No Homeless in the Historic District?

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

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

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

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

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

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

RLUIPA Suit Against Colonie, NY Dismissed As Unripe

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

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

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

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

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

Yonkers Wins Below: Appeal Pending

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

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

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

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

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

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

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

Original photo by kool_skatkat, some rights reserved.

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

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

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

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

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

The full text of the settlement agreement is available here.

Municipality Prevails in Dispute Over Personal Chapel

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

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

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

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

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

Eruv Dispute Prompts Claims of Religious Discrimination Against New Jersey Township

Last month, Bergen Rockland Eruv Association, Inc. (BREA) sued the Township of Mahwah, New Jersey regarding a dispute over the expansion of an eruv.  According to the complaint, “[a]n eruv, under Jewish law, is a largely invisible unbroken demarcation of an area … created by, among other things, using existing telephone or utility poles and wires,” which “allow Jews with sincerely held religious beliefs to carry or push objects from place to place within the area on the Sabbath and Yom Kippur.”  We previously reported here about another eruv dispute arising in Southampton, New York.

BREA alleges violations of the First Amendment, the Religious Land Use & Institutionalized Persons Act, and other federal law.  BREA’s complaint is available here.  Local coverage is available here.

Upcoming Webinar – Solar Planning 101: Opportunities & Obstacles

On September 11, 2017, the Planning and Law Division of the American Planning Association is hosting the webinar “Solar Planning 101: Opportunities & Obstacles.”  Attendees will learn how to integrate solar energy into planning, zoning, and historic preservation processes from two law professors who specialize in these issues. The program will highlight Hartford, Connecticut, a DOE SolSmart Gold community, which has dramatically reduced barriers to solar and serves as a model for other cities.

Speakers include Troy Rule, Joseph Feller Memorial Chair in Law & Sustainability at Sandra Day O’Connor College of Law, Arizona State University and Sara Bronin, Thomas F. Gallivan Chair in Real Property Law and Faculty Director, Center for Energy and Environmental Law at the University of Connecticut School of Law.

Monday, September 11, 2017

11:00 a.m. – 12:30 p.m. EDT

CM | 1.50 | Law

CLE 1.50 through Illinois State Bar

Register here

Seventh Circuit Rules No Religious Discrimination Based On Sprinkler Requirement

The U.S. Court of Appeals for the Seventh Circuit has affirmed the decision of the Northern District of Illinois, finding against a faith-based recovery home’s claims of religious discrimination and Fair Housing Act violations stemming from a fire code dispute over the installation of a sprinkler system.  Our prior post regarding the case is available here. The plaintiff, Affordable Recovery Housing (ARH) sought to operate a faith-based recovery home in the city of Blue Island that would provide support services, overnight lodging, meals and recreation, job training, medical and dental referral, religious outreach, and other services to adult men recovering from drug and/or alcohol addiction.  After the mayor approved of ARH’s use, ARH moved 73 men into a facility it had leased from a Catholic order of nuns called the Mantellate Sisters of Mary.  The following year, the city of Blue Island’s fire chief decided that before using the buildings, ARH had to install expensive sprinkler systems in the rooms where residents would sleep.  The City Council approved the fire chief’s decision.  While the city’s zoning board of appeals approved ARH’s application for a special permit, it denied ARH’s request that ARH be given three years to install the sprinkler system.

According to ARH, its 73 residents were “forced” to leave after the city decided that sprinklers had to be installed.  ARH sued and alleged violations of Illinois Religious Freedom Restoration Act (IRFRA), RLUIPA, the Fair Housing Act, and the U.S. Constitution.  The District Court ruled in 2014 that because ARH is a state-licensed facility, it is governed by state safety regulations (no sprinkler required), which preempted the city’s safety code regulations – meaning ARH need not install sprinklers.  ARH pressed on with its federal claims in order to seek damages and attorneys’ fees, but the Court found for the city.

The Seventh Circuit affirmed.  It concluded that the IRFRA claims failed, since “there is no evidence that the expulsion, which turned out to be temporary when the applicable state law was discovered, was attributable to anything other than an honest concern with possible fire hazards to the residents.”  Further, ARH “could have avoided the expulsion by researching the state and local regulations applicable to group recovery housing before beginning its project.  Nothing compelled it to rush headlong into business; it chose to take that risk.”  The Seventh Circuit further ruled that even if the sprinkler requirement was a “land use regulation” triggering RLUIPA, there is no violation as ARH “is not being excluded from Blue Island or even required to install a sprinkler system.”  Finally, the Court rejected ARH’s Fair Housing Act claim, because “Blue Island’s exclusion when it forced 73 residents to leave was quickly undone when [ARH] discovered the supervening state law regarding sprinkler systems.”

The decision in Affordable Recovery Housing v. City of Blue Island (7th Cir. 2017) is available here.

Upcoming Webinar – Murr v. Wisconsin: The Supreme Court’s Latest “Take” on Takings

On August 14, 2017, the Planning and Law Division of the American Planning Association is hosting the webinar “Murr v. Wisconsin: The Supreme Court’s Latest ‘Take’ on Takings.” Here is the program description:

In Murr v. Wisconsin, the Court ruled 5-3 that a Wisconsin “lot merger” regulation was not an unconstitutional taking as applied to two contiguous parcels, one of which the owners wanted to sell while retaining the other. Rejecting the competing “bright-line rule” positions offered by the owners and the State of Wisconsin, Justice Kennedy announced a new multi-factor test to determine the extent of the appropriate “denominator” in takings claims involving merger provisions applied to contiguous parcels. This webinar will review the facts and ruling in Murr, discuss the dissenting Justices’ criticisms of Kennedy’s test, and the implications of the Murr ruling both on how state and local governments regulate contiguous parcels and ways that owners of contiguous parcels may react to the ruling.

