After more than a year of litigation, Harvest Covenant Church (“Harvest”) and the City of Milwaukee, Wisconsin (“City”) have settled Harvest’s lawsuit alleging that the City’s zoning code and its actions in denying Harvest a special permit to operate a church violated federal and state law.  It all started in October 2009 when Harvest’s pastor applied for a special use permit to operate a church on property that it was already using as a child development center serving up to 49 children between the ages of four and twelve.  The property is located in the City’s Local Business District.  The City’s comprehensive plan provides that the City “strongly discourages non-contributing or incompatible uses in former storefronts, i.e. uses that do not support the commercial focus of the business district or commercial corridor.  For example: social service providers, storefront churches, etc.”  (emphasis added).

After a series of hearings on Harvest’s special use permit application, the City’s zoning board denied the application on June 17, 2010.  As grounds for the denial, the zoning board found the following:

The West Side Comprehensive plan strongly discourages non-contributing or incompatible uses in former storefronts such as storefront churches or commercial corridor.  The plan also discourages location of tax-exempt or noncommercial uses in buildings previously occupied by taxable or commercial uses.  DCD therefore finds that the request to add a religious assembly hall to the premises is not consistent with the comprehensive plan.

The same evening that it denied Harvest’s application, the zoning board approved four special use permit applications of other churches.

In June 2012, Harvest sued the City, claiming that it was in violation of RLUIPA, the federal and state constitutions, and state law.  Harvest alleged that the City’s zoning code violated RLUIPA’s equal terms provision on its face by treating churches on less than equal terms with other secular assemblies.  While the zoning code requires that churches in the Local Business District obtain a special use permit to locate there, it permits as-of-right such uses as theaters, cultural institutions, monasteries, convents, rectories, colleges, libraries, parks and playgrounds, day care centers, and indoor recreational facilities.  Further, the zoning code requires one parking space for every six seats in the assembly hall of religious assemblies while having no parking requirement for schools, colleges, specialty or personal instruction schools, libraries or cultural institutions (click here to read our previous post about a New Jersey Superior Court that found a similar provision in the Millburn Township’s zoning code to violate RLUIPA’s equal terms provision).

In support of its equal terms facial challenge, Harvest relied on the Seventh Circuit’s decision in River of Life Kingdom Ministries v. Vill. of Hazel Crest, 611 F.3d 367 (7th Cir. 2010), in which Judge Posner found that to constitute a valid comparator in an equal terms facial challenge, the secular use must be similarly situated to the religious assembly with regard to “accepted zoning criteria.”  Judge Posner added that “should a municipality create what it purports to be a pure commercial district and then allow other uses, a church would have an easy victory if the municipality kept it out.”  (emphasis added).

Additionally, Harvest alleged that the City violated RLUIPA’s nondiscrimination provision, which provides that “[n]o government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.”  Harvest asserted that the zoning code violated this provision on its face because the code “discriminates on the basis of religious denomination as it requires religious assemblies of certain denominations or faith expressions to obtain special use permits to locate in LB2 districts but allows convents, rectories and monasteries to locate in LB2 districts as a matter of right.”  It also brought an as-applied challenge under this provision, contending that the City discriminated against it on the basis of religion because it denied Harvest its special use permit while granting such permits to four other churches the same evening, and allowing three other churches to operate within close proximity of Harvest’s desired location.

Harvest also claimed that the denial of its special use permit substantially burdened its free exercise of religion under RLUIPA, as applied, because it was relegated to conducting worship services in leased space not capable of adequately accommodating its religious needs.  The Seventh Circuit in Vision Church v. Vill. of Long Grove, 468 F.3d 975 (7th Cir. 2006), provides that “a land use regulation imposes a ‘substantial burden’ on religious exercise if it ‘necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise – including the use of real property for the purpose thereof within the regulated jurisdiction generally – effectively impracticable.’”  Id. at 997 (citation omitted).

It also brought a facial challenge against the City’s zoning code, claiming that it substantially burdened its free exercise of religion because

[F]orcing Harvest to go through the discretionary and arbitrary special use permit application process and have to wait an unspecified amount of time to learn whether the permit application would be approved or denied by a discretionary board of decision makers, the Defendant precludes Harvest and its members from preaching the Gospel of Jesus the Messiah, worshipping, ministering to others, and sharing their faith with others at the subject property, and thereby substantially burdens their sincerely held religious beliefs.

It added that the zoning code and the City’s actions have “caused Harvest delay in securing a worship space, rental expenses at the alternate location and for the unusable worship space at the Church Property, and have caused uncertainty as to whether or not Harvest will purchase the Church Property at the end of the lease period.”  While courts have generally not been receptive to claims that requiring religious institutions to go through the zoning process constitutes a substantial burden, the Seventh Circuit, in St. Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005), found a substantial burden based in part on delay, uncertainty, and expense in having to continue to file zoning applications with the city.  Id. at 901.  Although that case appears to have involved only an as-applied challenge, it is unclear what effect, if any, it would have on a facial challenge.  To read the rest of Harvest’s allegations, check out its Complaint.

In November 2013, the Federal District Court for the Eastern District of Wisconsin entered a settlement agreed to by the parties in Harvest Covenant Church v. City of Milwaukee, Docket No. 12-C-0549 (E.D. Wisconsin).  As part of the agreement, Harvest will be permitted to operate a church and will receive $191,000.00 consisting of damages and attorneys’ fees.  The settlement agreement is available here.

It is unclear whether the City will amend its zoning code in response to Harvest’s allegations that the code violates RLUIPA on its face, but we will keep an eye on the situation.  To read more about this case, click here.