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

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

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

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

Register here

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Additional Eruv Disputes in New Jersey

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

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

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

Original Photography by Waltarrrr, some rights reserved.

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

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

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

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

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

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

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

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

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

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

 

Facial challenge to Chicago parking standard fails

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

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

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

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

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

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

Original photo by Christchurch City Libraries, some rights reserved.

Kenyan Church Claims Baltimore County’s Land Use Regulations Impose Substantial Burden

Last week, Jesus Christ is the Answer Ministries, Inc. (the “Church”), a nondenominational Christian church in Baltimore County, Maryland, and the Church’s pastor, Reverend Lucy Ware, filed suit against Baltimore County, Maryland and the Board of Appeals of Baltimore County (together, “Baltimore County”), challenging Baltimore County’s denial of the Church’s petition to use Rev. Ware’s property for religious worship.  Specifically, Baltimore County has twice denied the Church’s petitions for relief from setback requirements the Church claimed it needed in order to convert the property from single-family to church use.

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

No Homeless in the Historic District?

A church has filed suit against the City of Davenport, Iowa (the “City”), after the City issued it a Cease and Desist Order (the “Order”) prohibiting the service of meals to the homeless, alleging violations of RLUIPA’s substantial burden, equal terms, and nondiscrimination clauses, among others.

Compassion Church, Inc. (the “Church”) began conducting religious services, Bible readings and evangelism in Davenport in 2005.  In 2009, the Church’s pastoral ministry expanded its service offerings to include breakfast for congregation members, including the poor, the needy, and the homeless, under the name “Timothy’s House of Hope.”  Earlier this year, the Church further expanded its Davenport operations by purchasing real property at 1602 Washington Street (the “Site”).  The Site, which was designated as a historic landmark in 1979, is located in a “C-2” General Commercial District, a zone that allows a variety of commercial and residential uses as of right, including religious use.  Previously, the Site was home to a combination bingo parlor, bar and kitchen.

After purchasing the Site, two Church pastors painted a pre-existing sign at the Site to read: “Timothy’s House of Hope – Helping the hungry, hurting, and homeless, one need at a time.”  On April 10, 2017, the Church hosted its first daily breakfast service at the Site, serving meals to small groups of men, women and children while conducting religious services, just as it has at its other location in Davenport.  According to the Complaint, the Church’s breakfast services were met with resistance from at least two City Aldermen, who did not want “bums” in their neighborhood.  After just nine days of service, the City posted the Order on the Church’s front door, prohibiting the “serving of meals to the homeless and other support services” until the Site is rezoned as a “Planned Institutional District – Housing and Supporting Services” (or “PID-HSS”).

The Complaint alleges that the City has substantially burdened the Church’s religious exercise in violation of RLUIPA by prohibiting the Church from serving breakfast to the needy.  Additionally, the Complaint alleges that the City has violated RLUIPA’s equal terms clause, as it has not issued a cease and desist order to stop serving food to any other use in a C-2 zone in the fourth Ward of the City in over 20 years, nor has it issued such an order to any other Church in the City in over 20 years.  Moreover, another church in a C-2 zone began serving breakfast in June 2017, and, as of the date of the Complaint, the City had not ordered it to be rezoned as a PID-HSS.

Shortly after filing the Complaint, the Church also sought a preliminary injunction.  Earlier this week, the District Court for the Southern District of Iowa denied the preliminary injunction, finding that the Church had “failed to show there is a threat of irreparable harm if a preliminary injunction [was] not issued.”  The Court cited to communications between the Church and the City, in which the City indicated that it has no intention of enforcing the Order.  For instance, on May 22, 2017, the City Attorney told the Church that use of the Site to serve food in conjunction with a daily morning Bible study and prayer service complies with the building’s current zoning classification.  Shortly after the Church filed suit, the City Attorney again informed the Church that the City does not intend to enforce the Order.  In light of these facts, the Court determined that “there is no clear and present need for equitable relief.”  It is not clear what course of action the Church will take, given that the City apparently has no intention of enforcing the Order.

The Order denying the Church’s Motion for Preliminary Injunction in Compassion Church v. City of Davenport is available here.

