RLUIPA Case of the Year? Minnesota Municipality Uses RLUIPA’s Safe Harbor Provision to Avoid Liability

In an important decision for municipalities across the country, a federal court in Minnesota has recently ruled that actions taken under RLUIPA’s “safe harbor” provision absolved a local government of possible RLUIPA violations.  This is especially noteworthy because few courts have considered the safe harbor provision.  According to the court, the City of St. Michael’s amendments to its zoning regulations to allow religious uses as conditional uses in the business zone (where they were previously prohibited), coupled with the granting of a conditional use permit, meant the City had to prevail.  The safe harbor provision provides:

A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.

Here is the background.  Riverside Church held services in Big Lake, Minnesota, but needed to find a second location to accommodate its growth.  From 2004 to 2014, the Church’s attendance at Sunday worship services increased from 665 to nearly 1,500 people.  The Church identified property in the City of St. Michael’s business zone, about 12 miles south of Big Lake, that was formerly used as a 15-screen movie theater, and sought to purchase the property so that it could hold worship services there (“Theater Property”).  The Theater Property was for sale at just under $3 million, but the City’s zoning code, at the time prohibited religious uses from the subject business zone.

In July 2014, the Church submitted an application to amend the text of the zoning regulations to allow religious uses in the business zone.  Around the same time, the Church entered into a purchase and sale agreement for the Theater Property contingent on obtaining zoning approval to allow religious use of the property.  As the text amendment application was pending, the City Council imposed an across-the-board moratorium that barred “the use of any land for new or expanded assembly, theater, or church, purposes during the period of the moratorium.”  The purpose of the moratorium was to give the City time to study the impacts of these types of assembly uses in business zones.  The same day the moratorium was imposed, the City amended the zoning regulations by removing “theaters” (which had been allowed as-of-right) and replacing that use with “multi-plex theater” as a conditional use.

The Church and the City attempted to negotiate a compromise that would allow the Church to use the Theater Property, but negotiations fell apart and the City then denied the text amendment application.  In denying the application, the City issued its “Findings of Fact and Decision” in which it found that religious uses would have an adverse impact on other uses in the business zone and would cause parking, traffic, and infrastructure concerns.  The purchase and sale agreement for the Theater Property terminated.

In March, 2015, the Church entered into another purchase and sale agreement for the Theater Property for about $3.5 million, plus the cost of repairs and improvements to the property.  Three days later, the Church sued the City under RLUIPA, the U.S. Constitution, and Minnesota law.  While litigation was pending, the City utilized RLUIPA’s safe harbor provision to amend its zoning code.  The zoning code amendment removed “multi-plex theater” and added “assembly, religious institution, house of worship” as conditional uses.  In April, 2015, the City issued the Church a conditional use permit to use the Theater Property.  However, the Church was unable to purchase the Theater Property because the total cost, with the repairs and improvements, would be more than $5 million.

In considering the City’s motion for summary judgment, the District Court for the District of Minnesota ruled that the City’s use of the safe harbor provision relieved the City from liability under RLUIPA.  Specifically, the City’s amendment to the zoning code to allow religious uses in the business zone as conditional uses and its granting the Church a conditional use permit to use the Theater Property “eliminated any alleged substantial burden and any alleged discriminatory treatment” imposed by the former zoning code and denial of the Church’s text amendment application.

The Court also ruled that the substantial burden and equal terms claims failed regardless of the safe harbor provision.  Neither the former zoning code nor the denial of the Church’s text amendment application constituted a substantial burden, because: (a) they merely inconvenienced the Church, since the Church could have established a site in any of the remaining zones where religious uses were permitted, and (b) the City’s Findings of Fact and Decision shows that its actions were well-reasoned and not arbitrary and capricious.  The Court’s decision is noteworthy for its review of other circuits’ interpretations and applications of the substantial burden provision, as the Eighth Circuit had yet to define what is meant by “substantial burden.”

