A dispute is heating up in Hilton Head, South Carolina between a church and a dog kennel that has been described as a “dog hotel.”  The Church of Christ of Hilton Head plans to appeal the Board of Zoning Appeals’ approval of a special exception to permit a dog kennel on property that abuts and shares a driveway/parking lot with the Church property.  The Church is concerned about the nuisance-like effect the dog kennel could have on its religious practice – the smell and the barking that could disrupt its services.  The Church also worries about parking issues that could arise on Wednesdays and Sundays, days in which the Church allegedly has the exclusive right to use every parking space in the shared parking lot.

  • The owner of the dog kennel plans to address the Church’s concerns by agreeing to the following conditions:
  • Keeping the dogs inside at all other times. The dogs will only be taken outside to relieve them;
  • Not taking the dogs outside during the bible class and worship services of the adjacent Church;
  • Not allowing owners to pick up dogs during the bible class and worship services of the Church;
  • Designing the interior space so that 89% of the kennels face away from the Church;
  • Constructing a privacy fence around the area where the dogs will relieve themselves to limit the dogs’ vision of stimulus and prevent barking;
  • Using ultra-sonic emitters and/or collars to discourage the dogs from barking;
  • Immediately bagging waste and depositing it in lid-tight containers;
  • Using a bacteria-killing cleaning product to clean the driveway on a daily basis;
  • Creating 37 kennels, which will allow greater separation of the dogs and the ability to manage noise;
  • Using an existing sound-proof room in the center of the building for a play area;
  • Replacing the existing garage door with a heavier, more insulated door so the garage can be used as a play area while minimizing noise.

Neighbors of another dog kennel operated by this owner provided statements that the kennel has never been "cause for concern" as it relates to noise or odor. Hilton Head’s senior town planner agreed, stating that "[t]here is no evidence to indicate that the kennel will be obnoxious" The Board's minutes of the approval of the dog kennel are available here.

Although there are no indications that the Church seeks to use the Religious Land Use and Institutionalized Persons Act (RLUIPA) to challenge the dog kennel approval, it may give local governments pause (not paws) to consider that RLUIPA is not necessarily limited to applications submitted by religious institutions, as it provides in part: “No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution.”  42 U.S.C. Section 2000cc(a).  Rather, a local government’s approval of a use that could burden a religious institution’s religious practice may give rise to an RLUIPA challenge.  If a kennel were so odiferous, noisy, and traffic generating that it could be shown to disrupt religious services, could that be a basis for an RLUIPA claim or would it be barking up the wrong tree?  Sometimes RLUIPA’s bark is worse than its bite.

For local coverage, click 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.

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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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