RLUIPA Implications of Trump’s Immigration Executive Order

Earlier this month, the U.S. Court of Appeals for the Ninth Circuit upheld a district court’s issuance of a temporary restraining order prohibiting the enforcement of Executive Order 13769 – “Protecting The Nation From Foreign Terrorist Entry Into The United States” – and denying the federal government’s emergency motion for a stay to allow enforcement of the Executive Order pending appeal.  The Executive Order bans individuals from seven countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen) from entering the United States.  According to the Ninth Circuit, in State of Washington v. Donald J. Trump, the temporary restraining order was warranted as the States of Washington and Minnesota were likely to succeed on the merits of their claim that the Executive Order violates the Due Process Clause of the U.S. Constitution: “The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.”  The Ninth Circuit also noted that the States’ claims that the Order violates the Establishment and Equal Protection Clauses by disfavoring Muslims “raise serious allegations and present significant constitutional questions.”  In other words, the Ninth Circuit did not reach the merits of these two claims, but stated that it was possible the Executive Order is also unconstitutional because it discriminates against Muslims.

Last week, a federal court in Virginia addressed the religious discrimination issue and found that the Executive Order likely violates the Establishment Clause.  In Aziz v. Donald Trump, the Eastern District of Virginia relied on statements by Donald Trump before and during his presidential campaign and others to find that the Executive Order was meant to be a “Muslim ban,” including the following:

  • “On December 7, 2015, then-candidate Trump issued a press release[] titled ‘Donald J. Trump’s Statement on Preventing Muslim Immigration,’” in which he called “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
  • A 2011 interview with Fox News’s Bill O’Reilly in which the following exchange occurred:

O’Reilly: Is there a Muslim problem in the world?

Trump:  Absolutely.  Absolutely.  I don’t notice Swedish people knocking down the World Trade Center.

O’Reilly: But you do believe overall there is a Muslim problem in the world.

Trump:  Well, there is a Muslim problem.  Absolutely.  You just have to turn on your television set.

O’Reilly: And do you think it encompasses all Muslims?

Trump:  No.  And that’s the sad part about life.  Because you have fabulous Muslims.  I know many Muslims and they’re fabulous people.  They’re smart.  They’re industrious.  They’re great.  Unfortunately, at this moment in time, there is a Muslim problem in the world.  And by the way, and you know it and I [sic] and I know it and some people don’t like saying it because they think it’s not politically correct.

  • A July 17, 2016 interview with Lesley Stahl in which Trump confirmed that Muslims would be banned and said – “call it whatever you want. We’ll call it territories, OK?”
  • A January 29, 2017 Fox News interview with former Mayor of New York City Rudolph Giulianni, in which Mr. Giulianni stated: “I’ll tell you the whole history of it….  So when [Trump] first announced it, he said ‘Muslim ban.”  He called me up.  He said, ‘Put a commission together.  Show me the right way to do it legally.’  And what we did was, we focused on, instead of religion, danger – the areas of the world that create danger for us.”

The District Court rejected the federal government’s arguments that it should limit its review to the text of the Executive Order and should not look at any statements made prior to the date Trump took office.  The Court concluded that “The Commonwealth has produced unrebutted evidence that it is likely to succeed on an Establishment Clause claim.  The ‘Muslim ban’ was a centerpiece of the president’s campaign for months….”

While these are only rulings on preliminary injunctions, with the cases still set to proceed, they are noteworthy because they have the potential to affect RLUIPA decisions for years to come.  Although the Supreme Court has never considered the merits of a RLUIPA land use case, it has considered non-land uses cases brought under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment.  These cases are frequently cited by courts across the country evaluating RLUIPA’s land use provisions.  Examples include Burwell v. Hobby Lobby Stores, Inc., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, and Employment Division v. Smith.  The plaintiffs in Aziz and State of Washington also allege violations of RFRA – the subject of the decision in Hobby Lobby.  There are several other decisions across the country challenging the Executive Order on religious discrimination grounds, begging the question if the Supreme Court will someday be asked to consider the issue.  And new lawsuits may soon follow, as reports suggest that a new immigration ban is already in the works and soon to be released.

