Coconut Creek, Florida Amends Zoning Code Following DOJ’s RLUIPA Investigation

Recently, the Department of Justice reported that it has closed its investigation into whether the City of Coconut Creek’s zoning code violated RLUIPA’s equal terms provision by treating secular assembly uses better than religious uses.  Below is the DOJ’s full press release:

On December 4, the Department of Justice closed its investigation of the City of Coconut Creek, Florida under the Religious Land Use and Institutionalized Persons Act (RLUIPA), after the City changed its zoning code to treat houses of worship equally with nonreligious assemblies.

The Department opened an investigation in 2016 into the City’s treatment of churches and other houses of worship in its zoning code.  At the time, nonreligious assemblies such as dance and martial arts studios, fitness clubs, and childcare facilities were allowed to operate as of right in business districts, while houses of worship in these districts were required to obtain special land use permits to operate.  Continue Reading

Islamic Community Center Denied Variance Needed to Operate Mosque; Files Lawsuit Against Michigan City

Earlier this month, an Islamic community center filed suit against the City of Troy, Michigan (“City”) after the City denied the group’s application for a variance needed to operate a mosque at the property it owns in the City, allegedly in violation of RLUIPA. The community center, known as Adam Community Center (“ACC”), is a non-profit corporation whose “stated mission and purpose is to establish a center for increasing knowledge through proper research, education and training in the community for the youth and adults; to establish peace through proper guidance; [and] to establish a homogenous atmosphere for all ethnic groups.” According to the Complaint, ACC has attempted to have several different properties approved as a community center and a place of worship over the past five years, each time meeting resistance from the City and its residents. In 2017, in an effort to avoid further resistance, ACC sought advice from the City as to which of several prospective properties could be used as a mosque and community center. In response, a city employee allegedly advised ACC to look to other cities, because he claimed that there were no places in Troy available for a mosque. There are, however, seventy-three approved places of worship in the City for various non-Muslim religions, several of which have been built and approved since 2013 when ACC began its search. Continue Reading

As-Applied Challenge to Chicago Parking Standard Survives Motion to Dismiss

When is this Church like that Library?” The District Court for the Northern District of Illinois considered this question in its review of the City of Chicago’s motion to dismiss a RLUIPA equal terms claim brought against the City by Immanuel Baptist Church (“Church”). The Court’s recent decision follows last year’s review of the broader question “When is a church like a library?”(see our prior post here).

This story begins in 2016, when the property the Church had been renting for years was offered for sale. Prior to purchasing the property, which is located in Subarea B of the City’s Planned Development 896 (PD 896), the Church requested a determination from the City regarding the adequacy of parking available at the property. Religious assemblies in such zones 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, among other things, the City’s parking requirements for religious and secular assemblies are illegal on their face under RLUIPA’s equal terms provision. 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.

Applying the Seventh Circuit’s relevant zoning criterion test – an equal terms violation exists if a religious land use is treated less favorably than a secular land use that is similarly situated to it with respect to the accepted zoning criterion (see River of Life Kingdom Ministries v. Village of Hazel Crest) – the Court determined that for the purpose of a facial challenge, the Church failed to show that the parking needs of a typical library are comparable to a typical church. Although the Court dismissed the Church’s facial challenge, it granted the Church leave to amend its complaint to assert an as-applied claim under the same provision.

In October 2017, the Church files its Amended Complaint alleging that the City’s actions violated RLUIPA’s equal terms provision by providing libraries with ample exceptions to the City’s parking requirements, while refusing to provide such exceptions for the Church. The City has moved to dismiss the Church’s as-applied claim.

Again applying the Seventh Circuit’s relevant zoning criterion test, the Court explained that, to survive a motion to dismiss, “the Church must allege facts that plausibly show the existence of a similarly situated secular comparator that is treated better than the Church . . . with regard to [the relevant] zoning criterion—the need for off-street parking.” The Church alleged that two secular comparators, the Lozano Library and the Taylor Street Library, were better treated than the Church with respect to parking.

