Rhode Island Town Sued for Religious Discrimination

The King’s Tabernacle, a Rhode Island Church with a predominantly African American congregation of 20 members, has sued the Town of Johnston, Rhode Island over the Town’s denial of its special use permit for religious assembly use.  According to King’s Tabernacle, “[i]n early 2015, by the leading of the Holy Spirit, the Church set out to open up a new place of worship as part of a strategy for church expansion and to spread the good news that God so loves the world that He sent His only son, Jesus, to die for our sins, and that whosoever believes in Him will not perish but will find forgiveness and have eternal life.”  In the summer of 2015, King’s Tabernacle contracted to purchase “a new place of worship” at 500 Greenville Avenue in Johnston in the Town’s B-2 Zoning Use District (Property).  Reportedly, a church building had been constructed on the Property in 1891 with religious assembly and worship taking place there for over 120 years, most recently by the Belknap Community Church from whom King’s Tabernacle purchased the Property.

Rather than allow King’s Tabernacle to continue to use the Property for religious assembly use, the Town required that it obtain a special use permit.  King’s Tabernacle asserts that the Town would allow several other non-religious assembly uses at the Property as of right, but requires that religious assembly uses obtain a special use permit to operate at the Property.  The other non-religious assembly uses include (a) concert halls; (b) theatres; (c) municipal buildings like a town hall; (d) indoor recreation centers; (e) adult daycare centers; and (f) schools.

Nevertheless, King’s Tabernacle complied with the Town’s instructions by filing a special use permit on June 3, 2015 with the Town’s Zoning Board of Review.  The Board denied the application on June 25, 2015.  King’s Tabernacle alleges that less than two days after the denial, the Town’s Zoning Official “was caught racially discriminating against the Church in connection with its use and repair of the Property and referring to the ‘f___ing black owner’ of the Church.”

King’s Tabernacle complains that “[s]ince the Town halted the Church’s use of the Property, people have left the church and the Church’s growth has been stunted.”  It further claims that “[m]any of the Church’s specific ministry opportunities are being lost forever every day because the Church is not able to operate as a Church at the Church Property.”

King’s Tabernacle alleges violations of RLUIPA’s equal terms, total exclusion and unreasonable limits, and substantial burden provisions, along with violations of the First Amendment.  It also alleges that the Property is a protected legal non-conforming use, meaning that it should not have been required to obtain a special use permit, but should have been allowed to continue the traditional religious use of the Property.  The Complaint, in The King’s Tabernacle v. Town of Johnston, Rhode Island, is available here.

When is Mixed-Use Religious Exercise?

A Connecticut federal court has issued an important decision in a case involving the Religious Land Use & Institutionalized Persons Act (RLUIPA) that could affect how municipalities and courts examine whether certain proposals are religious uses protected by the statute.  The 2016 decision in Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield is the latest installment of a long-standing dispute regarding the Chabad’s attempts to renovate a former, historic residential house for religious use.  In 2014, we reported on the Second Circuit’s decision reversing the district court’s granting of summary judgment as to the Chabad’s RLUIPA substantial burden and nondiscrimination claims.  In its ruling, the Second Circuit found that even neutral laws of general applicability (in this case, Connecticut General Statute § 7-147 et seq.) could still impose a substantial burden on religious exercise, and clarified the analysis used to determine whether there has been a violation of RLUIPA’s nodiscrimination provision.

On remand from the Second Circuit, the district court has now ruled on motions for summary judgment and motions to dismiss filed by the defendants – the Borough of Litchfield, the Historic District Commission of the Borough of Litchfield (Commission), and individual Borough defendants.  Although the district court denied the motions for summary judgment, finding issues of material fact still in dispute, and largely denied the motions to dismiss, the case may affect how future courts analyze RLUIPA claims, particularly mixed (religious and secular) uses.

