The U.S. Court of Appeals for the Sixth Circuit recently issued its decision in Tree of Life Christian Schools v. City of Upper Arlington, in which it reversed the lower court’s granting of summary judgment in favor of the City as to Tree of Life’s RLUIPA equal terms claim.  RLUIPA’s equal terms provision states: “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.”  A major issue with respect to equal terms claims is how to evaluate whether a government has treated a nonreligious assembly or institution better than a religious use.  Some circuits (Third, Seventh, and Eleventh) have adopted different tests to assess equal terms claims.  Other circuits have avoided the issue and have chosen not to adopt a test.  Although the Sixth Circuit stated it was not adopting any of the various tests used by the other circuits, it may have done so unintentionally.

In August 2010, Tree of Life purchased property at 5000 Arlington Centre Boulevard in Upper Arlington, Ohio.  The property, formerly occupied by AOL/Time Warner, is located in the City’s ORC Office and Research District, the purpose of which is: “to allow offices and research facilities that will contribute to the City’s physical pattern of planned, healthy, safe, and attractive neighborhoods.  The ORC district should also provide job opportunities and services to residents and contribute to the City’s economic stability.  Permitted uses in the ORC district are: business and professional offices, research and development, book and periodical publishing, insurance carriers, corporate data centers, survey research firms, outpatient surgery centers, hospitals, and such permitted uses as are set forth or may in the future be set forth in Table 5-C.” (zoning code available here)  The City’s zoning code prohibits schools (public or private, religious included) in the ORC district, but allows them in the remaining 95% of the City.

After Tree of Life purchased the property, it negotiated with the City to open a religious school.  Unable to strike a deal, Tree of Life submitted an application to rezone the property to allow the religious school use.  The City’s zoning ordinance provides that seven criteria “be followed in approving zoning map amendments,” including that “the proposed zoning district classification and use of the land will generally conform with the master plan.”  The master plan regulates uses of land to increase the government’s income-tax revenues, and, for this reason, emphasizes the use of certain non-residential land as office space.  The City denied Tree of Life’s rezone application for failure to comply with this specific criteria.

Tree of Life sued and claimed that, among other things, the City’s denial violated RLUIPA’s equal terms provision.  The District Court granted the City’s motion for summary judgment, but the Sixth Circuit reversed the decision and remanded back to the lower court for further consideration (read our post about the District Court decision here).  The Sixth Circuit reviewed the various equal terms tests utilized by other circuits: (a) the Eleventh Circuit’s plaintiff-friendly test in which any nonreligious assembly or institution can be a valid comparator regardless of whether it is “similarly situated” to the religious use; (b) the Third Circuit’s “regulatory purpose” test, which requires that a comparator be similarly situated; and (c) the Seventh Circuit’s “accepted zoning criteria” test, which also imposes a similarly situated requirement.

Although the Sixth Circuit claimed that it was not adopting any specific test, it notes that “the remaining question is whether these other assemblies or institutions, treated more favorably, are similarly situated,” which suggests rejection of the Eleventh Circuit’s test (emphasis added).  The Sixth Circuit then states that Tree of Life “has pled facts sufficient to allege that at least some of these assemblies or institutions are situated, relative to the government’s regulatory purpose, similarly to [Tree of Life], i.e., they would fail to maximize income-tax revenue.”  This appears to endorse the Third Circuit’s “regulatory purpose” approach.  The Sixth Circuit reversed the lower court’s granting of summary judgment, because Tree of Life’s “allegations create a genuine issue of fact as to whether the government treats more favorably assemblies or institutions similarly situated with respect to maximizing revenue, unless the government can demonstrate that no assemblies or institutions could be similarly situated.” (emphasis in original).

There are two other interesting points about the Sixth Circuit’s decision.  First, citing Kelo v. City of New London, 545 U.S. 469 (2005), the Court says that local governments could ensure compliance with RLUIPA by using eminent domain, because eminent domain “provides local governments with an escape hatch to avoid the most severe applications of RLUIPA’s zoning provisions.” (citation omitted).  According to the Sixth Circuit, “Upper Arlington could force [Tree of Life] to sell the land to the government, and sell the land to a buyer that the government thinks offers superior economic benefits.”  Most courts that have considered the issue have found that eminent domain is not a “land use regulation” that will invoke RLUIPA (recall, RLUIPA applies only to a “land use regulation”).  However, there is some authority that eminent domain could constitute a land use regulation under RLUIPA, see our prior post here.  It remains to be seen whether municipalities may increasingly exercise the power of eminent domain to circumvent RLUIPA compliance.  Politically, the idea may be untenable in most places.  Also, it might be asked if this use of eminent domain is a public purpose if it is principally to avoid RLUIPA liability.  Was consideration given to offering a substantial premium to Tree of Life to voluntarily sell the property to the City?

Second, the Sixth Circuit appears to limit the power of RLUIPA’s “safe harbor” provision to insulate local governments from liability.  RLUIPA’s safe harbor provision provides: “A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.”  In the face of equal terms claims, some municipalities have amended zoning codes to attempt to avoid liability (learn more about the safe harbor provision in the article Finding Salvation in Religious Law’s Safe Harbor).  In the case of Tree of Life, the Court states in Footnote 4 of its decision that the City previously allowed daycares in the ORC zoning district but amended the ordinance during the pendency of litigation to exclude daycares (presumably to avoid liability).  The Court, however, ruled that the amendment removing daycares would not remedy the alleged violation, and they should still be considered because “Upper Arlington always could amend the [zoning code] once again to allow daycares in the ORC district.”

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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.