Lozano Library: Pointing to allegations that the Lozano’s Library’s public meeting room can accommodate up to 60 people (the size of the Church’s congregation) and that the Library hosts several weekly events, the Court found it “plausible that both the Church and the Lozano Library generate ‘groups of people coming and going at the same time’ such that their respective parking needs are the same.” Additionally, the Court found it plausible that the Church had been treated on less than equal terms with the Lozano Library, where the Church alleged that (i) the City made ample exceptions to its parking ordinance for libraries but has failed to do so for the Church, and (ii) the Lozano Library should have 14 parking spaces under the relevant zoning ordinances, but currently offers none.

Taylor Street Library: In contrast, the Court found the Church’s allegations regarding the parking needs of the Taylor Street Library, which was still under construction, merely speculative and therefore insufficient to establish the Taylor Street Library as a comparator.

The Court’s decision in Immanuel Baptist Church v. City of Chicago, No. 17 C 00932 (N. Dist. Ill. 2018) is available here.

Original photography by Smart Chicago Collaborative, some rights reserved.

Upcoming Webinar – Planning, Law and Plain English

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Planning, Law, and Plain English on November 1, 2018 from 1:00 p.m. to 2:30 p.m. EDT.  Registration for individual PLD members is $20 and $45 for non-members. Registration for two or more people at one computer is $140.  This webinar will examine how words frame our understanding of often complex concepts and demonstrate how our choice of words can either illuminate the concept, or make it impossibly difficult to comprehend. The speakers will use real world examples of how English serves or compromises important planning and development policies and regulations and provide useful drafting tips that can make even the most verbose writer elegantly efficient.  Speakers are David Silverman, AICP, Partner at Ancel Glink in Chicago and Kimberley Mickelson, AICP, Sr. Asst City Attorney for Planning and Development, City of Houston Legal Department, Real Estate Division.

Register here

CM | 1.50 | Law

CLE 1.50 through Illinois State Bar

Coffee Shop Church’s Claims Survive Motion to Dismiss, City Amends Code to Permit Use

A federal court in Maryland has denied the City of Laurel, Maryland’s (“City”) motion to dismiss a lawsuit brought by Redemption Community Church (“Church”). The Church filed suit last February, after the City issued a cease and desist order prohibiting the Church from offering religious services at the coffee shop it owns in the City’s community-village zoning district (the “CV Zone”). We previously posted about this case here.

The Church purchased property at 385 Main Street in the City in March 2015 (the “Property”), with the intention of operating a non-profit coffee shop Monday through Saturday, and a house of worship on Sundays. When the Church first entered into a purchase agreement for the Property, non-profit businesses and houses of worship were permitted uses in the CV Zone. Less than a month after the Church contracted to buy the Property, the City amended its zoning code on March 9, 2015, to exclude non-profit businesses from the CV Zone, and again on April 27, 2015, to require a special exception for houses of worship located on less than one acre in the CV Zone. Together, these amendments prohibited both of the Church’s originally intended uses for the Property.

In November 2015, the Church decided to reorganize as a for-profit entity, so that it could operate the coffee shop as originally intended. It thereafter undertook extensive renovations, and the City issued it a use and occupancy permit to operate a for-profit coffee shop on April 3, 2017; the shop opened for business two days later. On April 9, 2017, the Church began hosting worship gatherings for up to 20 people in the coffee shop basement for two hours on Sundays, while the shop was closed.

After some two months of these Sunday gatherings, the City issued a cease and desist order on July 27, 2017. The Church, however, continued to hold small worship gatherings on Sundays, believing it was not in violation of the City zoning code or its use and occupancy permit. It was not until the City issued a second cease and desist order, on January 26, 2018, that the Church stopped holding Sunday worship gatherings.

The Church’s Complaint asserts claims under RLUIPA’s nondiscrimination, equal terms, and substantial burden provisions, the First Amendment’s Free Exercise, Free Speech, Free Assembly, and Establishment clauses, and the Fourteenth Amendment’s Equal Protection clause, all of which survived the City’s motion to dismiss.

In analyzing the City’s motion, the Court first considered the City’s arguments that the Church’s claims were not ripe for adjudication, given that the Church never applied for, and was never denied, a special exception permit. The Court distinguished between the Church’s facial claims and its as-applied claims, as the Fourth Circuit has long held that facial challenges to land-use regulations are ripe without a “final decision” on the law’s application to the property. Moreover, courts in the Fourth Circuit have developed several notable exceptions to the finality requirement that traditionally pertains to as-applied claims. For one, “landowners are not required to resort to ‘repetitive or unfair land use procedures’ to obtain a final decision.” Acorn Land, LLC v. Baltimore County, Maryland, 402 F. App’x 809, 814 (4th Cir. 2010). Accordingly, the Court found that both the facial and as-applied claims were ripe.

