Upcoming Webinar: Controlling the Local Impacts of Hydrofracking

On June 7, 2017, the Planning and Law Division of the American Planning Association is hosting the webinar “Controlling the Local Impacts of Hydrofracking.”  Here is the program description:

Hydrofracking will occur in many states, but federal and state agencies will not regulate many of the adverse local impacts of unconventional gas exploration. On the other hand, local governments will, and without expert guidance may be inclined to prohibit the practice. Some states will respond to local bans by stripping local governments of their authority.

It is vital, therefore, to develop best practices for controlling unregulated local impacts and to deliver them effectively to local governments and leaders. This program will outline the regulatory framework, identify local impacts (positive and negative), and conclude with an exploration of strategies—including both regulatory and non-regulatory actions—that local governments can use to address those impacts.

Speakers include Jessica Bacher, Executive Director of the Land Use Law Center at Pace Law School and Joshua Galperin, a clinical lecturer and director in law at Yale Law School and the Environmental Law and Policy Program Director at the Yale School of Forestry and Environmental Studies.

June 7, 2017

1:00 p.m. – 2:30 p.m. EDT

CM | 1.50 | Law

CLE 1.50 through Illinois State Bar

Register here

Motion to Dismiss U.S Justice Department Suit Against County Denied

Sewer

The District Court for the Western District of Virginia denied Culpeper County, Virginia’s motion to dismiss a lawsuit brought by the U.S. Justice Department (“DOJ”).  The DOJ filed suit after the County denied a permanent pump and haul septic system permit for a mosque proposed by the Islamic Center of Culpeper (ICC). The Court’s decision is available here.

In the motion to dismiss, the County claimed that the case was not “ripe” because ICC’s application was insufficient to make a final decision, and it was incumbent upon ICC to submit a complete application. The County also argued that the decision to deny the pump and haul permit was not subject to RLUIPA because the County applied a public health law, not a land use regulation; the latter being an action protected under RLUIPA. In moving to dismiss the substantial burden claim, the County argued that it did not impose a substantial burden because ICC had other options to obtain a permit, such as redesigning the septic system, resubmitting an application, or seeking a septic permit directly from the State. Further, the County denied any acts of religious discrimination, claimed that the denial was based on a legitimate protection of public health, and suggested that ICC lacked hardship.

The Court concluded that the County’s motion to dismiss should be denied. First, County staff was on record acknowledging the completeness of ICC’s sewer application, therefore the case is constitutionally “ripe”, and the County’s action to deny the septic permit was, in fact, a final decision. Next, it found that the complaint sufficiently alleged religious discrimination, based on:

The low showing required for permit approval in the past; the historically high approval rate, including to other commercial and religious entities; the atypical delay in considering the ICC’s initial application; the statements by County officials that the ICC’s application received heightened scrutiny; the County Administrator’s prepared remarks that the ICC’s application satisfied state law and local practice, and anti-Muslim comments and pressure directed at Board members before their vote.

The Court then considered the interesting question of whether denial of a sanitation permit could constitute a land use regulation subject to RLUIPA’s protection. Finding that it was, the Court concluded that zoning approvals were contingent upon securing the sewer permit, so the County’s denial of that permit was in essence a zoning action subject to protections under RLUIPA. It was also persuaded by statutory language in favor of “broad” construction” and Fourth Circuit decisions indicating that sewer regulations are “zoning laws.”  The Court also found that there were sufficient allegations of religious discrimination because ICC was subjected to a higher level of scrutiny than is common for a septic permit. Septic permits are generally granted with regularity and ease, and without that permit, ICC was unable to construct a mosque to practice its religion- justifying both the substantial burden and religious discrimination claims.

Our previous post regarding the DOJ’s complaint is available here.

Original Photograph by Dariane N, some rights reserved.

