New York Post reports that a New York state trial court judge tossed a discrimination lawsuit brought by Greg Piatek, a President Trump supporter, against a West Village bar.  According to the article, Piatek was told to leave the bar because he was wearing a “Make America Great Again” hat shortly after Trump took office.  According to Piatek, he was told: “Anyone who supports Trump – or believes in what you believe – is not welcome here!  And you need to leave right now because we won’t serve you!”  Piatek sued in Manhattan Supreme Court, alleging that being kicked out of the bar “offended his sense of being American.”  Piatek claimed that by wearing the hat he was paying spiritual tribute to the victims of 9/11, and that wearing the hat was part of his spiritual belief.  When asked by the judge how bar employees were supposed to know of Piatek’s unusual religious beliefs, Piatek’s lawyer responded: “They were aware he was wearing the hat.”  When pressed by the judge as to the number of members in the spiritual program, Piatek conceded that it is a creed of one.  The Court ruled that supporting President Trump is not a religion, and dismissed the lawsuit: “Plaintiff does not state any faith-based principle to which the hat relates.”

Original photograph by nevermindtheend, some rights reserved.

A federal court in Nevada has ruled that the denial of a church’s special use permit application to develop property with a house of worship did not violate RLUIPA’s substantial burden provision, the Equal Protection Clause, the Due Process Clause, or state law.  Significantly, this case demonstrates the bedrock principle that land use agencies may deny zoning applications for religious use for legitimate zoning concerns.  In this case, the land use agency deemed the site in question inappropriate for a house of worship because it was adjacent to a dangerous intersection with existing traffic problems and would be incompatible with the quiet neighborhood. Continue Reading Federal Court Rejects Church’s Religious Land Use Claims Based on Government’s Legitimate Zoning Concerns

A district court in the Southern District of Florida has dismissed as unripe claims brought by Centro de Ensenanza Palabra de Fe, Inc. (“Centro”), a tax-exempt religious organization that operates a daycare center and elementary school in addition to offering religious services, against the City of Hialeah, Florida (“City”).  Centro alleged that the City had violated its federal constitutional and statutory rights by requiring it to obtain a conditional use permit to continue operating the elementary school, even though the zoning code did not require that Centro obtain a CUP when it first opened. Continue Reading Christian School’s Claims Dismissed as Unripe Under Midrash Sephardi

A federal court in Maryland has found that a rabbi was without standing to bring claims under RLUIPA’s nondiscrimination and equal terms provisions, since those claims can be brought only by an “assembly” or “institution.”  While the court dismissed these claims, identical claims brought by a Jewish congregation – an assembly or institution under RLUIPA – continued. Continue Reading Rabbi Lacks Standing for some RLUIPA Claims, Says Federal Court

A federal court in Maryland recently rejected a church’s RLUIPA and related constitutional claims, finding that the religious group’s claimed harm was self-created.  The case demonstrates the importance of due diligence efforts in connection with developing property in the context of a religious land use controversy.

The religious group, Jesus Christ is the Answer Ministries, Inc. (the “Church”), a nondenominational, multicultural Christian church, was established in Baltimore, Maryland in 1992 by Reverend Ware, a native of Kenya.  Within the first 10 years, the Church had no more than 10 members and regularly met at Reverend Ware’s home.  Over the next 10 years, the Church grew, and began to meet at an elementary school and hotel.  With membership on the rise, the Church searched for a new site to purchase and use as a house of worship.  In 2012, the Church believed it found a suitable property at 4512 Old Court Road in Baltimore, consisting of 1.2 acres and having a 2,900 square foot structure previously used as a home (the “Property”).  Without consulting the zoning code, the Church purchased the Property after being told by a realtor that a church use was permitted on the Property.

Still without checking the zoning code, the Church converted three rooms of the existing structure into a worship area, added two bathrooms, replaced the roof, and replaced a small deck.  The Church also created a new, gravel parking area at the rear of the structure and planted cypress trees to line the new parking area.  The Church held its first service, a cookout, and a party in October of 2012.