The Chabad purchased the former 2,656 square foot residential house located within the Litchfield Historic District and applied for a certificate of appropriateness to modify the house to accommodate its religious beliefs.  The proposal included a three-story 17,000 square foot addition for use as a sanctuary, rabbi’s study, two kosher kitchens, library, classrooms, a ritual bath, a residence for the Rabbi and his staff, visitor housing, a coffee bar, and an indoor swimming pool.  The Commission denied the application without prejudice and invited the Chabad to resubmit its application stating that it would view favorably an above-ground addition doubling the square footage of the original property and also permitting the Chabad to build as much underground as it wanted (as part of the property was underground).

While the Borough defendants concede that the sanctuary, rabbi’s study, classrooms, ritual bath, library, kosher kitchens, and coffee bar are each forms of religious exercise, they contend that the remaining uses (the pool, staff/visitor housing, and the Rabbi’s residence) are each secular uses and not protected by RLUIPA.  The court noted the complexities of the analysis:

When a religious entity seeks to construct a single building with multiple uses, the inquiry as to whether the construction of the building constitutes religious exercise becomes complicated.  This is especially so when some of the uses are arguably secular. On the one hand, as the Second Circuit noted, the construction of rooms used exclusively for secular purposes cannot constitute religious exercise… On the other hand, [w]here a building is to be used for the purpose of religious exercise, the building is not denied protection under RLUIPA merely because it includes certain facilities that are not at all times themselves devoted to, but are inextricably integrated with and reasonably necessary to facilitate, such religious exercise. (citations and quotes omitted).

The court noted that there are two possible approaches that can be used to determine whether a mixed-use proposal is religious.  First, is the “segmented” approach, which “would look at each distinct room / facility within the multi-use building and determine if it is used exclusively for secular purposes, or if it is used either exclusively for religious purposes or for both religious and secular purposes. The construction of rooms / facilities that fall into the first grouping would not be considered religious exercise, and the effect of the government’s action on the ability to build those rooms / facilities would not be analyzed under the substantial burden framework. The construction of those rooms / facilities that fall into the second grouping would still be analyzed under the substantial burden framework.”

Second is a “balancing” approach to examine “each room / facility and determine how it is used – exclusively secular, exclusively religious, or a hybrid use – and then, weighing all of the rooms / facilities, make a final determination as to whether construction of the entire building is, on balance, a form of religious exercise or not.”

The court utilized the “segmented” approach.  It observed that this approach was preferable especially because the Commission had suggested it would approve an addition double the square footage of the original house and any underground additions.  “To determine whether this condition itself substantially burdens the Chabad’s religious exercise, a factfinder needs to know whether an addition of that size, along with the original [house], would be sufficiently large to accommodate all of the Chabad’s religious exercise.”  The court found that there were genuine issues of material fact that prevented it from deciding whether each use was or was not religious in nature.

The motions for summary judgment as to the substantial burden and nondiscrimination claims were both denied because of factual issues still in dispute.  With respect to the substantial burden claim, the court examined several factors that may be instructive to courts and municipalities alike, including whether: (a) the Commission’s denial was arbitrary; (b) the denial was conditional; (c) the conditions imposed a substantial burden; (d) there were feasible alternatives; (e) the Chabad reasonably believed it would be allowed to make the modifications when it purchased the property; and (f) there was a close nexus between the Commission’s actions and the alleged burden.  Various immunity defenses were also rejected by the court.

Finally, the court considered whether the Chabad’s Rabbi, a named defendant, had a sufficient property interest to have standing to sue under RLUIPA.  The court concluded that he did as to the substantial burden claim, but did not as to the nondiscrimination claim.  It emphasized that the nondiscrimination provision prohibits the government from discriminating against “any assembly or institution,” which the Rabbis was not.

USPS Sued for Seizing Sacramental Marijuana

Original photo by Dave H., some rights reserved.Oklevueha Native American Church (Church) was established in 1997 in Utah by Plaintiff James Mooney and his wife Linda, who are each of Native American decent.  According to the complaint in Oklevueha Native American Church v. United States of America, Case 3:16-cv-00077 (D. OR, Jan. 15, 2015), the Church has thousands of members and branches in the United States and elsewhere.  Core religious principles of the Church are based on the integration of nature, natural health and reliance on “medicine people,” who may prepare sacraments for members.  Sacraments include peyote, cannabis, and many other natural herbs and plants.

