Baltimore County’s Zoning Code Found to Violate RLUIPA’s Equal Terms Provision

RLUIPA’s equal terms provision requires municipalities to treat religious uses no worse than analogous secular assembly uses.  Generally, if a municipality wants to either prohibit religious uses from a certain zone or subject them to stricter zoning review, it must have a strong justification to do so.  Justifications may include promoting important public health and safety issues.  However, municipalities may find themselves on the wrong side of a RLUIPA lawsuit if they treat religious uses worse than secular uses in the same zone if both have the same impact on the public health and safety justifications.  A federal court in Maryland recently ruled that Baltimore County’s zoning code violates RLUIPA because it allows public schools as of right while requiring religious use to obtain special exception approval in a conservation zoning district.  The main purpose of the district was to protect public water supply.  Because public schools and religious uses had the same effect on water supply, the Court found an equal terms violation based on the face of the zoning code. Continue Reading

Is Finality Still A Requirement For A RLUIPA Action To Be Ripe?

Ripeness is an important defense to RLUIPA claims.  A plaintiff must receive a final decision from the local authority as to how the zoning law applies to its proposal.  If not, plaintiff’s RLUIPA claim could be dismissed as unripe.  Requiring a party to go through the full local procedures offers practical benefits to local governments, crystalizing the issues and presenting an opportunity to resolve matters prior to litigation.  An initial denial by busy working-level zoning officials may create problems that can be solved by a zoning board of appeals’ more detailed and thoughtful review.  The final decision requirement insures that review occurs before the courts become involved.  Recently, however, plaintiffs have argued that finality is no longer necessary for a RLUIPA claim to be ripe. Continue Reading

City of Kirkwood, MO Hits Homerun in Religious Baseball Field Dispute in Eighth Circuit

Yesterday, the U.S. Court of Appeals for the Eighth Circuit issued an important decision regarding RLUIPA’s substantial burden and equal terms provisions.  The court ruled in favor of the City of Kirkwood, Missouri in a years-long battle against a religious high school challenging the City’s lighting regulations for its baseball field.  St. John Vianney High School, Inc. (“Vianney”) is an all-male Marianist high school that has operated in the City since 1960, wanted to expand its baseball games from daytime to nighttime.  It claimed its religion required it to evangelize and draw people to its 37-acre campus to share its faith.  Although Vianney installed the lights and obtained site plan approval, it took issue with conditions of approval imposed by the City which it claimed deprived it of all meaningful use of its baseball field at night.  The Eighth Circuit affirmed the lower court’s decision in favor of the City. Continue Reading

Evangelical Church Sues Castle Hills, TX for Denying SUP for Sunday School Space

Wayside Chapel Evangelical Free Church is suing Castle Hills, Texas for denying its application for a special use permit for property located at 113 Ivywood Circle.  The Church claims that the extra space is needed to accommodate its religious exercise, particularly for Sunday School classroom programs.  Reportedly, the property that was the subject of the zoning application is surrounded by other Church-owned property, where the Church already has a house of worship for 3,000 members, a distribution center for a Meals on Wheels program, administrative offices, and a building to house missionaries, among other things.  According to the lawsuit, the Church’s existing space is not sufficient for its congregation, spurring the need for the 113 Ivywood Circle property.  The lawsuit contends that the City Council denied the application despite the recommendation of the City’s attorney that the application be approved under RLUIPA, given that the Church already operates on surrounding properties.  The Church is suing under RLUIPA, the U.S. Constitution, and state law.  This is not the first time that Castle Hills has been sued for religious discrimination (read an earlier decision here).  Local coverage is available here.

Upcoming Webinar on Gentrification Hosted by Planning and Law Division of the APA

The Planning and Law Division (PLD) of the American Planning Association is hosting the webinar “Gentrification, Displacement, and the Law” which should be of interest to our readers:

Thursday, October 10, 2019
2:30 p.m. – 4:00 p.m. CT

1.50 CM Law; 1.50 CLE (through Illinois State Bar)

Program Description:  Gentrification is one of the complex planning challenges of our times, but the legal limits on how local communities can respond to these pressures are often unclear. While there is no shortage of well-meaning ideas about how to slow the gentrification process or mitigate its impacts, some of those ideas may not be legal, and others could have significant unintended consequences. This webinar will review those laws that impose obligations to protect America’s citizens against some forms of pressure and discrimination, as well as those that prohibit certain local government actions. This review will include the Community Reinvestment Act, the Fair Housing Amendments Act, and the Americans with Disabilities Act, and constitutional limits on interference with contracts or the fundamental right to buy and sell property. However, the real action on gentrification is at the local level, so panelists will also review selected municipal laws and policies.

Speakers are Don Elliot, FAICP, Bill Anderson, FAICP, Bijal Patel, Esq., and Chris Schildt.

Click here to register.