RLUIPA Round Up

The recent confirmation of Supreme Court Justice Neil Gorsuch has brought renewed attention to the often blurry line between the courts, government and individual religious liberty. Gorsuch wrote a concurring opinion in the 10th Circuit’s Hobby Lobby decision, which established that a closely held corporation may refuse to provide health insurance coverage that offers certain types of birth control. An establishment clause case is one of the first heard by Gorsuch—Trinity Lutheran Church v. Comer, where a Missouri church and daycare facility was denied participation in a state funding program offering recycled tires for playground resurfacing. A transcript from the April 19 hearing is available here.

So how should we commemorate the newest Justice’s first official week on the bench? A RLUIPA Round-Up, of course!

  • As the Baltimore Sun reports, Baltimore County was recently named in two federal lawsuits alleging religious discrimination in application of its zoning laws. In one suit, the Congregation Ariel Russian Community Synagogue, Inc. and Rabbi Velvel Belinsky (“Plaintiffs”) filed suit in the District Court of Maryland against Baltimore County and Baltimore County Board of Appeals (Defendants” or “Baltimore”). The Complaint alleges that Plaintiffs were denied a small synagogue and Rabbi residence on an approximately three-acre parcel, in a zoning district where places of worship are allowed by right. In the second suit, Hunt Valley Baptist Church claims that the County impermissibly denied its application to build a 1,000-seat facility with classrooms, offices, a fellowship hall and gymnasium on a 17-acre farm on a rural road in Hunt Valley. The complaint is available here.
  • Earlier this month, a Minnesota Amish community sued the Minnesota Pollution Control Agency and Fillmore County, claiming that a directive to install wastewater treatment systems violates their religious beliefs, ABC New 4 reports. The community reuses bath and dish washing water in their gardens, and the County, for the last five years, has requested compliance with wastewater standards. Last year, we reported on a similar case brought by an Amish family who challenged a Pennsylvania townships’ mandatory sewer connection ordinance.
  • The controversy over a proposed Muslim burial ground in Dudley, Massachusetts appears to have finally drawn to a close, the Boston Globe reports. The Department of Justice (“DOJ”) dropped its Dudley investigation in mid-April after the Town granted final approval for cemetery development. After some last minute hand-wringing, Dudley and the Islamic Society of Greater Worcester (“ISGW”) agreed to a deal that would allow the cemetery to be constructed on six acres of former farmland in a rural part of the Town. Shortly after the DOJ announcement, however, ISGW surprised many by announcing that it decided drop its plans in Dudley and utilize a more economical option by conducting burials in a portion of Hope Cemetery in Worcester, according to the Boston Globe.
  • According to the Kansas City Star, the Roman Catholic Archdiocese of Kansas City, Kansas (“Archdiocese”) has sued Mission Woods, Kansas, a city of only 60 acres, 180 residents, and no full-time staff. The Archdiocese claims that St. Rose Philippine Duchesne Catholic Church (“St. Rose”) was substantially burdened by Mission Woods City Council’s denial of its request to use a residentially zoned home for meeting space, prayer groups and religious education.   Rose’s congregation serves between 600 and 800 people, and the home in question holds up to 100 people at a time.

Church Entitled to Damages Following Denial of Special Use Permit

The expanding congregation of Christian Assembly Rios de Agua Viva sought a new home for their church in suburban Chicago, Illinois and began a three-and-a-half year search that ultimately led them to a four-acre property within the commercial zoning district in Burbank, Illinois. The district allowed 114 by-right uses including many non-religious assembly uses such as dance studios, physical fitness facilities, and undertaking/funeral parlors, but requires a special use permit for a church. On October 8, 2010, the Church applied for a special use permit. Upon review of the application, city staff recommended that the Zoning Commission deny the special use permit because  “the property was ‘the last large “C” district parcel left in Burbank for development’ and felt ‘it is not in the best interest of the community due to the loss of the historic use and tax monies.’”

