The First Presbyterian Church of Auburn (the “Church”) has hosted a musical theater day camp (“Glee Camp”) in Auburn, New York for approximately three years.  In July of 2014, Auburn’s code enforcement officer issued a citation that alleged the Glee Camp was a commercial use, a use that is prohibited in the subject R-2 zoning district.  On December 17, the Church filed a brief in the City’s pending enforcement action to dispute the City’s characterization of the Glee Camp as a commercial use, and to claim that the City’s actions violate the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment.

The Glee Camp has been held in Case Mansion, by nonprofit lessee, Ministro Ministries.  According to one news source, the property is owned by the Church and is also used as an affordable housing shelter, a youth center and a vocational training center.  Apparently, the City had not attempted to regulate the Glee Camp’s first two years of operation but issued a citation only after near-by residents complained about the multiple uses of the property.

The Church is represented by the Liberty Institute and attorney Andrew Leja of Hiscock & Barclay.  The Church’s brief explains “three principal grounds” on which it contests the enforcement action:

  • The Glee Camp is not a “commercial use” under the City Zoning Code, thus the City’s citation was improperly issued;
  • Even if the Glee Camp use was assumed to be a commercial use, the City’s attempt to ban it from the Church’s campus violates RLUIPA’s Equal Terms Clause, because the Church can make a prima facie showing that the City is banning activity, i.e. alleged commercial activity, that it allows others to engage in within the same R-2 Zoning District classification; and
  • Even if the Glee Camp use is a commercial use, the City’s attempt to ban it from the Church’s campus is a violation of the Free Exercise Clause of the First Amendment—because the City’s zoning code contains exceptions and exemptions allowing commercial activity in the R-2 District, the City’s ban by definition is not the neutral enforcement of a generally applicable law and thus cannot stand.

According to the Church’s brief, the $100-per-student Glee Camp registration fee is used to cover material and instructor costs.  The Church’s motivation is not profit-driven, but is religious-based, according to the brief, and is in furtherance of the Church’s longstanding religious mission to support arts in the community.

In support of its equal terms claim, the Church likens the City’s enforcement action to that at issue in Third Church of Christ, Scientist v. New York, 626 F.3d 667 (2d Cir. 2010).  In Third Church, the Second Circuit found that New York City’s differing treatment of a church’s and two hotels’ catering activities, which all violated the terms of their occupancy permits, violated RLUIPA’s Equal Terms provision.   Since there are commercial uses operating in the R-2 District and some commercial operations are allowed in the R-2 District, the Church claims, the City’s enforcement action similarly violates RLUIPA’s Equal Terms provision.

The Church has requested dismissal of the enforcement action as well as fees and costs.  We will continue to monitor this situation as we ponder the potential that the Church will decide to go on the offensive and file its own complaint.

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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.

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.