Settlement Reached Allowing Construction of Muslim Cemetery in Dudley, MA

barn

Guest Post by Derek Valentine

Following some last minute hand-wringing, nearly a year of hearings and deliberations by the Zoning Board of Appeals (“ZBA”) and accusations of religious bias, the Town of Dudley agreed to a deal that would allow a proposed Muslim cemetery to be constructed on six acres of former farmland in a rural part of the Town.  The Islamic Society of Greater Worcester (“ISGW”) is a non-profit corporation that operates a mosque in Worcester, MA and currently conducts traditional Islamic burials at a cemetery in Enfield, CT. In an effort to provide a burial site closer to the mosque, the group identified a 55-acre parcel of former farmland in Dudley and entered into a purchase agreement with its owner in January, 2016.

SGW approached Dudley shortly after putting the property under contract, seeking a roadmap of permits required to construct the cemetery. The Town’s Building Commissioner determined that the use required a special permit, and ISGW applied for the same on or around January 7, 2016. A public hearing was opened and continued several times in the following months. Some residents expressed concerns about contamination of their wells due to the Islamic practice of burial without coffins. On June 9th, the Zoning Board of Appeals (“ZBA”) voted to deny the application citing the ISGW’s lack of standing. Lack of standing was asserted based on the Town’s belief that it had a right of refusal to purchase the property under G.L. c. 61A, Section 14. The cited section dictates that “land taxed under this section shall not be sold for, or converted to residential, industrial, or commercial use while so taxed or within one year after that time unless the city or town in which the land is located has been notified of the intent to sell for, or to convert to, that other use”. Since it proposed a religious use, ISGW claimed that it is categorically excluded from G.L. c. 61A, Section 14.

ISGW filed a complaint with the Massachusetts Land Court seeking a determination that the right of refusal did not apply and that both the Town and the property owner interfered with a binding contract to purchase the property.

On December 23, 2016, the Boston Globe reported that the parties had reached an agreement that would allow ISGW to build the cemetery, subject to routine town approvals from the ZBA, the Board of Health, and the Conservation Commission. According to the Globe, the settlement recognizes the religious protections extended to the cemetery, but required the project to go back before the ZBA where a special permit will be granted based on the agreed upon conditions of the settlement; which specify that only six acres of the property would be developed as a cemetery and there would be no further expansion for a period of ten years.

The beginning of 2017, however, included a slight stall on the road to final resolution after some verbal sparring in the local paper, the Webster Times, between ISGW attorney, Jay Talerman and Board of Selectman Chair Jonathan Ruda.  In a statement in the January 6 edition of the Webster Times, Talerman stated that the “approvals that the town would provide are essentially perfunctory,” and “the Zoning Board doesn’t possess any discretion under the agreement to say ‘no.’” In response to these comments, Mr. Ruda refused to sign the agreement reached through the settlement back in December, 2016. Luckily, this setback was short lived and the agreement was signed by both the ISGW and the town on January 12th, 2017. According to the Webster Times, the project will be brought back before the ZBA, likely in February, followed by review by the Health Department and the Conservation Commission. Permits are expected to be issued sometime after that.

Original photo by Ken Whytock, some rights reserved.

DOJ’s RLUIPA Claims Survive Motion to Dismiss

A federal court in Pennsylvania has denied Bensalem Township’s motion to dismiss a lawsuit brought by the United States Department of Justice challenging the Township’s denial of a use variance for a mosque.  The lawsuit alleges violations of the Religious Land Use & Institutionalized Persons Act (RLUIPA) and is in addition to a separate lawsuit filed by the religious group itself – Bensalem Masjid (Masjid).  Masjid sought to build its own mosque because it had been relegated to using space in a fire hall for religious worship.  Without a mosque, Masjid claims its members violate their religious beliefs in several important respects, as the fire hall space cannot accommodate their religious beliefs: separating the sexes during worship; performing “wudu,” the ablution before prayer; and worshipping in a mosque that is properly dedicated to God, is oriented towards Mecca, and is consecrated.

Masjid began its search for a new location in 2008.  Under the Township’s zoning code, religious uses are permitted only in the Institutional District (IN District), where there are about 35 properties total.  Although Masjid was unable to find a site in the IN District, it found three adjacent properties encompassing multiple zoning districts, none of which permitted religious uses, and entered into a lease with an option to purchase the properties.  After consulting with Township officials, Masjid submitted an application for a use variance to allow the properties to be put to religious use.  The application was denied in November 2014 after six sessions of a public hearing.  Masjid sued the Township following the denial, which we previously reported on here.

