Sikh Temple files suit after Oyster Bay, NY ordered it to stop work and then required SEQRA review


Guru Gobind Singh Sikh Center, Inc. (the “Temple”), on June 29, 2016 in the Eastern District of New York, sued the Town of Oyster Bay, New York, the Town Board, and several Town Officials (together, the “Defendants”) after the Defendants halted the Temple’s construction of a house of worship, known as a gurdwara. The complaint is available here.

According to the complaint, the Temple had received site plan approval in February, 2014 to construct a new gurdwara on property it used for worship since 1987, as well as three adjoining parcels. On March 7, 2014, the Temple obtained a building permit to construct the new gurdwara, and in September it began demolition of its prior gurdwara.

Neighbors started complaining when construction of the new gurdwara began. Then, on July 2, 2015, the Town issued a stop work order, which the complaint alleges was a direct response to these complaints. After the stop work order, the Temple held various meetings with the Town’s Commissioner of Planning and Development, Frederick Ippolito. After several revisions to the site plan addressing parking, Ippolito notified the Temple, on January 21, 2016 that the stop work order was lifted.

On February 2, 2016, the Town Board adopted Resolution No. 65-2016 (the “Resolution”), which “suspended” the site plan approval issued to the Temple. The Resolution stated that the prior approval was contingent on the purchase of a property across the street from the Temple’s property, although the Temple contests that the contingency exists. The Town also told the Temple that it would need to conduct an environmental review under the State Environmental Quality Review Act (“SEQRA”). The Temple says the review is unnecessary, and that since 82% of the gurdwara has already been constructed, SEQRA review would impose an undue burden and delay on the Temple and its members, who, the Temple asserts, are now without an adequate place of worship.

The complaint includes three RLUIPA counts (Substantial Burden, Nondiscrimination and Equal Terms), and causes of action under the First Amendment, Fourteenth Amendment, and the New York State Constitution.

Whether requiring SEQRA review imposes a substantial burden is an issue worth following. In Fortress Bible Church v. Feiner (2d. Cir 2011), the Second Circuit found that although SEQRA is not a “land use regulation” as defined by RLUIPA, SEQRA’s application might still trigger RLUIPA’s protections in some situations. In Fortress Bible, the court found that the Town of Greenburgh, New York had substantially burdened Fortress Bible’s religious exercise by acting in bad faith and using the SEQRA review process as a way to block the church’s development proposal. SEQRA review was considered in the substantial burden analysis because “the Town used the SEQRA review process as its vehicle for determining the zoning issues related to the Church’s land use proposal… [and] holding that RLUIPA is inapplicable to what amounts to zoning actions under statutorily mandated environmental review, such as SEQRA, would allow municipalities to insulate zoning decisions from claims of violations under RLUIPA.” We posted about the SEQRA issue in Fortress Bible here and about the final settlement in the case here.


Khanda, original photo by Jasleen Kaur, some rights reserved.

Michigan Township Prevails on Federal Religious Discrimination Claims

A federal court in Michigan has ruled that Genoa Charter Township did not violate federal law in denying a church’s application for a special use permit to operate a religious school.  Livingston Christian Schools (LSC) sought to use property owned by another church, Brighton Church of the Nazarene (Nazarene Church), for its religious school.  LSC had been operating its pre-kindergarten through 12th grade Christian school in Pinckney, Michigan, but insisted that it had to relocate to meet its growing enrollment, academic objectives, and mission to serve Livingston County.  The Nazarene Church property sits on 16.5 acres and has a Christian education center, a sanctuary, offices, a recreational facility and a residential parsonage.  Our prior post regarding LSC’s complaint is available here.

LSC entered into a five-year lease with the Nazarene Church and prepaid $70,000 in rent, with the intent to relocate to the property for the 2015-2016 school year.  At the same time, LSC agreed to lease the Pinckney property, which it formerly used to run its religious to school, to a charter school for $5,000 per month.

