Can a municipality violate RLUIPA in complying with a court order? The United States Department of Justice apparently thinks so and has gone after Rutherford County, Tennessee.

In May 2010, the Countys Regional Planning Commission approved the Islamic Center of Murfereesboros site plan application to construct a 52,000 square foot facility, consisting of a mosque and spaces for religious education, counseling, and other activities, on a 15-acre parcel in a residential district. After the County approved the site plan, local residents sued the County in state court in September 2010, seeking a temporary restraining order enjoining the construction of the mosque and claiming, among other things, that the County violated Tennessees Open Meeting Act by failing to provide adequate notice of the meeting at which the site plan application was considered and approved. While the state court denied the residents request for a temporary restraining order, it agreed with the residents that the County violated Tennessees Open Meeting Act and voided the Countys approval of the Islamic Centers site plan application.

The Court found that the Act imposes additional notice requirements where “significant business is discussed at an otherwise routine public meeting.” When significant business is discussed, said the Court, notice of the specific issue to be decided, and not just notice of a “regular meeting, ” as the County provided, is required. The Court found that consideration of the Islamic Centers site plan amounted to significant business requiring greater notice than had been provided by the County.

While the state court case was pending, construction of the mosque continued, until its completion in July of 2012. When the Islamic Center requested a certificate of occupancy, however, the County refused.

The reason for the Countys refusal? It sought to comply with the state court decision voiding the Countys approval of the site plan.

Once the DOJ got word of this, it sued the County alleging a violation of RLUIPA due to the Countys refusal to issue a certificate of occupancy for the mosque (click here to read the DOJs complaint). The DOJ quickly obtained a temporary restraining order to expedite issuance of the certificate in time for members of the Islamic Center to observe Ramadan upon the Courts finding that the DOJ was likely to prevail on its claims (click here to read the Courts decision) The County granted a temporary certificate on August 7 and a permanent certificate on August 23. On August 10, the Islamic Center held its first worship services.

When the local residents who prevailed in state court against the County learned of the DOJs lawsuit, they moved to intervene. On August 29, 2012, the federal court found that the residents were entitled to intervene both as of right and permissively due to, among other things, the residents interest in “the finality of the Chancery Courts Orders finding that Rutherford County failed to comply with the Tennessee Open Meeting Act . . . ” and because “there exists a common question of law or fact, specifically, the interplay between the Chancery Courts Orders and the Governments claim that Rutherford Countys following of those Orders led to a RLUIPA violation. ” To read the Courts decision granting intervention, click here.

This case is far from over, but it still provides an important example of the intractable dilemmas municipalities may face when presented with a religious organizations proposal for construction, expansion, or modification of a house of worship or related facility. Can a municipality violate RLUIPA by following the state courts decision? Would an appeal of the state court decision have been more appropriate than bringing a federal lawsuit? If the DOJ prevails, should the County be on the hook for attorneys fees following the Courts decision? Only time will tell. For now, file this under “damned if you do and damned if you dont. “

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.