In 2016, the DOJ also sued the Township over the same denial (see post here).  The Township moved to dismiss each of the four RLUIPA claims raised by the DOJ (substantial burden; equal terms; nondiscrimination; and unreasonable limitations).  The Court denied dismissal and noted that the Township had unsuccessfully sought dismissal of the same claims in the case brought by Masjid (Memorandum of Decision in Masjid case available here).  The Court also noted that the claims brought by the DOJ were the ones that survived dismissal in the other pending action.

The Township first moved to dismiss the DOJ’s complaint on the ground that the DOJ had failed to join a required party (the Bensalem Zoning Hearing Board).  According to the Township, only the Zoning Hearing Board could grant use variances and for that reason had to be named as a defendant.  The court was not persuaded, and instead found that since the municipality is authorized to enforce and amend its zoning laws, the DOJ could attain the relief it sought without the Zoning Hearing Board being made a defendant.

The Township also moved to dismiss each of the four RLUIPA claims alleged by the DOJ (substantial burden; equal terms; nondiscrimination; and unreasonable limitations).  The court rejected each of these claims:

  • Substantial Burden: The Township claimed that there could be no substantial burden on religious exercise because Masjid had failed to pursue an available zoning remedy in the form of a rezone. Stated differently, if there is another avenue through which to seek relief, the burden cannot be substantial.  But the court determined that there was a factual dispute as to whether the use variance or the rezone was the proper procedure, so dismissal was inappropriate at this stage.
  • Equal Terms: This claim was sufficiently alleged, since several zoning districts within the Township allowed secular assembly uses but prohibited religious uses from the same zone.
  • Nondiscrimination: The Court found that the DOJ’s allegation that Masjid was subject to a more burdensome variance application process than other groups was sufficient to allow this claim to survive.
  • Unreasonable Limitations: The Township contended that because other groups were able to locate properties in the IN district, its zoning regulations could not violate the unreasonable limitations provision. But the DOJ alleged that there were no parcels for sale in the IN District during Masjid’s search period, and the Court determined that this factual dispute meant the claim had been properly pleaded.

The court’s memorandum of decision relating to the motion to dismiss in United States v. Bensalem Township is available here.

Third Circuit Upholds District Court Decision in Pennsylvania Baptist Church Sign Case

Last week, the Third Circuit Court of Appeals entered an order upholding the district court’s decision in the case of Tearpock-Martini v. Shickshinny Borough, which we reported on last summer.  The case involved an Establishment Clause challenge by a citizen to a Pennsylvania borough’s decision to install a sign in the right-of-way stating “Bible Baptist Church Welcomes You!”  The district court found, on a motion for summary judgment, that the sign did not violate the three-part Lemon test under the Establishment Clause, and that it did not violate the endorsement of religion test.

The Third Circuit found the plaintiff’s arguments regarding the posting of other signs in the right-of-way unconvincing.  The plaintiff made much of the fact that the only other sign in borough right-of-way was a directional sign to a boat launch, and that the borough had not permitted a post office sign in the right-of-way.  But the Third Circuit noted that the post office never applied for a sign in the right-of-way, and further pointed out that the borough’s approval and subsequent installation of the church sign did not send a message of endorsement.

Tearpock-Martini v. Shickshinny Borough, ___ Fed. App’x ___, 2017 WL 35714 (3d Cir. Jan. 4, 2017).

*The following is re-posted with permission of Rocky Mountain Sign Law Blog, available at: http://www.rockymountainsignlaw.com/.  Brian J. Connolly and Otten, Johnson, Robinson, Neff + Ragonetti are not affiliated with Robinson + Cole, LLP.

Missouri Church Wins Digital Sign Appeal

The Missouri Court of Appeals has ruled that the Kansas City, Missouri, Board of Adjustment abused its discretion in failing to grant a variance to Antioch Community Church (Church) to install digital components into its monument sign.  The Church argued that absent the variance it had practical difficulty in communicating its message.  In the alternative, the Church contended that the zoning code violated the First Amendment “by favoring less-protected commercial speech over more-protected non-commercial speech.”  Under the code, schools and churches on lots 15 acres or more (or 10 acres or more if located on a major arterial road) are allowed to use digital signs.  Because the Church’s lot was less than 10 acres, the code prohibited it from having a digital sign on its property.

