their codes to ensure that permitting requirements provide property owners and land users with precise standards to be applied uniformly.

Epona, LLC also alleged that the zoning code violated RLUIPA’s equal terms provision, despite the fact that Epona conceded that it was not a religious assembly or institution.  The Court, however, rejected this claim, finding the equal terms provision inapplicable to a secular assembly or institutional use.

The decision in Epona v. County of Ventura (9th Cir. 2017) is available here.

Church Alleges Religious Discrimination Over Baltimore County’s Conditions on Approval of Development Plan

Hunt Valley Presbyterian Church (the “Church”) has sued Baltimore County, Maryland and the Board of Appeals of Baltimore County (together, “Baltimore County”), challenging Baltimore County’s conditional approval of the Church’s development plan, which sought to expand an existing house of worship.  This is the fourth congregation to bring RLUIPA claims against Baltimore County in the past year.  See our previous posts here and here.

Specifically, the Church alleges that the conditions imposed on approval require it to, among other things, provide its neighbors and other interested persons with advance notice of scheduled and special events and stagger its Sunday worship services.  Additionally, the Church contends that the condition regarding water runoff, which requires the Church to “take any and all immediate and reasonable measures to address and eliminate” any water collection issues connected to the Church’s property, will be “impossible to comply with,” as runoff, pooling and drainage are existing issues in the area and on the property.

The Church’s Complaint, available here, alleges that Baltimore County has violated RLUIPA’s substantial burden provision, as well as the First Amendment’s Free Exercise Clause, the Fourteenth Amendment’s Equal Protection Clause, and the Maryland Constitution.

Prisoner’s “My-iBible” RLUIPA Claim Thrown Out as Moot

What do a prisoner in administrative segregation, an MP3 player, an audio version of the Bible, and earbud headphones have to do with defending local governments in RLUIPA claims?  Read on.

The United States Court of Appeals for the Tenth Circuit recently ruled that a prisoner’s RLUIPA claim had been rendered moot and could not proceed, as prison officials had granted the relief sought by the prisoner.  A Messianic Jewish prisoner, Joshua James Robertson, claimed that his religious exercise was substantially burdened because he could no longer hear the Bible read aloud to him while in long-term administrative segregation.  He requested that he be allowed to have a “my-iBible,” an MP3 player that is loaded with an audio recording of the Bible.  The District Court dismissed Mr. Robertson’s substantial burden claim, but the Tenth Circuit reversed and remanded that decision in 2016.  Following the Tenth Circuit’s 2016 ruling, prison officials permitted Mr. Robertson to possess the my-iBible along with earbud headphones.  Based on this action by prison officials, the District Court ruled that Mr. Robertson’s RLUIPA claim was now moot.  Mr. Robertson appealed the mootness finding and, while his appeal was pending, prison officials seized his headphones because he had been using them to listen to an AM/FM mini-radio.

Mr. Robertson asserted that his appeal had been “un-mooted,” since his headphones were taken from him and he was no longer able to listen to his my-iBible.  The Tenth Circuit disagreed and affirmed the District Court’s decision on mootness because Mr. Robertson had been afforded the exact relief he requested in his suit.  The Tenth Circuit, however, noted that “[i]f anything, the subsequent events might create a new claim (although we express no opinion on that matter), but they do not revive the instant lawsuit.”  This decision should be of particular interest to local governments defending against possible RLUIPA violations.  RLUIPA’s safe harbor provision may provide an escape valve to grant the religious land use applicant the requested relief to render moot claims of religious discrimination.

The Tenth Circuit also affirmed the District Court’s refusal to award Mr. Robertson secretarial costs billed to him by his mother in connection with the litigation.

Original photography by Keith Davenportsome rights reserved.

The decision in Robertson v. Biby (10th Cir. 2017) is available here.

To Protect Wildlife, or Religious Freedom?

That was the question before the Deschutes County Board of Commissioners earlier this month.

The conflict arose as a result of John and Stephanie Shepherd’s continued attempts to host weddings on their property in Deschutes County, Oregon (the “County”), which is zoned for exclusive farm use (“EFU”) and subject to a wildlife protection overlay zone to protect mule deer, elk, and other animals.  The Shepherds initially sought approval to operate as a “private park”, a conditionally permitted use in the EFU.  Although the County approved this use in 2015, the Oregon Land Use Board of Appeals (“LUBA”) later reversed that decision, finding that the Shepherd’s proposed use did not qualify as a “private park”.  On appeal, the Oregon Court of Appeals affirmed LUBA’s decision, observing that the proposed use more closely resembled that of a “commercial event venue” than a private park.  See Landwatch v. Deschutes County, 276 Or. App. 282, 295 (2016).

