Few courts have identified what it means to be a “similarly situated” comparator under RLUIPA’s equal terms provision.  Recently, in Church of Our Savior v. City of Jacksonville, (M.D. FL 2014), a federal court in Florida identified some factors used to determine the issue.  The Court’s decision may serve as an important guide for future litigants.

Background

Church of Our Savior (“Church”) was founded in 2006 and is the only Anglican church in Jacksonville Beach and other surrounding seaside communities.  It leases space at the Beaches Museum Chapel in Jacksonville Beach, a historic chapel, as well as two adjacent buildings owned by the Beaches Area Historical Society (“Chapel Property”).  The lease allows the Church to use the Chapel Property for only 4 hours per week on Sunday mornings for worship services, nursery, and Sunday school.  According to the Church, the time and space limitations on the Chapel Property “constrain its ability to grow and to fully exercise its religion by performing its sacraments and worshipping together in one service.”  To better exercise its religion, the Church began to look for new property that would satisfy three main “criteria”: (a) affordability (the Church’s budget was $300,000 to $500,000); (b) visibility (the Church sought an “attractive” church on a main thoroughfare that would be recognizable as a church to passersby); and (c) accessibility (the Church wanted any new property to be centrally located in the Jacksonville Beach, Neptune Beach, Atlantic Beach, and Ponte Vedra Beach areas, and on the east side of the intracoastal waterway).

The Church found vacant land for sale along Beach Boulevard (“Property”), consisting of between 1.34 and 1.7 acres, that it believed would meet its 3 criteria.  The Property, located in the “Residential, single family (RS-1)” zone, is surrounded by a 6-lane highway, commercial property, and a small neighborhood of houses.  The RS-1 zone allowed “[s]ingle family dwelling,” “[p]ublic and private parks, playgrounds and recreational facilities,” and “Type I home occupation” as of right.  “[R]eligious organizations” and “[p]ublic and private elementary and secondary schools and technical institutes, excluding trades schools and vocational schools” were allowed as conditional uses.  According to the comprehensive plan, “future institutional uses (schools, churches, government buildings, fraternal groups, cemeteries, and health and public safety facilities) . . . shall be located outside of areas proposed for low-density residential use . . . .”

On March 8, 2013, the Church applied to the City’s Planning and Development Department (“Department”) for a conditional permit for its proposed religious use.  Although, the City Planner recommended that the application be approved, the Department voted to deny the Church’s proposal.  During the public hearing, at which neighborhood residents expressed their opposition, Department members expressed concern over (1) the proposed “Children’s Play Area;” (2) the close proximity of the project to nearby homes; (3) the project’s potential adverse impact on property values; (4) its consistency with the neighborhood; and (5) the plan for the main structure. 

Four months later, the Church submitted a second CUP application, which re-designated the play area on the south parcel as a “public park.”  The City Planner again recommended approval, but the Department again denied the proposal, this time on three grounds: (1) based on testimony from neighborhood residents that the proposal is inconsistent with the character of the immediate vicinity; (2) the proposal is inconsistent with the comprehensive plan, which requires that churches be located outside of low-density residential areas; and (3) changing the designation of the children’s play area to a public park would violate the zoning code’s requirement that the building not exceed the 35% lot coverage.

Thereafter, the Church filed suit and alleged violations of RLUIPA’s equal terms, substantial burden, and unreasonable limits provisions.  The Middle District of Florida found the City violated RLUIPA’s equal terms provision (as applied), but rejected the remaining claims.

Equal Terms (As-Applied Challenge)

The Church claimed two schools were equal terms comparators.  The Court agreed with its assertion in one instance, but not the other.  First, the Church alleged that the City’s 1995 approval of the Duval County School Board’s proposal to replace an existing 60,000 square foot facility with a new 90,000 square foot facility on a twenty-acre lot in an RS-1 zone was evidence of unequal treatment.  The Court found that the fact that both uses qualify as “assembly” and/or “institution” under RLUIPA was not enough for it to be deemed a similarly situated comparator, since “the Duval County School Board’s CUP application [was] too dissimilar in size, intensity of use, location, fit with the surrounding neighborhood, and public support . . . .”