Next, the Court considered the City’s argument that the Church failed to state a claim as to each cause of action.  The Court assumed the factual allegations in the Church’s complaint to be true, as required by the applicable judicial standard of review.

Equal Terms

The Church’s Complaint alleges that the City’s April 2015 zoning code amendments (requiring houses of worship on less than one acre in the CV Zone to undergo “a costly and onerous special exception process”) treat religious use worse than numerous secular uses, such as community theaters, libraries, museums, or schools for business, art or music, which are permitted in the CV Zone as-of-right. Although the circuit courts are split on the proper test to determine comparators for Equal Terms claims and the Fourth Circuit has yet to rule on the issue, the Court here determined that, under any circuit’s test, all of these secular uses could constitute a similarly situated comparator. Accordingly, the Court found that the Church had sufficiently pled that the City’s Code treats religious institutions on unequal terms with nonreligious assemblies or institutions.

Nondiscrimination

In the Fourth Circuit, in order to establish a claim under RLUIPA’s nondiscrimination provision, “a plaintiff must show evidence of discriminatory intent.” According to the Church, the close temporal proximity of the Code amendments and the Church’s purchase of the Property allows for the inference that the City was “specifically motivated by discriminatory animus against the Church.” Additionally, the Church alleged that the City Planner made certain statements “imply[ing] that he, and potentially others, may have been motivated by discriminatory animus” to amend the zoning code and issue the cease and desist orders. The Court found these allegations, if true, to be sufficient evidence of discriminatory intent to maintain a claim under RLUIPA’s nondiscrimination provision.

Substantial Burden

In analyzing the Church’s substantial burden claim, that Court explained that because religious use was allowed as-of-right when the Church purchased the Property, the zoning code amendments restricted the Church’s ability to use its Property as originally intended, “leaving the Church with a $470,000 investment and no house of worship.” Therefore, the Court determined that undergoing the special exception application process would constitute a substantial burden.

Similarly, the Court found that the facts, as the Church alleged, were sufficient to state claims under the First Amendment’s Free Exercise, Free Speech, Free Assembly, and Establishment clauses, and the Fourteenth Amendment’s Equal Protection clause.

The Court’s decision in Redemption Community Church v. City of Laurel, Maryland is available here.

Update: The City’s Latest Code Amendment

Following the Court’s denial of the City’s motion to dismiss, on September 24, 2018, the City enacted Text Amendment 250, which removes the special exception requirement for a House of Worship on less than one acre and provides that a House of Worship is a “Permitted Use” in the CV-Zone. In a letter to the Court, the City stated: “[T]he Church no longer is required to submit an application for Special Exception in order to use the Property for a House of Worship.”

Note that, under RLUIPA’s safe harbor provision, which allows local governments to take corrective action to “avoid the preemptive force” of the statute, the enactment of Text Amendment 250 may render moot the Church’s claims of religious discrimination.

Original photography by LadyDucayne, some rights reserved.

Hand of Hope RLUIPA Claims Survive Summary Judgment

Hand of Hope Pregnancy Resource Center (“Hand of Hope”) is a non-profit  in Raleigh, North Carolina with the mission to “affirm the value of life from conception by compassionately sharing the gospel of Jesus Christ[.]”  It offers clients prayer, Bible study, and spiritual counseling, as well as free reproductive healthcare information, physician-quality pregnancy testing, limited obstetrical ultrasounds, pregnancy counseling and support, post-abortion support, and life skills classes.

In December 2015, Hand of Hope purchased a single family home in a Residential, Special Highway Overlay District (the “Property”) with the intention of relocating its operations to the Property.  The Property is across the street from an abortion clinic, but the clinic is located in an Office-Mixed Use zone, where medical uses are permitted by right.  Although “civic uses” are permitted at the Property, “medical uses” are not.  After Hand of Hope purchased the Property, it consulted with City zoning staff and was advised that a rezoning would be required to permit its operations.  In July 2016, the City Council denied Hand of Hope’s rezoning application,  reasoning that “lot-by-lot piecemeal” rezoning would have an adverse impact on surrounding properties including neighboring residential uses.