Following the Court of Appeals’ 2016 decision, the Shepherds filed an application to operate a church on their property, which was approved by the County in September of the same year.  However, in April 2017, LUBA once again thwarted the Shepherd’s operations, upon a finding that the County Code explicitly prohibits churches in the wildlife protection overlay zone, and that the Shepherds’ claim under RLUIPA’s equal terms provision was “undeveloped”.  The full text of this decision is available here.

In the months since, the County has been reviewing the provisions of its Code that regulate religious use in the wildlife protection overlay zone, with an eye toward amendment.  Conservationists are concerned that allowing an increased intensity of use in the wildlife protection overlay zone, such as church use, would stress shrinking wildlife populations, while citizens like the Shepherds believe that the Code, as written, presents a clear violation of federally- and state-protected religious freedoms.

At a meeting of the Deschutes County Board of Commissioners on December 18, 2017, the Commissioners expressed their intentions to amend the Code to remove the word “church” from the list of uses prohibited in the wildlife protection overlay zone.  A final version of the proposed amendments is expected to be reviewed and acted upon at the Board’s meeting on December 27, 2017.

Question: What would happen if they amended the Code to prohibit without limitation all places of public assembly?  Could it help a municipality avoid a possible equal terms claim under RLUIPA?

Original photography by Lauren Sobkoviak, some rights reserved.

Mahwah Eruv Update

In an update to our previous post about an eruv dispute in New Jersey, the Mahwah Township Council has voted to withdraw two ordinances at the center of a religious discrimination lawsuit involving the construction of an eruv.  In September, we reported about Bergen Rockland Eruv Association, Inc.’s (“BREA”) lawsuit against the Township of Mahwah challenging certain township ordinances that prevented the expansion of an eruv, allegedly in violation of the First Amendment, RLUIPA, and other federal law.  One of these ordinances, which had been proposed but not yet adopted, would have prohibited the posting of PVC pipes, among other things, on utility poles, effectively prohibiting the construction of an eruv.  The second ordinance, which banned non-state residents from using Township parks, was adopted earlier this year.  NorthJersey.com, part of the USA Today network, reported that “[t]he parks ban emerged in June after numerous residents complained of overcrowding at local parks, particularly by Orthodox Jews.”  It is not clear if BREA will now withdraw its lawsuit, given the Township’s apparent concession.

At the same meeting, the Mahwah Township Council proposed an ordinance that would allow both residents and non-residents to use Township parks.  See page 68 of the Township Agenda Packet for more information on the newly proposed ordinance.

Tenth Circuit Throws Out Prisoner’s Claim that He is the Second Coming of Jesus Christ

Today we report on a fascinating decision out of the Tenth Circuit.  It’s not a land use case.  It’s not even an RLUIPA case.  But we thought it appropriate for this time of year.  The plaintiff, a pro se prisoner named Muamar Sayyed, claims to be the “Spirit of God and Son of Man, the second coming of Jesus Christ and the Messiah for which the Bible instructs Christians to watch.”  According to Mr. Sayyed, he has evidence that he is the Messiah.  For example, he says that if you attribute numbers to the letters in the word “Jesus,” based on where the letters fall in the alphabet, and then add those numbers together, it equals 74.  According to Mr. Sayyed, if you do the same with respect to “Moammar,” a variation of his first name, you also get 74.

Mr. Sayyed sued several churches on a claim for “Contracts, Agreement not honored by Defendants.”  Mr. Sayyed believes that he, as the self-proclaimed Son of God, and the churches had a binding contract in the form of the Bible.  He sent the churches three letters and “invitations asking, explaining, advising, ordering and demanding that they abide by clear and explicit agreements and contracts set forth in the Bible.”  Mr. Sayyed believes that the churches “preach and agree, know and understand, desire and have a deep committment [sic] in honor and filfilling [sic] these agreements, yet they had failed to do so.”  The Tenth Circuit found Mr. Sayyed’s claims to be both legally and factually frivolous, because Mr. Sayyed’s belief that he is the Messiah depicts a “fantastic or delusional scenario[].”