Another issue is how active the Department of Justice (DOJ) will be in investigating and prosecuting RLUIPA violations under the new administration.  The RLUIPA statute authorizes the DOJ to sue municipalities that it believes have violated the statute.  This past July, the DOJ issued a report  noting that since 2010, it has opened 45 land use investigations, filed 8 lawsuits involving land use, and filed 8 amicus (friend of the court) briefs in privately filed RLUIPA land use cases.  The percentage of DOJ investigations involving mosques or Islamic schools has risen from 15% in the 2000 to August 2010 period to 38% during the September 2010 to present period.  DOJ activity with respect to RLUIPA land use matters remains to be seen, especially in light of the controversy surrounding President Trump’s leaked religious freedom bill, which has been described by one report as legalizing religious discrimination (full text of draft bill in linked article).

Upcoming Webinar: RLUIPA Land Use Claims — Latest Litigation Trends and Key Case Law Developments

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Please join members of our RLUIPA Defense Team for a February 22, 2017 webinar. 

In the 2015 case Holt v. Hobbs, the Supreme Court addressed for the first time the application of RLUIPA in a prison context, holding that a state prison system may not impose a beard-length requirement on a Muslim inmate.

Not understated is the impact of the Supreme Court’s Burwell v. Hobby Lobby ruling under RFRA on RLUIPA litigation and potential claims by for-profit corporations against zoning decisions that burden their owner’s religious exercise.

Our panel will offer practical guidance for counsel advising local governments on ways to avoid RLUIPA claims. The program will discuss recent trends in RLUIPA claims and litigation, including recent Supreme Court cases and many Circuit Court cases under and impacting RLUIPA. The program will look at various approaches to defend against RLUIPA suits once a claim has been filed.

We will review these and other key issues:

  • What types of claims are being raised in RLUIPA litigation and how have the courts responded?
  • What steps can local governments take to avoid RLUIPA challenges?
  • What strategies have been effective for municipalities in defending RLUIPA claims?

After our presentations, we will engage in a live question and answer session with participants so we can answer your questions about these important issues directly.

WHEN

Wednesday
February 22
1:00–2:30 p.m. EST

REGISTRATION INFORMATION

For more information or to register, click here,

Or call 1-800-926-7926 ext. 10. Ask for RLUIPA Land Use Discrimination Claims on 2/22/2017.

Mention code: ZDFCT

Signs 4 JC Shown the Light by NH District Court

hillside-sign

Thou shall have the right to an electronic sign?  Apparently not.  Just over a year ago, Hillside Baptist Church and Signs for Jesus (together, Plaintiffs or Church) filed a complaint in the District Court for New Hampshire, seeking a declaration that the Town of Pembroke’s (the Town) sign ordinance is unconstitutional both facially and as applied to the Plaintiffs.  The complaint alleged that the Town’s Ordinance banning the use of electronic signs in all but the Town’s commercial zoning district “restricts how the Church may proclaim a daily Biblical message while not restricting the medium of communicating state, municipal or school messages.”  Our post regarding the complaint is available here.

The Plaintiffs claimed that the Town’s limitation on electronic signs in all zones but the commercial zone, and the Town’s denial of the Church’s sign application violated its rights to Free Speech, Free Exercise of Religion, and Equal Protection, as well as RLUIPA’s substantial burden and equal terms provisions.

Standing: As a threshold issue, the Court considered whether the Plaintiffs had standing to challenge provisions of the Town’s sign ordinance that did not have bearing on whether the Church was allowed to install an electronic sign on its property.  Although some provisions of the sign ordinance arguably made content-based restrictions, subject to a more rigorous standard of judicial review as stated in Reed v. Gilbert, the Court concluded that code provisions “not fairly traceable” to Plaintiffs’ injuries were not subject to challenge. For those provisions of the sign code that were fairly traceable to the alleged injuries, the Plaintiffs had standing.

