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?