Hand of Hope then filed the instant lawsuit.  Shortly thereafter, upon a suggestion from the City’s attorney, Hand of Hope sought a zoning determination as to whether its operations fit within the definition of a “civic use,” which is permitted without rezoning.  The zoning determination was considered by the City’s Board of Adjustment, which concluded that Hand of Hope’s use was indeed a medical use and not permitted in the residential zoning district.  It based its decision on the fact that Hand of Hope would perform ultrasounds to confirm pregnancy by licensed nurses under the supervision of a medical director.

Following the Board of Adjustment decision, Hand of Hope amended its complaint to set forth the full procedural history of the zoning interpretation process.  Hand of Hope moved for partial summary judgment against the City with respect to its claims under the Equal Terms provision of RLUIPA, the Free Speech Clause of the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment.  The City cross-moved for summary judgment on the same three claims.

Equal Terms & Questions of Fact:  Hand of Hope alleged an as applied Equal Terms challenge on the grounds that the City permits non-religious assemblies and “like uses” in residential zones.  After examining the three prevailing Equal Terms tests across the circuit courts [(i) the “regulatory purpose test” in the Third Circuit; (ii) the “accepted zoning criteria test” in the Seventh Circuit; and (iii) the “functional intents and purposes test” in the Eleventh Circuit], it applied the “accepted zoning criteria test,” which considers whether the plaintiff’s and the selected comparators’ land uses can be distinguished based on “accepted zoning criteria” that define the relevant zoning district.  Out of four potential comparators presented by Hand of Hope, the Court found that only one—an EMS station—could serve as a non-religious comparator.  The Court concluded that the Equal Terms claim could not be decided on summary judgment, because a factual issue exists over whether Hand of Hope met its burden to show that it fulfills the accepted zoning criteria in the same way as its identified comparators, which operate solely civic uses.

Free Speech Claim Dismissed: Hand of Hope argued that an ultrasound is a form of protected speech and regulation of the same must be judged under a strict scrutiny standard.  The Court found no evidence that the City’s denial of the rezoning request was based on or influenced by Hand of Hope’s religious message.  The Court found that the zoning code’s use regulations were content-neutral time, place and manner restrictions that are narrowly tailored to its significant interest in protecting residential neighborhoods from incompatible development.  Further, the City’s zoning code leaves ample alternative channels to share Hand of Hope’s religious message.

Equal Protection Claim Dismissed:  Hand of Hope’s Equal Protection claim also failed.  Hand of Hope pursued both “selective enforcement” and “class one” theories; under each theory, a plaintiff must show that it is similar “in all material respects” to its proposed comparators. The Court concluded that Hand of Hope’s proposed medical activities at the Property (e.g. ultrasound interpretation and HIPPA compliance) significantly differentiated Hand of Hope from other religious and educational uses permitted in residential districts.  Since an adequate equal protection comparator was not presented, the Court dismissed the count.

Preliminary Injunction Denied:  To obtain an injunction, Hand of Hope would have had to make a “clear showing” that it was likely to succeed on the merits of its claims.  Since the constitutional claims were dismissed and a significant question of fact exists as to whether its Equal Terms claim is viable, a preliminary injunction, the Court reasoned, is not supported by any of these three claims.  Therefore, the Court considered Hand of Hope’s likelihood of success on its substantial burden claim that was not otherwise the subject of summary judgment.  Hand of Hope was aware at the time of purchase that it would likely need to rezone the Property before it began operations.  Therefore, the Court concluded that it did not have a reasonable expectation that it would be permitted to operate at the Property.  Since the Fourth Circuit considers a plaintiff’s reasonable expectations as part of the substantial burden analysis, the Court concluded that Hand of Hope did not make a “clear showing” that it is likely to succeed on its claims.

The Court’s decision in Hand of Hope Pregnancy Resource Center v. City of Raleigh is available here.

Original photo by Jeremy Brooks, some rights reserved.

