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

Supreme Court Says Bon Voyage To Trump Travel Ban Challenges

Yesterday, the Supreme Court issued its highly anticipated decision in Trump v. Hawaii, 585 U.S. ___ (2018) regarding Presidential Proclamation No. 9645, otherwise known as the “Travel Ban.”  To the dismay of many, the Supreme Court upheld the Travel Ban in spite of challenges that the President (a) did not have authority to issue the ban under the Immigration and Nationality Act (INA), and (b) violated the First Amendment’s Establishment Clause by targeting and discriminating against Muslims.  One of the major takeaways from the majority’s opinion is the extreme deference to be afforded the President when it comes to national security matters.  In many other situations, extrinsic evidence regarding religious animus (in the form of statements by government officials) may be given substantial weight when considering an Establishment Clause challenge.  But here, such statements by the President were largely trumped by national security concerns. Continue Reading

Floating Home Owner Scores Second Supreme Court Victory Against Riviera Beach, FL

Today the Supreme Court issued an important decision in Lozman v. City of Riviera Beach, Florida, 585 U.S. ___ (2018).  The case does not involve land use or even free exercise of religion.  But it is still noteworthy because it deals with local government decision-making and citizens’ free speech rights under the First Amendment.  Most local governments have a handful (or more) of harsh critics who attend virtually all legislative meetings, are often the first to arrive at meetings and the first to scribe their names to the public comment sign-up sheet.  The right to speak out against and petition the government is protected speech under the First Amendment.  The facts giving rise to today’s decision involve the City of Riviera Beach’s arrest of Fane Lozman, who has appeared and spoken at more than 200 City meetings since 2006.  Lozman was arrested in November 2006 while speaking critically of government officials during the public comment portion of a City Council meeting for violating its rules of procedure by discussing issues unrelated to the City and refusing to leave the podium.  Video of Lozman’s arrest at the meeting is available here.  The Supreme Court framed the issue before it as “the intersection of principles that define when arrests are lawful and principles that prohibit the government from retaliating against a person for having exercised the right to free speech.” Continue Reading

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