The City of Brier, Washington (City) has prevailed over claims that it violated the Religious Land Use & Institutionalized Persons Act (RLUIPA) and other federal law in a dispute over a variance application to construct a personal Serbian Orthodox chapel.

The case was brought by Vladan Milosavlejevic and his company (the Plaintiff), who sought to build a personal Serbian Orthodox chapel on company-owned property.  The Plaintiff claimed that his chapel had to meet specific architectural dimensions, including two domes, each spanning more than 40 feet in height, to be used as “vehicle[s] for … prayers to be sent to the heavens.”  The Plaintiff required a variance to construct the chapel, as the property is in the City’s single-family residential zone, which has a maximum height of 30 feet.  The City denied the variance because the Plaintiff failed to satisfy 6 of the 8 zoning criteria, and the Plaintiff sued, alleging violations of RLUIPA’s substantial burden and equal terms provisions and 42 U.S.C. § 1983.  The United States District Court for the Western District of Washington at Seattle granted summary judgment in favor of the City on these claims.

The Court found that denial of the variance application did not impose a substantial burden on religious exercise, because there were other suitable sites for worship within the City.  In the Ninth Circuit: “[a] substantial burden exists where the government authority puts substantial pressure on an adherent to modify his behavior and to violate his belief.  When the religious institution has no ready alternatives, or where the alternatives require substantial delay, uncertainty, and expense, a complete denial of the application might be indicative of a substantial burden.”  The Plaintiff’s own witness, an orthodox priest, stated that religious prayer could occur anywhere, including at the Plaintiff’s home – where the Plaintiff had worshipped in the past.  Further, there was no evidence that the distance between the Plaintiff’s residence and alternative places of worship or the cost of travel would force the Plaintiff to modify his religious behavior, or that there was any difference in the type of worship services between the churches.  “While worshipping within a home or church in Snohomish and King Counties is unsatisfactory to Petitioner, this inconvenience does not rise to the level of a substantial burden,” according to the Court.

The Court also rejected the Plaintiff’s RLUIPA equal terms claim.  While the Court questioned whether the Plaintiff and his family constitute a religious assembly subject to the protection of the equal terms provision, it nevertheless considered the merits of the claim.  The Court ruled that the equal terms claim failed because the Plaintiff could not identify a comparator that was treated better by the City.  The Plaintiff claimed that utility towers were suitable comparators and received preferential treatment by the City.  However, utility towers were not suitable comparators, because “[t]hey serve completely different purposes, and they are located within different City zones with different zoning criteria.”  The Court also entered judgment in favor of the City with respect to the § 1983 claims, which relied on the same facts and theories as the RLUIPA equal terms claim.

The decision in Milosavlejevic v. City of Brier (W.D. WA 2017) is available here.