On November 12, 2010, the Church submitted a letter to the Zoning Commission through its attorneys explaining that the zoning ordinance violated RLUIPA’s equal terms provision and the equal protection clause of the Fourteenth Amendment because it required a special use permit for churches but allowed other assembly uses as of right in the commercial district. Around the same time, the City proposed an amendment to the ordinance limiting both by-right and special uses in the commercial district to “commercial retail stores, service establishments, and professional offices that generate tax revenues, maintain the City’s tax base, and allow for convenient locations for the public to shop, obtain services and conduct business”, thus making the intended church use a prohibited use. Churches and other places of worship remained allowed uses, either by right or special use permit, in all residential zones. The City Council voted to approve the zoning amendment on December 15th. At a January 26th meeting, the City Council unanimously voted to deny the Church’s special use permit on the grounds that the amended ordinance did not allow the use in the commercial district.

The City sought summary judgment on the Church’s RLUIPA substantial burden and equal terms claims, equal protection claim, and the free exercise claim. The Church sought a ruling on its RLUIPA equal terms claim, based on the pre-amendment ordinance. The Court dismissed the substantial burden and free exercise claims, finding that the Church experienced the inconvenience typical of a discretionary zoning process. Because the Church had no reasonable expectation of using the property for religious purposes, any delay or expense did not constitute a substantial burden. However, the court did find merit in the Church’s equal terms claim because the pre-amendment ordinance  allowed non-religious assembly uses by right in the commercial district while requiring a special use permit for churches; without providing a legitimate reason to support treating these uses differently. The Court held that the Church was entitled to damages because if it had not been for inequities between religious and non-religious assembly uses in the prior ordinance, the Church would have been able to operate without conditions. A jury trial was scheduled to assess the amount recoverable for the equal terms violation and to hear the Church’s equal protection cause of action, which the Court found was inadequately briefed on summary judgement. A settlement conference however, is set for May 4, 2017.

The Court’s decision in Christian Assembly Rios de Agua v. City of Burbank, IL is available here.

Original photo by Zol87, some rights reserved.

Jewish School’s RLUIPA Claims Are Ripe For Adjudication

A federal court in the District of New Jersey has determined that claims asserted by the Congregation Kollel, Inc. (“Congregation”) against the Township of Howell, New Jersey (“Township”), based on the allegedly improper denial of a land use permit to build a Jewish educational facility, are ripe for review.

The Congregation’s Proposed Plans

The Congregation has owned and operated a higher Talmudic academy for the training of rabbinical judges in Lakewood, New Jersey since 2005. In 2014, the Congregation decided to expand its educational facilities to include a mesivta, a religious educational facility that emphasizes Talmudic studies for students that are of post-bar mitzvah age, and a yeshiva gedola, a religious educational facility for Talmudic studies for undergraduate-level students. The Congregation’s plan envisions hiring ten to thirteen faculty members and enrolling up to 90 students at its yeshiva gedola. The students would live in on-site dormitories, and seven attached townhouses would be built for faculty housing. One classroom building, which would operate seven days a week, would also be constructed. The Congregation has not proposed to build a separate synagogue or to advertise religious services.

Upon recognition that its Lakewood facility had reached capacity, the Congregation sought alternative locations for its mesivta and yeshiva gedola. In Spring 2015, the named plaintiffs purchased a 10.1 acre property in the Township (“Property”), situated in the Township’s “ARE-2” zoning district. The Township’s Zoning Code (“Zoning Code”) permits certain uses as of right in the ARE-2 zone, including single-family residences, group homes, public recreation, municipal buildings, and educational facilities. The Zoning Code does not define an “educational facility,” a term which was added to the Zoning Code in 2007 pursuant to 2006 updates to the Township’s Master Plan. According to the Congregation, these updates reflected an effort by the Township to secure grants from the state for “educational facilities.” A New Jersey statute defines the term as: “a structure suitable for use as a dormitory, dining hall, student union, administration building, academic building… and other structures or facilities related thereto or required or useful for the instruction of students… but shall not include any facility used or to be used for sectarian instruction or as a place for religious worship.” N.J.S.A. § 18A:72A-3.

