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

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

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

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

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

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

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

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

Equal Terms

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

Nondiscrimination

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

Substantial Burden

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

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

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

Update: The City’s Latest Code Amendment

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

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

Original photography by LadyDucayne, some rights reserved.

Hand of Hope RLUIPA Claims Survive Summary Judgment

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

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

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

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

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

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

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

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

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

Original photo by Jeremy Brooks, some rights reserved.

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

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

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

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

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

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

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

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

Nuns Lose Interstate Natural Gas Pipeline Challenge

The United States Court of Appeals for the Third Circuit has ruled against a Roman Catholic group challenging the use of their land in connection with an interstate natural gas pipeline.  The Adorers of the Blood of Christ (“Adorers”) is “an ecclesial group of women living in community … whose religious practice includes protecting and preserving creation, which they believe is a revelation of God.”  They believe that “God calls humans to treasure land as a gift of beauty and sustenance that should not be used in an excessive or harmful way.”  The Adorers own land in Columbia, Pennsylvania used to sponsor the St. Anne’s Retirement Community and for growing crops by local farmers.  In February 2017, the Federal Energy Regulatory Commission (“FERC”) issued an order authorizing the construction and operation of 199.5 miles of new pipeline in Pennsylvania connecting to existing pipelines running to South Carolina.  The pipeline project will reportedly supply gas to more than 7 million American homes.  The Adorers’ land was to be included as part of the pipeline project, and FERC issued an order authorizing the taking of the Adorers’ property by eminent domain for the project, if necessary. Continue Reading

Upcoming Webinar – Due Process in Zoning Hearings

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Rules of the Game: A Framework for Fair & Effective Zoning Hearings on July 26, 2018.  Registration for individuals is $20 for PLD members and $45 for non-members. Registration for two or more people at one computer is $140.

This webinar will cover the legal requirements for public hearings, including constitutional due process considerations, and provide tips on how to more effectively manage these hearings.

Speakers include David Silverman, AICP and Kurt Asprooth of Ancel Glink in Chicago.

Register here

CM | 1.50 | Law

CLE 1.50 through Illinois State Bar

Second Circuit: Islamic Group’s RLUIPA Claims Not Ripe Under Williamson County

The Second Circuit recently issued a Summary Order in Islamic Community Center for Mid Westchester v. City of Yonkers Landmark Preservation Board (2d Cir. 2018) detailing what zoning relief a plaintiff must seek at the local level before filing suit.  The case involved the Islamic Community Center of Mid Westchester’s (ICCMW) claims that it had been the target of religious discrimination when the property it purchased to develop with a mosque was designated as a landmark by the City of Yonkers Landmark Preservation Board.  Four months later, ICCMW sued, alleging the landmark designation violated its First Amendment right to the free exercise of religion and RLUIPA.

The Second Circuit affirmed the district court’s dismissal for lack of subject matter jurisdiction (also known as “ripeness”), since ICCMW did not apply for a certificate of appropriateness to develop the property as a mosque.  Continue Reading

North Carolina City’s Zoning Code Amendment “At The Cross”-Road of RLUIPA Claim

Recent amendments to the zoning code of the City of Monroe, North Carolina (the “City”) are unconstitutional, according to the Complaint filed by At the Cross Fellowship Baptist Church (the “Church”), a congregation of approximately 30 people established in 2017, which describes itself as having “a calling to serve the Monroe, North Carolina community.” Continue Reading

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