As for the equal terms claim, the Court utilized both the Third Circuit’s “regulatory purpose” and Seventh Circuit’s “accepted zoning criteria” tests.  According to the Court, the regulatory purpose for the business zone is to provide land for business and retail uses to strengthen the City’s economy.  Similarly, zoning criteria for the subject business district is to generate taxable revenue and shopping opportunities.  This led the Court to conclude:

With respect to these purposes and zoning criteria, a church is not similarly situated to a movie theater. A church is not in the business of selling items to the public and, as a non-profit entity, does not generate taxable revenue. A movie theater, in contrast, typically focuses on selling tickets and food to moviegoers and is a for-profit entity that generates taxable revenue.

Accordingly, the City’s pre-amendment prohibition of religious uses in the business zone did not violate the equal terms provision.

The Court also rejected the Church’s Free Exercise claim.  First, the zoning code’s ban on religious uses did not substantially burden the Church’s religious exercise.  Second, the moratorium, which prevented the Church from finding a new site anywhere in the City for a year, was neutral and generally applicable.

The Court declined entering summary judgment in favor of the City as to the Church’s Free Speech claim, because there remained a genuine issue of material fact with respect to whether the zoning ordinance’s ban on religious uses was “narrowly tailored” to advance the City’s government interests (strengthening the City’s economic base and providing employment opportunities).  Notably, however, the Court concluded that the subject ordinance was content-neutral under the Supreme Court’s decision in Reed v. Town of Gilbert, because the focus of the ordinance was on genuine public health, safety, and general welfare issues.

The decision in Riverside Church v. City of St. Michael (D. Minn. 2016) is available here.

Ocean, NJ ordered to allow Yeshiva boarding school

In January of this year, Yeshiva Gedola Na’os Yaakov, Inc. (the “Yeshiva”) filed a 79-page complaint in federal court against the Township of Ocean, New Jersey, and the Township’s Zoning Board of Adjustment (the “Township) following the denial of an application to develop a yeshiva with boarding facilities for 96 male students between the ages 18 and 22 in a residential zone, to allow for advanced Talmudic study (the “School”).  The Yeshiva had applied for a use variance, associated bulk variances, and site plan approval for the School, but the Board of Adjustment denied the application after conducting ten hearings over the course of a year and a half. The Yeshiva, among other arguments, pled that the Township’s zoning code was discriminatory because it prohibits religious boarding schools for students over the age of 18 in all districts. More details regarding the Yeshiva’s complaint are available in our prior post.

After a hearing on the Yeshiva’s motion for a preliminary injunction, the court ordered reversal of the Township’s denial, finding the proposed school is an “inherently beneficial use, and the denial of [the] application…  a violation of RLUIPA.”  The reasoning of the court is not provided since the parties waived findings of fact and conclusions of law.  The court granted approval to operate a religious boarding school for no more than 80 students age 18 through 22, subject to several conditions, including:

  • Compliance with site plans previously submitted to the Township;
  • Prohibiting students from bringing cars on campus;
  • Conversion of a gymnasium currently on site to a study hall;
  • Applying for necessary building, electrical and plumbing permits, as well as meeting all ADA requirements; and
  • Making a variety of minor site improvements (fencing, window coating, modification to a parking area, etc.).

The court also referred any claim for damages and attorney’s fees to mediation, but retained jurisdiction over the case until the Township issues a certificate of occupancy. The court’s order in Yeshiva Gedola Na’os Yaakov, Inc. v. Township of Ocean, New Jersey, Civ. No. 3:16-00096 (D. N.J. 2016) is available here.

Prevailing RLUIPA Defendant Denied Attorneys’ Fees

Original photograph by Anthony Easton, some rights reserved. https://www.flickr.com/photos/pinkmoose/

This summer, we reported that Genoa Charter Township prevailed in a lawsuit filed by Livingston Christian Schools (LSC), which claimed that the Township violated RLUIPA’s substantial burden provision, the First Amendment to the U.S. Constitution, and the Fourteenth Amendment’s substantive due process protection. Although the Township denied LSC’s application for a permit to operate its proposed religious school, the court granted the Township’s motion for summary judgment on all claims.