The Congregation’s Application

On August 19, 2015, the Congregation filed an application and concept plan with the Township, “seeking confirmation that [its] proposed educational facility is a permitted use within the ARE-2 zone.” Less than two weeks later, the Township’s Director of Land Use denied the application. He explained that while the non-residential component of the plan is permitted, the residential components are not and, moreover, that only one principal structure is permitted on a given lot. The Director instructed the Congregation to apply for a variance with the Township’s Board of Adjustment (“Board”).

The Congregation timely appealed the Director’s decision to the Board, asserting that “student and faculty housing is part of the principal educational facility use of the property” and, alternatively, “that these uses are permitted accessory uses of the property, and that the four structures proposed on the property constitute a permitted institutional building complex.” The Congregation also applied for a variance, as an additional alternative ground for relief.

The Board held two public hearings on the application: one on December 21, 2015 and one on February 29, 2016. The Board unanimously voted to uphold the Director’s decision on March 28, 2016, reasoning that while the State’s definition of “educational facility” may broadly permit dormitories and other structures related to the operation of such facilities, it specifically excludes “any facility” used for religious instruction or worship. Furthermore, the Board found that the dormitories and faculty housing are not properly categorized as customary and incidental to an educational facility, calling it a “matter of semantics in referring to the project as an educational facility.”

An amendment removing the term “educational facilities” from the list of permitted uses within the ARE-2 Zone was adopted on January 25, 2016.

The Lawsuit

On May 2, 2016, the Congregation filed an eleven-count complaint with the District of New Jersey, alleging RLUIPA violations (substantial burden, nondiscrimination, equal terms, and exclusion and limits provisions), as well as violations of the First and Fourteenth Amendments, the Fair Housing Act, the New Jersey Law Against Discrimination, and the New Jersey Constitution. Additionally, the Congregation sought an action in lieu of prerogative writ under New Jersey Municipal Land Use Law.

On July 6, 2016, the Township moved to dismiss the Congregation’s complaint for lack of ripeness. The Township argued that each of the Congregation’s federal claims is based on a Board decision that cannot be construed as final given that the Board has not yet rendered a decision on the Congregation’s variance application.

Ripeness Review

As an instant matter, the Court determined that the Congregation’s facial challenge to the Township’s land use regulations was not sufficiently alleged. It therefore primarily analyzed the ripeness of the Congregation’s claims under the framework of an “as-applied” challenge.

In reviewing the Congregation’s RLUIPA claims, the federal district court applied the “relaxed” ripeness test set forth by the Second Circuit in Murphy v. New Milford Zoning Commission, and implicitly adopted by the Third Circuit in Congregation Anshei Roosevelt v. Planning & Zoning Board. Namely, the Court utilized a two-step test to determine whether the Township’s land use decision could be construed as final, asking: “(1) whether an immediate injury had been sustained; and (2) whether further development of the factual record would result in improvements in the administration of justice.”

The Court answered the first question in the affirmative, finding that, if the Congregation’s allegations are true, the Township was “motivated by a religious animus to deprive [the Congregation] of [its] right to free exercise of religion by imposing land use regulations that violate multiple sections of RLUIPA,” and such allegedly discriminatory conduct has prevented the Congregation from erecting a yeshiva gedola and mesivta on the Property, creating an “immediate and tangible injury.”

As to the second question, the Court answered in the negative, finding that the Board had already made a final determination regarding the Congregation’s proposed use: it is not permitted as an educational facility. Further, the Court determined that the variance process would not develop any additional factual record on such an already-decided issue. As a result, the Congregation’s RLUIPA claims stand ripe for review.

With respect to the Congregation’s other claims (with the exception of the prerogative writ claim), the Court likewise determined that the Congregation need not apply for a variance in order to seek judicial review. The full text of the opinion is available here.