Content Neutral: Next, in considering the  Church’s Free Speech claim, the Court evaluated whether the sign ordinance as applied to the Church is a content-based regulation. While content-based regulations must further a compelling government interest and be narrowly tailored to further such interest, content-neutral regulation of speech need only pass an “intermediate” level of scrutiny. The Court rejected the Plaintiffs’ argument that the sign ordinance made impermissible speaker-based distinctions because grandfathered uses (including a gas station electronic sign approved before the e-sign ban was passed) were favored over the Church.  In considering the grandfathered gas station, it noted that New Hampshire state law “broadly exempts all preexisting nonconforming uses of property from local zoning requirements.” The Court also found it irrelevant that government land users are not subject to the electronic sign ordinance.  Significantly, all government land uses are exempt from local zoning ordinances pursuant to state law.  Therefore, the publicly-funded Pembroke Academy’s electronic sign – which the Plaintiffs contended received preferential treatment, since the Academy was permitted an electronic sign while they were not –  did not influence the court’s analysis.

Aesthetic and Traffic Safety: Finding the electronic sign ordinance content neutral, the court next concluded that its provisions were narrowly tailored to the “significant governmental interest[s]” of aesthetics and traffic safety and did not violate Free Speech. Given that there was no evidence of “ulterior purpose” in the Town’s application of the ordinance, a stricter level of judicial review was not required. Additionally, the sign ordinance left ample alternative channels of communication for the Church to convey its message.  Indeed, the Church could continue to use its manually changeable sign to convey its message.

Additional Counts: The Church’s Free Exercise claim was dismissed in short order, given that the electronic sign ordinance was found content neutral and generally applicable (see Employment Division v. Smith,).  Next the Church’s Equal Protection claim was dismissed because neither of the comparators put forward by Plaintiffs (the preexisting gas station and the public Pembroke Academy) were similarly situated to the Church. Since the Town had no authority to regulate the Academy, a subdivision of the state, it was not comparable.  Likewise, state law prohibits the regulation of preexisiting nonconforming uses like the gas station.

Relying on the First Circuit calculus articulated in  Roman Catholic Bishop of Springfield v. City of Springfield (post here), the court dismissed the Church’s substantial burden claim, finding the electronic sign denial was not “oppressive” or “worrisome.”  The Church could still maintain its manually changeable sign, and it “is not entitled to the most efficient or inexpensive means of communicating its message.” Given the lack of sufficiently similar comparators treated more favorably than the Church, the court also dismissed the RLUIPA equal terms claim.

Two Important Points: (1) In its substantial burden analysis, the court notes that the Town acted in a “well-considered and straightforward manner.”  Its decision was not made arbitrarily, and “Board members educated themselves on the issues of federal law before reaching a final decision on the Church’s requests.”  The take away? RLUIPA training is important, as it will educate officials to best avoid – or at least mitigate the threat of – possible RLUIPA liability, and (2) At least one federal court has reached nearly the opposite conclusion.  Before denying the next electronic, religious sign that comes before you, read our post regarding Corporation of the Catholic Archbishop of Seattle v. City of Seattle, No. C13-1589 (W.D. Wa. 2014), here.

The District Court of New Hampshire’s decision in Signs for Jesus and Hillside Baptist Church v. Town of Pembroke and Hodge, is available here.

Nashville Islamic Center’s Religious Discrimination Claims Dismissed

A federal district court in Tennessee recently dismissed for lack of subject matter jurisdiction a claim by the Islamic Center of Nashville (ICN) lawsuit challenging a Tennessee property tax exemption law on religious freedom grounds. Please see our previous blog post about the case here.

Background
Since 1995, ICN has operated a religious school, the Nashville International Academy (NIA), an independently operating but related entity. To finance a new educational building, while still adhering to the Islamic tenet against interest-bearing loans, ICN entered into an Ijara agreement through which a bank’s subsidiary held the property’s title until payments on the finance agreement were complete. During the agreement (August 2008 — October 2013) ICN and NIA exclusively operated on the property, with no oversight by Devon Bank or its related entities. During this time neither the Bank nor its related entities on the property paid any taxes, nor did they depreciate the property for tax purposes.