Sixth Circuit Creates New RLUIPA Equal Terms Test Based On “Legitimate Zoning Criteria”

Earlier this week, the U.S. Court of Appeals for the Sixth Circuit issued a decision in Tree of Life Christian Schools v. City of Upper Arlington concerning a religious school’s RLUIPA equal terms challenge.  The decision is the third time in the past five years that the Sixth Circuit has considered the dispute (our prior posts about the case are available here and here).  The recent decision is noteworthy because the Sixth Circuit created a new test (or, at least, a new name for an existing test) to examine claims brought under RLUIPA’s equal terms provision.  Under the equal terms provision, “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”  42 U.S.C. § 2000cc(b)(1).  Courts considering equal terms claims have struggled with what constitutes “equal” treatment.  The Sixth Circuit noted that “This language provides no guideposts for what Congress meant by the term ‘equal.’”  According to the Sixth Circuit, a plaintiff may prevail on an equal terms challenge if it identifies a nonreligious use that is similarly situated to a proposed religious use based on “legitimate zoning criteria” with respect to the zoning regulation at issue.  The Sixth Circuit’s decision is also significant because it determined that revenue generation, even in the form of taxes levied against property users and their employees, is a legitimate zoning criteria.  In applying this standard, the Sixth Circuit rejected Tree of Life Christian School’s (“TOL”) equal terms challenge for failing to establish that a nonreligious use was treated better than TOL’s proposed religious school. Continue Reading

Court Denies Summary Judgment in “Integral Yoga” RLUIPA Dispute in Hawaii

Back in 2015, we first reported about a RLUIPA case pitting the County of Maui, Hawaii against practitioners of “Integral Yoga” (prior post available here).  Integral Yoga is a worldwide religious organization established in the U.S. in 1966 that believes “the goal and the birthright of all individuals is to realize the spiritual unity behind the diversity throughout creation and to live harmoniously as members of ‘one universal family.’”  Maui’s Planning and Zoning Commission (the “Commission”) has repeatedly denied the efforts of Frederick R. Honig, also known as Swami Waroopananda (“Honig”), and Spirit of Aloha Temple (the “Temple”) to use an 11-acre site on Haumana Road in Haiku, Hawaii (the “Property”) for Integral Yoga and other related religious uses.  Honig (a Senior Minister of the Temple) describes the Property, which is zoned for agricultural and conservation purposes, as the “most perfect property” in the world.  A federal court issued a ruling earlier this summer denying the parties’ cross-motions for summary judgment, meaning the case may be headed for trial. Continue Reading

Rabbi Prohibited from Using Property as Short-Term Vacation Rental Under Savannah Ordinance

A court in Chatham County, Georgia has granted the City of Savannah’s (“City”) request for a preliminary injunction temporarily prohibiting Rabbi Arnold Belzer and his wife from operating a “short-term vacation rental” and/or a “bed and breakfast homestay” at their home on Washington Avenue in Savannah (the “Property”). In doing so, the court rejected Rabbi Belzer’s contention that, owing to sincerely-held religious belief in the Jewish practice of hospitality, an obligation found in Jewish scripture and tradition, he and his wife should be exempt from the Savannah Code of Ordinances’ prohibition on short-term rentals. Continue Reading

Church Ministering To Homeless Secures Preliminary Injunction Against St. Paul, Minn. For Likely RLUIPA And Free Speech Violations

A federal court in Minnesota has issued a preliminary injunction in favor of a local church ministering to the homeless, ruling that the church was likely to prevail on its RLUIPA substantial burden and First Amendment free speech claims.  The injunction will prevent St. Paul, Minnesota from enforcing 2 of the 14 conditions it imposed on the church’s use of its property to aid the needy.  The church, First Lutheran Church (“First Lutheran”), operates in a residential area of St. Paul and, for over the past decade, has supported the poor and homeless in accordance with its religious beliefs.  Among the services provided by First Lutheran are Sunday breakfasts to more than 300 people, as well as a “wellness center” one night a week offering free medical services, mental health counseling, clothing, blankets and houseware, and a hot meal.  In 2017, First Lutheran partnered with another organization assisting St. Paul’s homeless as a day shelter and community center, Listening House of St. Paul (“Listening House”), and allowed Listening House to relocate to the church property.  The partnership allowed First Lutheran to expand its services beyond the local neighborhood to St. Paul generally. Continue Reading

LexBlog