Opulent Life Church was founded in February 2011, with an initial 18 members, easily accommodated in a facility with a capacity for 25 people that the church leased in the City of Holly Springs, Mississippi. Its religious mission called for it “to engage all in our sphere of influence with the Gospel of Jesus Christ that we may encounter the called and lead them to be in the right standing with God and man.” Opulent Life therefore considered it “of vital importance to [its] religious mission that it maintain a facility large enough to accommodate a growing congregation.” The small size of the existing facility made it difficult for the churchs ability to welcome new members to its congregation and to provide community service and outreach programs.

Churches Singled Out

One month after it was founded, Opulent Life sought to relocate to a larger facility that would allow it to carry out its religious mission. In August 2011, the church found a suitable property in the City of Holly Springs central business district, on the courthouse square. It entered into a lease agreement subject to obtaining the proper land use and building renovation permits from the City. At that time, 10.8 of the Citys zoning ordinance had certain requirements applicable to churches alone (do you see the red flags flying already?):”

10.8 Churches

Churches, where permitted in the City of Holly Springs, shall conform to the following standards:

10.81 The amount of traffic generated and on site parking accommodations by the proposed facility must be located on a through street;
10.82 Ingress and egress to the property and proposed structures thereon with particular reference to automotive and pedestrian safety and convenience, traffic flow and control, and access in case of fire or catastrophe;
10.83 Plans must show assurance that noise levels shall not disturb the neighborhood in which the facility is proposed to be located;
10.84 The proposed scale and context of the associated activities and facilities;
10.85 A site plan shall be submitted in conformance with the site plan standards of this ordinance;
10.86 Survey of the property owners within a 1,300 foot radius with 60% approval;
10.87 Sign must be located on building only and have no lighting in residential districts;
10.88 Must be minimum of 25,000 square feet in B-4 zones;
10.89 Final approval must be granted by the Mayor and Board of Alderman.

Permit Denied and Church Sues

Opulent Life applied for a renovation permit and submitted a comprehensive building plan to use the new property as a church. The City tabled the application, stating that Opulent Life had failed to meet certain requirements of 10.8. Although the City did not specify which provisions the church had violated, the church believed that it failed to satisfy 10.86 and 10.89.

On January 10, 2012, Opulent Life sued the City, alleging that 10.8, facially and as-applied, violates each of RLUIPAs provisions, and the federal and state constitutions.

At the same time, Opulent Life also moved for a preliminary injunction to stop enforcement of 10.8 or the remainder of the Zoning Ordinance to impose limitations on churches not applicable to other nonreligious entities. To prevail on its motion for a preliminary injunction, Opulent Life had to establish: (1) a likelihood of success on the merits; (2) a substantial threat of irreparable harm without the injunction; (3) the threatened harm outweighs the harm to the defendant; and (4) the public interest would not be disserved by the granting of the injunction.

The trial court denied the motion just seven days later, before the City had even responded to the churchs complaint or preliminary injunction motion, and a week before the time in which it was required to respond. The Court reasoned that Opulent Life had failed to show a substantial threat of irreparable harm without the injunction:

“”It appears that the plaintiffs are still able to meet at their current location, Marshall Baptist Center. They seek to use the rented building in anticipation that their membership will grow. As the plaintiffs are not currently being deprived of the right to freely exercise their religion, the court fails to see irreparable harm if the injunction is not granted.””

The next day, Opulent Life appealed the decision.

The day before oral argument on the appeal, the City amended its zoning ordinance to repeal 10.8 and to replace it with a new provision banning “”[c]hurches, temples, synagogues, mosques, and other religious facilities”” from the newly established “”Business Courthouse Square District”” in which the property to be leased by Opulent Life was located.

Case Ripe and Equal Terms Clause Test Established

Before considering the merits of the appeal, the U.S. Court of Appeals for the Fifth Circuit found that the appeal was justiciable and ripe for review. In particular, the Court found that the churchs claim was not moot because the Citys voluntary cessation of a challenged practice does not prevent a federal court from determining the legality of that practice. Nor does it prevent the City from reinstituting the challenged practice. The Court further found the claim justiciable and ripe for review because Opulent Life seeks both retrospective and prospective relief.