Local residents complained about the Church’s use of the Property.  In response, Baltimore County informed the Church that the Property had to comply with the zoning code before being used for religious worship.  While a church is a “permitted as of right” use in the subject zoning district (the Density Residential 3.5 zone), there are certain buffer, screening and setback requirements that the Church did not meet.  The Church filed a petition for a special hearing to allow its use of the Property and to vary certain parking requirements, but the Board of Appeals of Baltimore County (the “Board”) denied the petition because the Church’s site plan did not comply with the buffer and setback requirements and the use was “not compatible with the neighborhood.”  The Church sued in state court, but the Maryland Court of Special Appeals affirmed the Board’s decision.

While the Church’s lawsuit was pending, the Church submitted a second petition to use the Property.  The second petition came closer to complying with the buffer and setback requirements, but still fell short.  The Board denied the second petition without a hearing as being barred by the doctrine of res judicata.  The Church sued both the Board and Baltimore County in federal court, alleging that the defendants violated RLUIPA’s substantial burden and nondiscrimination provisions, along with the First and Fourteenth Amendments and state law.

The District of Maryland dismissed all of the Church’s claims.  First, it concluded that because the Church had no reasonable likelihood to develop the Property at the time of purchase, the RLUIPA and First Amendment substantial burden claims failed.  This was because “Plaintiffs’ failure to exercise due-diligence before acquiring and altering the Property, and subsequent proposal of a site plan that disregarded the zoning requirements, show that Plaintiffs did not have a reasonable expectation at the time Ware bought the Property that it could be used for the Church.”  Rather, the extent of Ware’s due diligence was a realtor stating that a church use was a permitted use on the Property.  As a result, the court determined that any “alleged burdens” were “self-imposed” by the Church.

The court also found that the Church’s nondiscrimination and equal protection claims failed because no facts had been alleged to support an inference that the Board had intentionally discriminated.  Further, the zoning code provisions at issue were facially neutral in that they applied to all permitted uses in the subject zone, and Plaintiffs did not identify any similarly situated churches that had been treated better.

The court’s decision in Jesus Christ is the Answer Ministries, Inc. v. Baltimore County, Docket No. RDB-17-3010 (D. MD. 2018) is available here.

A Federal Magistrate Judge for the United States District Court of Oregon recently issued findings and recommendations in Chief Wilder Slockish, et al. v. U.S. Federal Highway Administration, et al., concluding that federal highway construction work did not impose a substantial burden on plaintiffs’ religious exercise. Plaintiffs, including members of the Confederated Tribes of the Yakama Nation, alleged that defendants substantially burdened “their right to exercise religion by ‘damaging and destroying a historic campground and burial grounds through tree cutting and removal, grading, and ultimately burying the campground and burial grounds,’ and ‘by blocking off access to these by installation of a new guardrail.’”  Specifically, the plaintiffs objected to the Wildwood-Wemme highway widening project on U.S. Highway 26, in an area traditionally known to plaintiffs’ tribes as Ana Kwna Nchi nchi Patat (the “Place of Big Big Trees”) near Mount Hood. Plaintiffs’ allegations are further detailed in their complaint.

The Court concluded that plaintiffs’ RFRA substantial burden claim was foreclosed by the Ninth Circuit’s decision in Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058 (9th Cir. 2008).  In Navajo Nation, the Ninth Circuit noted that RFRA was passed in order to restore the free exercise “compelling interest” test of pre-Employment Division v. Smith cases, wherein a substantial burden was evident when a plaintiff was forced to choose between following the precepts of her religion and forfeiting a governmental benefit (Sherbert v. Verner), or violating state law and following religious convictions (Wisconsin v. Yoder).  In Navajo Nation, plaintiffs contended that the use of wastewater to produce artificial snow on a scared mountain substantially burdened their religious exercise. The Ninth Circuit rejected this claim and held that

a government action that decreases the spirituality, the fervor, or the satisfaction with which a believer practices his religion is not what Congress has labeled a ‘substantial burden’—a term of art chosen by Congress to be defined by reference to Supreme Court precedent—on the free exercise of religion…. Where …. there is no showing the government has coerced the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, or conditioned a governmental benefit upon conduct that would violate the Plaintiffs’ religious beliefs, there is no ‘substantial burden’ on the exercise of their religion… The presence of recycled wastewater on the Peaks does not coerce the Plaintiffs to act contrary to their religious beliefs under the threat of sanctions, nor does it condition a governmental benefit upon conduct that would violate their religious beliefs, as required to establish a ‘substantial burden’ on religious exercise under RFRA…

In light of this holding and its progeny, the Court concluded “that plaintiffs have failed to establish a prima facie case that their right to exercise religion has been substantially burdened.” Although na Kwna Nchi nchi Patat / Place of Big Big Trees is located on federal land, plaintiffs did not demonstrate that they are “being coerced to act contrary to their religious beliefs under the threat of sanctions or that a governmental benefit is being conditioned upon conduct that would violate their religious beliefs.”

