Recent amendments to the zoning code of the City of Monroe, North Carolina (the “City”) are unconstitutional, according to the Complaint filed by At the Cross Fellowship Baptist Church (the “Church”), a congregation of approximately 30 people established in 2017, which describes itself as having “a calling to serve the Monroe, North Carolina community.”

The Church initially operated from a funeral home.  Seeking a more suitable and permanent home, in January 2018 the Church leased land at 1617 W. Roosevelt Boulevard in the City (the “Property”).  The Property is in the City’s General Business District, and is also part of Subdistrict C of a newly established Concord Avenue Overlay District (“CA-O”), which went into effect on April 4, 2017 under City Ordinance O-2017-13.

According to the Complaint, the Property owner informed the Church that the site could be used for religious use, since another church had occupied space on the Property in the past year and another religious nonprofit organization was currently leasing space.  After entering into the lease and renovating the Property, the City denied the Church’s request for a certificate of occupancy because “churches” are prohibited in Subdistrict C of CA-O.

The Church’s Complaint alleges that by prohibiting churches and other religious institutions from operating in Subdistrict C of the CA-O, Ordinance O-2017-13 violates RLUIPA’s nondiscrimination provision.  Moreover, the Church complains that Ordinance O-2017-13 violates RLUIPA’s equal terms provision because nonreligious assemblies and institutions (community centers, libraries, art galleries, and museums) are permitted uses in Subdistrict C, while religious uses are not.  The Church also alleges violations of the First Amendment’s free exercise, free speech, and assembly clauses, and the Fourteenth Amendment’s equal protection clause.

The Church filed a motion for a preliminary injunction, based on the City’s alleged violation of RLUIPA’s equal terms provision.  Acknowledging that the Fourth Circuit has yet to establish a test to identify adequate comparators, the Church advocates for the Fifth Circuit’s two-part test, wherein, once the religious assembly establishes a prima facie case, the government must affirmatively satisfy “(1) the regulatory purpose or zoning criteria behind the regulation at issue, as stated explicitly in the text of the ordinance or regulation; and (2) whether the religious assembly or institution is treated as well as every other nonreligious assembly or institution that is ‘similarly situated’ with respect to the stated purpose or criterion.”  Opulent Life Church v. City of Holly Springs, Mississippi (5th Cir. 2012) (see our previous post about Opulent Life here).  According to the Church, the City will fail on the first prong, as it “can point to no regulatory purpose or accepted zoning criteria that would justify its discriminatory treatment of churches and other religious institutions in Subdistrict C.”  With its motion, the Church asks the Court to enjoin the City from enforcing its zoning code insofar as it prevents the Church from operating its house of worship on the Property or might otherwise be used to “discriminatorily target the Church” or “infringe upon the Church’s rights.”

The Complaint in At the Cross Fellowship Baptist Church Inc v. City of Monroe, North Carolina, No. 3:18-00290-RJC-DSC (W.D.N.C.) is available here, and the Church’s Motion for Preliminary Injunction is available here.  Local coverage of the case is available here.