RLUIPA Suit Against Colonie, NY Dismissed As Unripe

A federal court in New York has dismissed religious discrimination and related claims alleged by an evangelical Christian church (the “Church”) against the Town of Colonie, New York, its agencies and officials (the “Town”), in connection with conditions of approval imposed by the Town on the Church.  The Church sought zoning approval to construct a 36,000 square foot facility to accommodate its membership and expand its religious worship and educational services.  For a detailed discussion of the facts, read our 2014 post here.

The Church challenged the following conditions of approval imposed by the Town that limited the Church’s use of the property:

  • Service times shall be a minimum of two hours apart from start to start
  • Sunday service times shall be limited to up to three services without additional Planning Board review
  • Weekday service times shall start no earlier than 6:30 PM

The court dismissed the Church’s RLUIPA, constitutional, and state law claims as unripe for failure to obtain a final zoning decision.  The Church had submitted an application to amend the conditions, but abandoned the application before obtaining a final decision.  The Church asserted that continuing the zoning process would be futile; the court rejected this argument because the Church requested and received an opportunity to seek an amendment of the zoning conditions that the Church later decided not to pursue.  The fact that the Church had been put through the zoning process for 20 months did not establish that seeking further zoning relief would be futile.  Likewise, the Church’s conclusory allegations of bias and hostility, which the Church contended meant that any application would result in denial, did not excuse the Church’s failure to obtain a final zoning decision.

The decision in Life Covenant Church, Inc. v. Town of Colonie (Northern District of New York, 2017) is available here.

Yonkers Wins Below: Appeal Pending

The Islamic Community Center for Mid Westchester (“ICCMW”) has appealed the decision of the Southern District of New York that held ICCMW’s claims were not yet ripe for review and ICCMW did not have the right to supplement its complaint to add an additional cause of action. ICCMW’s pre-argument statement to the Second Circuit, including the District Court decision, is available here.

Case Background: ICCMW sued the City of Yonkers, New York (“Yonkers”) in September, 2016 after the Yonkers Landmark Preservation Board (“Preservation Board”) and the Yonkers City Council designated a property owned by ICCMW (the “Property”) as a landmark pursuant to the City’s Historic and Landmark Preservation Law.  ICCMW had purchased the Property, which contains a large, 100+ year home, in order to establish a mosque and Islamic community center in the region. We previously posted about the cases here.

According to ICCMW, the landmark designation was motivated solely by community members’ prejudice against the Islamic faith. It specifically alleged that the Colonial Heights Association of Tax Payers (“CHAT”) submitted three applications to the Preservation Board regarding the Property to thwart ICCMW’s plans, without regard to the Property’s purported historic value.

Motion to Supplement: ICCMW sought to file a supplemental complaint with one additional cause of action—a First Amendment retaliation claim under 42 U.S.C. § 1983 based on the alleged actions of the Yonker’s Board of Assessment Review (“BAR”). According to ICCMW, although BAR ultimately sustained the Property’s tax exempt status, BAR requested supplemental application material from ICCMW and delayed ICCMW’s tax appeal to BAR in a retaliatory manner. The Court did not reach the merits of the allegation, finding that it lacked subject matter jurisdiction to consider alleged violations of ICCMW’s rights through the implementation of state taxes. The federal Tax Injunction Act bars federal district courts from enjoining, suspending or restraining the assessment of tax under state law.

Ripeness: Next, the Court considered Yonker’s motion to dismiss on ripeness grounds. As an initial matter, it rejected ICCMW’s assertion that it raised both facial and as applied challenges. “Even a cursory review of the complaint,” the Court reasoned, “reveals that the plaintiffs are challenging the application of the Landmark Law to them.”  Concluding that ICCMW only raised as applied challenges, it determined that the claims must satisfy the final decision requirement of Williamson County to ensure the case is ripe for adjudication.

Since ICCMW did not even apply to receive a “certificate of appropriateness” or a certificate of economic hardship to alter its property, the Court concluded that the claims were not ripe for review. Additionally, the Court rejected that argument that a futility exception should apply to the ripeness analysis because the exception requires at least one meaningful application.

ICCMW’s appeal is currently pending before the Second Circuit, and ICCMW is due to file a brief in support of its arguments on November 6, 2017.

Original photo by kool_skatkat, some rights reserved.