While the court’s order denying attorneys’ fees to the Township is not particularly surprising, the order is succinct reminder of the different standards applied to plaintiffs and defendants in a RLUIPA action.  According to 42 U.S.C. § 1988 (b):

In any action or proceeding to enforce a provision of … the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.] … the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee….

(emphasis added).  Generally, as the court noted, a prevailing defendant may only recover attorneys’ fees if a “plaintiff’s action was frivolous, unreasonable, or without foundation…”  This is, of course, a high bar to recovery – much higher than a prevailing plaintiff, which may obtain attorneys’ fees, within the court’s discretion, upon prevailing on a RLUIPA claim.  With this difference in standards for fee recovery, it is easy to see why, in many cases, RLUIPA defendants are motivated to negotiate a settlement in the early stages of a dispute.  The policy behind requiring defendants to meet a higher fee-recovery burden is to prevent a “chilling” effect on potential plaintiffs’ claims and their access to the courts caused by potential liability for substantial legal fees.

The Court’s order in this case is also interesting in terms of how cases in the Sixth Circuit might define a “substantial burden.”  In describing the reasonableness of LSC’s claims, the court noted that “the substantial burden standard, however, is not well established in the Sixth Circuit. While this court found its reasoning persuasive, Living Water is an unpublished decision.”  What is, then, the substantial burden standard in the Sixth Circuit?  At least in the prisoner context, the Sixth Circuit has relied on Living Water Church of God v. Charter Township of Meridian (6th Cir. 2007) to supply the substantial burden framework.  See Haight v. Thompson, No. 13-6005 (6th Cir. 2014) (“When prison officials ‘place[ ] substantial pressure on an adherent to modify his behavior and to violate his beliefs, or ‘effectively bar’ his sincere faith-based conduct,…they necessarily place a substantial burden on it.”) (citations omitted).

Original photograph by Anthony Easton, some rights reserved.

Georgia County Imposes Moratorium on Religious Uses

mosque (1)

Newton County, Georgia has imposed a moratorium on religious uses following the planned construction of a mosque and cemetery.  The Al Maad Al Islami Inc., a Doraville mosque, purchased 135 acres at the corner of 162 and County Line Road Road in June of 2015, and obtained an administrative use permit to construct the mosque and cemetery.  When Al Maad’s engineers met with Newton County staff about moving forward with the construction, word spread quickly.  Although Al Maad did not submit any plans or apply for a building permit, the County’s Board of Commissioners imposed a moratorium on religious uses.  Reportedly, the moratorium was meant to give the County time to study and update its regulations regarding “campus-like” places of worship that include schools, residences, and other facilities.

Nearly 300 residents packed the Commissioners’ meeting, most of whom were opposed to the planned mosque and cemetery.  Opponents have created a “STOP the Mosque Newton County Ga.” Facebook page that has more than 1,000 “likes.”  The County Commissioner who represents the area has stated: “Would building those things make us a prime area for the federal government to resettle refugees from the Middle East?  So I do have some concerns, like the people who live down here.”  One person said: “To say we wish to disallow this project based on religious discrimination is ludicrous and hypocritical.”  This same person then added: “They are discriminating against us by calling us infidels who do not believe in their religion.”
The County’s attorney said the County would be careful not to avoid RLUIPA or other constitutional protections.  Now, the County plans to lift the moratorium on September 13.  The County Manager stated that the County “pledge[s] to work collaboratively with the Applicant throughout the review process to ensure the project meets federal and state requirements and follows local ordinances and laws.  Once plans are approved, the County can issue permits and construction begins.”

More information is available at the County’s website, here.  Additional coverage is available here.