In February 2014, ICN sought a property tax exemption for the building, to be applied retroactively, seeking continuity of exempt status as provided by Tenn. Code Ann. 67-5-212(b)(3)(B). The State Board of Equalization denied tax exempt status for the period prior to October 2013, when the Ijara payments were ongoing, but granted exemption from that time onward. ICN appealed the decision before an Administrative Law Judge (ALJ) in January 2015, and after receiving an unfavorable ruling, appealed again to the Tennessee Assessment Appeals Committee, which also found that ICN was not entitled to the exemption prior to October 2013 due to the transfer of property in the Ijara agreement.

ICN’s Complaint
ICN’s complaint alleges violations of the Religious Freedom Restoration Act (RFRA) and its Tennessee counterpart, RLUIPA, the Elementary and Secondary Education Act of 1965, and the First Amendment of the United States Constitution.

ICN argued that it was “ironically denied the religious exemption from property taxes by Defendant specifically because of its adherence to its religious tenets.” It also contended that the tax exemption statute favored non-Islamic religions and non-religious organizations, and that the statute substantially burdened its free exercise of religion. Had it not been for ICN’s strict adherence to its religious tenets, ICN likely would not have transferred title to the property, nor would it have been removed from its previous exemption status. Removing ICN’s exemption status violated its religious rights under RLUIPA.

Dismissal
Upon review, the district court did not have an opportunity to address ICN’s substantive claims. Instead, the court’s review was limited to a discussion of the application of the Tax Injunction Act to this case.

The Tax Injunction Act, 28 U.S.C. § 1341, prevents district courts from interfering with local tax matters where a remedy is available in state court. Here, Tennessee law provides the opportunity for judicial review of decisions by the State Board of Equalization in the state chancery court. Because ICN did not appeal to the chancery court, it failed to exhaust an available state remedy. Consequently, the district court concluded that it lacked jurisdiction and dismissed the case. Had the district court considered ICN’s RLUIPA claim, it would have had to decide whether the tax exemption statute was a “land use regulation” as defined by RLUIPA and, if so, whether having to pay taxes somehow prevented it from exercising its religious beliefs as distinct from merely paying taxes.

The Court’s Memorandum of Decision in Islamic Center of Nashville v. Tennessee, No. 3-16-2498 (M.D. Tenn. Dec. 14, 2016) is available here.

Bare Amish Horses? It Depends.

Horse Diaper

Two Amish men have sued Auburn, Kentucky (population approx. 1,300) in a Kentucky state court over an ordinance requiring that horses wear equine diapers.  The ordinance, passed in 2014, is intended to keep town streets clear of horse manure, and is the result of neighbor complaints.  The ordinance requires “[a] properly fitted collection device shall be securely in place on all horses or other large animals while such animals are on the street within city limits.  The sole exception of this requirement shall be for special events when cleanup crews are provided as part of the event.”  See Auburn Code of Ordinances, § 90.088(B) (available here).  Auburn officials maintain that the ordinance is needed to keep the streets clean and to reduce the risk of spreading disease.  Reportedly, Auburn had more than 25 cases pending against Amish individuals for violating the ordinance as of October 2016.

The plaintiffs are members of the Swartzentruber Amish, a subgroup within Old Order Amish Society and one of the most conservative subgroups (read more about the Swartzentruber Amish here).  Even before the ordinance was passed in 2014, Swartzentruber elders considered and rejected the equine diaper requirement.

Last year, one of the plaintiffs was jailed for 10 days and fined $193 after a jury convicted him of violating the ordinance.  Now, the plaintiffs claim that the ordinance violates their religious beliefs, because they do not believe in such technology as equipping horses with diapers.  The plaintiffs assert that there is an available alternative that will not violate their religion – carrying shovels to clean up horse waste on the spot (similar to the ordinance’s exception for special events).  But Auburn’s lawyer has stated that this is not a viable option as it would be too dangerous for the Amish to stop in the middle of the road with oncoming traffic to shovel manure.  The plaintiffs allege that the ordinance violates the state and federal constitutions, as well as the Kentucky Religious Freedom Restoration Act.

