On May 7, the City of Plano, Texas issued a cease and desist order to Agape Resource and Assistance Center, Inc., alleging that Agape was in violation of the City’s zoning ordinance (read the order here). A month later, the City revoked the order after Agape sent the City a demand letter threatening to sue under the Texas Religious Freedom Restoration Act, RLUIPA, and the state and federal constitutions, unless the City would allow Agape to continue to use its property according to its religious precepts (read the demand letter here).

Agape is a “faith-based holistic servant ministry of peace and justice committed to serve urgent unmet shelter and service needs of women, their children and dependents, and unaccompanied youth in poverty and crisis,” and believes that God has called upon it to minister to as many women and children in need as possible.  Agape provides various services – including food, fellowship, and ministry – to vulnerable women and children in group homes it operates.

Plano’s zoning ordinance requires that “household care facilities” provide residence to no more than 8 persons and 2 caregivers.  Agape complies with this ordinance.

The zoning ordinance also requires that care services be provided only to individuals who are residents of the specific group home facility, as it defines “household care facility” to mean:

A dwelling unit that provides residence and care to not more than eight persons, regardless of legal relationship, who are elderly; disabled; orphaned, abandoned, or neglected children; victims of domestic violence; or rendered temporarily homeless due to fire, natural disaster, or financial setbacks, living together with no more than two caregivers as a single household. 

See Zoning Ordinance, Section 1.600.   Agape concedes that it does not comply with this ordinance because it sometimes provides counseling and Bible study from one group home to women and children who reside at one of its other group homes.  Agape claims it is “commanded by God and the Bible to bring all of the residents it serves in all of its homes together from time-to-time for a gathering that includes food, fellowship, faith-based and life instruction and a sense of community and wholeness for the resident women and children.”  The City sought to prevent Agape from providing these services to non-residents, even though these non-residents lived in other Agape-run homes.

Agape’s demand letter asserts that enforcement of this ordinance by the City would violate RLUIPA’s substantial burden provision, since Agape would be forced to violate its religious beliefs and the City is without a compelling governmental interest to enforce the ordinance.  It also claims that the City had singled it out in violation of RLUIPA’s equal-terms provision because the City allows “household occupations,” which allows counseling services to both residents and non-residents in all residential zones as-of-right.  And, because the City's zoning ordinance prohibits "women and children in Agape homes from meeting together for one night a month in one home" while “there is nothing that prohibits any home in Plano from hosting a Super Bowl party, a Tupperware party or any other type of birthday or anniversary gathering," Agape alleged was further proof of unequal treatment.

On June 12, the City revoked its order: “It has come to the department’s attention that the aforementioned Notice was issued in error and should therefore be disregarded.  Please accept our apology for the misunderstanding.”  The City’s letter of revocation is available 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.

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.