RLUIPA Does Not Apply to Uninsured Amish Roofer Repairing Homeowner’s Damaged Roof

A federal court in New York issued an important decision that should serve as a reminder about the reach of RLUIPA.  The case involves a homeowner’s request to have an Amish roofer repair her damaged roof.  In April 2018, Dorthy Frances Ripley’s home was damaged by high winds and she hired a local Amish roofer, Emmanuel Roffer, to replace her roof.  Mr. Roffer told Ms. Ripley that he could not perform the work because he did not have insurance, which was required by the City of Olean, New York but prohibited by his religion.  Ms. Ripley tried to purchase insurance for her roofer, but was informed by her insurance agent that she was not allowed to do so.  Ms. Ripley sued the City and alleged that the City violated “the religious customs of Emmanuel Roffer, whose Amish beliefs … forbid[] him to buy insurance of any kind, or to obtain government-issued permits or licenses.”  She also claimed that being denied “the benefit of having Amish laborers replace the roof on her home … is a violation of her land use rights,” and she sought unspecified damages. Continue Reading

Fair Housing Act Meets RLUIPA in Georgia

Late last month, an addiction ministry known as Vision Warriors Church, Inc. sued the Cherokee County Board of Commissioners under the Fair Housing Act, Americans with Disabilities Act, RLUIPA, and the U.S. Constitution.  According to the complaint, the Church provides “a faith-based community for men recovering from addiction that focuses on accountability and transparency in an effort to help men to be better Disciples of Christ, fathers, husbands, leaders and friends.”  It does so by offering support services for 20-30 men to overcome addiction through a residential program, weekly services and faith-based meetings.  In 2017, the Church purchased property located at 1709 Old Country Place, Woodstock, Georgia from another ministry called Happy Acres Mission Transit Center.  Happy Acres operated there for approximately 35 years and, with local zoning approval, provided temporary housing to missionaries, had a worship/assembly hall, dormitories with kitchen facilities, an auto repair shop, and storage building.  The Church alleges that it purchased the property following assurances from the Zoning Administrator that its use would be permitted.  After operating for approximately 4 months, the Church claims that the County prevented it from operating in response to neighborhood opposition in an attempt to close the Church’s doors. Continue Reading

Upcoming Webinar – What the Supreme Court’s Knick Decision Did and Did Not Change

The Planning and Law Division (PLD) of the American Planning Association, in partnership with APA Learn, is pleased to host the upcoming webcast What the Supreme Court’s Knick Decision Did and Did Not Change on Tuesday, July 30, 2019 from 1:00 p.m. to 2:30 p.m. ET.

In June, a divided Supreme Court overturned part of a longstanding precedent that generally required plaintiffs alleging unconstitutional takings to first try and fail to obtain compensation under state law before pursuing a federal takings claim. Property rights activists celebrated their one-vote win, but as a practical matter does the decision really change things for planners?

Speakers include John Baker, Esq. of Greene Espel PLLP and Deborah Rosenthal, Esq., FAICP of FitzGerald, Yap & Kreditor LLP

Registration for individual PLD members is $20, $30 for APA (non-PLD) members, and $60 for non-APA/non-PLD members.  Group rates are also available.  Registration is open through July 30, 2019.  Register Here.

CM I 1.50 I Law
CLE 1.50 through Illinois State Bar

The Supreme Court’s decision in Knick v. Township of Scott is available here.

SCOTUS Overrules “State Compensation” Ripeness Requirement for Takings Claims

Today, the United States Supreme Court issued its long-awaited decision in Knick v. Township of Scott.  In a 5-4 decision, the Court overruled the requirement that property owners first pursue takings claims in state court before bringing a takings claims under the Fifth Amendment to the United States Constitution in federal court.  That requirement (known as ripeness) was established in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985).  In the wake of Knick, property owners may now bring Fifth Amendment takings claims directly in federal court without first going to state court.  The majority opinion was authored by Justice Roberts and joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh.  Justice Thomas wrote a concurring opinion.  Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, dissented.

The decision in Knick v. Township of Scott is available here.

Supreme Court Refuses to Take Tree of Life RLUIPA Case

Last week, the United States Supreme Court denied Tree of Life Christian Schools’ petition for certiorari involving its longstanding religious dispute with Upper Arlington, Ohio (City).  In 2009, Tree of Life purchased a commercially-zoned 254,000 square foot office building that it hoped to convert to a religious school.  After the City denied a conditional use permit, Tree of Life sued under RLUIPA.  The Sixth Circuit ruled that the City did not treat Tree of Life worse than secular uses in violation of RLUIPA’s equal terms provision, since the City had a valid basis for denial: permitting the religious school in this large office building would be counter to the City’s goal of enhancing revenue generation in this zoning district.  (See our prior post about the case here).

There was some speculation that the Court could take the case.  Bloomberg Law previewed Tree of Life’s petition in its story Supreme Court Shortlister’s Dissent Could Help Christian School in which I am quoted.  Tree of Life argued in its petition that the Court should take its case because lower courts across the country “are in disarray on the proper test for a RLUIPA equal-terms claim.” In the end, clarification of the equal terms provision is left for another day.

Tree of Life’s petition is available here.

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