After the Township heard of LSC’s plan to relocate, it advised the Nazarene Church that a special use permit would be needed for LSC’s use.  In March 2015, the Nazarene Church applied for an amendment to the existing special use permit to allow LSC’s use of the property as a religious school.  Neighbors objected that the new use would adversely impact traffic and also complained that the Nazarene Church had failed to comply with conditions in its existing special use permit.  The Township’s Planning Commission recommended that the Township Board of Trustees approve the application for the amendment, but the Board denied the application on July 20, 2015 by a 4-3 vote for several reasons, including: (a) negative impacts on the adjacent neighborhood; (b) inconsistencies with the Master Plan; (c) traffic concerns; and (d) the Nazarene Church’s history of noncompliance with the conditions of its special use permit.

LSC alleged that the Township’s actions violated the Religious Land Use & Institutionalized Persons Act’s (RLUIPA) substantial burden provision, the First Amendment to the U.S. Constitution, and the Fourteenth Amendment’s substantive due process protection.

In addressing LSC’s RLUIPA claim, the court noted the substantial burden test in the Sixth Circuit: the government must place substantial pressure on the religious group to violate its religious beliefs or effectively bar the religious group from using its property in the exercise of its religion.  The court rejected LSC’s substantial burden claim, because LSC has not “proffered evidence showing that it cannot carry out its church mission and ministries due to the Township’s denial.”  Specifically, LSC could have used the Pinckney location to continue with its desired use and in fact found another location at Whitmore Lake to operate for the 2015-2016 school year.  In other words, LSC had available to it ready alternatives to ensure its continued religious exercise.

The court rejected LSC’s First Amendment Free Exercise claim for two reasons.  Under Sixth Circuit precedent, a religious group must show that the desired religious use at a particular location is a “fundamental tenet” of the religious group’s faith.  Here, there was no evidence that operating the religious school from the Nazarene Church property was a fundamental tenet of LSC’s religion.  The claim also failed because the court found that the Township had simply applied a neutral law of general applicability and there was no evidence of religious discrimination.

The Fourteenth Amendment substantive due process claim failed because LSC had no protected property interest.  That is, LSC could not prove that the ordinance at issue required the Township to grant its application for a special use permit, since the Township had discretion to deny the application.

The decision in Livingston Christian Schools v. Genoa Charter Township (E.D. MI 2016) is available here.

Ninth Circuit Rejects Hawaii Cannabis Ministry’s RFRA Challenge

Cannabis leafThe U.S. Court of Appeals for the Ninth Circuit recently upheld the convictions of two ministers of the Hawaii Cannabis Ministry who admitted using and distributing large quantities of cannabis in accordance with their religious beliefs.  The Hawaii Cannabis Ministry was founded in 2000 in the City of Hilo, Hawaii as “a community wherein Cannabis could be celebrated as a sacrament.”  According to one of the ministers, “[t]he consumption, possession, cultivation, and distribution of cannabis are essential and necessary components of the THC ministry.”  The Cannabis Ministry distributes marijuana both to its members and to medical marijuana users.

The Cannabis Ministry achieved rapid success, winning 2,000 to 3,000 converts in Hawaii and another 62,000 worldwide.  This success was based in part on the Ministry’s slogan: “We use cannabis religiously and you can too.”  The Ministry’s website also advertised that its members would know neither “arrest,” “prosecution,” nor “conviction of marijuana charges … starting as soon as you sign up.”  The Ministry’s website even stated that minors could join.  Reportedly, the Ministry turned no one away, and even “boasted of enrolling people who ‘come in on a cruise ship and they, you know they are just here for a day and they need … you know?”

The Ministry would provide its members with “a broad menu of cannabis products to pick up and to take away with them: ‘packets,’ ‘live plants,’ ‘clones,’ ‘seeds,’ ‘candy,’ ‘brownies and chocolate chip cookies all with cannabis,’ ‘holy anointing oil,’ and ‘tinctures.’”  In return for the cannabis products, the Cannabis Ministry members would provide a “donation” in some amount.

According to the Ninth Circuit, the Ministry “wrote down a handful of rules nominally designed to ensure that cannabis went out only to Ministry members or medical marijuana users.  But in practice these rules were little more than parchment barriers.”  The Ministry did not confirm that people seeking marijuana were who their Ministry ID cards identified them to be.  Further, the Ministry “never advised people who came through the express service that there were restrictions on what ‘members’ could do with the sacrament,” such as use it only for religious purposes.