Turning to the merits of the appeal, the Fifth Circuit considered whether Opulent Life had established a likelihood of success on the merits, focusing on RLUIPAs Equal Terms Clause. In so doing, the Court noted the different tests applied throughout the circuit courts and clarified the test to be applied in the Fifth Circuit:

“”The approaches of our sister circuits to facial Equal Terms Clause challenges fall ‘roughly into two camps. . . .’ In one camp is the Eleventh Circuit, which treats all land use regulations that facially differentiate between religious and nonreligious institutions as violations of the Clause, but will nonetheless uphold such a regulation if it survives strict scrutiny. . . . The other camp includes the Third, Seventh, and Ninth Circuits. Those circuits hold that a violation of the Equal Terms Clause occurs only if a religious institution is treated less well than a similarly situated nonreligious comparator. The Third Circuit requires the comparator to be ‘similarly situated as to the regulatory purpose.’ The Seventh and Ninth Circuits require a comparator that is similarly situated with respect to ‘accepted zoning criteria. . . .’

“”[O]ur precedent rules out the Eleventh Circuits approach, and places us in the latter camp with the Third, Seventh, and Ninth Circuits. . . . But our precedent calls for a test that differs slightly from the Third Circuits ‘regulatory purpose’ test and the Seventh and Ninth Circuits ‘accepted zoning criteria’ test. In this circuit, ‘[t]he “”less than equal terms”” must be measured by the ordinance itself and the criteria by which it treats institutions differently. . . .’ In accord with this instruction, and building on the similar approaches of our sister circuits, we must determine: (1) the regulatory purpose or zoning criteria behind the regulation at issue, as stated explicitly in the text of the ordinance or regulation; and (2) whether the religious assembly or institution is treated as well as every other nonreligious assembly or institution that is ‘similarly situated’ with respect to the stated purpose or criterion. Where, as here, the religious assembly establishes a prima facie case, the government must affirmatively satisfy this two-part test to bear its burden of persuasion on this element of the plaintiffs Equal Terms Clause claim.””

(citations omitted).

The Problem with Differential Treatment of Churches

The City conceded that the repealed 10.86 and 10.89 were unlawful under RLUIPA because “”[t]his differential treatment of churches cannot be justified by any regulatory purpose or zoning criterion set forth in the ordinance.”” Although the Court found that Opulent Life had established a prima facie case based on the ordinances distinction between religious and non-religious institutions, it remanded the matter to the trial court because the City “”has not yet had an opportunity to come forward with the zoning criteria or regulatory objectives it believes justify this ban.”” After all, the trial court denied the preliminary injunction motion before the City had even responded to it.

Still, the Court made some observations pursuant to the Equal Terms Clause test. The stated purpose of the amended ordinance “”is to designate the area . . . for certain retail, office and service uses which will complement the historic nature and traditional functions of the court square area as the heart of community life.”” The Court stated: “”[i]nsofar as this language can be read as purporting to create a commercial district, that justification fails because other noncommercial, non tax-generating uses are permitted in the district, as Holly Springs conceded at oral argument. For instance, the ordinance permits libraries, museums, art galleries, exhibitions, and ‘similar facilit[ies]’ on the courthouse square. . . . In addition, to the extent that the stated purpose for the district could be read to suggest that the ‘heart of community life’ in Holly Springs is consistent with a variety of non-religious civic uses, but not religious uses, that inherently discriminatory regulatory purposes would likewise fail to justify the ban.””

Next, the Court concluded that the trial court erred in denying the preliminary injunction motion for failure to establish irreparable harm without the injunction. The Court determined that Opulent Life established that it would suffer irreparable harm by simply alleging violations of RLUIPA and the First Amendment. In addition the Court found that the record is replete with evidence of irreparable harm in connection with the size of the existing facility. That Opulent Life would lose its lease if not allowed to operate in the leased property is another independent reason establishing a substantial threat of irreparable harm.

The Court remanded to the trial court consideration of the third factor whether the threatened harm outweighs any harm that the City will suffer as a result of the injunction because the City never had an opportunity to present evidence on this issue. As for the fourth factor, the Court concluded that “”Opulent Life will have met this requirement if on remand it is able to establish a likelihood of success on the merits.””

This case will be one to watch as it heads back to the trial court. To read the Fifth Circuits decision, Click Here.

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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.