River Hills Community Church of Sauk Prairie, Inc. (Church) has sued the Village of Sauk City, Wisconsin (City) under RLUIPA, the U.S. Constitution, and state law concerning the City’s refusal to permit it to use a building owned by a bank for religious assembly.

As alleged in its complaint, the Church was formed in 2005 and started out as a lunch gathering on the shores of Devil’s Lake and then transitioned to meeting in members’ backyards.  Its byline is “when you’ve given up on religion, but not on God, there’s River Hills.”  Aside from religious worship services, the Church provides child character development programing, a peer support group for new mothers, community meals to the lonely and homeless, and lessons on financial responsibility.

As the Church began to grow, it sought a larger space to accommodate its members.  It leased the Sauk Prairie Community Center, but left that space due to various problems, mostly involving scheduling conflicts.  From there, the Church leased for three years vacant space consisting of 20,000 square feet and then moved to the River Arts Center, where it has been conducting Sunday worship services ever since.  Since relocating to the River Arts Center, the Church has experienced a precipitous drop in attendance, from annual highs of 172 down to 104, a 40% reduction; even more in its ministry for children, slashed by nearly 80%.  Numerous parents have told the Church leaders they love its programing, but its facilities are inadequate for children.

At the same time, the Church rented other space in the City for office use and an activity center, as opposed to the River Arts Center space that it used for religious worship services.  When the Church learned that it would no longer be able to rent this space for office use and an activity center, it began to look for a permanent home.  “The Church has looked at every existing, available, possibly suitable building in Sauk City and in Prairie du Sac: a former library, warehouse, office buildings, but nothing has worked.”  Finally, the Church found a suitable location in the City owned by the Church’s bank, consisting of approximately 5,500 square feet on 2 acres of land (Property).  Notably, the Property is located immediately in front of the 20,000 square foot space it previously leased.

Churches are not permitted as-of-right in any of the City’s zoning districts; they are allowed only as conditional uses.  Because the specific zoning district in which the Property is located does not allow churches as a conditional use, the Church applied to rezone the Property so that it could apply for a conditional use permit.  Although the Church paid the $500 conditional use application fee, the City decided that it would be wiser to amend the zoning ordinance to allow churches in the specific zone.  Nevertheless, the City rejected the proposed amendment, which would have allowed church uses as conditional uses in all residential, business, and industrial districts.

The Church alleges that the City’s zoning code violates RLUIPA’s equal-terms provision in that churches must have a minimum lot size of 2 acres of land while other conditional public assembly uses – community centers, libraries, cultural use/centers, governmental uses, clubs, funeral homes, fraternities, lodges, and non-commercial meeting places – have no minimum lot size.  It also alleges violations of RLUIPA’s total exclusion and unreasonable limitations provisions on the grounds that the City has impermissibly excluded and unreasonably limited churches from locating within the City.  It claims that the City’s actions have also substantially burdened its religious exercise by causing delay, uncertainty and expense and by causing the size of its membership to suffer.  The Church’s federal constitutional claims include violations of the free exercise of religion, free speech, and the Equal Protection Clause.  It also alleges violations under Wisconsin law.  The Church seeks injunctive relief, and declarations that the City’s actions and its zoning code violate RLUIPA, compensatory damages, and reasonable attorneys’ fees.

On January 31, 2014, the District Court entered an order allowing the Church to “use and occupy the Property for religious assembly (church use) immediately after the Church closes its contract to purchase the Property on or about January 31, 2014, during the pendency of this litigation and until the conclusion of the above-captioned proceeding, whether by settlement, final judgment, or any other means.”  However, “[i]n the event that it is determined that plaintiff is not entitled to use the Property for religious assembly (church use) upon conclusion of the above-captioned proceeding by an order which is non-appealable or not appealed, plaintiff will upon 30-days notice cease using the Property for such purposes.”

If the City chooses to vigorously defend against the Church’s claims, it appears that it will be in for protracted and costly litigation.  On top of paying its own legal fees, the City may also have to pay the Church’s legal fees if the Church prevails.  When faced with these types of claims, municipalities may wish to consider whether it would be wiser to explore whether a compromise can be reached with the religious institution that, while seeking to protect the public health, safety, and welfare of the community, would also avoid potentially costly and emotionally-charged litigation.

The District Court’s order can be accessed here.  The Church’s Complaint can be accessed 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.