Opponents of the Islamic Center of Murfreesboro’s (ICM) 52,000 square foot facility, consisting of a mosque and spaces for religious education, counseling, and other activities, on a 15-acre parcel in a residential district are asking the U.S. Supreme Court to review the decision of the Tennessee Appellate Court upholding the Rutherford County Regional Planning Commission’s approval of the mosque site plan (read our prior post here).  They argue that the ICM supports terrorists, including Hamas and the Muslim Brotherhood, and the Supreme Court should consider the case to decide whether the activities of a religious organization with ties to terrorism qualifies as “religious exercise” under the Religious Land Use and Institutionalized Persons Act (RLUIPA).  They also contend that the U.S. Department of Justice’s (DOJ) federal lawsuit brought during the pendency of the state court case, in which the federal court found that the state court decision violates RLUIPA, violates the Rooker-Feldman Doctrine, which bars federal courts from reviewing decisions of state courts (read our post about the federal lawsuit here).

The case began in state court when the mosque opponents sued the Planning Commission’s approval of the site plan application on the grounds that notice for the meeting violated Tennessee’s Open Meetings Act (OMA).  The trial court agreed and ruled that the site plan approval was void due to a violation of the OMA in light of “the significance of the matters decided and the overall general interest of the community as a whole,” and evidence that “interested public officials did not know of the issue.”  The DOJ filed a friend of the court brief in the state court matter, contending that RLUIPA justified the site plan approval.

After the Planning Commission filed an appeal of the trial court decision, construction of the mosque was completed, but the County refused to issue ICM a certificate of occupancy for the mosque based on the trial court’s ruling.  In response, the DOJ sued Rutherford County in federal court – United States of America v. Rutherford County, TN, No. NO. 3:12-0737 (D. Tenn. 2012), and obtained a temporary restraining order to expedite issuance of the certificate of occupancy on the District Court’s finding that the state court decision violated RLUIPA: “Compliance with the State Court’s Orders imposes a heightened notice requirement regarding the mosque which substantially burdens the Islamic Center’s free exercise of religion without a compelling governmental interest” (read the decision here).

When the trial court received word of the Federal District Court’s decision, it stayed all orders it had previously entered:

This cause came on to be further considered by the Court on this the 19th day of July, 2012, upon the entire file in this cause and upon finding by the Court that a Federal District Court has determined to exercise jurisdiction over the matters contained herein, and, under the doctrine of federal preemption, this Court finds that all orders of this Court should be stayed indefinitely to the extent that our orders are at variance with the orders of the Federal Court.

The Tennessee Appellate Court in Fisher v. Rutherford County Regional Planning Commission, No. 10cv1443 (May 29, 2013), reversed the trial court’s decision.  It found that the Planning Commission complied with the OMA, but declined to consider RLUIPA in light of this determination.  The Appellate Court also upheld the trial court’s decision to exclude mosque opponent witnesses, John Guandolo, a former FBI agent, and Stephen Coughlin, a former Pentagon advisor.  The mosque opponents sought their testimony about “the Sharia-Jihad risks of the ICM” to prove that notice of the meeting to consider the site plan was inadequate, since the alleged terrorist threat was an issue of great public importance.  The Appellate Court disagreed, and the Tennessee Supreme Court declined to review the decision.

Now, the mosque opponents have asked the U.S. Supreme Court to decide if notice was adequate in light of the terrorist threat; if the District Court’s alleged review of the state court decision violated the Rooker-Feldman Doctrine; and whether RLUIPA can protect Islamic centers that promote and condone illegal terrorist activities that are not “religious exercise.” They are also asking the Court to resolve the alleged conflict among federal courts’ interpretation of what constitutes a “substantial burden” under RLUIPA.  You can read their brief here.

The Planning Commission responded last month.  It argues that the Rooker-Feldman Doctrine was not violated because the DOJ was never a party to the state court proceeding, but instead filed a friend of the court brief alleging a violation of RLUIPA.  The Planning Commission states that because the Appellate Court never considered RLUIPA in reaching its conclusion, it is not proper for the High Court to do so now: “The Court of Appeals did not conclude there was a RLUIPA violation or even rely on RLUIPA in drawing its conclusions.  Thus, for the Petitioners to attempt to intermingle the separate distinct federal court case with the state case is error.”  Finally, it claims that notice of the site plan meeting fully complied with the OMA.

The Supreme Court docket indicates that the briefs in this matter have been distributed for a May 29, 2014 conference.  Until then, you can read our post about an Eighth Circuit decision discussing the scope of First Amendment religious protection as it relates to threat of injury/harm.

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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.