Original photography by Wilson Salvador Netosome rights reserved

RLUIPA Defense/Rocky Mountain Sign Law Joint Blog Post: Pennsylvania Borough’s Church Directional Signs Did Not Violate the Establishment Clause

This post is co-authored with Brian Connolly of Otten Johnson Robinson Neff + Ragonetti, contributor author to the Rocky Mountain Sign Law (www.rockymountainsignlaw.com) blog. 

Late last month, a federal district court in Pennsylvania ruled that directional signs to a church, which contained images of a cross and bible, did not violate the Establishment Clause of the First Amendment.

The borough of Shickshinny, Pennsylvania installed a sign in a borough right-of-way that was designed and produced by a third party and which read “Bible Baptist Church Welcomes You!”  The signs contained images of a cross and bible, and a directional arrow pointing motorists to the church.  The sign was approved by the borough council.  The plaintiff in the case, Francene Tearpock-Martini, is a former borough council member who voted against the sign.  The sign is within sight of her house.

In 2013, the district court granted the borough’s motion to dismiss on statute of limitations grounds.  In 2014, the Third Circuit affirmed the dismissal of the plaintiff’s Equal Protection and Free Speech claims, but reversed on the plaintiff’s Establishment Clause claim.

On summary judgment, the district court held that the sign constituted a “religious display” because it contains religious symbols.  The court analyzed the Establishment Clause claim under what is known as the “endorsement” of religion test, which asks “whether a reasonable observer of the sign who is familiar with the history and context of the display would perceive it as an endorsement of religion.”  The court found that the sign did not constitute an endorsement of religion by the borough because it was merely a sign pointing in the direction of a church and a reasonable observer would perceive it as “a sign to a church and nothing more.”  The court rejected the claim that government employees’ assistance in placing the sign, as well as the fact that the borough may have used its own cement for the sign, was an illegal endorsement of religion.

Out of an “abundance of caution,” the court also reviewed the Establishment Clause claim under a separate test established by the Supreme Court in Lemon v. Kurtzman.  The Lemon test looks to whether: (a) the government practice has a secular purpose; (b) the principal effect of the government’s action either advances or inhibits religion; and (c) the government created an excessive entanglement of government with religion.  Here, the court found that the church sign passed this test as well – there was a secular purpose (providing direction to people); the principal effect did not inhibit but only very slightly advanced religion by providing directions to the church; and the government was not entangled with religion, as it only approved the sign and helped install it.

Interestingly, the decision in Tearpock-Martini did not address the government speech doctrine, which would have been highly appropriate in this case given the factual similarities to the U.S. Supreme Court case of Pleasant Grove City v. Summum.  In that case, the Supreme Court held that a Ten Commandments monument in a public park constituted government speech and was therefore not subject to First Amendment scrutiny.

Tearpock-Martini v. Shickshinny Borough, ___ F. Supp. 3d ___, 2016 WL 3959034 (M.D. Pa. Jul. 22, 2016).

*Brian J. Connolly and Otten, Johnson, Robinson, Neff + Ragonetti are not affiliated with Robinson + Cole, LLP.

Buddhist Meditation Center Sues Mobile, AL

meditation

The Thai Meditation Association of Alabama and several individual plaintiffs (the “Center”) have filed suit against the City of Mobile, Alabama, its  Planning Commission, and City Council (“Mobile”) after the Planning Commission denied the Center’s application to construct and operate a meditation center intended to accommodate Buddhist practices on a 6.7-acre parcel (the “Property”).  The complaint, available here, alleges that Mobile’s denial of  the Center’s application to operate in a residential area is based on its refusal to recognize the Center as a religious institution.

The Center offers teachings in the specific meditation practices of the Dhammakaya school of Buddhism. Currently, the Center operates in a commercial area, next to restaurant, a travel agency, and near an auto parts store, a Taco Bell and a Panda Express. The Center believes the current location is inadequate because the busy commercial environment impedes silent mediation, which “requires a serene environment.”

