Last month, Bergen Rockland Eruv Association, Inc. (BREA) sued the Township of Mahwah, New Jersey regarding a dispute over the expansion of an eruv. According to the complaint, “[a]n eruv, under Jewish law, is a largely invisible unbroken demarcation of an area … created by, among other things, using existing telephone or utility poles and wires,” which “allow Jews with sincerely held religious beliefs to carry or push objects from place to place within the area on the Sabbath and Yom Kippur.” We previously reported here about another eruv dispute arising in Southampton, New York.
On September 11, 2017, the Planning and Law Division of the American Planning Association is hosting the webinar “Solar Planning 101: Opportunities & Obstacles.” Attendees will learn how to integrate solar energy into planning, zoning, and historic preservation processes from two law professors who specialize in these issues. The program will highlight Hartford, Connecticut, a DOE SolSmart Gold community, which has dramatically reduced barriers to solar and serves as a model for other cities.
Speakers include Troy Rule, Joseph Feller Memorial Chair in Law & Sustainability at Sandra Day O’Connor College of Law, Arizona State University and Sara Bronin, Thomas F. Gallivan Chair in Real Property Law and Faculty Director, Center for Energy and Environmental Law at the University of Connecticut School of Law.
Monday, September 11, 2017
11:00 a.m. – 12:30 p.m. EDT
CM | 1.50 | Law
CLE 1.50 through Illinois State Bar
The U.S. Court of Appeals for the Seventh Circuit has affirmed the decision of the Northern District of Illinois, finding against a faith-based recovery home’s claims of religious discrimination and Fair Housing Act violations stemming from a fire code dispute over the installation of a sprinkler system. Our prior post regarding the case is available here. The plaintiff, Affordable Recovery Housing (ARH) sought to operate a faith-based recovery home in the city of Blue Island that would provide support services, overnight lodging, meals and recreation, job training, medical and dental referral, religious outreach, and other services to adult men recovering from drug and/or alcohol addiction. After the mayor approved of ARH’s use, ARH moved 73 men into a facility it had leased from a Catholic order of nuns called the Mantellate Sisters of Mary. The following year, the city of Blue Island’s fire chief decided that before using the buildings, ARH had to install expensive sprinkler systems in the rooms where residents would sleep. The City Council approved the fire chief’s decision. While the city’s zoning board of appeals approved ARH’s application for a special permit, it denied ARH’s request that ARH be given three years to install the sprinkler system.
According to ARH, its 73 residents were “forced” to leave after the city decided that sprinklers had to be installed. ARH sued and alleged violations of Illinois Religious Freedom Restoration Act (IRFRA), RLUIPA, the Fair Housing Act, and the U.S. Constitution. The District Court ruled in 2014 that because ARH is a state-licensed facility, it is governed by state safety regulations (no sprinkler required), which preempted the city’s safety code regulations – meaning ARH need not install sprinklers. ARH pressed on with its federal claims in order to seek damages and attorneys’ fees, but the Court found for the city.
The Seventh Circuit affirmed. It concluded that the IRFRA claims failed, since “there is no evidence that the expulsion, which turned out to be temporary when the applicable state law was discovered, was attributable to anything other than an honest concern with possible fire hazards to the residents.” Further, ARH “could have avoided the expulsion by researching the state and local regulations applicable to group recovery housing before beginning its project. Nothing compelled it to rush headlong into business; it chose to take that risk.” The Seventh Circuit further ruled that even if the sprinkler requirement was a “land use regulation” triggering RLUIPA, there is no violation as ARH “is not being excluded from Blue Island or even required to install a sprinkler system.” Finally, the Court rejected ARH’s Fair Housing Act claim, because “Blue Island’s exclusion when it forced 73 residents to leave was quickly undone when [ARH] discovered the supervening state law regarding sprinkler systems.”
The decision in Affordable Recovery Housing v. City of Blue Island (7th Cir. 2017) is available here.
On August 14, 2017, the Planning and Law Division of the American Planning Association is hosting the webinar “Murr v. Wisconsin: The Supreme Court’s Latest ‘Take’ on Takings.” Here is the program description:
In Murr v. Wisconsin, the Court ruled 5-3 that a Wisconsin “lot merger” regulation was not an unconstitutional taking as applied to two contiguous parcels, one of which the owners wanted to sell while retaining the other. Rejecting the competing “bright-line rule” positions offered by the owners and the State of Wisconsin, Justice Kennedy announced a new multi-factor test to determine the extent of the appropriate “denominator” in takings claims involving merger provisions applied to contiguous parcels. This webinar will review the facts and ruling in Murr, discuss the dissenting Justices’ criticisms of Kennedy’s test, and the implications of the Murr ruling both on how state and local governments regulate contiguous parcels and ways that owners of contiguous parcels may react to the ruling.