Original photograph by Whatknot, some rights reserved.

 

Redemption Community Church (the “Church”) has filed a federal lawsuit against the city of Laurel, Maryland (the “City”), after the City issued a cease and desist order prohibiting the Church from offering religious services at the coffee shop it owns in the City’s community-village zoning district (the “CV Zone”).

According to the complaint, the Church purchased a 0.12 acre lot located at 385 Main Street in the City in March 2015 (the “Property”), with the intention of operating a non-profit coffee shop Monday through Saturday, and a house of worship on Sundays.  When the Church first entered into a purchase agreement for the Property, non-profit businesses and houses of worship were permitted uses in the CV Zone.  Less than a month after the Church entered the purchase agreement, however, the City amended its Code on March 9, 2015, to exclude non-profit businesses from the CV Zone, and again on April 27, 2015, to require a special exception for houses of worship located on less than one acre in the CV Zone.  Together, these amendments prohibited both of the Church’s originally intended uses for the Property.

In November 2015, the Church decided to reorganize as a for-profit entity, so that it could operate the coffee shop as originally intended.  It thereafter undertook extensive renovations, and the City issued it a use and occupancy permit to operate a for-profit coffee shop on April 3, 2017; the shop opened for business two days later.  Beginning on April 9, 2017, the Church began hosting worship gatherings of twenty or fewer people in the basement of the coffee shop for two hours on Sundays, while the shop was closed.

After some two months of these Sunday gatherings, the City issued a cease and desist order on July 27, 2017.  The Church, however, continued to hold small worship gatherings on Sundays, believing it was not in violation of the City code or its use and occupancy permit.  It was not until the City issued a second cease and desist order, on January 26, 2018, that the Church stopped holding Sunday worship gatherings.

In its Complaint, the Church alleges that the City’s April 2015 Code amendment (requiring houses of worship on less than one acre in the CV Zone to undergo “a costly and onerous special exception process”) discriminates against the Church on the basis of its religion, both on its face and as applied (nondiscrimination claim).  Moreover, the Church alleges this is unequal treatment to which secular assemblies and institutions, such as community theatres, health club or spas, libraries, museums, or schools for business, art or music, are not subject (equal terms claim).

The Complaint in Redemption Community Church v. City of Laurel (D. MD. 2018), available here, also asserts claims under RLUIPA’s substantial burden provision, the First Amendment’s Free Exercise, Free Speech, Free Assembly, and Establishment clauses, and the Fourteenth Amendment’s Equal Protection clause.

Original photography by Mark, some rights reserved.

The Satanic Temple and one of its members, Michelle Shortt, are suing the city of Scottsdale, Arizona and individual municipal officials in federal court, alleging that a Satanist was denied the opportunity to open a City Council meeting with prayer. The Temple and Ms. Shortt claim that by doing so, the defendants have violated the First Amendment’s Establishment Clause by permitting members of Judeo-Christian faith to give prayer, but preventing Satanists from doing so.  This is not the first time that The Satanic Temple has made news in Arizona, as the Temple locked horns with the cities of Scottsdale and Phoenix in 2016, with the latter temporarily banning its 65-year pre-meeting prayer policy rather than allow a Satanist to provide prayer (prior post here).

According to The Satanic Temple, its mission is “to encourage benevolence and empathy among all people. In addition, we embrace practical common sense and justice.  As an organized religion, we feel it is our function to actively provide outreach, to lead by example, and to participate in public affairs wheresoever the issues might benefit from rational, Satanic insights.  As Satanists, we all should be guided by our consciences to undertake noble pursuits guided by our individual wills.  We believe that this is the hope of all mankind and the highest aspiration of humanity.”