One Auburn resident succinctly summed up the dispute: “Yes, it’s a law, and we’re all supposed to follow the law.  But I don’t understand why they can’t find a happy medium.  All of this over horse poop?”  The Wall Street Journal has more in “When Horse Diapers and Freedom of Religion Collide.”

Original photo by Valerie Gaffneysome rights reserved.

 

Settlement Reached Allowing Construction of Muslim Cemetery in Dudley, MA

barn

Guest Post by Derek Valentine

Following some last minute hand-wringing, nearly a year of hearings and deliberations by the Zoning Board of Appeals (“ZBA”) and accusations of religious bias, the Town of Dudley agreed to a deal that would allow a proposed Muslim cemetery to be constructed on six acres of former farmland in a rural part of the Town.  The Islamic Society of Greater Worcester (“ISGW”) is a non-profit corporation that operates a mosque in Worcester, MA and currently conducts traditional Islamic burials at a cemetery in Enfield, CT. In an effort to provide a burial site closer to the mosque, the group identified a 55-acre parcel of former farmland in Dudley and entered into a purchase agreement with its owner in January, 2016.

SGW approached Dudley shortly after putting the property under contract, seeking a roadmap of permits required to construct the cemetery. The Town’s Building Commissioner determined that the use required a special permit, and ISGW applied for the same on or around January 7, 2016. A public hearing was opened and continued several times in the following months. Some residents expressed concerns about contamination of their wells due to the Islamic practice of burial without coffins. On June 9th, the Zoning Board of Appeals (“ZBA”) voted to deny the application citing the ISGW’s lack of standing. Lack of standing was asserted based on the Town’s belief that it had a right of refusal to purchase the property under G.L. c. 61A, Section 14. The cited section dictates that “land taxed under this section shall not be sold for, or converted to residential, industrial, or commercial use while so taxed or within one year after that time unless the city or town in which the land is located has been notified of the intent to sell for, or to convert to, that other use”. Since it proposed a religious use, ISGW claimed that it is categorically excluded from G.L. c. 61A, Section 14.

ISGW filed a complaint with the Massachusetts Land Court seeking a determination that the right of refusal did not apply and that both the Town and the property owner interfered with a binding contract to purchase the property.

On December 23, 2016, the Boston Globe reported that the parties had reached an agreement that would allow ISGW to build the cemetery, subject to routine town approvals from the ZBA, the Board of Health, and the Conservation Commission. According to the Globe, the settlement recognizes the religious protections extended to the cemetery, but required the project to go back before the ZBA where a special permit will be granted based on the agreed upon conditions of the settlement; which specify that only six acres of the property would be developed as a cemetery and there would be no further expansion for a period of ten years.

The beginning of 2017, however, included a slight stall on the road to final resolution after some verbal sparring in the local paper, the Webster Times, between ISGW attorney, Jay Talerman and Board of Selectman Chair Jonathan Ruda.  In a statement in the January 6 edition of the Webster Times, Talerman stated that the “approvals that the town would provide are essentially perfunctory,” and “the Zoning Board doesn’t possess any discretion under the agreement to say ‘no.’” In response to these comments, Mr. Ruda refused to sign the agreement reached through the settlement back in December, 2016. Luckily, this setback was short lived and the agreement was signed by both the ISGW and the town on January 12th, 2017. According to the Webster Times, the project will be brought back before the ZBA, likely in February, followed by review by the Health Department and the Conservation Commission. Permits are expected to be issued sometime after that.

Original photo by Ken Whytock, some rights reserved.

