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Divided Sixth Circuit Panel Reverses Summary Judgment to City in RLUIPA Case

Tree of Life Christian Schools v. City of Upper Arlington, 2016 WL 2897658 (6th Cir.) involved Defendant’s denial of a rezoning to accommodate a religious school based on a master plan policy to maximize income tax revenues from commercial uses. Plaintiff claimed a violation of the “equal terms” provisions of RLUIPA by which religious assemblies or institutions may not be treated on less than equal terms compared to non-religious counterparts. The Sixth Circuit concluded this question to be factual, rather than legal. 

The subject site had been vacated by AOL/Time Warner in a city that had been largely residential and required that its zoning classifications generally conform to its master plan. The master plan required the use of its non-residential lands in such a way as to maximize tax revenues and both the planning director and city attorney opined that approval of Plaintiff’s application would violate the plan.

The court began its review with a discussion of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and its predecessor, the Religious Freedom Restoration Act (RFRA). As to the interpretation of the “equal terms” provisions of RLUIPA, the court found the various circuits differ, but the Sixth Circuit concluded that allowing some for-profit assembly or institutional uses on the site gave rise to a conclusion that the failure to allow the proposed school and other facilities treats those religious uses less favorably than those uses allowed by the current commercial zoning. The trial court had assumed otherwise for purposes of summary judgment and thus erred, in the view of the Sixth Circuit. On remand, the trial court must determine whether there are nonreligious assemblies or institutions to which the court should compare to Plaintiff’s proposed use because they would fail to maximize income tax revenue and, if so, would these uses be treated equally to that of Plaintiff’s proposal.

However, the court found no claims based on equal protection and free exercise because the zoning ordinance would survive rational basis review and in the enhanced protection for religious uses provided under RLUIPA. However, there were sufficient grounds to find an equal terms violation, so the case was remanded to deny the City’s motion for summary judgment and additional proceedings.

Judge White dissented in part, agreeing with the disposition of the equal protection and free exercise claims, but not on the equal terms claim, finding that Plaintiff did not present sufficient comparators allowed under the current zoning that were treated more favorably than Plaintiff’s proposed uses. Defendant city is 99% developed and its commercial districts comprise 4.7% of its land. The proposed zoning is for a district that allows churches as conditional uses, but not schools. The City’s master plan has a policy that encourages revenue-generating uses to make up for the remaining residential uses that do not pay for themselves in taxes. Plaintiff failed to get its zone change and in its efforts to change the ordinance text to allow schools in its desired zone. It then closed on the property and made other efforts to secure its use. In the meantime, income tax revenues fell from over $3 million in 2001 to about $20,000 in 2009, though property tax revenue increased from almost $585,000 to over $646,000 in 2009, but income tax revenues fell by 90% between 2006 and 2010.

Judge White would require a religious assembly or institution to show that it is treated on less than equal terms by a land use regulation than a nonreligious assembly or institution. But the burden of identifying a similarly situated secular nonreligious assembly or institution comparator that has received more favorable land use treatment rests on the plaintiff. Neither party introduced facts, but merely asserted that Plaintiff was, or was not, treated differently by virtue of targeting religion through a “religious gerrymander” or discrimination in the application of the ordinance. If Plaintiff’s comparators were used, they are unavailing:

  1. Daycare centers allowed under the current zoning are ancillary to the allowed offices and commercial uses, practically unlikely and not comparators to a 600 K-12 school.
  2. While some hospitals are nonprofit, they do contribute to income tax revenues, which are the largest source of city funds, and employ much higher income personnel.
  3. Charitable offices generate no property taxes and may not generate much income taxes but the density of office uses and salaries are still more comparable to permitted uses than a K-12 school.

The dissent concluded that plaintiff demanded special, rather than equal treatment and that Plaintiff failed to bear its burden of showing an adequate secular comparator that is similarly situated with regard to the zoning criteria.

The dissent in this case seems to make more sense because it would impose a burden on plaintiffs to make its claim. Having the trial judge make a determination that a religious use is treated on less than equal terms does not appear to apportion the burden of persuasion appropriately. It will take the Supreme Court to resolve this conflict among the circuits.

Tree of Life Christian Schools v. City of Upper Arlington, 2016 WL 2897658 (6th Cir.)

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