In 2010, a grand jury indicted the Ministry’s reverends and associates with several crimes, including violation of the Controlled Substances Act (CSA).  Two ministers pled guilty to one count of conspiracy to manufacture and distribute marijuana.  One minister was sentenced to 60 months in prison followed by 4 years of supervised release.  The other minister was sentenced to 27 months in prison and 3 years of supervised release.

The ministers challenged their convictions under the Religious Freedom Restoration Act (RFRA), which requires that when government substantially burdens religious exercise it must justify the burden through a compelling government interest advanced in the least restrictive means possible.

The Ninth Circuit found that the government had a compelling interest in “mitigating the risk that cannabis from the Ministry will be diverted to recreational users” and that “mandating [the ministers’] full compliance with the CSA would help to advance this compelling interest to a meaningful degree.”  The Ninth Circuit specifically pointed to the black market for cannabis in the city of Hilo, as well as the risk that cannabis would end up in the hands of minors.  The ministers argued that recent Department of Justice memoranda regarding the CSA with respect to marijuana show that the DOJ has abandoned marijuana enforcement efforts, but the Ninth Circuit rejected this argument.  The Ninth Circuit further found that the government satisfied the least restrictive means requirement, and rejected the ministers’ claims to the contrary.

The Ninth Circuit’s decision in United States of America v. Christie is available here.

* trivia:  The Hawaiian word for cannabis is “pakalolo” (read New York Times article here).  Hawaii has the highest proportion of production to use in the country (see report, available here).

Original photo by Frances EllenSome rights reserved.

Sewer Connection Must Be By The Least Restrictive Means


Barbara L. Yoder and Joseph I. Yoder (“Owners”) own a home in Sugar Grove Township, Pennsylvania (“Township”), which has a mandatory sewer connection ordinance (the “Ordinance”), requiring connection to the Sugar Grove Area Sewer Authority’s (“Authority”) infrastructure.  According to the Ordinance, any property that abuts a sewer system constructed by the Authority must connect to the system at the owner’s expense.

The Owners are Old Order Amish, and one tenet of their religion is to disavow the use of electricity, including running water—which requires the use an old-fashioned privy (outhouse). In 2008, the Owners and the Authority entered into a Sewage Services Agreement (Agreement). The Owners agreed to pay the connection fee, past due sewer charges, future monthly charges, and dispose of their privy waste at least once a year into the Authority’s pumping station.  In 2010, the Authority filed a municipal complaint against the Owner’s for non-payment of sewer fees.  The Authority also filed a separate action for breach of the Agreement and to seek injunctive relief requiring connection to the sewer system.  The trial and appeals courts found in favor of the Authority and directed the Owners to connect to the sewer system.  If the Owners failed to connect, the court authorized the Authority to enter the property and connect the dwelling to the sewer system at the Owner’s expense.  Paragraph 5 of the order provided that:

[The Authority] shall, in the process of connecting the property to the sewer system, take due care as to [Owners’] religious convictions, and shall proceed in a manner so as to pose the least possible intrusion on [Owners’] religious convictions and beliefs.

The Owners and the Authority continued to disagree over the method of connection.  The Authority issued a letter stating that the Owners must open an electricity account in order to run a grinder pump required for service on their property.  In response, the Owners filed a petition for injunctive relief.

Ater a two day hearing the court ruled that the Owners would not be required to open an electricity account, although they could be billed for usage through the Authority, and “[the Authority] may connect [Owners’] premises to [the Authority’s] sewer system in a manner that shall be at the [the Authority’s] sole discretion and at [Owners’] sole expense.  This Order supersedes Paragraph 5 of the [2013 Order] at Docket No. 191 of 2012.”

The Owners appealed the decision, arguing that the trial court had previously ordered that the Authority require connection in a manner that was least restrictive to the Owners’ religious exercise, and had impermissibly modified the court’s final order.  They also argued that the trial court erred in not considering all of the elements for a preliminary injunction.

On review, the appeals court agreed with the Owners that the trial court had impermissibly modified the 2013 order requiring the sewer connection.  It therefore reinstated the original paragraph five. It also remanded the decision to deny the requested injunction, which sought immediate injunctive relief from an electric-dependent connection.