Ms. Shortt, a self-identified Satanist since age 14 and member of The Satanic Temple since its inception, and who holds an Associate’s of Applied Science degree in mortuary science and is self-employed as a model, requested permission to open a City Council meeting with prayer. The Satanic Temple and Ms. Shortt allege that the city initially approved Ms. Shortt’s request to give an invocation, but never provided her with the opportunity to do so.  Plaintiffs further allege that “[a] review of the invocations during 2008 through 2016 reveal that every invocation given was of the Judeo-Christian faith.”

According to the complaint, one defendant sent responses to constituents “stating that while she likes having the prayers, she does ‘NOT want the Satanists’ and considers allowing them to speak ‘taking equality too far.’” Another defendant allegedly made a public statement stating that she would leave the meeting if The Satanic Temple were allowed to give an invocation.  Finally, The Satanic Temple alleges that in an election pamphlet, “Mayor Lane listed that he ‘stopped so-called “Satanists” from mocking City Hall traditions with a ‘prayer.’”

The complaint in The Satanic Temple v. City of Scottsdale, Arizona is available here.

*Original photography by Ty Jamar, some rights reserved.

Registration is now open here for the 32d Annual Land Use Institute to be held April 19-20, 2018 in Detroit, Michigan.  This is the program, previously produced by ALI-ABA for many years, which is now produced by the American Bar Association’s Section of State and Local Government Law.  The web site includes the faculty list and agenda and registration links.

Planning Co-chairs Frank Schnidman and Dean Patricia Salkin have assembled faculty from across the country, including RLUIPA-Defense’s own Dwight Merriam.  The conference will cover just about any and every area of land use law of interest, including: Affordable Housing; Agricultural Land; Comprehensive Planning; Development Agreements; Eminent Domain; Environmental Justice; Exactions; First Amendment; Historic Preservation; Impact Fees; Moratoria; Non-Conforming Uses; Takings; Variances; Vested Rights and Wetlands.

A federal district court in Illinois has dismissed religious discrimination and related claims alleged by the Church of Our Lord & Savior Jesus Christ (“Church”) against the City of Markham, Illinois (“City”), in connection with the City’s denial of the Church’s application for a conditional use permit.  We previously posted about this case, Church of Our Lord & Savior Jesus Christ v. City of Markham, here and here.

The Church has been meeting at a residence previously owned by its pastor since 2003 (the “Property”).  In 2013, the Church applied to the City for zoning approval to operate the Property as a church in a residential zone.  During its review of the Church’s application, town officials questioned the sufficiency of parking at the site and ultimately denied the application after finding parking plans were inadequate.  After the City denied the Church’s application, the Church brought this suit.

In 2015, the Church’s nondiscrimination claims were dismissed for failing to allege facts to support the claim. However, the Court declined to dismiss claims brought by the Church under RLUIPA’s substantial burden provision, finding that these claims were adequately pled and the City’s reasons for denying the Church’s permit were not clear at the initial stage of the case. See Memorandum Opinion and Order, dated August 19, 2015.

In 2016, after reviewing the parties’ summary judgment motions and supplemental briefs, the Court struck without prejudice the dueling summary judgment motions, and ordered the Church to submit an application for a variance regarding the amount of parking required.  The Order did not opine as to whether the Church needed, or the City should approve, a parking variance, but nonetheless stayed the case until a decision on such application, allowing the parties to renew their summary judgment motions at a later date.  Accordingly, the Church submitted a variance application to the City, which was granted, in part, in March 2017.

Having concluded the variance application process, the parties renewed their motions for summary judgment, resulting in the instant decision.  See Church of Our Lord & Savior Jesus Christ v. City of Markham (N.D. Ill., Feb. 13, 2018).

After a lengthy discussion of the parties’ “inability to hone in on the relevant issues,” the Court determined that the Church’s substantial burden claim was not ripe at the time it was filed.  The Court found that the Church improperly chose to seek recourse through the court, rather than through the City’s administrative process, when there remained available to the Church administrative remedies that could grant the Church the relief it sought without the need for judicial intervention.  As for the Church’s “purported financial setbacks” or its members’ alleged “emotional harm” resulting from the Court’s delayed consideration of the merits of this case, the Court noted: “[T]hese injuries are of [the Church’s] own making given its failure to seek the variance earlier.”

Additionally, the Court explained that, because the Church has now received a variance, there is no present case or controversy, such that the Church’s substantial burden claim is moot.

Original photography by Anthony Auston, some rights reserved.