The Apostolic United Brethren (AUB) is a polygamist community consisting of approximately 7,500 members who consider themselves “Latter Day Saints” and whose members are primarily scattered in towns in the Salt Lake and Utah valleys in Utah.  The Church of Jesus Christ of Latter Day Saints, however, has disavowed any connection with the AUB.  In 2009, the AUB described its beliefs for the Utah Attorney General’s “Polygamy Primer,” a booklet providing “basic information about various polygamous communities so that service providers and others can be better prepared to help families in and from those communities.”  The AUB believes in plural marriage between consenting adults over the age of 18: “We do not encourage or permit ‘child bride’ marriages or arranged marriages.  Instead, it is a fundamental principle of our faith that it is the sacred privilege of all, male and female, when they are adequately mature, to choose whom they will marry.  Forced, arranged, or assigned marriages are not a part of our belief or practice.”  (To read the “Polygamist Primer,” click here).

An AUB community in Bluffdale, Utah has applied for a zoning change to alter the property’s agricultural use to single-family residential use on approximately 26 acres of land to construct 8 homes for retirees.  The AUB currently has 2 homes and a church on the property.  The AUB also seeks to cluster the homes close together so the residents can watch out for each other.  The City Council would have to approve the clustering of the homes, and, if approved, the AUB would have to leave an open acre on its property for each home in the cluster, resulting in up to 8 acres of open space based on the AUB’s proposal.  One AUB member stated that the retirement homes are needed because the AUB has a lot of elderly women who have lost a husband.

The Bluffdale Planning Commission voted to table its consideration of the zoning change after a motion to approve the AUB’s proposal reached a 2-2 stalemate.  Reportedly, the commissioners were not concerned about polygamy, but instead had reservations about a narrow road that serves as the sole means of access to the property.  The AUB noted that 200 to 300 cars travel along the road each Sunday to attend church services.  One member of the commission requested that the AUB conduct a traffic study funded by the AUB and that city staff examine whether the road could be widened.

However, if the AUB’s proposal is denied, could it bring a claim under RLUIPA, assuming the AUB could demonstrate that providing the retirement housing was within the four corners of its religious exercise?  Does it matter that polygamy is illegal throughout the country?  There is a distinction between holding a certain belief and acting on that belief.  That is, holding certain beliefs is not a crime in and of itself.  The courts are generally unwilling to question a religious institution’s beliefs.  In fact, the United States Supreme Court has observed that “while a court can arbiter the sincerity of an individual’s religious beliefs, courts should not inquire into the truth or falsity of stated religious beliefs.”  International Church of the Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1069 (9th Cir. 2011) (citing United States v. Ballard, 322 U.S. 78, 86-87 (1944)).

We’ll keep an eye on this situation in the “Beehive State” as it unfolds.

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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.

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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.

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