The District Court for the Southern District of Ohio, in Tree of Life Christian Schools v. The City of Upper Arlington, No. 2:11-cv-009 (Southern District of Ohio, 2014), has granted summary judgment in favor of the City of Upper Arlington (“City”) in its defense of RLUIPA and related claims brought by Tree of Life Christian Schools (“School”), which sought to develop a religious school on land it purchased in the City’s OCR Office and Research District.  To make out a prima facie case under RLUIPA’s equal-terms provision, a religious institution must identify a secular institution, called a “comparator,” that it alleges has been treated more favorably by a municipality than a religious institution.  42 U.S.C. Section 2000cc(b)(1).  The court’s decision is noteworthy for its treatment of identifying a comparator under RLUIPA’s equal-terms provision.  It used an “apples to apples” comparison to determine a comparator and found that a non-religious school was the only proper comparator to the religious school.  It rejected the School’s contention that other permitted uses, such as banks, barber shops, beauty parlors, daycare centers, coffee shops, hotels/motels, and hospitals were also comparators.  The court’s approach appears to restrict the types of uses that may be considered a proper comparator rather than permitting a comparison with all other secular assembly uses.

In applying the Third Circuit’s “regulatory approach” test and the Seventh Circuit’s “accepted zoning criteria” test to consider whether non-religious schools were treated more favorably than religious schools, the court concluded that the City’s preservation of its limited commercial land for commercial use as set forth in its Master Plan serves a compelling state interest.  Further, the City treats all schools, religious or not, the same by excluding them from the ORC Office and Research District while permitting them in the City’s residential districts, which account for more than 95% of all the City’s land.  Because allowing a school in the commercial zone would conflict with the purpose of that zone and would threaten the City’s financial stability, the School’s equal-terms claim failed.

The School’s First Amendment free exercise claim also failed because, according to the court, “any burden imposed on Plaintiff was self-inflicted.  Plaintiff was fully aware of the zoning restrictions when it purchased the building. . . .  [and] was specifically informed by Upper Arlington City Council that ‘a private school is neither a permitted or a conditional use in the Office and Research District . . . .’”

The court found against the School in its remaining federal law claims, including those under the U.S. Constitution, and state law claims.

We first reported about this case after it was dismissed by the District Court for lack of ripeness and then remanded by the Sixth Circuit for a determination as to whether the School had cured the ripeness defect following the City’s denial of the School’s zoning amendment request.  It is not clear whether the School will appeal the District Court’s latest ruling.

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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.