The Church property is in a single-family residence zone next to commercial, urban residential, downtown, and industrial zones, all of which permit digital signs.  The Church is located on Antioch Road, a four-land roadway with about 14,000 travelers each day.  Since 1956, the Church has had a monument sign consisting of glass display cases surrounded by brick framework.  The sign included messages and information about Church activities that were manually  added using letters hung from cup hooks.  In 2010, at a cost of $11,000, the Church installed a digital sign, which replaced the display case, but no changes were made to the brick surround.  At this time, the Church was unaware that the Kansas City sign ordinance prohibited digital signs in residential zones (Section 88-445-06-A-4 of the code).  Accordingly, the Church did not seek a variance before installing the digital sign component.

About a year later, the City issued a notice of violation to the Church for installing the digital component without seeking a variance.  The Church then sought and was denied a variance.  Its local appeal of the Board’s decision was also denied.  Following this local process, the Church sued in Clay County Circuit Court.  The Circuit Court entered judgment in favor of the Church and ordered the issuance of the variance, but did not address the Church’s constitutional claim finding it to be moot.

The Missouri Court of Appeals affirmed the Circuit Court’s decision that the Church was entitled to the variance.  First, the Court of Appeals rejected the Board’s assertion that it had no authority to issue a variance as to the “type” of sign under the code.  Section 88-445-12 of the code states: “The Board of Zoning Adjustment may grant variances to the requirement for signs, except as to the type and number.”  (emphasis added).  But a “digital sign” is a “component” of a sign (Section 88-810) – not a sign “type.”  Rather, Section 88-445-12 defines “sign type” as:

A group or class of signs that are regulated, allowed, or not allowed in this code as a group or class.  Sign types include, but are not limited to, pole signs, monument signs, oversized monument signs, outdoor advertising signs, wall signs, projecting signs, roof signs, ornamental tower signs, electronic or digital or motorized signs, banner signs, and temporary signs.

As found by the Court of Appeals, the monument sign which had been there since 1956 was the “sign type,” so the Board had authority to grant a variance to permit a digital component for a monument sign.

The Court of Appeals also found that the Church had proven practical difficulty warranting issuance of the variance: (a) the variation was not substantial; (b) the sign does not effect a substantial change to the character of the neighborhood; and (c) the Church lacks other means of advertising or communication, such as fliers or paid advertisement.  Like the Circuit Court, the Court of Appeals did not address the Church’s claim that the code violated the First Amendment by favoring commercial speech above non-commercial speech.

The decision in Antioch Community Church v. Board of Zoning Adjustment of the City of Kansas City, Missouri (2016) is available here.

DOJ Claims that County’s Denial of a Sewer Permit Violates RLUIPA

sweet spetic

Guest Post by Derek Valentine

Earlier this month, the U.S. Justice Department (“DOJ”) filed suit in District Court for the Western District of Virginia against the Culpeper County Virginia Board of Supervisors alleging it acted in a discriminatory manor by denying a permanent pump and haul septic system permit for a proposed mosque.

The Islamic Center of Culpeper (ICC) is a non-profit Muslim center that began its formal search for a permanent mosque location in 2011. In January of 2016, the ICC located a property that met its qualifications and entered into a purchase contract. The one-acre property included a dilapidated structure that would be razed to make way for a small mosque to serve the ICC’s needs for the next ten years. The new facility would accommodate separate prayer rooms for male and female congregants, classrooms for Arabic language studies, and a proper space to allow congregants to perform a pre-prayer ritual requiring the washing of hands and feet.

After entering into the purchase contract, Mohammed Nawabe, ICC’s Director, contacted the County Administrator to initiate construction approvals. The property is located in a zoning district that allows religious land uses by right, but the County Administrator recommended that Mr. Nawabe contact the health department regarding soil conditions and the ability to accommodate an on-site septic system. Mr. Nawabe was subsequently informed by the health department that the property would not support a traditional septic system and instead would have to rely on a permanent pump and haul system, requiring approval from the County. A permanent pump and haul system is out of the ordinary and is required where there is no public sewer service and soil conditions do not allow a conventional on-site septic system.  Instead, the sewage must be retained in a tank and periodically hauled away by truck.  Under Virginia  law this requires a special permit from the state, and in this case the county holds the only permit in the county and thus must approve such systems to be added to its permit.