In 2007, the Center began holding Buddhist ceremonies and meditation classes at a residential property. In 2009, it formally applied to operate a mediation center.  The application was met with a high degree of community opposition.  According to the complaint, residents feared the Center wished to “convert” others to Buddhism.  Given the opposition, the Center withdrew its application and began operating out of its current, strip mall location.

In 2015, the Center identified the Property as a suitable new location and met with planning department staff prior to purchase.  In the pre-purchase meeting, the Center was advised that it would need to receive planning approval for a worship-related use.  The Property is located in an R-1 zone, where churches, schools, monasteries and convents are permitted after site plan approval.

After a public hearing with “tremendous” public opposition, the Center’s application was continued.  During the continuance, planning staff requested an opinion from the Planning Commission’s attorney on whether the Center was a religious organization.  The attorney recommended denial of the application based on the Center’s 501(c)(3) application, which identified the Center as a charity or foundation, and the attorney’s understanding that “[j]ust because meditation is part of a religion (my preacher teaches contemplative prayer) does not make the building a church or the owner a religious organization.” The Planning Commission later denied the Center’s application and the Center then appealed the denial to Mobile City Council.  After debate regarding the religious nature of the Center, the Council voted to uphold the Commission’s denial.

In March of this year, the Center hosted two mediation gatherings attended by approximately 20 people in a plaintiff’s home on the Property.  Without first issuing a notice of violation, Mobile filed suit against the Center and individual plaintiffs in this action, seeking preliminary and permanent injunctions to prevent the Center from holding additional meditation retreats on the Property.  The case was later dismissed when the Center stipulated that it would seek all necessary permits and approvals to operate the Center.

The complaint in this case has three RLUIPA counts (substantial burden, nondiscrimination, and equal terms violations), counts based on free exercise and equal protection, and one state law count of negligent misrepresentation relating to the zoning classification of the Property.

Original Photo by Moyan Brenn, some rights reserved.

Hundreds Erupt in Elation After Sterling Heights Mosque Denial

In the RLUIPA Round-Up post, we noted that the City of Sterling Heights, Michigan, is facing a federal lawsuit following its denial of the American Islamic Community Center’s (Center) zoning application to build a 20,500 square foot mosque.  The Center began searching for property it could purchase and construct a mosque, especially in the City where 80% of the Center’s members live.  The Center found a site along Fifteen Mile Road in the City consisting of five separate, contiguous parcels.  Currently, the Center is leasing the property with an option to purchase so long as it obtains a zoning permit to build a mosque.  But, according to the Center, the required zoning process – which ultimately resulted in denial of the application – was riddled with overt anti-Muslim animus and racism, including the following:

  • One member of the public speaking at the public hearing to say, “I wish they’d go to Dearborn or somewhere else, just not this area … I don’t want to be near people like this. This is not humanity.  My point is that it’s not right to live with people like this … this is not acceptable at all.  These people … they are scaring the public.”
  • This same member of the public allegedly held up an image of a woman in a burqa, with text stating “scaring and disgusting,” and urged the City to outlaw burqas in the City.
  • The planner contacted the now retired City police chief to see if “this imam and mosque [have] been completely vetted.” In response, the police chief contacted the FBI to “see if this mosk [sic] or Sayed Najah Al-Hussaini and Jaafar Chelab is on their radar.”
  • Another member of the public during the public hearing allegedly stated that “all Muslims who live in America are on food stamps. They are killers.”

Some of this may directly involve actions by public officials and as such may be actionable under the Religious Land Use & Institutionalized Persons Act (RLUIPA).  Some is public comment and typically not actionable under RLUIPA, however, the Second Circuit ruled just a few years ago that discriminatory comments made by the public can, in some situations, support violations of RLUIPA.

Hundreds of individuals packed the room during the public hearing sessions to consider the application.  A large crowd of what appeared to be hundreds of individuals gathered outside and reportedly began chanting “no more mosque.”  Once the application was denied, the crowd that had gathered outside joyously erupted.  The crowd’s reaction to the denial can be seen in this news clip.