Original photography by Gerard Montigny, some rights reserved.

Upcoming Webcast – Drone Technology: Implications on Policymaking and Design of the Built Environment

The Planning & Law Division of the American Planning Association is hosting a webcast about regulating drone technology through zoning – on Mach 13 at 12:30 to 2:00 PM (EDT).  RLUIPA Defense’s own Dwight Merriam, FAICP will be participating in the program.  Here is a description of the webinar:

The educational objective of this course is to discuss the implications of emerging drone technology on city and town planning. Featuring specialists in the fields of law, urban design, and policymaking, this webinar will examine federal and local legislation pertaining to unmanned aerial vehicles (UAVs). Drone operations raise several concerns for the public given their wide range of recreational and commercial current uses. We will discuss regulations pertaining to these issues and explore how future zoning regulations can best guide the use of drones in our built environment.

Registration is available here.  CM and CLE credit will be available.

Church’s RLUIPA Claim Against an Illinois City is “Likely to Succeed”

The District Court for the Northern District of Illinois granted a preliminary injunction prohibiting the City of Markham from requiring the Original Bible Church of Illinois to obtain conditional use approval to use property it leases as a church.

The Original Bible Church (“Church”) leases property owned by its pastor in a “neighborhood shopping district” of the City of Markham (“City”). The City’s zoning code does not require Plan Commission approval for certain “permitted uses” in neighborhood shopping districts, such as grocery stores, restaurants, and theaters, but does require such approval for “conditional uses,” such as churches.

The Church brought suit against the City, alleging that this zoning scheme violates RLUIPA’s equal terms, unreasonable limitation, and substantial burden provisions, as well as the Illinois Religious Freedom Restoration Act and the First Amendment Free Exercise Clause. The Church’s complaint sought declaratory, compensatory, and injunctive relief, but the Court limited its decision to the Church’s request for a preliminary injunction (see Preliminary Injunction Order).

Preliminary injunctions, under federal law, may only be granted upon a showing that the moving party is likely to succeed on the merits, has no adequate legal remedy, and will suffer irreparable harm if the injunction is not granted. In assessing whether the injunction was proper as against the City, the Court explained:

The church has a likelihood of success on its RLUIPA equal-terms claim because, by subjecting the church to prior approval on its location and development when the city does not impose such a requirement on a theater in the very same district, the city has imposed a requirement that treats religious assembly on less than equal terms with nonreligious assembly.

Furthermore, the Court determined that, in the absence of an injunction, the Church and its congregation would suffer uncertainty and anxiety over whether it will ever find a home. This anxiety “touches on an intangible right that cannot be compensated with money.” The Court’s brief opinion assumes, with no analysis, that a theater is an adequate secular “comparator” for the purpose of the Church’s RLUIPA equal terms claim. The lack of analysis is rather surprising, given that the Seventh Circuit has adopted an “accepted zoning criteria” RLUIPA equal terms test, whereby a court must examine the text of the zoning regulations themselves in order to determine the regulatory purpose of a given zoning district and whether distinctions made between uses furthers such purpose. (See River of Life Kingdom Ministries v. Vill. of Hazel Crest, Ill., 611 F.3d 367 (7th Cir. 2010) (en banc)).

Interestingly, this is the second time in two years that the City of Markham has been to court on alleged RLUIPA violations (see our discussion of Church of Our Lord Savior and Jesus Christ v. City of Markham, available here). In 2015, the District Court for the Northern District of Illinois considered and declined to dismiss claims brought by the Church of Our Lord Savior and Jesus Christ against the City under RLUIPA’s substantial burden provision (see Memorandum Opinion and Order). These claims arose from the City’s denial of a conditional use permit for the Church of Our Lord Savior and Jesus Christ to operate on its property in a one-family residential district. Upon review, the Court noted that the specific facts surrounding the City’s denial remain unclear, and the City’s only proffered explanation, that the property did not provided enough parking, could not properly be considered on a motion to dismiss.

