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.

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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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