The ICC submitted an application for pump and haul approval but, according to the complaint, was met with considerable interference from a local civic leader. At one point, ICC’s application was pulled from a meeting agenda and was deferred to the County Attorney for additional review. Mr. Nawabe then met with the County Planning Director and was told he needed to reapply with an updated County pump and haul agreement because he mistakenly was given an outdated copy.

The ICC’s application was resubmitted on March 3, 2016, and scheduled for County Board consideration on April 5, 2016. The DOJ claims that in the intervening time between the submission and the scheduled Board action date, the County received a barrage of emails and phone calls from constituents urging denial of the application. Many of the comments relayed anti-Muslin sentiments. The County Administrator informed the County Board Chairwoman that the ICC application should be reviewed consistent with the established criteria and level of scrutiny applied to all other applications. The Administrator stated that he would be prepared to invalidate any irrelevant constituent concerns at the scheduled Board meeting.

At the April 5th meeting, the County Administrator shared prepared comments indicating that the ICC had “provided letters from the health department “saying that the soil just wouldn’t support what they would consider a traditional type of drain field, and no other alternative was identified.” After some discussion from County Supervisors, the application was denied on a 4-to-3 vote. According to the complaint, of the 26 applications processed in the last 20 years this was only the second denial  . The County Supervisors who voted against the application argued that ICC did not show hardship and that pump and haul permits were for emergency use only and not intended for commercial or church use. These Supervisors also denied the hardship claim because ICC did not own the property at the time of the application and there was no existing structure on the property. Furthermore, they alleged that ICC purchased the property at a below market price because of the preexisting poor soil conditions and inferred that any hardship would be deemed self-inflicted. However, the DOJ concluded that permits were issued to other parties under very similar circumstances, including one to a Baptist church.

The DOJ alleges that the County has used the permit process to allow land uses it finds desirable while excluding unwanted land uses. The allegations state that the County’s denial constituted “a substantial burden on ICC’s freedom to practice their religion” and that ICC’s permit was treated substantially differently than similar permit applications. The  complaint requests injunctive relief requiring the County to issue the permits necessary for ICC to construct the mosque and requiring the County to provide RLUIPA training, establish a protocol to address future RLUIPA claims, and maintain records/reports with respect to RLUIPA compliance.

The complaint in United States of America v. County of Culpeper, VA is available here.

Original Photograph by Laura Gilmore, some rights reserved.

Port Jervis, NY Sued by DOJ; Settles Two Days Later

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.

RLUIPA Round-Up: Happy Cyber Monday

cyber monday

Guest Post by Derek Valentine

Take a break from the sales and give the Round-Up a read:

  • ABC Channel 9 in Sioux City reports on a US Justice Department inquiry into the proposed siting of Our Savior Lutheran Church in a former Budweiser warehouse in the City of Norfolk, Nebraska. The City maintains that churches are not allowed in industrial zones and fears that the church would be in conflict with existing industrial uses in the area. The Church is frustrated that the City refuses to engage in a dialogue. The City has 30 days to submit the details of basis for the zoning denial for review by the US Justice Department.
  • In Bucks County, Pennsylvania, a federal judge has upheld a discrimination lawsuit filed by the US Department of Justice against the Township of Bensalem, denying the Township’s motion to dismiss the case. Philly Voice reports that Bensalem Masjid was denied a variance to construct a mosque on parcels zoned for residential and business professional uses, citing concerns about the size of the mosque, parking, and membership growth. Bensalem Masjid responded by reducing the size of the project, adding parking, and offering a Friday afternoon prayer service. The US Department of Justice alleges that variance requests were approved for various other religious institutions, but not for Bensalem Masjid.
  • In rural San Martin, California, some residents are outraged over a proposed 105,546 square-foot mosque, as reported by the Daily Intelligencer. The mosque is proposed in a “Special Plan Area,” which was instituted to limit development and preserve agriculture and rural character. Those opposing the mosque are concerned about groundwater contamination from a “green cemetery” and question whether the use is “local serving” as mandated by the ordinance.
  • Church leaders and village officials are going head-to-head in Antioch, Illinois, reports the Daily Herald. Saint Ignatius Episcopal Church is operating a resale shop that the Village claims is not consistent with the residential zoning in the neighborhood. The Village has filed an injunction arguing that in addition to zoning noncompliance, the facility has inadequate handicapped-accessible restrooms. The Church points to a 60 year-old agreement between the Church and the Village stating that all buildings on the 5.1-acre parcel are part of the overall ministry, and not subject to the zoning use restrictions.
  • A group of churches filed suit against Massachusetts officials based on the enforcement of the public accommodation law. The law, as interpreted by the Massachusetts Commission Against Discrimination and Attorney General Maura Healy requires the churches to allow the use of bathrooms and other “intimate areas” based on gender identity and not biological sex.