The appeals court found that the trial court had erred in not considering whether requiring connection through the use of electricity constitutes the least intrusive means of interference with the Owners’ religious exercise:

The trial court’s analysis regarding the threat to public safety pertained to the lack of any sewer connection at all, not a connection by non-electric means, or, failing that, electricity generated by natural, non-electricity provider means.  Importantly, the trial court also did not address the Owners’ alleged clear right to the least intrusive means of a mandatory connection.

The Commonwealth Court of Pennsylvania’s decision in Yoder v. Sugar Grove Area Sewer Authority, No. 1956 C.D. 2015 (Pa. Commw. Ct. 2016) is available here.  The decision is an important reminder that while ordinances such as this one (requiring a sewer connection) may not be a “land use regulation” invoking RLUIPA, the First Amendment to the U.S. Constitution provides very similar, if not identical protection, in other contexts.

Original photo by davedudeSome rights reserved.

Upcoming Webinar – Panhandling and Solicitation: Understanding the First Amendment Implications

The American Bar Association’s Section of State and Local Government Law is hosting a webinar about the Supreme Court’s Reed v. Town of Gilbert decision that should be of interest to our readers.  Here is a description of the program:

Panhandling is protected as speech under the First Amendment requiring any government restriction on this right to survive the strict scrutiny test, i.e., it must be narrowly tailored to serve a compelling state interest. Since the Supreme Court’s decision in Reed v. Town of Gilbert last June which found that municipalities’ content-based restrictions on signs in public areas to be unconstitutional, one of the unanticipated consequences of that decision has been lower courts’ frequent invalidation of local ordinances intended to prohibit aggressive panhandling and solicitation. Local governments often rely on these ordinances to further public safety and economic interests, but these bans are now being found by courts to run afoul of the First Amendment because they are content-based and are not narrowly tailored to further the government’s asserted interests.

Robinson & Cole’s Sorell E. Negro will moderate the program.  Speakers include Brian J. Connolly, Joseph W. Mead, and Kirsten Clanton.

The webinar is scheduled for tomorrow, June 14 from 1:00 PM to 2:30 PM ET.  1.5 CLE credit will be provided.

Register for the program here.

Before you attend the webinar, check out our post Seventh Circuit Applies Reed v. Gilbert to Strike Down Panhandling Ordinance.

Cemetery Association Not Substantially Burdened by Coastal Area Review

Original photograph by Whatknot, some rights reserved

Woodland Cemetery Association (the “Association”) appealed the Zoning Board of the City Stamford, Connecticut’s denial of an application to make several improvements to an existing cemetery within a “coastal area” regulated under Connecticut’s Coastal Management Act (the “Act”), Conn. Gen. Stat. § 22a-90 et seq.  In Connecticut, site plan applications for property located within a coastal area must demonstrate compliance with the Act, in addition to compliance with local zoning regulations.  Among other improvements, the Association applied to remove invasive species, install drainage, excavate soil, and extend an existing driveway in the cemetery.

The Association argued that its proposed improvements on the 35 acre site were exempt from the Act and local regulation because the proposed “restoration and beautification” activities would not “alter” coastal resources.  Given the extent of the repairs and the fact that some earth moving and tree removal activities occurred before the Association even sought a permit, the Court found that the Zoning Board’s decision to deny an exemption from the Act was neither arbitrary nor capricious.

Next, the Association argued that it was arbitrary for the board to deny its application as incomplete. Although the improved area would be used for future gravesites, the Association refused to provide information about the number, location and nature (above or underground) of future burial plots.  The Zoning Board denied the application based on the lack of such details.

Finally, the Court considered whether the Zoning Board’s denial violated RLUIPA. The Court’s consideration of RLUIPA’s substantial burden provision is notable in that it highlights a degree of discord between Connecticut state court and Second Circuit precedent.  In this case, the Court, relying on Cambodian Buddhist Soc’y of Conn., Inc. v. Planning & Zoning Comm’n, 285 Conn. 381 (Conn. 2008), concluded that a zoning regulation that is “applicable without discrimination to all property owners in a jurisdiction… does not constitute an ‘individualized assessment’….”  Therefore, under Connecticut precedent, non-discriminatory application of a neutral zoning regulation cannot violate RLUIPA’s substantial burden provision.  The Second Circuit has held, however, that application of neutral and generally applicable laws does, in fact, constitute an “individualized assessment,” which invokes RLUIPA’s substantial burden provision. (See a prior post regarding the decision in Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield (2d Cir. 2014) here.)  Most other courts around the country agree with the Second Circuit’s analysis.