DOJ’s RLUIPA Claims Survive Motion to Dismiss

A federal court in Pennsylvania has denied Bensalem Township’s motion to dismiss a lawsuit brought by the United States Department of Justice challenging the Township’s denial of a use variance for a mosque.  The lawsuit alleges violations of the Religious Land Use & Institutionalized Persons Act (RLUIPA) and is in addition to a separate lawsuit filed by the religious group itself – Bensalem Masjid (Masjid).  Masjid sought to build its own mosque because it had been relegated to using space in a fire hall for religious worship.  Without a mosque, Masjid claims its members violate their religious beliefs in several important respects, as the fire hall space cannot accommodate their religious beliefs: separating the sexes during worship; performing “wudu,” the ablution before prayer; and worshipping in a mosque that is properly dedicated to God, is oriented towards Mecca, and is consecrated.

Masjid began its search for a new location in 2008.  Under the Township’s zoning code, religious uses are permitted only in the Institutional District (IN District), where there are about 35 properties total.  Although Masjid was unable to find a site in the IN District, it found three adjacent properties encompassing multiple zoning districts, none of which permitted religious uses, and entered into a lease with an option to purchase the properties.  After consulting with Township officials, Masjid submitted an application for a use variance to allow the properties to be put to religious use.  The application was denied in November 2014 after six sessions of a public hearing.  Masjid sued the Township following the denial, which we previously reported on here.

In 2016, the DOJ also sued the Township over the same denial (see post here).  The Township moved to dismiss each of the four RLUIPA claims raised by the DOJ (substantial burden; equal terms; nondiscrimination; and unreasonable limitations).  The Court denied dismissal and noted that the Township had unsuccessfully sought dismissal of the same claims in the case brought by Masjid (Memorandum of Decision in Masjid case available here).  The Court also noted that the claims brought by the DOJ were the ones that survived dismissal in the other pending action.

The Township first moved to dismiss the DOJ’s complaint on the ground that the DOJ had failed to join a required party (the Bensalem Zoning Hearing Board).  According to the Township, only the Zoning Hearing Board could grant use variances and for that reason had to be named as a defendant.  The court was not persuaded, and instead found that since the municipality is authorized to enforce and amend its zoning laws, the DOJ could attain the relief it sought without the Zoning Hearing Board being made a defendant.

The Township also moved to dismiss each of the four RLUIPA claims alleged by the DOJ (substantial burden; equal terms; nondiscrimination; and unreasonable limitations).  The court rejected each of these claims:

  • Substantial Burden: The Township claimed that there could be no substantial burden on religious exercise because Masjid had failed to pursue an available zoning remedy in the form of a rezone. Stated differently, if there is another avenue through which to seek relief, the burden cannot be substantial.  But the court determined that there was a factual dispute as to whether the use variance or the rezone was the proper procedure, so dismissal was inappropriate at this stage.
  • Equal Terms: This claim was sufficiently alleged, since several zoning districts within the Township allowed secular assembly uses but prohibited religious uses from the same zone.
  • Nondiscrimination: The Court found that the DOJ’s allegation that Masjid was subject to a more burdensome variance application process than other groups was sufficient to allow this claim to survive.
  • Unreasonable Limitations: The Township contended that because other groups were able to locate properties in the IN district, its zoning regulations could not violate the unreasonable limitations provision. But the DOJ alleged that there were no parcels for sale in the IN District during Masjid’s search period, and the Court determined that this factual dispute meant the claim had been properly pleaded.

The court’s memorandum of decision relating to the motion to dismiss in United States v. Bensalem Township is available here.

Third Circuit Upholds District Court Decision in Pennsylvania Baptist Church Sign Case

Last week, the Third Circuit Court of Appeals entered an order upholding the district court’s decision in the case of Tearpock-Martini v. Shickshinny Borough, which we reported on last summer.  The case involved an Establishment Clause challenge by a citizen to a Pennsylvania borough’s decision to install a sign in the right-of-way stating “Bible Baptist Church Welcomes You!”  The district court found, on a motion for summary judgment, that the sign did not violate the three-part Lemon test under the Establishment Clause, and that it did not violate the endorsement of religion test.

