In an important decision for municipalities across the country, a federal court in Minnesota has recently ruled that actions taken under RLUIPA’s “safe harbor” provision absolved a local government of possible RLUIPA violations.  This is especially noteworthy because few courts have considered the safe harbor provision.  According to the court, the City of St. Michael’s amendments to its zoning regulations to allow religious uses as conditional uses in the business zone (where they were previously prohibited), coupled with the granting of a conditional use permit, meant the City had to prevail.  The 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.

Here is the background.  Riverside Church held services in Big Lake, Minnesota, but needed to find a second location to accommodate its growth.  From 2004 to 2014, the Church’s attendance at Sunday worship services increased from 665 to nearly 1,500 people.  The Church identified property in the City of St. Michael’s business zone, about 12 miles south of Big Lake, that was formerly used as a 15-screen movie theater, and sought to purchase the property so that it could hold worship services there (“Theater Property”).  The Theater Property was for sale at just under $3 million, but the City’s zoning code, at the time prohibited religious uses from the subject business zone.

In July 2014, the Church submitted an application to amend the text of the zoning regulations to allow religious uses in the business zone.  Around the same time, the Church entered into a purchase and sale agreement for the Theater Property contingent on obtaining zoning approval to allow religious use of the property.  As the text amendment application was pending, the City Council imposed an across-the-board moratorium that barred “the use of any land for new or expanded assembly, theater, or church, purposes during the period of the moratorium.”  The purpose of the moratorium was to give the City time to study the impacts of these types of assembly uses in business zones.  The same day the moratorium was imposed, the City amended the zoning regulations by removing “theaters” (which had been allowed as-of-right) and replacing that use with “multi-plex theater” as a conditional use.

The Church and the City attempted to negotiate a compromise that would allow the Church to use the Theater Property, but negotiations fell apart and the City then denied the text amendment application.  In denying the application, the City issued its “Findings of Fact and Decision” in which it found that religious uses would have an adverse impact on other uses in the business zone and would cause parking, traffic, and infrastructure concerns.  The purchase and sale agreement for the Theater Property terminated.

In March, 2015, the Church entered into another purchase and sale agreement for the Theater Property for about $3.5 million, plus the cost of repairs and improvements to the property.  Three days later, the Church sued the City under RLUIPA, the U.S. Constitution, and Minnesota law.  While litigation was pending, the City utilized RLUIPA’s safe harbor provision to amend its zoning code.  The zoning code amendment removed “multi-plex theater” and added “assembly, religious institution, house of worship” as conditional uses.  In April, 2015, the City issued the Church a conditional use permit to use the Theater Property.  However, the Church was unable to purchase the Theater Property because the total cost, with the repairs and improvements, would be more than $5 million.

In considering the City’s motion for summary judgment, the District Court for the District of Minnesota ruled that the City’s use of the safe harbor provision relieved the City from liability under RLUIPA.  Specifically, the City’s amendment to the zoning code to allow religious uses in the business zone as conditional uses and its granting the Church a conditional use permit to use the Theater Property “eliminated any alleged substantial burden and any alleged discriminatory treatment” imposed by the former zoning code and denial of the Church’s text amendment application.

The Court also ruled that the substantial burden and equal terms claims failed regardless of the safe harbor provision.  Neither the former zoning code nor the denial of the Church’s text amendment application constituted a substantial burden, because: (a) they merely inconvenienced the Church, since the Church could have established a site in any of the remaining zones where religious uses were permitted, and (b) the City’s Findings of Fact and Decision shows that its actions were well-reasoned and not arbitrary and capricious.  The Court’s decision is noteworthy for its review of other circuits’ interpretations and applications of the substantial burden provision, as the Eighth Circuit had yet to define what is meant by “substantial burden.”

As for the equal terms claim, the Court utilized both the Third Circuit’s “regulatory purpose” and Seventh Circuit’s “accepted zoning criteria” tests.  According to the Court, the regulatory purpose for the business zone is to provide land for business and retail uses to strengthen the City’s economy.  Similarly, zoning criteria for the subject business district is to generate taxable revenue and shopping opportunities.  This led the Court to conclude:

With respect to these purposes and zoning criteria, a church is not similarly situated to a movie theater. A church is not in the business of selling items to the public and, as a non-profit entity, does not generate taxable revenue. A movie theater, in contrast, typically focuses on selling tickets and food to moviegoers and is a for-profit entity that generates taxable revenue.

Accordingly, the City’s pre-amendment prohibition of religious uses in the business zone did not violate the equal terms provision.

The Court also rejected the Church’s Free Exercise claim.  First, the zoning code’s ban on religious uses did not substantially burden the Church’s religious exercise.  Second, the moratorium, which prevented the Church from finding a new site anywhere in the City for a year, was neutral and generally applicable.

The Court declined entering summary judgment in favor of the City as to the Church’s Free Speech claim, because there remained a genuine issue of material fact with respect to whether the zoning ordinance’s ban on religious uses was “narrowly tailored” to advance the City’s government interests (strengthening the City’s economic base and providing employment opportunities).  Notably, however, the Court concluded that the subject ordinance was content-neutral under the Supreme Court’s decision in Reed v. Town of Gilbert, because the focus of the ordinance was on genuine public health, safety, and general welfare issues.

The decision in Riverside Church v. City of St. Michael (D. Minn. 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.

Photo of John Peloso John Peloso

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including…

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including real estate, land use, environmental, and tax matters, including RLUIPA and eminent domain matters.

In the area of real estate litigation, John represents institutional, municipal, and individual clients in disputes involving title, zoning, wetlands, land use, RLUIPA, eminent domain, and other real property rights. He also represents clients in all aspects of commercial lease and other real estate transactional disputes. In the area of real property tax litigation, he represents institutional and individual clients in proceedings at the regulatory, administrative, and trial levels. In this regard, he has dealt with specialized issues involving among other things, the valuation of high-tech software, wireless communications equipment, contingency fee tax audits, special use properties, and the impact of environmental conditions on the valuation of real property.

Prior to joining Robinson+Cole, John was a member of the litigation department at White & Case LLP in New York City, where he concentrated his practice in complex commercial, property and securities litigation.