The Church’s religious practices have previously placed it in the hairs of governmental forces.  In 1999, the State of Utah arrested the Mooneys for violations of the Unites States Controlled Substances Act (USCA).  Five years later, the Utah Supreme Court, in State of Utah v. Mooney, 2004 UT 49 (2004), held that the Mooneys’ and the Church’s religious use of peyote was not subject to prosecution under the USCA and charges against the Mooneys were dropped.

In the current lawsuit, the Mooneys and the Church have gone on the offensive.  Late in 2015, Joy Graves, a Church leader in Cottage Grove, Oregon, prepared a package containing sacramental cannabis for a Church member in Ohio who suffers from esophageal cancer.  Approximately a week later, the package was seized by federal agents for “law enforcement” purposes.  Grave requested that the package be released because the cannabis was to be used in the Church’s spiritual healing rituals, and seizure of the package will impede the Ohio members’ religious use.

The Church claims that all defendants, including the United Stated Postal Service, violated the Religious Freedom Restoration Act (RFRA) due to the government’s seizure of the sacramental cannabis.  It cites the Supreme Court’s decision in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) for the proposition that the USCA does not meet “strict scrutiny” review of RFRA.

The Church has included a RLUIPA count in its complaint.  It claims “As a result of the seizure of its cannabis used for spiritual healing and religious rituals, CHRUCH has suspended BRANCH’s cultivation, preparation, blessing and transportation of cannabis which has substantially burdened use of land by CHURCH….”  Whether or not application of the USCS can be considered a “land use regulation” is a novel and interesting question, or at least a creative pleading.  RLUIPA claims apply to “land use regulation[s],” which are defined by the statute as “a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.”

Original photo by Dave H., some rights reserved.

Yeshiva Sues New Jersey Township for Religious Discrimination

Yeshiva Gedola Na’os Yaakov, Inc. (the “Yeshiva”) has filed a federal lawsuit against the Township of Ocean, New Jersey and the Township’s Zoning Board of Adjustment 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”).  Reportedly, the property had previously been used as a boarding school.  The Yeshiva states that it currently leases space in Lakewood, New Jersey to provide classrooms for its students and living facilities, but it is only able to house one-third of all its students, and its lease is set to expire without the possibility of renewal.

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 9 hearings over the course of a year and a half.  According to the Yeshiva, the stated basis for the denial was that “the Board does not find that the Applicant established special reasons cognizable by the Board of Adjustment of the Township of Ocean [and that] the granting of a use variance for the use as proposed would cause substantial detriment to the public good and would substantially impair the intent and purposes of the Zoning Ordinance or the Zoning Plan.”

Throughout its 79 page complaint, the Yeshiva notes significant opposition to its application, and relies on Facebook comments by community members and even the mayor, which is asserts show religious hostility.  It also asserts that Board members demonstrated religious bias through comments during the 9 hearings, some of which had over 1,000 people in attendance.  According to the Yeshiva, “religious land use is prohibited throughout Ocean Township for two separate reasons.  First, religious schools for adults beyond Grade 12 are not permitted anywhere in the Township’s jurisdiction; and second, because boarding schools are restricted to students under 18 years of age in the two zoning districts, including the R-4 district, where boarding schools are permitted.”

The Yeshiva alleges violations of the Religious Land Use & Institutionalized Persons Act’s substantial burden, equal terms, unreasonable limits/total exclusion, and nondiscrimination provisions.  It also claims that the Township and the Board violated the Free Exercise and Equal Protection Clauses, the Fair Housing Act, and New Jersey law.

The Yeshiva’s lawyer has stated that the Board’s actions are “bigotry masked as a zoning hearing, pure and simple.  The situation that the Yeshiva has faced here is exactly why Congress decided that RLUIPA’s protections are necessary.”

The complaint in Yeshiva Gedola Na’os Yaakov, Inc. v. Township of Ocean, New Jersey (D. N.J. 2015) is available here.