What is of interest in this decision?  It exemplifies the limits to religious protection.  While the courts generally do not second guess a religious land use applicant’s religious beliefs, they may if those beliefs are posited only to defeat zoning requirements.  Take, for example, the 2006 story of Georgetown University fraternity brothers who incorporated as a religious organization (the Apostles of Peace and Unity) in an attempt to beat back the zoning code’s prohibition on six unrelated persons living together (more on that story here).  The decision in Sayyed v. Six Churches is available here.

Upcoming Webinar –Special Topics in Planning and the First Amendment: Signs, Adult Businesses, Religious Uses, and More

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Special Topics in Planning and the First Amendment: Signs, Adult Businesses, Religious Land Uses, and More on December 14 from 1:00 p.m. to 2:30 p.m. EDT.  Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

Planning and zoning in areas involving rights protected under the First Amendment, including the rights to free speech and freedom of religion, can be tricky. This webinar will review several areas in which planners interact with the First Amendment, including in the areas of signs, religious land uses, adult businesses, and even some other interesting areas such as the regulation of gun shops, tattoo parlors, public monuments, and other topics. Presenters will poll the audience at the beginning of the webinar to determine specific topics in which attendees are interested, and will tailor the presentation to attendees’ interests.

Speakers include Daniel Bolin of Ancel Glink, Brian Connolly of Otten Johnson Robinson Neff & Ragonetti, P.C., and Evan Seeman of Robinson & Cole LLP.

Register here

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CLE 1.50 through Illinois State Bar

Additional Eruv Disputes in New Jersey

We recently posted about a lawsuit filed by Bergen Rockland Eruv Association, Inc. (“BREA”) against the Township of Mahwah, New Jersey, regarding a dispute over the expansion of an eruv.  Since then, eruv disputes have evoked claims of religious discrimination against two other New Jersey municipalities: by BREA, against the Borough of Montvale, and by Agudath Israel of America Inc. (“Agudath Israel”), against the Township of Jackson.

In Montvale, BREA’s complaint, which alleges violations of the First Amendment’s Free Exercise Clause, 42 U.S.C. § 1983, and RLUIPA’s substantial burden provision, came after the borough’s mayor issued a stop-work order on BREA’s eruv expansion project.  According to the complaint, the expansion of the eruv would violate a borough “litter” ordinance that prohibits posting notices on lamp posts, public-utility poles, shade trees, or public structures or buildings.

The dispute in Jackson allegedly arose under similar circumstances – a newly enacted ordinance removes all exemptions from the town ordinance banning the placement of objects in the public right of way, effectively prohibiting the construction of an eruv.  Agudath Israel, which originally filed suit against Jackson last spring (see our previous post about it here), recently amended its complaint to include this allegation.  Specifically, Agudath Israel’s amended complaint alleges violations of RLUIPA’s non-discrimination, equal terms, and exclusions and limits provisions, as well as the First Amendment’s Free Exercise, Freedom of Association, and Establishment Clauses, the Fourteenth Amendment’s Equal Protection Clause, the Fair Housing Amendments Act, and New Jersey state law.

Original Photography by Waltarrrr, some rights reserved.

City’s Refusal to Permit Private Religious School in Business District Does Not Violate RLUIPA

A federal court has issued another decision in the longstanding RLUIPA battle between the City of Upper Arlington, Ohio (“City”) and Tree of Life Christian Schools (“TLC”).  For a second time, a federal court in the Southern District of Ohio has ruled that the City did not violate RLUIPA’s equal terms provision by prohibiting religious schools in its ORC Office and Research District (“ORC District”).

The dispute began in 2011 when TLC purchased property in the ORC District to develop as a private religious school.  The only problem for TLC – schools are not permitted in the ORC District, a district of special importance to the City, as 95% of the City is devoted to residential use and only about 5% to commercial use.  As such, one of the primary regulatory purposes of the ORC District is to maximize revenue for the City (particularly through taxes), given the scarcity of commercial land.  Complicating matters for TLC was that the land it purchased and sought to develop as a school was previously occupied by AOL/Time Warner and generated substantial tax revenues for the City (accounting for 29% of the City’s income tax revenues in 2001).

We have reported about the extensive history of this case here, here, and here, including two decisions by the United States Court of Appeals for the Sixth Circuit.  The Sixth Circuit most recently remanded the case back to the district court to consider the following issues:

  • Are there nonreligious assemblies or institutions to which the court should compare Tree of Life Christian Schools because they would fail to maximize income-tax revenue?
  • If so, would those assemblies or institutions be treated equally to Tree of Life Christian Schools?