Original photo by Taryn Domingossome rights reserved.

Rocky Mountain Sign Law Blog: Installation of Ten Commandments On City Hall Lawn is Government Speech, Violates First Amendment

Original Photography by George Bannister (Licensed)

Guest Post by Brian Connolly, Otten Johnson, PC

Earlier this month, the Tenth Circuit Court of Appeals ruled that Bloomfield, New Mexico’s installation of a Ten Commandments monument on the lawn in front of city hall violated the Establishment Clause of the First Amendment.

In 2007, upon request of one of its members, the Bloomfield city council approved the placement of the privately-donated monument.  At the time, the city lacked a policy regarding placement of permanent monuments, but it enacted one three months later.  The city’s policy required a statement to be placed on privately-donated stating that the speech was not that of the city but rather of the donor, and also required that such monuments relate to the city’s history and heritage.  After several years of fundraising and another city council approval, the 3,400 pound Ten Commandments monument was placed on the city hall lawn in 2011, and the city held a ceremony—replete with statements by elected officials and religious leaders—to dedicate the monument.  Over the course of the next two years, the city amended the monument policy, and allowed the installation of other monuments on the lawn, including monuments containing the Declaration of Independence, the Gettysburg Address, and the Bill of Rights, but did not advertise its policy of allowing donated monuments.

The federal district court held that the plaintiffs had standing to challenge the city’s action in placing the monument, found that the monument constituted government speech, and held the placement of the monument to be a violation of the Establishment Clause.  The Tenth Circuit affirmed the district court’s decision.

With respect to the city’s challenge to the plaintiffs’ standing, the appeals court reiterated that “direct contact” with the Ten Commandments monument was all that was required for the plaintiffs to establish injury.  The court went on to find, over the city’s arguments to the contrary, that the Ten Commandments monument constituted government speech and was therefore subject to Establishment Clause limitations.  While the city disputed the monument’s permanence—arguing that, despite its size, it could be removed by a construction crew—the court instead found that the monument was permanent and therefore constituted government speech under the Supreme Court’s decision in Pleasant Grove City v. Summum.

Moving to the three-part Establishment Clause analysis established by Lemon v. Kurtzman, the court concluded that the monument violated the First Amendment because the monument had the effect of endorsing particular religious beliefs.  According to the court, the Ten Commandments are a religious text, the monument was prominently placed in front of the principal government building in the city, and the circumstances of the monument’s placement suggested a religious motivation on the city’s part.  In so holding, the court found that the required disclaimer message on the monument did not change the analysis that a reasonable observer would believe the monument to be the city’s speech and endorsement of religion, and further that the placement of secular monuments on the city hall lawn did not negate the religious endorsement effected by the Ten Commandments monument.

Despite the Tenth Circuit’s ruling, last week, several members of the Bloomfield community spoke out in favor of the Ten Commandments monument at a city council meeting.  The city is considering filing a petition for writ of certiorari in the Supreme Court.

Felix v. City of Bloomfield, ___ F.3d ___, 2016 WL 6634870 (10th Cir. Nov. 9, 2016).

