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.
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.
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.”
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 . . . .”