Speakers include Alan Weinstein of Cleveland State University’s Cleveland-Marshall College of Law and Maxine Goodman Levin College of Urban Affairs; Nancy Stroud of the firm Lewis, Stroud & Deutsch, PL; and John Echeverria of Vermont Law School.
August 14, 2017; 1:00 p.m. – 2:30 p.m. EDT
CLE 1.50 through Illinois State Bar
CM | 1.50 | Law
An Illinois appellate court reversed a lower court’s dismissal of RLUIPA claims asserted by the First United Methodist Church of West Dundee (the “Church”) against the Village of West Dundee, Illinois (the “Village”), finding that the Church sufficiently stated claims under the substantial burden and equal terms clauses.
The case concerns a historic building located at 310 West Main Street in the Village (the “310 Building”). The 310 Building, constructed in 1849 and located in the Village’s historic district, is currently one of the Village’s oldest historic structures. The Church, which acquired the 310 Building in 1950, allegedly made certain efforts to maintain and repair it over the years. By 2004, however, the 310 Building had been rendered uninhabitable, and the Church has not used or repaired it since.
Ten years ago, the Church applied to the Village for a permit to demolish the 310 Building, citing a need for additional parking for its congregation, which had been meeting at an adjacent property owned by the Church. The Village denied this application, asking instead that the Church repair and maintain the 310 Building. The Church did not appeal this decision.
Four years later, an inspection of the 310 Building allegedly revealed 14 property maintenance violations. The Village issued the Church a correction order, requiring the Church to make certain repairs. When the Church failed to comply with this order, the Village filed a complaint in the circuit court, seeking a court order to require the repairs.
In response, the Church filed a counterclaim, alleging that repairing the 310 Building would be substantially more expensive than demolishing it, and could financially devastate the Church. The Church further alleged that the Village had approved the demolition of three other historic structures in the Historic District for commercial uses. Moreover, the Church alleged that Village’s insistence on repair rather than demolition amounted to a “taking” of the 310 Building.
The trial court, which dismissed the Church’s counterclaims for failure to state a claim, ordered the Church to start making repairs within 14 days. If it did not, the Court authorized the Village to initiate repairs and place a lien on the Church for repair costs, pursuant to Illinois Municipal Code § 11-31-1(a). The Church appealed this decision.
On appeal, the Illinois Appellate Court, Second District, found that the Church had sufficiently stated claims under RLUIPA’s substantial burden and equal terms clauses, as well as claims sounding in inverse condemnation.
At the outset of its analysis, the Appellate Court notes that the section of the Illinois Municipal Code that permitted the Village to seek the subject court order requiring repair of the 310 Building also permitted the Church to file a counterclaim seeking an alternative form of relief, such as demolition. See Illinois Municipal Code § 11-31-1(a). Indeed, the Illinois Supreme Court has stated: “[In] provid[ing] for repair or demolition in the alternative[, section 11-31-1(a) of the Municipal Code] ‘contemplates repair where feasible and demolition where the state of deterioration is such that repairs would amount to a substantial reconstruction [of the building].’” Village of Lake Villa v. Stockovich, 211 Ill. 2d 106, 127 (2004) (citing City of Aurora v. Meyer, 38 Ill. 2d 131, 136 (1967)) (emphasis added).
Turning to the Church’s RLUIPA claims, the Appellate Court found that the Village’s property maintenance code is a “land use regulation” as defined by RLUIPA, given that its application limits and/or restricts the Church’s use or development of its land. This finding is interesting, given that building and sanitary codes are often not found to fall within RLUIPA’s definition of a land use regulation. See some of our prior posts here, here and here. Instead, the Court reasoned:
In short, the Church owns the 310 building; it wants to use the building and the land for a particular purpose, but the Village is (allegedly) standing in the Church’s way. Congress mandated the RLUIPA be construed ‘in favor of a broad protection of religious exercise’ and in our view, this case… presents the precise sort of situation that RLUIPA was designed to cover.
Upon review of the Church’s allegation that the cost to repair the 310 Building would potentially ruin the Church, the Court found: “By any reasonable measure, the burden imposed on the Church, taking the Church’s statement of it as true at this point, would certainly qualify as ‘substantial.’”