Is a Parsonage a Primary Use? NJ District Court Ponders the Question

parsonage 2Christian Community Chapel Wesleyan Church, Inc. (the “Chapel”) was founded in 2000 and grew quickly to 125 members.  Expecting continued growth, the Chapel purchased a 33,000 square foot building with seats for 600 worshipers.  Unfortunately for the Chapel, its membership fluctuated greatly over the next ten years, at one point dropping to 35 members.  Its facility was far too big, and by 2015 the Chapel sold its building, rented space, and began looking for a new, smaller facility with a space for a parsonage, worship hall, and youth activities. Notably, the Chapel requires its parsonage to be on the same site as its worship hall because the “parsonage can function as an extension of the worship space….”

In February of 2015, the Chapel entered a contract to purchase a 14.3-acre property (the “Property”) in Hillsborough, New Jersey  (the “Township”).  Existing structures on the Property include a residence, detached garages, meeting room, studio, and two-story barn.  The Chapel intends to use the residence as a parsonage and covert the main barn to a 150-seat worship facility.  The Property is located within the RS Zone, which allows churches as a conditional use.  According to the Chapel, “libraries,” “community centers (noncommercial)” and “neighborhood convenience centers” are permitted principal uses within the RS zone.

When the Chapel sought Township zoning approval, it was told to apply for a use variance because the proposed church and parsonage were each viewed as primary uses on the same parcel.  Additionally, the Chapel applied for a number of dimensional variances in order to meet the conditional use standards.

During the hearing process, Township officials expressed concern over fire safety aspects of the property, but the Chapel contends that it agreed to meet all of the Fire Marshall’s recommendations.  It also appears that several Zoning Board of Adjustment (“ZBA”) members were concerned with the safety of conducting worship services on the second story of the barn as proposed by the Chapel.  According to the Chapel, one Chairperson of the ZBA was quoted in the local newspaper “the applicant was very accommodating… [but it] still couldn’t change the fact that the second floor loft in this old, wooden barn could be a potential death trap.”

Although a majority of the Township’s ZBA approved the application, a supermajority (5-2) was required to approve the variance and the application was thus denied.  The Chapel brought suit in federal court.

The Chapel claims that the Township’s position regarding the parsonage is unjustified because, under New Jersey law, a parsonage must be treated as an accessory use and the Township zoning code is silent on the specific issue of parsonages.  Additionally, the Chapel claims that it is being treated less fairly than Mary, Mother of God Roman Catholic Church, which has a rectory that houses its priest on its property in the Township.  This apparent dissimilarity in treatment is, according to the Chapel, a violation of RLUIPA’s Nondiscrimination provision.

In addition, the Chapel alleges violations of  RLUIPA’s Substantial Burden, Exclusions and Limits, and Equal Terms provisions. It also claims violations of the Free Exercise and Equal Protection Clauses of the United States Constitution, and New Jersey law. The complaint in Christian Community Chapel v. Hillsborough is available here.

Image by derrypubliclibrary, some rights reserved

SCOTUS Non-Land Use Case Could Impact Land Use

Last week, the U.S. Supreme Court granted a request to review a church’s claim that the state of Missouri violated the federal constitution by prohibiting religious groups from obtaining state funding because of their religious nature.  The case involves Trinity Lutheran Church of Columbia, which runs a preschool and daycare in Missouri that is open to anyone regardless of religion, even though the church “teaches a Christian world view and incorporates daily religious instruction in its programs.”  The church applied to the Missouri Department of Natural Resources (DNR) for state funding to purchase recycled tires to resurface its playground, but was denied because it is a religious organization.  DNR noted in its denial that “Article I, Section 7 of the Missouri Constitution specifically provides that ‘no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.’”

The U.S. Court of Appeals for the Eighth Circuit rejected the church’s claims that by denying its application DNR violated the Free Exercise Clause by targeting religion for disparate treatment without a compelling government interest and violated the Establishment Clause because it required the government “to determine what is religious enough” to justify denial.  The Court specifically relied on an earlier Supreme Court decision, Luetkemeyer v. Kaufman, which summarily affirmed the lower court’s decision holding that Missouri could enforces a more strict policy of separation between church and state than that required under the federal constitution.  However, the Eighth Circuit teed up the issue to be considered by SCOTUS by noting Justice Scalia’s dissent in another Supreme Court case, Locke v. Davey:

When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds the benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.