The Third Circuit found the plaintiff’s arguments regarding the posting of other signs in the right-of-way unconvincing.  The plaintiff made much of the fact that the only other sign in borough right-of-way was a directional sign to a boat launch, and that the borough had not permitted a post office sign in the right-of-way.  But the Third Circuit noted that the post office never applied for a sign in the right-of-way, and further pointed out that the borough’s approval and subsequent installation of the church sign did not send a message of endorsement.

Tearpock-Martini v. Shickshinny Borough, ___ Fed. App’x ___, 2017 WL 35714 (3d Cir. Jan. 4, 2017).

*The following is re-posted with permission of Rocky Mountain Sign Law Blog, available at: http://www.rockymountainsignlaw.com/.  Brian J. Connolly and Otten, Johnson, Robinson, Neff + Ragonetti are not affiliated with Robinson + Cole, LLP.

Missouri Church Wins Digital Sign Appeal

The Missouri Court of Appeals has ruled that the Kansas City, Missouri, Board of Adjustment abused its discretion in failing to grant a variance to Antioch Community Church (Church) to install digital components into its monument sign.  The Church argued that absent the variance it had practical difficulty in communicating its message.  In the alternative, the Church contended that the zoning code violated the First Amendment “by favoring less-protected commercial speech over more-protected non-commercial speech.”  Under the code, schools and churches on lots 15 acres or more (or 10 acres or more if located on a major arterial road) are allowed to use digital signs.  Because the Church’s lot was less than 10 acres, the code prohibited it from having a digital sign on its property.

The Church property is in a single-family residence zone next to commercial, urban residential, downtown, and industrial zones, all of which permit digital signs.  The Church is located on Antioch Road, a four-land roadway with about 14,000 travelers each day.  Since 1956, the Church has had a monument sign consisting of glass display cases surrounded by brick framework.  The sign included messages and information about Church activities that were manually  added using letters hung from cup hooks.  In 2010, at a cost of $11,000, the Church installed a digital sign, which replaced the display case, but no changes were made to the brick surround.  At this time, the Church was unaware that the Kansas City sign ordinance prohibited digital signs in residential zones (Section 88-445-06-A-4 of the code).  Accordingly, the Church did not seek a variance before installing the digital sign component.

About a year later, the City issued a notice of violation to the Church for installing the digital component without seeking a variance.  The Church then sought and was denied a variance.  Its local appeal of the Board’s decision was also denied.  Following this local process, the Church sued in Clay County Circuit Court.  The Circuit Court entered judgment in favor of the Church and ordered the issuance of the variance, but did not address the Church’s constitutional claim finding it to be moot.

The Missouri Court of Appeals affirmed the Circuit Court’s decision that the Church was entitled to the variance.  First, the Court of Appeals rejected the Board’s assertion that it had no authority to issue a variance as to the “type” of sign under the code.  Section 88-445-12 of the code states: “The Board of Zoning Adjustment may grant variances to the requirement for signs, except as to the type and number.”  (emphasis added).  But a “digital sign” is a “component” of a sign (Section 88-810) – not a sign “type.”  Rather, Section 88-445-12 defines “sign type” as:

A group or class of signs that are regulated, allowed, or not allowed in this code as a group or class.  Sign types include, but are not limited to, pole signs, monument signs, oversized monument signs, outdoor advertising signs, wall signs, projecting signs, roof signs, ornamental tower signs, electronic or digital or motorized signs, banner signs, and temporary signs.

As found by the Court of Appeals, the monument sign which had been there since 1956 was the “sign type,” so the Board had authority to grant a variance to permit a digital component for a monument sign.

The Court of Appeals also found that the Church had proven practical difficulty warranting issuance of the variance: (a) the variation was not substantial; (b) the sign does not effect a substantial change to the character of the neighborhood; and (c) the Church lacks other means of advertising or communication, such as fliers or paid advertisement.  Like the Circuit Court, the Court of Appeals did not address the Church’s claim that the code violated the First Amendment by favoring commercial speech above non-commercial speech.

The decision in Antioch Community Church v. Board of Zoning Adjustment of the City of Kansas City, Missouri (2016) is available here.