The Court further held that the Church’s allegation that the Village had approved the demolition of three other structures in the Historic District for commercial uses constituted a viable equal terms claim. The Court characterized the Village’s act of granting a privilege to commercial land users that it denied to a religious institution as “arbitrary enforcement… sufficient to state a claim of unequal treatment under [RLUIPA].”
Finally, the Court found that the Village’s denial of a demolition permit could also constitute a taking without the formal exercise of eminent domain proceedings. Accordingly, the Church’s inverse condemnation claims were improperly dismissed.
The full text of this opinion is available here.
The US Supreme Court today issued its latest pronouncement on regulatory takings, Murr et. al, v. Wisconsin, et al. Justice Kennedy wrote for the Court, joined by Justices Ginsburg, Breyer, Sotomayor and Kagan. The issue was whether two adjacent lots that had “merged” in common ownership by operation of state law, should be considered individually, or as a single parcel, for purposes of determining whether the inability to develop the lots separately resulted in a taking.
The Court upheld the Wisconsin state court determination that the relevant parcel for purposes of the takings analysis was the two merged lots combined, and not each considered separately. In doing so, the Court declined to adopt either of the “formalistic” state law-focused approaches urged by the parties. The property owners had advocated for a presumption that lot lines determined under state property law define the relevant parcel. The state urged the Court to let the state regulations (in this case the challenged merger rules) determine the relevant parcel.
The Court instead identified “a number of factors” that courts must consider in order to define the relevant parcel. It identified these as: “First, . . . the treatment of the land, in particular how it is bounded or divided, under state and local law”; “Second, . . . the physical characteristics of” the property, including the relationship between “distinguishable tracts” as well as “topography and the surrounding human and ecological environment;” and “Third, . . . the value of the property under the challenged regulation, with special attention to the effect of the burdened land on the value of other holdings.” Applying these standards, the Court concluded that the state court correctly considered the effect of the regulations on the merged lots as a whole. It further upheld the determination that no taking occurred because the owners were not deprived of all economically beneficial use under the Lucas categorical takings test and the effect of the regulations did not amount to a taking under the “more general” Penn Central test.
Justice Roberts penned a dissent joined by Justices Alito and Thomas. The Roberts dissent would have remanded the case to have the state courts apply “general state law principles of property law.” As the owners had urged, the dissenters would have applied the regulatory takings analysis to each lot separately if they were “legally distinct” as a matter of property law. Justice Thomas, in a separate dissent, expressed the view that the Court should reconsider its regulatory takings jurisprudence because it is not grounded “in the constitution as it was originally understood.”
In an important decision for municipalities across the Country, the Sixth Circuit upheld a district court decision that found Genoa Charter Township (Township) did not violate federal law in denying a church’s application for a special use permit to operate a religious school. The take away from the case? Asking students to drive an extra 12 miles does not impose a substantial burden.
Livingston Christian Schools (LCS) sought to use property owned by another church, Brighton Church of the Nazarene (Nazarene property) to operate its pre-kindergarten through 12th grade Christian school. After identifying the Nazarene property, but apparently before speaking with any Township officials, LCS prepaid the Church $70,000 in rent and began advertising its new location to prospective students. LCS was later informed by the Township that it needed to amend Nazarene’s special use permit to allow school operations.
From 2006 to 2015, LCS had been operating in Pinckney, Michigan (Pinckney property). LCS found the Nazarene property more desirable than the Pinckney property because the former has better access to commuter roads and is located in a more populated area. LCS applied for the necessary permit in March, 2015 and the Township held two public meetings, where several neighbors expressed concern with the expansion and change in the use of the Nazarene property. Primary concerns were that “(1) LCS’s operations would worsen already heavy traffic, and (2) Nazarene Church had a history of failing to comply with its previous special-use permits by using its property in ways that neighboring residents found disruptive.” Given these concerns, LCS’ application was denied.
On August 20, 2015, after the special permit denial, LCS leased the Pinckney property to the Light of the World Academy (LOTWA), a charter school, for a term of seven years. The lease also post-dated LCS’ original complaint, filed on August 7, 2015. LCS then entered into a short-term lease to use a former public middle school building in Whitmore Lake School District for its operations.
Substantial Burden Analysis
The Sixth Circuit began its analysis by noting that the Supreme Court has yet to consider a RLUIPA substantial burden case in the land-use context. It then briefly reviewed the two Sixth Circuit decisions that have considered the issue: (1) DiLaura v. Township of Ann Arbor, 112 F. App’x 445 (6th Cir. 2004) (affirming the “district court’s conclusion that a substantial burden existed based on a zoning ordinance that required the plaintiffs, who wanted to establish an overnight religious retreat, to operate as a bed-and-breakfast establishment.”); and (2) Living Water Church of God v. Charter Township of Meridian, 258 F. App’x 729 (6th Cir. 2007) (restriction on buildings proposed by church to 25,000 square feet was not a substantial burden).
