We previously reported on the lawsuit filed by Harbor Missionary Church against San Buenaventura, California involving the City’s denial of a conditional use permit to allow the Church to continue to operate a soup kitchen in a residential neighborhood. The U.S. District Court for the Central District of California denied the Church’s motion for a preliminary injunction and the Church appealed to the Ninth Circuit (prior post available here). The Church’s appeal of that decision is significant because of the possibility that the Ninth Circuit will weigh-in on the effect of Burwell v. Hobby Lobby in the land use context. We previously reported on the potential effect of the Supreme Court’s decisions in Holt v. Hobbs and Hobby Lobby here.

One preliminary issue on appeal is which order the Ninth Circuit should review. Although the District Court issued a short order from the bench on July 9, 2014 denying the Church a preliminary injunction on the ground that there was no substantial burden on religious exercise since an alternate location was available to the Church, it invited the City to prepare a more substantive order for it to consider and issue at a later date. Nine days later, the City submitted a 14 page proposed order that the District Court adopted in full, with the addition of one sentence – “The Court has read the proposed order denying plaintiff’s motion for preliminary injunction and finds the proposed order totally consistent with the Court’s order of July 9, 2014 …” The Church, however, contends that the July 18 order is not consistent with the District Court’s bench ruling, because the July 18 order considered the issues of compelling governmental interests and least restrictive means:

Here, the City considered less restrictive means – the issuance of a CUP subject to conditions – but ultimately determined, based on years of experience with Harbor’s program, that Harbor’s use was so incompatible with the neighborhood, and so detrimental to the health, safety, and welfare of its neighbors, that outright denial of the permit was the only way of achieving its compelling governmental interest.

On appeal, the Church argues that the Court’s July 9 order should be reversed because there is no evidence in the record that alternative sites exist for the Church to minister to the homeless, and, relying on Hobby Lobby, the risk to the Church in the form of a $1,000 penalty and imprisonment to continue its religious ministry is a substantial burden. In Hobby Lobby, the Supreme Court found a substantial burden in part because a privately held corporation risked facing a penalty of $100 per day for each employee to whom it refused to supply insurance for contraceptives under Obamacare.

The Church also claims the July 18 order should be reversed because less restrictive means are available to the City, including through use of the police force to protect against crime. The Church in its brief provides examples of what less restrictive means were available to the City:

Suppose, for example, that the City had limited the homeless ministry’s hours of operation to just one hour at lunchtime, and had permitted the Church to provide only traditional prayer and a meal, and only to five homeless people a day. Or suppose the City had also restricted the Church to serving only those five homeless people it picks up with its van at a location outside the neighborhood and transports back to that same location after the ministry.

Again, the Church relies on Hobby Lobby to note that protecting religious freedom guaranteed by RLUIPA may require the government to take action and to bear the cost of that action:

[B]oth RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs.

The Ninth Circuit heard oral argument in this matter on February 2, 2015. A video of the hearing is available here. The Church’s brief 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 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.

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.