SCOTUS Decides Regulatory Takings Case

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.”

Wisconsin Patterns, original work by Šarūnas Burdulis, some rights reserved.

New Substantial Burden Framework in the Sixth Circuit; Court Upholds RLUIPA Verdict in Favor of Michigan Township

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.

Original image by Kco Bort, some rights reserved.

Church Wins Free Speech Claim Over Zoning Ordinance and $1,354,595 in Damages

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.



Pictured above is a “tiny house.”

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.

Original photo by Carea Cindysome rights reserved.

City of Bayonne, New Jersey Sued Over Denial of Application to Build a Mosque

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.

Fourth Circuit Rules Second Immigration Ban Likely Violates Establishment Clause

The United States Court of Appeals for the Fourth Circuit in a 10-3 decision has affirmed a lower court’s granting of a preliminary injunction against one provision of President Trump’s second immigration ban on the ground that it is motivated by anti-Muslim animus.  Earlier this year, we posted about the Ninth Circuit’s decision finding that President Trump’s first immigration ban likely violated the Due Process Clause of the U.S. Constitution, and that it could also potentially violate the First Amendment’s Establishment Clause.  Now, the Fourth Circuit has concluded that the immigration ban likely violates the Establishment Clause because it discriminates against Muslims.  The violation was “likely” rather that definite, because one element of a preliminary injunction analysis is “likelihood of success on the merits.”

Although the text of the ban is neutral, the court found that its context shows otherwise.  It based its decision on President Trump’s statements made in interviews, on social media, and by his advisors and appointees (Rudolph Giuliani, Sean Spicer, Jefferson Sessions, and Rex Tillerson) – both during his presidential campaign and during his presidency.  According to the Fourth Circuit, this evidence reveals that while the text of the second ban “speaks with vague words of national security … in context [it] drips with religious intolerance, animus, and discrimination.”

The second ban followed the Ninth Circuit’s decision and again declares that “unrestricted entry” of nationals from certain Muslim-majority countries “would be detrimental to the interests of the United States” based on alleged terror threats.  The first ban applied to seven countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen), but the second ban eliminates Iraq from the list.  The second ban retains some but not all of the first ban’s provisions – including decreasing the number of refugee admissions for 2017 and suspending for 120 days the United States Refugee Admissions Program.  At issue before the Fourth Circuit was one specific provision of the second immigration ban which imposes a 90 day suspension of entry for nationals from the six countries.

The Fourth Circuit observed that although there is generally a “narrow standard of [judicial] review of decisions made by Congress or the President in the area of immigration and naturalization,” deference is unwarranted where the decision is motivated by bad faith.  According to the court, there is sufficient evidence to suggest that the purpose of the second immigration ban is to target Muslims rather than to protect national security interests:

Plaintiffs point to ample evidence that national security is not the true reason for EO-2, including, among other things, then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting “territories” instead of Muslims directly; the issuance of EO-1, which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor’s statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which President Trump and his advisors described as having the same policy goals as EO-1.

In addition, the court noted that “on December 7, 2015, Trump posted on his campaign website a ‘Statement on Preventing Muslim Immigration,’ in which he ‘call[ed] for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on’ and remarked, ‘[I]t is obvious to anybody that the hatred is beyond comprehension … [O]ur country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.”  The court also noted that on March 9, 2016, Trump stated in an interview that “Islam hates us,” and that “[w]e can’t allow people coming into this country who have this hatred.”

This evidence caused the Fourth Circuit to affirm the lower court’s decision to grant a preliminary injunction based on the likelihood that the second immigration ban violates the first prong of the Establishment Clause test set forth in Lemon v. Kurtzman (whether the government action has a secular purpose).

The Fourth Circuit’s 205-page decision in International Refugee Assistance Project v. Donald J. Trump is available here.

New Jersey Township’s Recently Enacted Ordinances Alleged to Violate RLUIPA

Earlier this month, Agudath Israel of America Inc. (“Agudath Israel”) sued the Township of Jackson, New Jersey (“Jackson”), challenging Jackson’s recently-enacted land use ordinances restricting schools from all but three zoning districts and prohibiting dormitories.

Agudath Israel’s Complaint, available here, alleges that Jackson’s enactment of these ordinances violates RLUIPA’s non-discrimination, equal terms, and exclusions and limits provisions, as well as the First Amendment’s Free Exercise and Establishment Clauses, the Fourteenth Amendment’s Equal Protection Clause, freedom of association, the Fair Housing Amendments Act, and New Jersey state law.

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


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.


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.