In this recent decision, the Court noted that Living Water did not set a “bright line test” of what constitutes a substantial burden, but the Court recognized that it provided a framework, which requires the Court to ask, “[D]oes the government action place substantial pressure on a religious institution to violate its religious beliefs or effectively bar a religious institution from using its property in the exercise of its religion?”
The Court noted that no other circuit has adopted the “effectively bar” language since Living Water was decided. Additionally, the Court characterized Living Water as an attempt to avoid setting precedent and to craft “a framework to apply to the facts before us.” Therefore, the Court declined to follow the Living Water framework and reexamined the meaning of “substantial burden.”
After surveying other circuit decisions and reexamining Living Water, the Court concluded that “a burden must have some degree of severity to be considered ‘substantial.’” Additionally, it identified several factors that other circuits have found helpful in the substantial burden analysis: (1) whether there are feasible alternative locations to conduct the institution’s religious exercise; (2) whether the religious institution will suffer “substantial ‘delay, uncertainty, and expense’ due to the imposition of the regulation”; and (3) whether any burden is self-imposed.
Also, the Court noted that several circuits consider “whether there is evidence that the municipality’s decision making process was arbitrary, capricious, or discriminatory.” LCS did not allege that the Township acted with discriminatory intent, so the factor was irrelevant to this case. The Court went further, however, and concluded that applying evidence of discrimination in the substantial burden context was inappropriate: “Evidence of improper decisionmaking is more appropriately considered when evaluating whether a governmental action was narrowly tailored to serve a compelling state interest—an inquiry that the court should undertake only after finding that a substantial burden exists.”
Applying the three factors noted above, the Court concluded that LCS was not substantially burdened. First, LCS had failed to show that any of its core religious beliefs could not be carried out at the Pinckney property. Therefore, as a matter of law, the Court found that remaining at the Pinckney property would not have imposed a substantial burden. Additionally, the Pinckney property is only a 12.1-mile drive from the Nazarene property and 11.1 miles from the center of Livingston County. For these reasons, LCS’ claim that the Pinckney property was too remote to support a student population was not evidence of a substantial burden. Second, any burden imposed based on the seven-year lease to LOTWA was self-imposed and therefore not relevant to the analysis. Finally, the court rejected LCS’ argument that the Court should limit its review of alternative properties to those within the Township’s boundaries.
The Sixth Circuit’s decision in Livingston Christian Sch. v. Genoa Charter Twp., No. 16-2060 (2017) is available here.
Last year, we reported about a case in which the city of St. Michael, Minnesota utilized RLUIPA’s “safe harbor” provision to avoid liability under the act’s substantial burden and equal terms provisions. While the federal court found for the city as to Riverside Church’s RLUIPA claims at the summary judgment stage, the court concluded that there were genuine issues of fact regarding Riverside’s free speech claim that could only be resolved at trial. Following a several-week-long trial, the court late last month issued its decision and found that the city’s zoning ordinance violated Riverside’s right to free speech under the First Amendment to the U.S. Constitution, and awarded Riverside $1,354,595 in damages.
Riverside identified property in the city’s B-1 district as an ideal satellite location to accommodate its growing congregation. Riverside would use the new location much like a movie theater, where it would broadcast religious worship services being held at its primary church in Big Lake, Minnesota. The property was already suited for Riverside’s intended use, since it had previously been operated as a 15-screen movie theatre, with nearly 2,800 seats, a maximum capacity of over 3,600 people, and having more than 91,000 square feet. Although Riverside sought to use the property in much the same way as a movie theatre – an allowed use under the zoning code for this B-1 district – the city concluded that the proposed use was not allowed since “collective religious worship” was not among the uses permitted in this district.
Riverside’s efforts to use the property were stymied by the city on several occasions. In 2014, Riverside entered into a purchase and sale agreement for the property, contingent on zoning approval. Riverside submitted an application to amend the text of the zoning regulations to allow religious uses in the B-1 district. 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 city subsequently denied Riverside’s text amendment application, and Riverside sued under RLUIPA and the First Amendment, among other things. While litigation was pending, the City utilized RLUIPA’s safe harbor provision to amend its zoning code to remove “multi-plex theater” and add “assembly, religious institution, house of worship” as conditional uses in the B-1 district. In April, 2015, the city issued Riverside a conditional use permit to use the property, but the cost of the property had increased such that Riverside could no longer afford the purchase price.