More recently, after reviewing the parties’ summary judgment motions and supplemental briefs, the Court entered an order striking each motion pending submission and review of the Church of Our Lord Savior and Jesus Christ’s application for a variance regarding the amount of parking required (see Order, dated Aug. 4, 2016).

Original photography by Anthony Austonsome rights reserved.

RLUIPA Implications of Trump’s Immigration Executive Order

Earlier this month, the U.S. Court of Appeals for the Ninth Circuit upheld a district court’s issuance of a temporary restraining order prohibiting the enforcement of Executive Order 13769 – “Protecting The Nation From Foreign Terrorist Entry Into The United States” – and denying the federal government’s emergency motion for a stay to allow enforcement of the Executive Order pending appeal.  The Executive Order bans individuals from seven countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen) from entering the United States.  According to the Ninth Circuit, in State of Washington v. Donald J. Trump, the temporary restraining order was warranted as the States of Washington and Minnesota were likely to succeed on the merits of their claim that the Executive Order violates the Due Process Clause of the U.S. Constitution: “The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.”  The Ninth Circuit also noted that the States’ claims that the Order violates the Establishment and Equal Protection Clauses by disfavoring Muslims “raise serious allegations and present significant constitutional questions.”  In other words, the Ninth Circuit did not reach the merits of these two claims, but stated that it was possible the Executive Order is also unconstitutional because it discriminates against Muslims.

Last week, a federal court in Virginia addressed the religious discrimination issue and found that the Executive Order likely violates the Establishment Clause.  In Aziz v. Donald Trump, the Eastern District of Virginia relied on statements by Donald Trump before and during his presidential campaign and others to find that the Executive Order was meant to be a “Muslim ban,” including the following:

  • “On December 7, 2015, then-candidate Trump issued a press release[] titled ‘Donald J. Trump’s Statement on Preventing Muslim Immigration,’” in which he called “for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.”
  • A 2011 interview with Fox News’s Bill O’Reilly in which the following exchange occurred:

O’Reilly: Is there a Muslim problem in the world?

Trump:  Absolutely.  Absolutely.  I don’t notice Swedish people knocking down the World Trade Center.

O’Reilly: But you do believe overall there is a Muslim problem in the world.

Trump:  Well, there is a Muslim problem.  Absolutely.  You just have to turn on your television set.

O’Reilly: And do you think it encompasses all Muslims?

Trump:  No.  And that’s the sad part about life.  Because you have fabulous Muslims.  I know many Muslims and they’re fabulous people.  They’re smart.  They’re industrious.  They’re great.  Unfortunately, at this moment in time, there is a Muslim problem in the world.  And by the way, and you know it and I [sic] and I know it and some people don’t like saying it because they think it’s not politically correct.

  • A July 17, 2016 interview with Lesley Stahl in which Trump confirmed that Muslims would be banned and said – “call it whatever you want. We’ll call it territories, OK?”
  • A January 29, 2017 Fox News interview with former Mayor of New York City Rudolph Giulianni, in which Mr. Giulianni stated: “I’ll tell you the whole history of it….  So when [Trump] first announced it, he said ‘Muslim ban.”  He called me up.  He said, ‘Put a commission together.  Show me the right way to do it legally.’  And what we did was, we focused on, instead of religion, danger – the areas of the world that create danger for us.”

The District Court rejected the federal government’s arguments that it should limit its review to the text of the Executive Order and should not look at any statements made prior to the date Trump took office.  The Court concluded that “The Commonwealth has produced unrebutted evidence that it is likely to succeed on an Establishment Clause claim.  The ‘Muslim ban’ was a centerpiece of the president’s campaign for months….”