The Center has sued in federal court, claiming violations of RLUIPA, the U.S. Constitution, and Michigan law.  Specifically, the Center asserts the City’s zoning regulations violate RLUIPA’s equal terms provision on their face, since religious uses are allowed only by special land use approval whereas analogous secular assembly uses (municipal libraries, museums, recreational facilities, and administrative offices) are allowed as of right in the same residential zone.  The Center also claims the City treated it worse than other secular assembly uses that applied for and received zoning approval, and that the City’s denial substantially burdens its free exercise of religion as it cannot use the property for religious assembly including worshiping together as one spiritual family.

The Center’s complaint in American Islamic Community Center v. City of Sterling Heights is available here.

RLUIPA Round-Up

Cowboy Weathervane_Pai Shih_72dpi_cropWe noted in our previous post that the U.S. Department of Justice, in its latest report, has stated that one of the biggest trends in religious land use disputes since 2010 has been the drastic increase in disputes involving mosques and Islamic schools.  Below are some of the latest religious land use controversies from around the country, and, as you will see, they are dominated by mosque denials.

  • Sterling Heights, Michigan is facing a RLUIPA suit over its 2015 denial of a proposal for a 20,5000 square foot mosque submitted by the American Islamic Community Center. In addition, the U.S. Department of Justice has opened an investigation into the matter to determine whether religious discrimination played any role in the denial.  The Detroit News has more.
  • Desert News reports on the U.S. Department of Justice’s lawsuit against Bensalem Township, Pennsylvania over the Township’s denial of a proposed mosque. The New York Times has more.  We report on the DOJ’s lawsuit here.
  • Bizpac Review reports on the latest in the lawsuit involving Bernards Township, New Jersey’s denial of the Islamic Society of Basking Ridge’s proposal to construct a mosque. Reportedly, more than 30 members of the community who opposed the proposal during the public comment session of the public hearing have been subpoenaed by the Islamic Society’s lawyers.  The former mayor of the Township is a member of the Islamic Society and a named plaintiff.  We report on the case here.
  • The U.S. Department of Justice is investigating whether Culpeper, Virginia’s County Board of Supervisors discriminated against a Muslim group when denying a request for a pump and haul sewage permit to build a small prayer house. Local coverage is available here.
  • A Bedford County, Virginia church is fighting to keep its homeless shelter open, which the County, through its zoning code, has classified as a “hotel.” Local coverage is available here.

California Federal Court: Is Leasing to a Church Religious Exercise?

Church for LeaseThe Scinto Foundation (Foundation) supports religious organizations “by having activities which are similar to [religious activities] and/or by giving them money, or donating services ….”  The Foundation sued the City of Orange, California, claiming violations of rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and state law, because the City “deprived the Foundation of and interfered with [the Foundation’s] use of its building, primarily by failing to keep required permits and plans for [the Foundation’s] building and creating the mistaken belief [the Foundation] was in violation of various regulations.”

In 2012, the City, through its Fire Department, conducted a routine inspection of the Foundation’s building and reported potential Fire Code violations.  One member of the Fire Department investigated and “found evidence the tenant [the Breath of Spirit Ministries] may have committed an unpermitted occupancy change to assembly use, there was an incomplete fire detection system and an individual was living in the attic space of the building.”  The Foundation’s tenant, the Breath of Spirit Ministries, a church, vacated the building after the dispute with the City’s Fire Department.

The Foundation claimed that the City’s actions violated RLUIPA’s substantial burden and equal terms provisions, and moved for summary judgment.  The United States District Court for the Central District of California declined entering summary judgment.  First, the court found that there existed genuine issues of material fact as to whether the case was ripe for the court’s review.  Ripeness asks whether the timing of the claims is appropriate for the court’s review or whether there is some other, local mechanism that the complainant should first pursue before seeking judicial relief.