The Eighth Circuit noted that it appears the position of Scalia’s dissent is “the direction the [Supreme] Court recently seems to be going.”  But it noted that only the Supreme Court could make such a constitutional leap and go against its earlier decision in Luetkemeyer.

Why are we reporting on this case?  After all, it has nothing to do with land use regulation.

The Supreme Court has never decided a religious land use case.  The case Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah came close, but involved ordinances prohibiting animal sacrifice.  Like it or not, Supreme Court decisions involving the First Amendment outside the land use context (Employment Division v. Smith; Wisconsin v. Yoder; Sherbert v. Verner, etc.) are cited by litigants and courts in RLUIPA and other religious land use cases.  The Missouri case has the potential to follow in the footsteps of these other non-land use decisions that have come to affect land use decisions.

And, to the extent the Supreme Court addresses the Establishment Clause issue, this is a topic that local governments may want to watch closely.  On the one hand, the Free Exercise Clause and RLUIPA require accommodation of religion in certain situations.  Yet, the Establishment Clause cautions that religious uses cannot be treated better than secular uses.  It will be interesting to see how the issue is decided and how, if at all, it might affect the regulation of religious uses.

The Eighth Circuit’s decision in Trinity Lutheran Church of Columbia, Inc. v. Pauley is available here.  Trinity Lutheran Church of Columbia, Inc.’s petition for certiorari is available here.

Zombie Case Just Won’t Die

https://www.flickr.com/photos/reana/ https://creativecommons.org/licenses/by-nc-nd/2.0/legalcodeIt’s maybe one of our favorite blog posts titles of all time: “Zombies Outshine Satan? More Controversial Holiday Displays, Including Baby, Fanged, Undead Jesus and Dogs in Costumes.”  The case of Baby, Fanged, Undead Jesus continues after Sycamore Township, Ohio fined Jasen Dixon, curator of the undead scene, for constructing an illegal structure in his front yard. Earlier this month Dixon disputed the Township’s fines in court, claiming his display was protected by the First Amendment.

For a little background, we wrote back in 2014:

Oh Holy Zombies? The manager of “13 Rooms of Doom Haunted House,” Jasen Dixon, wanted to celebrate Christmas like many do in Sycamore Township, Ohio—erect a front yard nativity scene.  Dixon’s display is special, however, because he decided to work with the materials he had at hand.  That’s right, zombies from the haunted house he manages.

Describing the undead scene, Dixon explained, “It’s a different take. I handmade everything but Joseph and baby Jesus so it’s kind of artsy….”  A crowned wise man presents baby, fanged Jesus with a skull as undead Mary and Joseph look on.  The somewhat ghoulish crowd is protected by an eight foot structure with roof, hay, lights, and what appears to be the skeleton of a dog.

Dixon has proclaimed that he will not let his “‘zombie Nativity’ display die without a fight,” WRAL.com reports.  According to Township officials, it has no objection to  zombies, just improper accessory structures.   According to WPTV, the Township zoning code requires that any accessory structure must be in the backyard and 3 feet from any property line and 6 feet from any other structure.

Dixon is due back in court on February 2.  He also appears to have the undying support from his backers, one of whom was jailed for contempt of court when he wore zombie make-up and tattered clothes to an unrelated civil trial in Cincinnati. In his contempt order, the judge wrote, the zombie “was growling into a megaphone and disrupted my trial.”  (RLUIPA Defense has not independently verified the zombie’s connection to Dixon or if the “growling” included an audible request for “braaaaaaaiiiins.”)

Original photo by This is Awkward, some rights reserved.