On remand, TLC argued that there are two “comparator” uses that are allowed in the ORC District but generate less income-tax revenue for the City: (a) daycares, and (b) “partial office uses.”  According to TLC, this meant that the City’s ban of private religious schools in the ORC District violated RLUIPA’s equal terms provision.  The Court disagreed.

First, the district court found that daycares were not proper comparators because they would generate more income tax revenue for the City than TLC’s school would generate.  Second, the district court considered TLC’s argument that a “partial office use” was a valid comparator.  TLC claimed that a business could purchase a building the size of the property that TLC purchased, but could use only part of it, staff it with few employees, and generate less income tax revenue for the City.  The district court rejected the partial office use comparator, because:

“if a partial use is accepted as a valid comparator, then there can never be a case in which a city with the goal of maximizing revenue could ever prevail.  A city can set forth the regulatory purpose, but a city cannot demand full use of a property to realize that purpose.  Therefore, for purposes of the analysis of similar comparators, the Court finds it should look to the comparison of the full use of one assembly or institution compared to the full use of another type of assembly or institution.”

The district court’s decision is worth the read for its consideration of the different equal terms tests employed by different Circuits.  While the City ultimately prevailed, this case is an example of the time-consuming, and costly, litigation that can ensue when a municipality is sued under the RLUIPA statute.

The decision in Tree of Life Christian Schools v. City of Upper Arlington (S.D. Ohio 2017), is available here.

 

Facial challenge to Chicago parking standard fails

“When is a church like a library?,” the District Court for the Northern District of Illinois recently asked. Immanuel Baptist Church (the “Church”) hoped to continue operations in a Chicago neighborhood when, in 2016, the property it had been renting for years was offered for sale. Prior to purchasing the property, the Church requested a determination from the City regarding the adequacy of parking available at the property.  Religious assemblies in such locations require one parking space per eight auditorium seats, and the City concluded that the Church could not meet this requirement.

The Church thereafter filed suit, claiming that the City’s parking requirement for churches facially violates RLUIPA and the Constitution’s equal protection clause. Specifically, it claimed that churches are treated worse than “cultural exhibits and libraries” that, if under 4,000 square feet, require no parking, and live theatre venues with less than 150 seats that likewise do not require parking.

In the Seventh Circuit, courts apply RLUIPA’s equal terms provision by questioning whether “a religious institution is treated less favorably than a secular land use that is similarly situated as to relevant zoning criterion.”  (citing River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367 (7th Cir. 2010).  As an initial matter, however, the Court clarified that a plaintiff moving for summary judgment on its claims has the initial burden of proving a prima facie violation of RLUIPA. Notably, the Court concluded, merely pointing out that a land use regulation differentiates between religious and non-religious uses is not enough to establish a prima facie violation and shift the burden of persuasion to the government to justify its ordinance. “Given the nature of a facial challenge,” the Court reasoned, “it would seem appropriate to demand evidence sufficient to support a reasonable inference that the sort of religious assembly at issue is comparable to the type of facially favored secular assembly in, if not all, at least its principal characteristics as they relate to the relevant zoning criteria.”

The “relevant zoning criterion” in this instance was whether churches are similarly situated to theaters and libraries in terms of the need for off street parking. First, the Court concluded that theaters could not be a relevant comparator because theaters are not allowed in the relevant zoning district that allows places of religious worship. Therefore, churches are treated better, not worse than theaters. Next, the Court concluded that libraries are not adequate comparators to the Church’s proposed use. It reasoned that the Church had failed to provide evidence that libraries attracted concentrated groups of people for regular events in the same manner as a church. While attending church services is “quintessentially a group activity… a visit to a library, to check out a book, or read, or research, is an individual action.” Of course, the Court noted, individuals may visit churches alone, and groups sometimes meet at libraries. For the purpose of a facial challenge, however, the Church failed to show that the parking needs of a typical library are comparable to a typical church.

The Court also considered the Church’s equal protection facial challenge to the parking requirement. Applying rational basis review and similar reasoning to that discussed in the equal terms context, the Court concluded that the zoning code was not facially discriminatory.

Although the Court dismissed both facial challenges to the code, the Court granted the Church leave to file an amended complaint to assert as-applied RLUIPA challenges.  The Court’s decision in Immanuel Baptist Church v. City of Chicago, No. 17 C 00932 (N. Dist. Ill., 2017) is available here.

Original photo by Christchurch City Libraries, some rights reserved.

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