The City of Port Jervis, New York has agreed to settle a federal lawsuit filed by the United States Department of Justice (DOJ) alleging that the City’s revision to its zoning code violated the Religious Land Use & Institutionalized Persons Act (RLUIPA).  In August 2015, Goodwill Evangelical Presbyterian Church (Church) finalized a contract to purchase property in the City’s Central Business District (CBD), where a place of worship was a permitted use.  Four months later, the City revised its zoning code to bar “places of worship and related facilities” in the CBD and the Service Commercial District.

The zoning code revision (known as Local Law No. 7) was intended to allow a local brewery called Fox N Hare Brewing Co. to purchase and operate on property near to where the Church sought to locate.  Under New York State’s Alcoholic Beverage Control laws,  no license may issue for on-premises liquor consumption “on the same street or avenue and within two hundred feet of a building occupied exclusively as a school, church, synagogue or other place of worship.”  This meant that if the Church operated from the property it sought to purchase, the brewery would have to go elsewhere.

Local Law No. 7 contains a “Legislative Findings and Intent” Section providing that “places of worship may have a detrimental effect on business, commercial[,] and community development” in the subject zoning districts and states that, due to “the restrictions set forth for liquor licenses for restaurants, breweries, micro-breweries, micro-distilleries, pubs and other eating and drinking establishments commonly located within the Central Business Zoning District and Service Commercial Zoning District of the City, as set forth in the Alcoholic Beverage Control Legislation of the State of New York, places of worship and related facilities may deter and prohibit the location and expansion of business and commercial uses within the Central Business Zoning District and Service Commercial Zoning District in the City.” While Local Law No. 7 banned places of worship it also allowed uses that had previously been prohibited: microbreweries, brew pubs, breweries, microdistilleries, distilleries, wineries, and tasting rooms.  After Local Law No. 7 passed,  the Church voided its  contract to purchase the property.

The DOJ sued alleging violations of RLUIPA’s equal terms and substantial burden provisions.  According to the DOJ, the City’s zoning code on its face violated the equal terms provision because it banned religious uses but at the same time permitted analogous, secular assembly uses in the same zone, including clubs, fraternal organizations, nonprofit membership clubs, libraries, gyms, art galleries, museums, preschools, day-care centers, and nursery schools.  The DOJ alleged that the City violated the substantial burden provision because prior to Local Law No. 7 the Church had the reasonable expectation that it could use the property as a place of worship.  But the revision to the zoning code caused the Church to suffer delay, uncertainty, and expense with respect to its intended use of the property.

Two days after filing suit, the City and the DOJ agreed to settle the case by consent decree filed with the court.  Under the decree, the City has sixty days to repeal Local Law No. 7.  Further, within 180 days, the City must provide RLUIPA training to its mayor, each member of the Common Council, and all building and code enforcement officers.  The last requirement of note is that the City must maintain copies of all religious land use applications and provide copies of same to the DOJ within fifteen days following disposition of such applications.  The same applies for any religious discrimination complaints; that is, the City must notify the DOJ of any such complaints within fifteen days after receipt of complaint.  The consent decree in United States of America v. City of Port Jervis, No. 15 Civ. 9026 (S.D.N.Y. 2016) is available here.

Although the DOJ believed the zoning code revision in this case created an equal terms issue by treating secular assembly uses differently from religious uses, it is important to remember that, after careful evaluation of a city’s land use goals, it may be permissible to exclude religious uses from a downtown or economic development zone.  In Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007), the Third Circuit upheld a limitation on religious uses in a city’s redevelopment zone after assessing its regulatory purpose: “[s]trengthening retail trade and City revenues, increase[ing] employment opportunities, and attracting more retail service enterprises” to “encourage a vibrant and vital downtown residential community centered on a core sustainable retail main street.”  Id. at 2.