Illinois Nuns Sue Over Brewery/Nursing Home Denial

Fraternite Notre Dame, Inc. is suing the County of McHenry, Illinois, over the County’s denial of a petition to amend a conditional use permit.  Notre Dame’s mission includes various charitable activities, such as a daily soup kitchen, a weekly food pantry, and an after-school program.  In 2005, Notre Dame obtained conditional use approval to develop its 65-acre property in the agricultural zoning district with a monastery, church, seminary, convent, retreat center, bakery, printing press, and cemetery subject to various conditions.  But when it petitioned the County’s Board to amend the conditional use permit to allow further development of its property, the request was denied.

Although Notre Dame obtained approval of its first application, it alleges in its complaint that it has experienced religious discrimination and harassment ever since.  It claims that “opponents of the petition commented that they would make the ‘penguins’ (a derogatory reference to Catholic nuns) want to move back to Chicago, and that the cassocks and habits worn by the Order’s priests and nuns would make them ‘easy targets in their gun sights.’”  Reportedly, statues of Mary and Jesus were desecrated, with the words “go away” and several profanities being sprayed on Mary’s face with black paint.

In September 2014, Notre Dame submitted a petition to amend the conditional use permit to develop an additional 30 acres it had acquired.  It sought to construct a barn, a commercial kitchen to make wine and brew beer, a school with attached dormitory (80 students), nursing home (50 beds), and a gift shop to sell pastries, religious and inspirational articles, and wine and beer made on-site.  It also requested height variations for the school and nursing home (from the maximum 35 feet to 55 feet).

The County’s Board denied the application, citing concerns that the uses would create traffic congestion and harm the environment, after the zoning board of appeals had recommended approval of the petition 4-3.  During the hearing before the ZBA, the Chairman “observed that it seemed opponents of the petition were singling out the Fraternite Notre Dame for special treatment.”  Notre Dame alleges this much in its complaint, as it claims that the County violated the Equal Protection Clause, RLUIPA’s equal terms and substantial burden provisions, Substantive Due Process, and state law.  It points to other secular uses it asserts were treated better than its proposed use, including three schools, a nursing home, and golf course.  The ZBA Chairman stated: “Since I’ve been on the board we’ve had 25 churches in the county that have been proposed, not one of which has been turned down, none of which have ever been restricted as to what type of events they could have on their church grounds.”

This case may present an interesting question as to the scope of what constitutes religious exercise under federal law.  The Second Circuit stated in Westchester Day School v. Village of Mamaroneck:

[W]e expressed doubt as to whether RLUIPA immunized all conceivable improvements proposed by religious schools.  That is to say, to get immunity from land use regulation, religious schools need to demonstrate more than that the proposed improvement would enhance the overall experience of its students …  For example, if a religious school wishes to build a gymnasium to be used exclusively for sporting activities, that kind of expansion would not constitute religious exercise.  Or, had the ZBA denied the Westchester Religious Institute’s 1986 request for a special permit to construct a headmaster’s residence on a portion of the property, such a denial would not have implicated religious exercise.  Nor would the school’s religious exercise have been burdened by the denial of a permit to build more office space.  Accordingly, we suggested the district court consider whether the proposed facilities were for a religious purpose rather than simply whether the school was religiously affiliated.

It is not clear whether the County will challenge whether each and every development Notre Dame seeks is intended for a religious purpose.

Synagogue Neighbor’s Weekday Service Protest Dismissed by New York Court

In 2005, the Village of Lawrence (Village) granted permission to Bais Medrash of Harborview Synagogue (Medrash) to construct a synagogue on three contiguous lots.  As part of its approval, Medrash entered a Declaration of Restrictive Covenants, prohibiting weekday services and vehicle traffic on Fridays and Saturdays with the exception of certain Jewish holidays that fell during the week.

Synagogue, Berlin by Will Palmer https://www.flickr.com/photos/willpalmer/ Some rights reserved https://creativecommons.org/licenses/by/2.0/legalcode

Medrash later sought permission to raze an existing structure on one of the lots, merge all three lots, and construct a parking lot.  It also sought a slight expansion of the synagogue and removal of the restrictive covenant so that it could conduct weekday services. The Village’s Board of Zoning Appeals (BZA) granted a variance to expand the synagogue and granted a temporary conditional use permit that removed the weekday service restriction for a one-year “trial period.” The trial period would begin once the Village Board of Trustees granted Medrash’s petition to restrict on-street parking during certain religious services and classes.