At least in Connecticut, this decision and the Connecticut Supreme Court’s decision in Cambodian Buddhist Society, provide ample motivation for religious land use applicants to pursue RLUIPA claims in federal court only—a tricky and important consideration when also filing a zoning appeal under Conn. Gen. Stat. § 8-8 which provides that such an appeal must be commenced within 15 days of publication of legal notice of the agency’s action.

Original photograph by Whatknot, some rights reserved



Upcoming Webinar: Airbnb & Zoning: A Planner & Lawyer’s Guide to Short-Term Rentals

The Planning and Law Division of the American Planning Association will be hosting the upcoming webcast Airbnb & Zoning: A Planner & Lawyer’s Guide to Short-Term Rentals on Monday, June 6, 2016 from 1:00 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.  RLUIPA Defense’s own Dwight Merriam, FAICP, will be participating in the program.

A description of the program:

Airbnb is a name you’re likely familiar with. It’s a local official’s nightmare and a short-on-rent-tenant’s dream. Zoning enforcement officers and building inspectors are issuing violations, hotel industry lobbyists are crying foul play, and New York City has outlawed it altogether. In this webinar, Dwight Merriam, Robinson & Cole, Troy Flanagan, AHLA, George Proakis, City of Somerville, and Ulrik Binzer, Host Compliance, will provide insight into the legal and economic issues surrounding the “sharing economy” titan. Specifically, attendees will learn about the common pitfalls that local governments run into when trying to regulate short-term rentals, the best practices for incorporating local housing and community development objectives into short-term rental regulation, the challenges associated with monitoring compliance with, and enforcing, short-term rental regulations, and the best ways to overcome the compliance and enforcement challenges.

You can register for and learn more about the program here.

CM (1.5) and CLE (1.5) credit will be offered.

Indiana Church Files Religious Discrimination Suit Over Nearby Dairy Farm Approval

Cows 2For the past 30 years, Harvest Christian Camp has provided a summer camp for thousands of Christian children on a 36 acre site in Henry County, Indiana, in accordance with its religious beliefs to “help[] children and teens to develop a strong life-long relationship with the Lord [through] praise and worship, Bible classes, devotions and night services to strengthen their spiritual lives [and have] a lot of fun and fellowship.”  The Camp’s facilities include 13 open-air cabins, 106 beds, three classrooms/dorms, a sanctuary, kitchen, and shop.  Each year the Camp hosts about 500 campers between the ages of 4 and 17, who participate in outdoor and educational activities such as archery, swimming, go-carts, giant slip and slide, paintball, music, drama and art classes, and bible study.  The Camp’s sanctuary is used regularly throughout the year for religious services.

Now, the Camp has taken issue with the Rush County Zoning Board of Appeals’ (ZBA) approval of a special exception permit to allow the operation of a dairy farm to be located about a half mile and upwind from the Camp site.  The Camp claims in its complaint that the dairy farm “will include, among other things, a free stall barn to house 1,400 cows along with three earthen, outdoor waste lagoons for the collection of approximately 20 million gallons of feces, urine, silage leachate, contaminated storm water, and process[ed] wastewater.  The collected waste will be emptied from the lagoons and spread on various land parcels in Rush and Henry counties that surround” the Camp site.

The proposed dairy farm is a “Large Concentrated Animal Feeding Operation (CAFO)” as defined by the U.S. Environmental Protection Agency (read about it here) and under Indiana law is subject to state regulation as well.  As discussed in the report Environmental Impact of Industrial Farm Animal Production, the potential impacts of a CAFO can be substantial.

The Camp has sued the ZBA in state court “due to the concern that the noxious odors and harmful air emissions caused by the 1,400 dairy cows and millions of gallons of urine and feces so close to its property will destroy the outdoor experiences for children that are central to Harvest Christian Camp’s mission, purpose and exercise of religion.”  The Camp alleges violations of its religious beliefs as protected by the Religious Land Use & Institutionalized Persons Act and the U.S. Constitution, in addition to claims under Indiana law.  The Camp’s complaint is available here.

