The United States Supreme Court has never granted certiorari in a Religious Land Use and Institutionalized Persons Act (RLUIPA) case involving land use.  But might it now?  Eagle Cove Camp & Conference Center, Inc. (Eagle Cove), whose RLUIPA claims were rejected by the Seventh Circuit, requests in its petition for a writ of certiorari that the high court provide clarity regarding the varying interpretations and applications of RLUIPA among the Courts of Appeal.

In our previous post, we discussed Eagle Cove’s RLUIPA claims arising out of its zoning application to operate a year-round Bible camp on 34 acres of land it owned on Squash Lake in Woodboro, Wisconsin.  The Seventh Circuit in Eagle Cove Camp & Conference Center, Inc. v. Town of Woodboro (7th Cir. 2013), rejected Eagle Cove’s claims that the County of Oneida and the Town of Woodboro violated RLUIPA’s substantial burden, equal-terms, and total exclusion provisions in denying Eagle Cove’s application.  Now, Eagle Cove is requesting that the Supreme Court review the Seventh Circuit’s decision both (1) because it erred in concluding there were no RLUIPA violations and (2) to resolve the conflict among the Courts of Appeal for this and apply RLUIPA in the land use context.

Eagle Cove challenges the Seventh Circuit’s decision that the denial of its application did not substantially burden its religious exercise because it could operate the camp elsewhere.  Although the Seventh Circuit found that Eagle Cove’s religion requires it to operate the year-round Bible camp on the subject property, the court concluded that because Eagle Cove could operate the camp elsewhere its religious practice was not substantially burdened by the zoning denial.  Eagle Cove points out the apparent inconsistency in the Seventh Circuit’s decision:

The Court of Appeals also held that no substantial burden within the meaning of [RLUIPA] upon Petitioners’ religious exercise arose because the Petitioners “had the opportunity to seek out other properties on which to build their camp” elsewhere in the County other than the Town of Woodboro “but chose not to do so.”  As noted above, the court acknowledged that forgoing the conversion of their own property to religious use in favor of such a search for other properties elsewhere in the County would have been contrary to their religious beliefs.

It also notes the split among the Courts of Appeal in their interpretation of what constitutes a substantial burden on religious exercise under RLUIPA.  At one end of the spectrum is the Seventh Circuit, which considers whether the alleged offensive conduct has rendered the religious institution’s religious practice “effectively impracticable.”  Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003).  On the other end of the spectrum, the Second Circuit has found a substantial burden on religious exercise where the land use agency rejected a land use application on arbitrary grounds, which “coerced” the religious institution to modify its religious practice.  Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2d Cir. 2007).

It next asserts that the Seventh Circuit, in analyzing its equal-terms facial challenge, “adopted an extremely narrow view that the only non-religious ‘assembly or institution’ to be compared with the religious assembly or institution at issue is the ‘most comparable,’ in this case secular recreation camps.”  Further, Eagle Cove notes the split among the Courts of Appeal in their varying approaches to determine secular comparators under equal-terms challenges.  For example, the Eleventh Circuit has adopted an expansive approach to determine comparators in which it considers whether a specific use constitutes an “assembly” use as that term is understood in its “natural and ordinary” meaning, Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004), whereas the Third and Ninth Circuits look to the specific use in light of its “regulatory purpose” or “accepted zoning criteria,” respectively.  Lighthouse Institute for Evangelism v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007); Centro Familiar Cristiano Buenas Neuvas v. City of Yuma, 651 F.3d 1163 (9th Cir. 2011).   Even though the Seventh Circuit, in River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367 (7th Cir. 2010), established a variant of the Third Circuit’s test in which it examines the “[objective] zoning criteria rather than the purpose behind the land use regulation,” the court in Eagle Cove instead looked for the “most comparable” secular use and disregarded other permitted secular uses.

Finally, Eagle Cove argues that the Supreme Court should review the Seventh Circuit’s interpretation of RLUIPA’s total exclusion provision.  The Town of Woodboro ceded zoning authority to the County of Oneida, but retained certain local powers, including the ability to advise the County as to zoning matters.  In rejecting Eagle Cove’s total exclusion claim, the Seventh Circuit considered whether there were other locations for Eagle Cove to operate its camp in Oneida County rather than the Town of Woodboro.  In its petition for a writ of certiorari, Eagle Cove cautions that this finding could establish dangerous precedent:

The holding of the Court of Appeals is that RLUIPA’s total exclusion provision is not transgressed if the County totally excludes all religious assembly uses from all but one of the nineteen towns lying within the County and permits only one type of religious assembly use (e.g., assembly at a religious shrine) in the twentieth town.  The District Court, whose “total exclusion” interpretation the Court of Appeals fully adopted, admitted this result would pertain from its interpretation of the statute.  Under this reasoning, a state government exercising direct zoning authority over its entire jurisdiction could totally exclude all religious assembly uses from the entire state except for just one subordinate jurisdiction, allow just one type of religious assembly use (e.g., assembly at religious shrines) in that one subordinate jurisdiction, and yet be found not to have transgressed RLUIPA’s “total exclusion” provision, even though houses of worship and religious educational institutions were banned from the entire state.

This raises the issue of the interpretation of the term “jurisdiction” under the total exclusion provision, which provides: “No government shall impose or implement a land use regulation that – (A) totally excludes religious assemblies from a jurisdiction . . . .”

Eagle Cove’s petition outlines clearly the inconsistencies among the Courts of Appeal in their interpretation of RLUIPA.  These varying approaches may cause confusion for all interested parties, particularly in circuits where the law is less developed than others.  At some point, the Supreme Court may have to weigh-in to provide clarity.  Whether it will do so in the context of Eagle Cove’s case remains unclear.

Eagle Cove’s petition can be accessed here.  The County of Oneida and Town of Woodboro have filed waivers indicating that they will not file briefs in opposition to the petition.

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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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