Speakers include Alan Weinstein of Cleveland State University’s Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs; Nancy Stroud of the firm Lewis, Stroud & Deutsch, PL; and John Echeverria of Vermont Law School.

August 14, 2017; 1:00 p.m. – 2:30 p.m. EDT

CLE 1.50 through Illinois State Bar

CM | 1.50 | Law

Register here


Requiring Repair, Rather than Demolition, For Church’s Violations of Municipality’s Property Maintenance Code May Impose A Substantial Burden

An Illinois appellate court reversed a lower court’s dismissal of RLUIPA claims asserted by the First United Methodist Church of West Dundee (the “Church”) against the Village of West Dundee, Illinois (the “Village”), finding that the Church sufficiently stated claims under the substantial burden and equal terms clauses.

The case concerns a historic building located at 310 West Main Street in the Village (the “310 Building”).  The 310 Building, constructed in 1849 and located in the Village’s historic district, is currently one of the Village’s oldest historic structures.  The Church, which acquired the 310 Building in 1950, allegedly made certain efforts to maintain and repair it over the years.  By 2004, however, the 310 Building had been rendered uninhabitable, and the Church has not used or repaired it since.

Ten years ago, the Church applied to the Village for a permit to demolish the 310 Building, citing a need for additional parking for its congregation, which had been meeting at an adjacent property owned by the Church.  The Village denied this application, asking instead that the Church repair and maintain the 310 Building.  The Church did not appeal this decision.

Four years later, an inspection of the 310 Building allegedly revealed 14 property maintenance violations.  The Village issued the Church a correction order, requiring the Church to make certain repairs.  When the Church failed to comply with this order, the Village filed a complaint in the circuit court, seeking a court order to require the repairs.

In response, the Church filed a counterclaim, alleging that repairing the 310 Building would be substantially more expensive than demolishing it, and could financially devastate the Church.  The Church further alleged that the Village had approved the demolition of three other historic structures in the Historic District for commercial uses.  Moreover, the Church alleged that Village’s insistence on repair rather than demolition amounted to a “taking” of the 310 Building.

The trial court, which dismissed the Church’s counterclaims for failure to state a claim, ordered the Church to start making repairs within 14 days.  If it did not, the Court authorized the Village to initiate repairs and place a lien on the Church for repair costs, pursuant to Illinois Municipal Code § 11-31-1(a).  The Church appealed this decision.

On appeal, the Illinois Appellate Court, Second District, found that the Church had sufficiently stated claims under RLUIPA’s substantial burden and equal terms clauses, as well as claims sounding in inverse condemnation.

At the outset of its analysis, the Appellate Court notes that the section of the Illinois Municipal Code that permitted the Village to seek the subject court order requiring repair of the 310 Building also permitted the Church to file a counterclaim seeking an alternative form of relief, such as demolition.  See Illinois Municipal Code § 11-31-1(a).  Indeed, the Illinois Supreme Court has stated: “[In] provid[ing] for repair or demolition in the alternative[, section 11-31-1(a) of the Municipal Code] ‘contemplates repair where feasible and demolition where the state of deterioration is such that repairs would amount to a substantial reconstruction [of the building].’”  Village of Lake Villa v. Stockovich, 211 Ill. 2d 106, 127 (2004) (citing City of Aurora v. Meyer, 38 Ill. 2d 131, 136 (1967)) (emphasis added).

Turning to the Church’s RLUIPA claims, the Appellate Court found that the Village’s property maintenance code is a “land use regulation” as defined by RLUIPA, given that its application limits and/or restricts the Church’s use or development of its land. This finding is interesting, given that building and sanitary codes are often not found to fall within RLUIPA’s definition of a land use regulation. See some of our prior posts here, here and here. Instead, the Court reasoned:

In short, the Church owns the 310 building; it wants to use the building and the land for a particular purpose, but the Village is (allegedly) standing in the Church’s way.  Congress mandated the RLUIPA be construed ‘in favor of a broad protection of religious exercise’ and in our view, this case… presents the precise sort of situation that RLUIPA was designed to cover.

Upon review of the Church’s allegation that the cost to repair the 310 Building would potentially ruin the Church, the Court found: “By any reasonable measure, the burden imposed on the Church, taking the Church’s statement of it as true at this point, would certainly qualify as ‘substantial.’”

The Court further held that the Church’s allegation that the Village had approved the demolition of three other structures in the Historic District for commercial uses constituted a viable equal terms claim.  The Court characterized the Village’s act of granting a privilege to commercial land users that it denied to a religious institution as “arbitrary enforcement… sufficient to state a claim of unequal treatment under [RLUIPA].”

Finally, the Court found that the Village’s denial of a demolition permit could also constitute a taking without the formal exercise of eminent domain proceedings.  Accordingly, the Church’s inverse condemnation claims were improperly dismissed.

The full text of this opinion is available here.

Original photography by Elias Schewel, some rights reserved.