The U.S. Court of Appeals for the Ninth Circuit has reversed a district court’s decision that Harbor Missionary Church’s (Church) religious exercise was not substantially burdened by the City of San Buenaventura’s denial of a conditional use permit.  In 2008, the Church began providing service to the poor and needy in accordance with its religious beliefs.  These services included religious teachings, prayer, clothing, food, showers, counseling, and other support.  Homeless individuals came to the church for care and assistance, and neighbors began complaining about incidents of threats, trespassing, public nudity, and substance abuse.  The Church took several steps in an effort to address these concerns – such as employing a security guard, enforcing a no-loitering policy, coordinating with social service agencies, requiring identification, strengthening neighborhood patrols, and maintaining a public complaint hotline.

In 2013, the City told the Church that if it wished to continue providing these services to the poor and needy, it would have to obtain conditional use approval.  The Church applied for the permit and City staff members issued a report recommending approval of the application, subject to certain conditions.  The City Planning Commission, however, denied the application without considering an approval subject to any conditions.

The Church sued under the Religious Land Use and Institutionalized Persons Act’s (RLUIPA) substantial burden provision, along with the Free Exercise Clause of the First Amendment.  The Church moved for a preliminary injunction, but the district court concluded that the Church was unlikely to succeed on the merits of its claim, and declined entering the injunction.  According to the district court, the Church could relocate to another neighborhood to serve the poor and needy.  It further found that even if there were a substantial burden, a flat out denial of the conditional use permit was the least restrictive means of furthering the City’s interest of protecting public health and safety.

The Ninth Circuit reversed: “The district court erred in its analysis by minimizing the burden imposed on the Church’s free exercise of religion. The district court also erred in failing to properly consider the conditions recommended by the City’s staff when it determined that a complete denial of the conditional use permit was the least restrictive means to achieve the City’s compelling interest in public safety.”

Denial of the conditional use permit prevented the Church from continuing with its religious practice of feeding, clothing, and caring for those less fortunate.  Forcing the Church to relocate this religious practice to another neighborhood would cost at least $1.4 million, an expense undisputed by the City.  The Ninth Circuit found that this significant cost substantially burdened the Church’s religious exercise.

While the district court did not err in finding that the City had a compelling governmental interest in protecting public health and safety – it erred in concluding that the City had exercised the least restrictive means of furthering its interest.  That is, the City failed to consider any of the conditions for approval previously recommended by City staff, or the wide variety of measures taken by the Church in response to neighbors’ concerns.  Evidence suggested that the Church may have been willing to comply with some of the recommended conditions of approval.  The Ninth Circuit instructed the district court as follows:

On remand, the district court should make factual findings, after such proceedings as may be necessary, about what conditions, if any, the Church would or would not comply with if the City had granted a conditional use permit. The court should also detail why the conditional use permit recommended by the City’s staff would or would not sufficiently protect the neighborhood from any negative effects shown to be the result of the Church’s ministry to the homeless.

The decision in Harbor Missionary Church v. City of San Buenaventura (9th Cir. 2016) 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.