In a controversial proposal, the Relevant Authentic Worship Church (RAW Church) in Crown Point, Indiana has obtained a variance to operate a church, music venue, and tattoo parlor in an industrial zone. RAW Church is a non-denominational church that is intended for people who do not feel comfortable in more traditional church settings. It seeks to bring in young, marginalized people first with music with the hope that they will eventually attend worship services.
Neighbors and members of the Board of Zoning Appeals were concerned that the music venue would be incompatible with the surrounding area. RAW Church maintained that the music venue is an essential part of its ministry and the church’s mission. During the course of the public hearing to consider the application, Crown Point’s attorney warned the Board that it would have to be mindful of federal laws, including RLUIPA, to avoid discriminating against a religious facility.
The Board approved RAW Church’s application, subject to certain conditions. First, the application was approved for what might be called a “probationary period.” That is, RAW Church must appear before the Board in six-months to report on its operations and address any complaints, including those related to noise and traffic. It is not clear, however, what action could be taken to address such complaints. Further, no more than 200 audience members are allowed at any music event, and worship services are limited to 250 people. In addition, RAW Church must hire two off-duty Crown Point police officers to work as security and direct traffic at its music events. Finally, the building will have to be sound-proofed. Apparently, RAW Church’s operation of the building as a tattoo parlor was of minimal concern. Reportedly, the tattoo parlor is to be located in leased space in the church building and not associated with RAW Church itself.
Local coverage of this story has thoughtfully added that, in addition to drinking and pyrotechnics, fighting will not be allowed, not even of the turn-the-other-cheek variety. Go figure.
The approval of RAW Church’s application is illustrative of ways that municipalities may attempt to avoid the threat of RLUIPA litigation. RLUIPA’s substantial burden provision, perhaps the most frequently litigated of all of RLUIPA’s provisions, protects against a municipality imposing or implementing a land use regulation in a manner that substantially burdens the religious exercise of an individual or a religious institution. If a municipality imposes a substantial burden on religious exercise, it must demonstrate a compelling governmental interest in so doing, and, importantly, it must demonstrate that it has done so in the least restrictive means possible. Thus, a land use agency may be more likely to avoid RLUIPA litigation if it conditions approval to address its particular concerns and the concerns of neighbors who may be affected instead of denying an application outright. While religious institutions may still challenge conditions of approval on the ground that the conditions are onerous and restrictive, such approvals may be easier to defend than complete rejection of a religious institution’s proposal, at least in terms of a municipality maintaining that it has used the least restrictive means possible to protect its interests.