On June 20, the United States District Court for the Western District of Washington ruled that the City of Seattle violated the Religious Land Use and Institutionalized Persons Act’s (RLUIPA) equal-terms provision by requiring a Catholic high school to apply for a variance to put up 70-foot high light poles for its athletic field in a residential, single-family zone, but not requiring the same of public schools in the same zone.  Because Seattle’s land use code imposes a 30-foot height limit for institutions located in this zone, the city asserted that the Catholic high school would have to obtain a variance for the lights.  Although the high school’s application was approved, it was subject to “21 detailed conditions to address impacts associated with lighting and increased field use, such as noise, traffic, parking demands, and light spill and glare, as well as imposing restrictions on the days and times during which Bishop Blanchet [High School] would be allowed to use its field lighting.”

The Catholic high school sued under RLUIPA’s equal-terms provision, contending that it had been treated worse than public schools, which in the same zoning district, were only required to get a special exception – not a variance – to install tall lighting fixtures on athletic fields.  In fact, two public schools in Seattle obtained special exceptions to install light poles – one obtaining approval for ten 82-foot poles and two 95-foot light poles, and, the second, for 39 field lights, including eight 89- to 90-feet in height.

The Court analyzed the equal-terms claim under the Ninth Circuit’s “accepted zoning criteria” test, under which “a religious institution cannot be treated less than equally with a nonreligious institution if the two institutions cannot be distinguished on the basis of ‘accepted zoning criteria’ that define the zone.”  Seattle claimed that the unequal treatment was justified by the accepted zoning criteria of “fostering the provision of public facilities by government agencies,” and relied on external sources – rather than the land use code – to justify its actions.  The District Court was not persuaded, and noted that the accepted zoning criteria that the city came up with “is a subjective statement that has no relation to the zoning concerns of a residential, single-family zone, the zone in which Bishop Blanchet and the Special Exception’s public schools are situated.”  After examining the “characteristics the residential, single-family zone is meant to preserve, and what characteristics of a lighted athletic field would justify its exclusion from the zone,” the District Court concluded that the city’s proffered zoning criteria appeared nowhere in the relevant sections of the land use code.

The District Court granted summary judgment in favor of the Catholic high school.  The District Court’s decision in Corporation of the Catholic Archbishop of Seattle v. City of Seattle, No. C13-1589 (W.D. Wa. 2014) is available here.

What is especially interesting about this decision is the court’s implied rejection of the notion that government ought to be able to have and to apply lesser standards for some types of land development activities because it is the government and presumably can be trusted to act in the best interest of its citizens.  It is common that government is exempt from local land use regulation.  Might this decision be used in broader equal-terms claims?  Could a religious organization argue that a city violates the equal-terms provision by allowing without any discretionary land use review, for example, a public school with an auditorium (a place of public assembly), but requiring private places of public assembly (religious use, VFW, concert venues) to go through the usual and uncertain zoning and land use approval process?

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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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