In considering Riverside’s freedom of speech claim, the court focused on the zoning ordinance before it was amended to allow religious uses in the B-1 district. The court first found that the city’s zoning ordinance “served to regulate secondary effects of religious land use. The Zoning Ordinance’s stated purpose included ‘public health and safety’ and the ‘general welfare of the inhabitants of the City.’” Although the court found the zoning ordinance to be content-neutral and subject to intermediate scrutiny, it determined that the ordinance was not narrowly tailored to further the city’s stated governmental interests (largely dealing with traffic impact), and violated the First Amendment. Specifically, in 2015, the city issued a report prompted by the moratorium that recommended that assemblies for religious worship be treated exactly the same as theatres. Prior to 2015, however, religious uses were prohibited in the B-1 district. According to the court, a more narrowly tailored alternative available to address the city’s specific public health and safety concerns would have been to allow Riverside to use the property with conditions meant to address the city’s interests. The court also analyzed and rejected Riverside’s defamation claim resulting from settlement discussions that had taken place between Riverside and the city.
The decision is noteworthy for its analysis of the “secondary effects” doctrine as applied to religious uses. Generally, the secondary effects doctrine has been applied to the regulation of adult entertainment uses. For more on this topic, especially in light of the U.S. Supreme Court’s decision in Reed v. Town of Gilbert, check out “Content Neutral Land Use Regulation After Reed: Recent Developments in Signs, Adult Businesses, and Religious Uses.”
The decision in Riverside Church v. City of St. Michael (District of Minnesota, 2017) is available here.
What do tiny homes, marijuana, a sex club, the Satanic Temple, and yoga have in common? They each make an appearance in this installment of the RLUIPA Round-Up!
- A Nashville United Methodist Church’s plan to construct a tiny home village for the homeless recently received approval from the Metro Zoning Board of Appeals. Despite neighborhood opposition, the Board found that the project falls within the religious mission of the Church. If constructed, the village would provide shelter for up to 20 homeless people in small individual houses. The Tennessean reported on the topic here.
- The International Church of Cannabis opened in an historic building in Denver, Colorado on April 20 irking neighborhood groups (according to Wikipedia, “April 20 has become an international counterculture holiday, where people gather to celebrate and consume cannabis.”) The parishioners, termed “Elevationists,” bond over invitation-only cannabis consumption events. The founding church member brushed off neighborhood concerns related to parking, noise, and odors and asserted Elevationists’ freedom of religion-promising to take any obstructionists directly to court. The story was reported by the New York Times.
- After getting into heat with local code inspectors, a Metro Nashville sex club incorporated as a “church” in 2015 in an attempt to circumvent local zoning codes. While sex clubs are allowed in town, they are not permitted near a school or in the zone in which the club is located. The club had previously represented to municipal officials that no sexual intercourse would be allowed on the premises. When city inspectors arrived in March 2017, the “congregation” was still in full swing, prompting the City to file suit and seek a permanent injunction to bar the sex club. The full story is available here. Our post about the initial controversy is available here.
- A Cobb County, Georgia assistant principal filed suit, claiming her First Amendment rights were violated when she was transferred from her “high performing” elementary school after her introduction of yoga sparked parental outrage. The school board claimed that the spiritual nature of yoga was offensive to some Christian parents while the assistant principal claimed her version of yoga was not religious. The Atlanta Journal Constitution reports here.
After objections to a cross appearing in a war memorial in a small Minnesota town, the town had two choices to fend off potential lawsuits: remove the cross or create a public forum where all religions could be represented at the memorial. The town chose the latter and the first group to take advantage of that forum was the Satanic Temple. The Temple has designed a monument that it plans to add to the memorial, sparking outrage among some in the community. The story was reported by the Washington Post and the Star Tribune.
Last month, Bayonne Muslims, a New Jersey not-for-profit religious congregation, sued the City of Bayonne, New Jersey (the “City”), challenging the City’s denial of certain variances needed to construct a mosque. Specifically, the City’s Zoning Board denied Bayonne Muslims’ application for a conditional use variance, a parking bulk variance, and additional setback and buffer variances.
Bayonne Muslims’ Complaint, available here, alleges that the City’s enactment of these ordinances violates RLUIPA’s substantial burden, non-discrimination, and exclusions and limits provisions, as well as the First Amendment’s Free Exercise Clause, the Fourteenth Amendment’s Equal Protection and Due Process Clauses, the New Jersey Constitution, and New Jersey state law.