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.

Upcoming RLUIPA Webinar

On August 5, 2016 at 1:00 P.M. EST, I will be participating in the webinar “Planning for Religious Uses in an Age of Religious Diversity and Lawsuits.”  The webinar is hosted by the Planning Webcast Series and is sponsored by the Connecticut Chapter of the American Planning Association.  Participating with me are RLUIPA lawyers Daniel P. Dalton and Noel W. Sterett.

Here is a description of the program:

The Religious Land Use & Institutionalized Persons Act (RLUIPA) has significantly affected communities across the country in the planning process, changing the way that some local governments plan for religious uses.  This program will explore the types of claims that can be brought under RLUIPA and discuss how communities can plan for religious land uses without risking a potential RLUIPA violation.  The presenters will explain several different strategies and approaches that can be used to avoid RLUIPA litigation, including through revisions to local zoning codes and accommodating religious uses when appropriate.  As litigation is sometimes unavoidable, the presenters will discuss the life of an RLUIPA case from start to finish and approaches that they have found to be successful based on their experiences litigating these types of cases.

The best part of all, the webinar is free.

Learn more about the program and register here.

Massachusetts Church Alleges Solar Panel Denial Violates Religious Freedom

Solar PanelA Massachusetts Superior Court is soon to consider the interplay of three important planning principles – historic preservation, sustainable development, and freedom of religion.  A Unitarian Universalist church is suing the Historic District Commission of the Town of Bedford (Commission) over the Commission’s denial of the church’s request to install solar panels on a building located within the Bedford Historic District, claiming that the denial infringes on its religious freedom.

The First Parish in Bedford, Unitarian Universalist (First Parish) was established in 1729 shortly after the incorporation of the Town of Bedford.  The First Parish Meetinghouse, designed in the Federalist Style by noted American architect Asher Benjamin, was constructed in 1817 and has been used by its members continuously ever since.  The church is in the Town’s Historic District.

In 2016, First Parish applied for a certificate of appropriateness to install solar panels on the Meetinghouse, but the Commission denied the proposal.  Now, the Commission is facing suit in Middlesex Superior Court over allegations that its denial of the certificate of appropriateness burdens First Parish’s free exercise of religion in violation of the First Amendment to the U.S. Constitution, as well as Article II of the Massachusetts Declaration of Rights.

First Parish alleges in its complaint that Unitarian Universalists “are called to join with others to halt practices that fuel global warming/climate change, to instigate sustainable alternatives, and to mitigate the impending effects of global warming/climate change with just and ethical responses.”  First Parish created an Energy Conservation Taskforce “to evaluate and recommend updates to the First Parish buildings, including the Meetinghouse, designed to reduce First Parish’s carbon footprint.”  The Taskforce’s work has included restoring Meetinghouse windows, installing new storm windows, and converting the Meetinghouse’s water heater from a gas burner to an electric heat pump system.  The next action item for the Taskforce is to install solar panels on the roofs of First Parish buildings to generate 75% of all First Parish energy needs from the sun.

The Commission held three public hearing sessions from April to June, 2016 to consider First Parish’s solar proposal.  First Parish states in its complaint that at the public hearings Commission members said that they would not consider any “freedom of religion” arguments when reviewing the certification of appropriateness request.  Reportedly, the Bedford Historic Preservation Commission and the Bedford Energy Task Force, among others, supported the solar plan.  The Commission, however, denied the application even though there was no public opposition.  According to First Parish, denial of the request has unreasonably infringed on its free exercise of religion.

First Parish has also filed a separate Open Meeting Law complaint, because it claims that the Commission’s chairman “arrived at the June 1, 2016 HDC hearing with a previously prepared and distributed motion to deny the Congregation’s application for appropriateness.”  The Commission’s denial allegedly repeated verbatim the motion in its entirety.  First Parish also asserts that the Commission’s denial exceeds its authority, is “legally untenable, whimsical, unreasonable, arbitrary and capricious.”  First Parish’s complaint is available here.

Original photo by ricketyusSome rights reserved.

U.S. Department of Justice Issues RLUIPA Report

The Department of Justice (DOJ) released a new report on its involvement in RLUIPA cases.  The report, “Update on the Justice Department’s Enforcement of the Religious Land Use and Institutionalized Persons Act: 2010-2016,” is a follow-up to the DOJ’s 2010 report, and is an important read for any municipal lawyer.  One of the main take-aways from the report is the DOJ’s assertion that “RLUIPA has continued to be a powerful tool for protecting the religious freedom of all ….”  Here are some other highlights:

  • Since 2010, the DOJ has opened 45 land use investigations of potential RLUIPA violations, has filed 8 RLUIPA lawsuits involving land use, and has filed 8 amicus (friend of the court) briefs in privately filed RLUIPA land use cases to educate the court about the statute’s provisions
  • The DOJ reports that “its investigations since 2010 has reinforced the conclusion that minority groups have faced a disproportionate level of discrimination in zoning matters, reflected in the disproportionate number of suits and investigations involving minority groups undertaken by the Department.”
  • The percentage of DOJ RLUIPA investigations involving mosques or Islamic schools has risen from 15% in the 2000 to August 2010 period to 38% during the September 2010 to present period.
  • 84% of non-Muslim investigations opened by the DOJ resulted in positive resolutions, but only 20% of Muslim investigations have resulted in positive resolutions without the filing of a RLUIPA suit.
  • RLUIPA’s substantial burden provision “was intended in part to prevent subtle, hard-to-prove discrimination. As the U.S. Court of Appeals for the Seventh Circuit observed, this provision ‘backstops the explicit prohibition of religious discrimination in the later section of the Act, much as the disparate-impact theory of employment discrimination backstops the prohibition of intentional discrimination.’  Thus the sharp increase in total RLUIPA cases involving mosques and Islamic schools is a matter for concern and attention, even when those cases do not involve explicit anti-Muslim animus.”  (citing Constantine and Helen Greek Orthodox Church v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005)).

The report also notes some of the significant investigations and cases in which the DOJ has been involved.  The full report is available here.

Department of Justice Sues Bensalem Township, PA Over Mosque Denial

On July 21, the United States Department of Justice sued Bensalem Township, Pennsylvania, in federal court alleging violations of each of RLUIPA’s provisions following the Township’s 2014 denial of a variance application submitted by the Bensalem Masjid, Inc. (Masjid) to build a mosque.  While it is always noteworthy when the DOJ sues a municipality over an alleged RLUIPA violation, the DOJ’s suit against the Township is especially interesting because Masjid, as the religious applicant, already filed federal suit against the Township in 2014.  Read our post about Masjid’s lawsuit here.

The DOJ’s complaint, available here, relies on many of the same facts as Masjid does in its complaint.  The basic facts are that Masjid is currently using space in a fire hall for religious exercise, but allegedly cannot exercise freely important aspects of its religion.  Masjid began searching for new property for a mosque, found a 4.5 acre parcel it sought to develop, and applied for but was denied an application for a use variance to permit the religious use where such uses were not allowed.  The DOJ alleges that the Township’s actions violate RLUIPA’s substantial burden, equal terms, non-discrimination, and unreasonable limits provisions.  Masjid alleges the same in its complaint, along with federal constitutional and state law claims.

This is not the first time that the DOJ has sued a municipality that had already been sued by the religious applicant.  The DOJ sued Des Plaines, Illinois, over a mosque denial (read our post here), but the cases were then consolidated.  It is not clear if the DOJ will similarly move to consolidate its suit against the Township with the earlier case brought by Masjid.  The DOJ’s press release about its lawsuit against the Township is available here.

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

khanda

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.

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