While these are only rulings on preliminary injunctions, with the cases still set to proceed, they are noteworthy because they have the potential to affect RLUIPA decisions for years to come.  Although the Supreme Court has never considered the merits of a RLUIPA land use case, it has considered non-land uses cases brought under the Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment.  These cases are frequently cited by courts across the country evaluating RLUIPA’s land use provisions.  Examples include Burwell v. Hobby Lobby Stores, Inc., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, and Employment Division v. Smith.  The plaintiffs in Aziz and State of Washington also allege violations of RFRA – the subject of the decision in Hobby Lobby.  There are several other decisions across the country challenging the Executive Order on religious discrimination grounds, begging the question if the Supreme Court will someday be asked to consider the issue.  And new lawsuits may soon follow, as reports suggest that a new immigration ban is already in the works and soon to be released.

Another issue is how active the Department of Justice (DOJ) will be in investigating and prosecuting RLUIPA violations under the new administration.  The RLUIPA statute authorizes the DOJ to sue municipalities that it believes have violated the statute.  This past July, the DOJ issued a report  noting that since 2010, it has opened 45 land use investigations, filed 8 lawsuits involving land use, and filed 8 amicus (friend of the court) briefs in privately filed RLUIPA land use cases.  The percentage of DOJ investigations involving mosques or Islamic schools has risen from 15% in the 2000 to August 2010 period to 38% during the September 2010 to present period.  DOJ activity with respect to RLUIPA land use matters remains to be seen, especially in light of the controversy surrounding President Trump’s leaked religious freedom bill, which has been described by one report as legalizing religious discrimination (full text of draft bill in linked article).

Upcoming Webinar: RLUIPA Land Use Claims — Latest Litigation Trends and Key Case Law Developments

Please join members of our RLUIPA Defense Team for a February 22, 2017 webinar. 

In the 2015 case Holt v. Hobbs, the Supreme Court addressed for the first time the application of RLUIPA in a prison context, holding that a state prison system may not impose a beard-length requirement on a Muslim inmate.

Not understated is the impact of the Supreme Court’s Burwell v. Hobby Lobby ruling under RFRA on RLUIPA litigation and potential claims by for-profit corporations against zoning decisions that burden their owner’s religious exercise.

Our panel will offer practical guidance for counsel advising local governments on ways to avoid RLUIPA claims. The program will discuss recent trends in RLUIPA claims and litigation, including recent Supreme Court cases and many Circuit Court cases under and impacting RLUIPA. The program will look at various approaches to defend against RLUIPA suits once a claim has been filed.

We will review these and other key issues:

  • What types of claims are being raised in RLUIPA litigation and how have the courts responded?
  • What steps can local governments take to avoid RLUIPA challenges?
  • What strategies have been effective for municipalities in defending RLUIPA claims?

After our presentations, we will engage in a live question and answer session with participants so we can answer your questions about these important issues directly.

WHEN

Wednesday
February 22
1:00–2:30 p.m. EST

REGISTRATION INFORMATION

For more information or to register, click here,

Or call 1-800-926-7926 ext. 10. Ask for RLUIPA Land Use Discrimination Claims on 2/22/2017.

Mention code: ZDFCT

Signs 4 JC Shown the Light by NH District Court

Thou shall have the right to an electronic sign?  Apparently not.  Just over a year ago, Hillside Baptist Church and Signs for Jesus (together, Plaintiffs or Church) filed a complaint in the District Court for New Hampshire, seeking a declaration that the Town of Pembroke’s (the Town) sign ordinance is unconstitutional both facially and as applied to the Plaintiffs.  The complaint alleged that the Town’s Ordinance banning the use of electronic signs in all but the Town’s commercial zoning district “restricts how the Church may proclaim a daily Biblical message while not restricting the medium of communicating state, municipal or school messages.”  Our post regarding the complaint is available here.

The Plaintiffs claimed that the Town’s limitation on electronic signs in all zones but the commercial zone, and the Town’s denial of the Church’s sign application violated its rights to Free Speech, Free Exercise of Religion, and Equal Protection, as well as RLUIPA’s substantial burden and equal terms provisions.