Department of Justice and Bensalem Township, PA Settle Lawsuit Over Mosque Denial

The United States Department of Justice (“DOJ”) has reached an agreement with Bensalem Township, Pennsylvania (“Township”), resolving allegations that the Township violated each of RLUIPA’s provisions when it denied a use variance application submitted by the Bensalem Masjid, Inc. (“Masjid”) to build a mosque.  We previously posted about this case here.

The DOJ lawsuit arose from the Township’s 2014 denial of the Masjid’s application for a use variance to develop a site consisting of three separate parcels located in three separate zones and totaling 4.5 acres with a mosque.  The use variance was needed because the zoning districts in which the property is located prohibit religious uses.  The DOJ alleged that the Township’s actions violated RLUIPA’s substantial burden, equal terms, non-discrimination, and unreasonable limits provisions.  Masjid filed a similar suit against the Township in 2014.  See our post on Masjid’s complaint here.  This lawsuit was also recently settled.

According to a DOJ press release, Masjid and the Township have also reached a settlement.  Under the agreements, Masjid will be permitted to use the subject property to build a mosque, and the Township must review and amend its zoning ordinance to comply with the requirements of RLUIPA.  Acting Attorney General John Gore explained: “Federal law protects the rights of all religious communities to build places of worship free from discrimination… This agreement ensures that all citizens of Bensalem Township may freely exercise this important civil right.”

Township Solicitor Joseph Pizzo, who cited high financial costs as a reason for settling, noted that Masjid still must undergo the land development plan approval process before construction on the mosque may begin.

The full text of the settlement agreement is available here.

Municipality Prevails in Dispute Over Personal Chapel

The City of Brier, Washington (City) has prevailed over claims that it violated the Religious Land Use & Institutionalized Persons Act (RLUIPA) and other federal law in a dispute over a variance application to construct a personal Serbian Orthodox chapel.

The case was brought by Vladan Milosavlejevic and his company (the Plaintiff), who sought to build a personal Serbian Orthodox chapel on company-owned property.  The Plaintiff claimed that his chapel had to meet specific architectural dimensions, including two domes, each spanning more than 40 feet in height, to be used as “vehicle[s] for … prayers to be sent to the heavens.”  The Plaintiff required a variance to construct the chapel, as the property is in the City’s single-family residential zone, which has a maximum height of 30 feet.  The City denied the variance because the Plaintiff failed to satisfy 6 of the 8 zoning criteria, and the Plaintiff sued, alleging violations of RLUIPA’s substantial burden and equal terms provisions and 42 U.S.C. § 1983.  The United States District Court for the Western District of Washington at Seattle granted summary judgment in favor of the City on these claims.

The Court found that denial of the variance application did not impose a substantial burden on religious exercise, because there were other suitable sites for worship within the City.  In the Ninth Circuit: “[a] substantial burden exists where the government authority puts substantial pressure on an adherent to modify his behavior and to violate his belief.  When the religious institution has no ready alternatives, or where the alternatives require substantial delay, uncertainty, and expense, a complete denial of the application might be indicative of a substantial burden.”  The Plaintiff’s own witness, an orthodox priest, stated that religious prayer could occur anywhere, including at the Plaintiff’s home – where the Plaintiff had worshipped in the past.  Further, there was no evidence that the distance between the Plaintiff’s residence and alternative places of worship or the cost of travel would force the Plaintiff to modify his religious behavior, or that there was any difference in the type of worship services between the churches.  “While worshipping within a home or church in Snohomish and King Counties is unsatisfactory to Petitioner, this inconvenience does not rise to the level of a substantial burden,” according to the Court.

The Court also rejected the Plaintiff’s RLUIPA equal terms claim.  While the Court questioned whether the Plaintiff and his family constitute a religious assembly subject to the protection of the equal terms provision, it nevertheless considered the merits of the claim.  The Court ruled that the equal terms claim failed because the Plaintiff could not identify a comparator that was treated better by the City.  The Plaintiff claimed that utility towers were suitable comparators and received preferential treatment by the City.  However, utility towers were not suitable comparators, because “[t]hey serve completely different purposes, and they are located within different City zones with different zoning criteria.”  The Court also entered judgment in favor of the City with respect to the § 1983 claims, which relied on the same facts and theories as the RLUIPA equal terms claim.

The decision in Milosavlejevic v. City of Brier (W.D. WA 2017) is available here.

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