DOJ Claims that County’s Denial of a Sewer Permit Violates RLUIPA

sweet spetic

Guest Post by Derek Valentine

Earlier this month, the U.S. Justice Department (“DOJ”) filed suit in District Court for the Western District of Virginia against the Culpeper County Virginia Board of Supervisors alleging it acted in a discriminatory manor by denying a permanent pump and haul septic system permit for a proposed mosque.

The Islamic Center of Culpeper (ICC) is a non-profit Muslim center that began its formal search for a permanent mosque location in 2011. In January of 2016, the ICC located a property that met its qualifications and entered into a purchase contract. The one-acre property included a dilapidated structure that would be razed to make way for a small mosque to serve the ICC’s needs for the next ten years. The new facility would accommodate separate prayer rooms for male and female congregants, classrooms for Arabic language studies, and a proper space to allow congregants to perform a pre-prayer ritual requiring the washing of hands and feet.

After entering into the purchase contract, Mohammed Nawabe, ICC’s Director, contacted the County Administrator to initiate construction approvals. The property is located in a zoning district that allows religious land uses by right, but the County Administrator recommended that Mr. Nawabe contact the health department regarding soil conditions and the ability to accommodate an on-site septic system. Mr. Nawabe was subsequently informed by the health department that the property would not support a traditional septic system and instead would have to rely on a permanent pump and haul system, requiring approval from the County. A permanent pump and haul system is out of the ordinary and is required where there is no public sewer service and soil conditions do not allow a conventional on-site septic system.  Instead, the sewage must be retained in a tank and periodically hauled away by truck.  Under Virginia  law this requires a special permit from the state, and in this case the county holds the only permit in the county and thus must approve such systems to be added to its permit.

The ICC submitted an application for pump and haul approval but, according to the complaint, was met with considerable interference from a local civic leader. At one point, ICC’s application was pulled from a meeting agenda and was deferred to the County Attorney for additional review. Mr. Nawabe then met with the County Planning Director and was told he needed to reapply with an updated County pump and haul agreement because he mistakenly was given an outdated copy.

The ICC’s application was resubmitted on March 3, 2016, and scheduled for County Board consideration on April 5, 2016. The DOJ claims that in the intervening time between the submission and the scheduled Board action date, the County received a barrage of emails and phone calls from constituents urging denial of the application. Many of the comments relayed anti-Muslin sentiments. The County Administrator informed the County Board Chairwoman that the ICC application should be reviewed consistent with the established criteria and level of scrutiny applied to all other applications. The Administrator stated that he would be prepared to invalidate any irrelevant constituent concerns at the scheduled Board meeting.

At the April 5th meeting, the County Administrator shared prepared comments indicating that the ICC had “provided letters from the health department “saying that the soil just wouldn’t support what they would consider a traditional type of drain field, and no other alternative was identified.” After some discussion from County Supervisors, the application was denied on a 4-to-3 vote. According to the complaint, of the 26 applications processed in the last 20 years this was only the second denial  . The County Supervisors who voted against the application argued that ICC did not show hardship and that pump and haul permits were for emergency use only and not intended for commercial or church use. These Supervisors also denied the hardship claim because ICC did not own the property at the time of the application and there was no existing structure on the property. Furthermore, they alleged that ICC purchased the property at a below market price because of the preexisting poor soil conditions and inferred that any hardship would be deemed self-inflicted. However, the DOJ concluded that permits were issued to other parties under very similar circumstances, including one to a Baptist church.

The DOJ alleges that the County has used the permit process to allow land uses it finds desirable while excluding unwanted land uses. The allegations state that the County’s denial constituted “a substantial burden on ICC’s freedom to practice their religion” and that ICC’s permit was treated substantially differently than similar permit applications. The  complaint requests injunctive relief requiring the County to issue the permits necessary for ICC to construct the mosque and requiring the County to provide RLUIPA training, establish a protocol to address future RLUIPA claims, and maintain records/reports with respect to RLUIPA compliance.

The complaint in United States of America v. County of Culpeper, VA is available here.

Original Photograph by Laura Gilmore, some rights reserved.

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