Original Photography by George Bannister, Licensed

Facial RLUIPA Claims Against Mobile, AL Dismissed

meditation

Guest Post by Tavo T. True-Alcala

Earlier this year, the Thai Meditation Association of Alabama and several individual plaintiffs (“the Center”) filed suit against the City of Mobile, Alabama (“the City”), alleging that the denial of its application to operate a meditation center in a residential area was a violation of its rights under RLUIPA on three counts. Specifically, the complaint claims that the City of Mobile’s Zoning Ordinance, both on its face and as applied, violates the Center’s rights as a religious institution by substantially burdening its religious exercise, discriminating on the basis of religion, and treating it on less than equal terms. The complaint also alleges that the Center was misled by City officials when it was encouraged to apply for a planning use approval, which is the appropriate zoning relief for religious organizations seeking to locate in a residential zone, rather than a use variance which is required for  commercial uses in residential zones. The City denied the Center’s application because it ultimately concluded that the Center’s proposal was for a commercial, not religious, use. Further details of this case can be found in our previous post.  Most recently, the court decided the City’s Motion to Dismiss, granting the dismissal of the Center’s facial RLUIPA claims, but denying its request to dismiss the claim of negligent misrepresentation.

The City claimed that the facial challenges presented in the Center’s complaint are not supported by any reference to specific provisions of the Zoning Ordinance that allegedly violate RLUIPA on their face. According to the City, the Zoning Ordinance is, on its face, neutral, and “does not discriminate between similar religious and non-religious entities or uses, and does not place a ‘substantial burden’ on Plaintiffs’ religious exercise,” and therefore contended that the facial allegations should be dismissed. The City further averred that as the Center knew its anticipated use was subject to City approval, and that this knowledge precludes a claim of misrepresentation, whether or not the application was denied.

On October 12, an Alabama federal magistrate judge issued a report recommending that the City’s motion be granted as to all facial claims, but denied as to the claim of negligent misrepresentation.  In considering the facial challenges, the magistrate judge found that the Zoning Ordinance does not on its face infringe upon the rights of any religious organization by imposing a substantial burden on religious exercise, discriminating on the basis of religion, or causing unequal treatment.   The magistrate judge further distinguished facial and as applied claims by reasoning that including the specific instance of the denial of the Center’s application in the consideration of the facial challenges “would risk emptying the ‘as-applied’ challenge of its meaning.”

While the motion to dismiss the facial challenges was granted, the magistrate judge did not recommend dismissal of the negligent misrepresentation claim. The City argued that the Center could not have relied on the staff representations since it still required City approval of its intended use. The magistrate judge disagreed, finding  persuasive the Center’s allegation that it relied on misrepresented information to determine that the planning approval process was appropriate, rather than the variance use process.

After due and careful consideration, the district judge ordered the recommendations be adopted, granting the dismissal of the facial challenges but denying the dismissal of the negligent misrepresentation challenge.

Original Photo by Moyan Brenn, some rights reserved.

$1.7 Million Settlement with DOJ and CAIR-MI

Original photograph by Anthony Easton, some rights reserved. https://www.flickr.com/photos/pinkmoose/

In 2011, Pittsfield Charter Township denied, allegedly without deliberation, Michigan Islamic Academy’s (“MIA”) application to rezone a 26 acre parcel (the “Property”) to allow the development of  a pre-K through grade 12 school.  MIA then sued the Township, alleging that the denial substantially burdened its religious exercise.  At the time, MIA operated a school in nearby Ann Arbor, but such facilities were overcrowded and MIA was forced to use on-site trailers to accommodate its 190 students.  As we reported last November, MIA’s lawsuit was dismissed because, according to the District Court for the Eastern District of Michigan, MIA did not have a sufficient property interest to maintain its RLUIPA claims because it never acquired a legally cognizable property interest in accordance with Michigan law.

After the dismissal, both the Department of Justice (“DOJ”) and the Michigan chapter of the Council on American- Islamic Relations (“CAIR”) filed separate lawsuits on behalf of MIA.

The DOJ described the settlement:

As part of the settlement, the township has agreed to permit MIA to construct a school on the vacant parcel of land, to treat the school and all other religious groups equally and to publicize its non-discrimination policies and practices.  The township also agreed that its leaders and various township employees will attend training on the requirements of RLUIPA.  In addition, the county will report periodically to the Justice Department.  In the separate settlement between MIA and the township, Pittsfield agreed to pay $1.7 million to resolve MIA’s claims for damages and attorney’s fees caused by the 2011 denial and the resulting delay in construction of the school.

In addition to the $1.7 million payment, MIA received the right to build a 70,000 square foot Islamic school, a residential development consisting of 22  duplex  units  and three single family homes, and a park. CAIR-MI’s press release regarding the settlement is available here.

Original photograph by Anthony Easton, some rights reserved.

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