Standing: As a threshold issue, the Court considered whether the Plaintiffs had standing to challenge provisions of the Town’s sign ordinance that did not have bearing on whether the Church was allowed to install an electronic sign on its property.  Although some provisions of the sign ordinance arguably made content-based restrictions, subject to a more rigorous standard of judicial review as stated in Reed v. Gilbert, the Court concluded that code provisions “not fairly traceable” to Plaintiffs’ injuries were not subject to challenge. For those provisions of the sign code that were fairly traceable to the alleged injuries, the Plaintiffs had standing.

Content Neutral: Next, in considering the  Church’s Free Speech claim, the Court evaluated whether the sign ordinance as applied to the Church is a content-based regulation. While content-based regulations must further a compelling government interest and be narrowly tailored to further such interest, content-neutral regulation of speech need only pass an “intermediate” level of scrutiny. The Court rejected the Plaintiffs’ argument that the sign ordinance made impermissible speaker-based distinctions because grandfathered uses (including a gas station electronic sign approved before the e-sign ban was passed) were favored over the Church.  In considering the grandfathered gas station, it noted that New Hampshire state law “broadly exempts all preexisting nonconforming uses of property from local zoning requirements.” The Court also found it irrelevant that government land users are not subject to the electronic sign ordinance.  Significantly, all government land uses are exempt from local zoning ordinances pursuant to state law.  Therefore, the publicly-funded Pembroke Academy’s electronic sign – which the Plaintiffs contended received preferential treatment, since the Academy was permitted an electronic sign while they were not –  did not influence the court’s analysis.

Aesthetic and Traffic Safety: Finding the electronic sign ordinance content neutral, the court next concluded that its provisions were narrowly tailored to the “significant governmental interest[s]” of aesthetics and traffic safety and did not violate Free Speech. Given that there was no evidence of “ulterior purpose” in the Town’s application of the ordinance, a stricter level of judicial review was not required. Additionally, the sign ordinance left ample alternative channels of communication for the Church to convey its message.  Indeed, the Church could continue to use its manually changeable sign to convey its message.

Additional Counts: The Church’s Free Exercise claim was dismissed in short order, given that the electronic sign ordinance was found content neutral and generally applicable (see Employment Division v. Smith,).  Next the Church’s Equal Protection claim was dismissed because neither of the comparators put forward by Plaintiffs (the preexisting gas station and the public Pembroke Academy) were similarly situated to the Church. Since the Town had no authority to regulate the Academy, a subdivision of the state, it was not comparable.  Likewise, state law prohibits the regulation of preexisiting nonconforming uses like the gas station.

Relying on the First Circuit calculus articulated in  Roman Catholic Bishop of Springfield v. City of Springfield (post here), the court dismissed the Church’s substantial burden claim, finding the electronic sign denial was not “oppressive” or “worrisome.”  The Church could still maintain its manually changeable sign, and it “is not entitled to the most efficient or inexpensive means of communicating its message.” Given the lack of sufficiently similar comparators treated more favorably than the Church, the court also dismissed the RLUIPA equal terms claim.

Two Important Points: (1) In its substantial burden analysis, the court notes that the Town acted in a “well-considered and straightforward manner.”  Its decision was not made arbitrarily, and “Board members educated themselves on the issues of federal law before reaching a final decision on the Church’s requests.”  The take away? RLUIPA training is important, as it will educate officials to best avoid – or at least mitigate the threat of – possible RLUIPA liability, and (2) At least one federal court has reached nearly the opposite conclusion.  Before denying the next electronic, religious sign that comes before you, read our post regarding Corporation of the Catholic Archbishop of Seattle v. City of Seattle, No. C13-1589 (W.D. Wa. 2014), here.

The District Court of New Hampshire’s decision in Signs for Jesus and Hillside Baptist Church v. Town of Pembroke and Hodge, is available here.

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