Unhappy with the BZA’s decision, Bonnie Septimus, a near-by property owner appealed the decision pursuant to New York Article 78.  On appeal, in Matter of Septimus v Board of Zoning Appeals for the Inc. Vil. of Lawrence, 2015 NY Slip Op 25424 (Dec. 16, 2015), the court found that Spetimus had no standing to challenge the BZA’s authority to issue a temporary conditional use permit, because only Medrash could be arguably injured by its temporary nature.  Next, the court found the BZA’s decision was not arbitrary and capricious and the BZA was not required to find a change in neighborhood circumstances before issuing a decision different from its 2005 Medrash decision.

Additionally, the court recognized that religious applicants are afforded special treatment under New York law when they seek to expand in residential areas, subject to reasonable control by a local zoning authority.  The court also stated “the fact that the prior determination of the BZA prohibited opening the synagogue for weekday services, undisputedly of importance to Orthodox Jewish practitioners, raises the potential application of the federal Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) (42 USC §§ 2000cc)…. [The] federal statute applies, in that the existing restriction on weekday services is a ‘substantial burden’ on ‘religious exercise’ by a ‘religious assembly….’  The Court … also finds that, for purposes of the instant proceeding and RLUIPA, the BZA ruling is the least restrictive means of furthering a compelling governmental interest, maintaining the integrity of an established residential neighborhood.”

Original photo by Will Palmer (some rights reserved)

Ninth Circuit Rules No Substantial Burden Where Church Could Relocate or Submit Modified Application

The Ninth Circuit, in Mesquite Grove Chapel v. Debonis, recently issued an important decision ruling that plaintiff Chapel did not suffer a substantial burden on its religious exercise under the Religious Land Use & Institutionalized Persons Act (RLUIPA) following the Pima County Chief Zoning Inspector’s determination that the proposed use did not meet the zoning code’s definition of “church” use.  The zoning code defined “church” as “[a] building or group of buildings used primarily as a place of  communication or worship.”  But the zoning inspector, affirmed by the Board of Adjustment, concluded that in this case the Chapel’s proposed use of its Tucson, Arizona property to conduct an average of 70 weddings a year charging about $5,000 in rental fees per wedding did not meet the definition.  As stated in the district court’s decision, in articles about the Chapel in Millionaire Blueprints magazine and other publications the owner of the property alluded to the property as another location for his successful wedding business.

The district court granted summary judgment in favor of the zoning inspector, finding that (a) the inspector was entitled to absolute immunity, and (b) there was insufficient evidence to establish a substantial burden on plaintiff’s religious exercise.  Plaintiff Chapel filed a motion for a new trial and the district court reversed its determination that the zoning inspector was entitled to absolute immunity, but affirmed its substantial burden decision.

On appeal, the Ninth Circuit affirmed the district court’s decision.  The Ninth Circuit first found that the district court had correctly held that the zoning inspector was not entitled to absolute immunity.  The purpose of absolute immunity is “to ensure that decisionmakers are not influenced by the threat of litigation.”  “Absolute immunity exists if the government official can show that his or her role ‘is functional[ly] comparable’ to that of a judge.”  However, the zoning inspector did not serve a role functionally comparable to that of a judge because proceedings before the inspector “are not adversarial and they lack procedural protections.”  For this reason, absolute immunity did not apply.

The Ninth Circuit also concluded that plaintiff Chapel could not establish a substantial burden on its religious exercise.  To establish a substantial burden in the Ninth Circuit, a religious group must show that some government action can be deemed “oppressive to a significantly great extent.”  According to the Ninth Circuit, “[t]he primary burdens presented here – relocating or submitting a modified application – were not substantial, especially because Mesquite presented no evidence that other sites are unsuitable.  Additionally, the Inspector’s decision was not arbitrary or made in bad faith.  Mesquite has failed to show a substantial burden on its religious exercise within the meaning of RLUIPA.”