The Camp’s lawyer stated: “The camp’s very existence is at stake.  Parents of young children are not going to want to send their kids to this camp with that sort of operation so close by.”  Local coverage is available here.

Photo by Rose Craft, some rights reserved.

DOJ Investigating Possible RLUIPA Violation in Toms River, New Jersey

Earlier this year, we reported on the lawsuit filed by Chabad Jewish Center of Toms River, Inc. against the Township of Toms River, New Jersey (read prior post here).  The Center challenges the Township’s decision that it must obtain a variance to continue its small religious gatherings at the home of Rabbi Moshe Gourarie.  Rabbi Gourarie received eight zoning violations in October 2014 for using his home in this way.

The Center claims that while the Rabbi’s residence is primarily used as a home, it is also used for small religious gatherings on Saturdays (10 to 15 people) and to host various other religious events (averaging 10 people).  The Township views the use as a “house of worship,” which is not allowed as of right or conditionally in the subject zoning district, and rejected the Center’s argument that the use was akin to a clergy residence or parsonage which reportedly must be allowed in any zone.

Now, the United States Department of Justice has informed the Township’s mayor that it is investigating the Township’s zoning code and handling of the controversy as possibly violating RLUIPA.  The DOJ has stated that its investigation is “preliminary in nature” and that it has “not made any determination as to whether there has been a violation of RLUIPA by the Township.”  The DOJ often investigates the text of zoning codes and actions of land use agencies enforcing the codes for compliance with RLUIPA.  The RLUIPA statute even authorizes the DOJ to sue local governments it believes have violated the statute:

The United States may bring an action for injunctive or declaratory relief to enforce compliance with this chapter. Nothing in this subsection shall be construed to deny, impair, or otherwise affect any right or authority of the Attorney General, the United States, or any agency, officer, or employee of the United States, acting under any law other than this subsection, to institute or intervene in any proceeding.

On the tenth anniversary of RLUIPA in 2010, the DOJ reported that it had:

  • Opened 51 RLUIPA investigations, including seven so far in 2010;
  • Filed seven RLUIPA lawsuits involving land use;
  • Filed 10 amicus briefs in private cases to inform the court about its interpretation of the law’s provisions; and
  • Intervened in private lawsuits to defend the constitutionality of RLUIPA in 30 land-use cases.

The numbers are even greater now, but the DOJ has not issued a report since its 2010 report (available here).

Scottsdale, Arizona Bars Satanic Temple Prayer

Davil PhotoThe Satanic Temple has had a busy year in Arizona.  Earlier this year, we reported that the Phoenix City Council abolished its 65-year practice of beginning council meetings with prayer in favor of a moment of silence, following a request by the Satanic Temple to give a pre-meeting prayer.  The City Council later decided to re-implement its prayer policy, but now only allows Phoenix police or fire department chaplains to give the prayer.  Read more about the controversy in our posts Satanists Score Victory in Phoenix and All Hell Breaks Loose in Phoenix Satanic Prayer Showdown.

Now, Scottsdale, Arizona is banning the Satanists from leading prayer before a council meeting.  Reportedly, Scottsdale previously said it would allow the Satanic Temple to provide prayer, but has since reversed course.  A Scottsdale spokesperson said that only “representatives from institutions that have a substantial connection to the Scottsdale community” will be allowed to give the prayer.  The newly formed Arizona chapter of the Satanic Temple is based out of Tucson, Arizona, and does not have a “substantial connection to Scottsdale” to qualify it to lead prayer.  A Satanic Temple spokesperson has said: “If our mere presence offends you that’s not our problem.  That’s not our burden.”

According to local reports, the Satanic prayer would urge the community to embrace a “Luciferian impulse to eat of the Tree of Knowledge” and would tell the community to “reason our solutions with agnosticism in all things” and to stand firm “against any and all arbitrary authority that threatens” personal sovereignty.  The prayer would end with “hail Satan.”  Satanic Temple representatives have said that the Temple does not teach the existence of Satan, but instead uses the name to symbolize rebellion against tyranny.  The Temple states that it promotes compassion, empathy, and embarking on “noble pursuits guided by our individual wills.”

The Satanic Temple has not indicated if it will seek legal action.

Photo by elycefeliz, some rights reserved.