Notwithstanding the ripeness issue, the court found that there was no substantial burden on the Foundation’s religious exercise, even if renting to a religious institution is religious exercise under RLUIPA.  Specifically, the court stated: “Plaintiff fails to clearly point to any evidence showing there was a substantial burden on its free exercise.  Although Plaintiff’s building at 1624 West Katella Avenue is the center of this lawsuit, Plaintiff has not cited anything in the record indicating it was precluded from carrying out its ‘religious mission’ or ‘engag[ing] in, conduct[ing], and promot[ing] religious … activities primarily in Orange County, California.”

Although the court did not decide whether leasing to a religious tenant is religious exercise, it observed in a footnote that another court, in California-Nevada Conference of the Methodist Church v. City & County of San Francisco, found that “commercial endeavors such as that here … the sale of property for the construction of market rate condominiums if undertaken by Conference in order to fund its religious mission, do not constitute ‘religious exercise’ protected by RLUIPA.”  We posted about this case here.

The court also found that there existed a genuine issue of material fact as to whether the Foundation’s RLUIPA equal terms claim is valid, namely whether the Foundation is a religious assembly or institution.  Further, the Foundation failed to show that the City treated it on less than equal terms with a nonreligious assembly or institution.

The Foundation also alleged that the City’s actions constituted inverse condemnation under the California Constitution; amounted to a nuisance under California law; and were intentionally taken to interfere with a contractual relationship under state law.  The court denied summary judgment on each of these claims.

The court’s decision in The Daniel and Francine Scinto Foundation v. City of Orange is available here.

Photo credit Stephen Fife, some rights reserved.

Federal Court Rules Alabama Sex Offender Law is “Land Use Regulation” Under RLUIPA

We previously reported on the case Martin v. Houston (M.D. Alabama 2016), in which the U.S. District Court for the Middle District of Alabama considered a pastor’s religious discrimination claims involving the state legislature’s enactment and enforcement of a sex offender law that prevented the pastor’s transitional housing program.  The law in question (Alabama Code § 45-11-82) (the “Act”) prohibited individuals whose names are listed on the Alabama sex offender list from living together in the same home, and further provides that offenders cannot live on the same property as another offender unless the homes are at least 300 feet apart.  In response to the threatened enforcement of the Act, the pastor discontinued his transitional housing program.  Read or prior post about the case here.

Previously, in considering the defendant’s motion to dismiss all claims, the court ruled that the pastor had to “show cause” why the court had jurisdiction to consider his RLUIPA substantial burden claim.

Last week, the court ruled that it had jurisdiction over the RLUIPA substantial burden claim.  What is particularly interesting about the court’s decision is that it finds that the Act is a “land use regulation” under RLUIPA.  Recall, RLUIPA applies only to land use regulations.  The Court stated:

It first bears noting that the precise definition of “zoning” is difficult to delineate….  In general terms, zoning refers to the “legislative division of a region, esp[ecially] a municipality, into separate districts with different regulations within the districts for land use, building size, and the like….”

The Act makes territorial divisions in the same way.  It divides the state of Alabama into two districts: one where sex offenders may not live within 300 feet of each other, and one where they may.  The former includes the entirety of Chilton County, and the latter comprises all other counties within the state.  Rather than imposing in personam restrictions on adult sex offenders themselves, the legislature opted to limit the acceptable uses of property within the Chilton County zone.  In this sense, for purposes of applying the individualized assessments prerequisite, the Act qualifies as a zoning law, and thus constitutes a land use regulation.  (citations omitted)

The court also found that the allegations supported the finding at this point in the proceedings that the enactment and threatened enforcement of the Act against the pastor’s property was an individualized assessment for the proposed use of his property.  Further, the court concluded that the RLUIPA claim was adequately pled, based on the pastor’s allegation that the Act “applied sufficient pressure … such that it coerced him to cease his settlement ministry, which he maintained in furtherance of his religious beliefs.”

The court’s Memorandum Opinion and Order is available here.

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