Discovery Montessori School, however, was found to be a similarly situated comparator.  In 1994, the school obtained CUP approval to build a private school on a 1.9 acre parcel in the City’s RS-1 zone.  In 2014, the school obtained another CUP to expand the school to two residential lots and build an 18,000 square-foot facility to accommodate up to 175 more students.  The Court found this school to be a similarly situated comparator because: (1) both uses were similarly small and relatively low-impact; (2) the surrounding properties were not strictly low-density, single family homes; and (3) both applicants faced objections by neighbors and questions from Department members regarding “traffic, fit with the neighborhood, and the impact on property values.”  While the Court noted that “remoteness in time” might be an important factor in some cases, “considering the potential for the sensibilities of the community and the policies of the local government to change,” it was not applicable in this case because the City had approved a 2014 CUP for Discovery Montessori School.

The City failed to carry its burden of establishing that its compelling interest (preserving the character and safety of its residential zones) was narrowly tailored, since the Department flatly rejected the CUP.

Equal Terms (Facial Challenge)

The Church claimed the City’s zoning code violated the equal terms provision on its face because, at the time of the CUP applications, “religious organizations” were conditional uses, but “[p]ublic and private parks, playgrounds and recreational facilities” were permitted as of right.  On September 15, 2014, two days before trial began, the City amended the zoning code to reclassify parks, playgrounds, and recreational facilities as conditional uses.  The Court found the City’s amendment rendered moot the facial challenge.  Although the Court acknowledged such a claim may not be moot if there was evidence that the City would repeat its allegedly wrongful conduct in the future, there was no such evidence in this case.

Substantial Burden

The Church argued that the City’s denial of its CUP applications substantially burdened its religious exercise because (1) there is no other property that meets the Church’s three criteria; and (2) it is forced to use the Chapel Property where it cannot fully practice its religion.  The Court disagreed.  First, the Court found: “that other suitable land is not available in Jacksonville Beach at a price the Church can afford is a burden imposed by the market, not one created by the City denying the Church a CUP.”  Second, the Court concluded that although the Chapel Property “is less convenient and less effective than the Church’s proposal would be” as far as exercising freely its religion, “a substantial burden must place more than an inconvenience on religious exercise.”

Unreasonable Limits

Lastly, the Church alleged the City’s treatment, combined with the Church’s limited budget, unreasonably restricted its ability to express its religious beliefs.  The Court also found against the Church on this claim, noting that the focus of this provision “is not on the treatment of a particular landowner, but religious entities in general.”  The Court also noted the existence of 19 churches currently located in the City and “that the great majority of land in the City remains open for use by religious organizations either by right or conditional use . . . .”

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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.

Photo of Karla Chaffee Karla Chaffee

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants,” (with Dwight Merriam) published in Albany Government Law Review (Spring 2009). Karla has continued to write and speak on RLUIPA and has represented clients in several federal proceedings, including RLUIPA, First Amendment, and Equal Protection claims. In addition to her RLUIPA practice, Karla has litigated complex environmental matters, defending claims under Massachusetts Chapter 21E. Karla’s transactional experience includes pre-acquisition and pre-financing due diligence, environmental risk assessment and risk mitigation. She also represents clients seeking local zoning approvals and counsels them on the impact of proposed or recently enacted land use legislation, as well as on land use trends across the country.

Karla is also a proud member of Robinson+Cole’s Pro Bono Committee and is dedicated to maintaining pro bono work as part of her practice. Her pro bono clients include individuals and families seeking asylum in the United States. She has also represented nonprofit organizations in obtaining tax-exempt status and has served as legal counsel in a zoning appeal for a nonprofit association created to support and protect a national park.