In Harbor Missionary Church Corp. v. City of San Bueanaventura, 642 Fed. App. 726 (9th Cir., 2016), plaintiff had a church ministry serving the homeless. Defendant told Plaintiff it needed a conditional use permit (CUP) and, when it applied for the same, denied it. Plaintiff then brought a suit under the Religious Land Use and Institutionalized Persons Act (RLUIPA), requesting a preliminary injunction to keep its ministry available pending appeal. The trial court denied the injunction, finding the church suffered no substantial burden under RLUIPA because it could move its ministry elsewhere and that the denial of the CUP was the least restrictive means of meeting the City’s concerns.
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.
Roman Catholic Diocese of Rockville Centre v. Incorporated Village of Old Westbury, 2015 WL 5178126 (EDNY) involved a lengthy battle over the siting of a religious cemetery in Defendant Village in the face of a newly adopted “Places of Worship” (POW) ordinance, challenged under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Civil Rights Act and the Equal Protection and Free Exercise clauses. In these proceedings Plaintiff moved for summary judgment, claiming the POW Ordinance was facially unconstitutional, while Defendants moved for summary judgment to dismiss all claims. Note, one claim not treated in this summary deals with New York’s State Environmental Quality Review Act (SEQRA), which involves New York statutory issues.
Hope Rising Community Church v. Municipality of Penn Hills, 2015 WL 7220380 (W. D. Pa.) involved a growing church congregation that leased an industrial building, making $7000 in improvements and gaining $10,000 in materials and labor donated by members. The pastor claimed that the staff gave him the verbal go-ahead, but the staff denied such a conversation. When the pastor applied for an occupancy permit, it was denied and the church was ordered to stop holding services at the site. Under defendant’s code, churches are only allowed as conditional uses in residential zones, and not permitted in the Light Industrial District where Plaintiff’s site lies. Uses not permitted outright or conditionally under the code are deemed prohibited. Defendant also denied Plaintiff’s use variance application, so the only uses recognized by Defendant are clothing distribution, food bank and volunteer meetings. The church alleges its membership attendance has dropped from 85 to from between 27 and 40.
Chabad Lubavitch of Litchfrield County, Inc. v. Litchfield Historic District Commission. United States Court of Appeals, Second Circuit, Case Nos. 12-1057-cv and 12-1495-cv, (September 19, 2014) involves the purchase of property in a historic district by plaintiff religious organization, led by plaintiff Rabbi Joseph Eisenbach in order alter the principal building and expand it for use in the religious mission of the organization. Defendant Historic District Commission (HDC) denied the application with leave to reapply. Plaintiffs, the religious organization and its Rabbi, contest the denial under the Religious Land Use and Institutionalized Persons Act (RLUIPA) and Connecticut statutory law, seeking an injunction and declaration, damages, attorney’s fees and the appointment of a federal monitor.
The trial court dismissed the claims of the Rabbi for lack of standing for want of a sufficient property interest and the failure to distinguish his claims from that of the religious organization. The trial court found that Connecticut’s historic district law was facially neutral and generally applicable and thus none of the plaintiffs as a matter of law could be subject to a “substantial burden” on their religious exercise. The trial court also denied plaintiffs’ discrimination claims for failure to identify a sufficient comparator against which to measure the discrimination alleged. Because Defendant asserted that RLUIPA was unconstitutional, the United States intervened to defend the constitutionality of the act; however, that defense was not raised on appeal.
The Second Circuit concluded that the trial court erred in dismissing the Rabbi’s claims on standing and remanded that case for a determination of the merits of certain of the claims while also affirming a dismissal of the remainder for his failure to brief them. As to the claims of all parties, the Second Circuit concluded that the proceeding before the Historic District Commission resulted in an “individual assessment” of plaintiffs’ land use which was subject to RLUIPA’s substantial burden provisions and that plaintiffs need not show an identical comparator under RLUIPA’s nondiscrimination provisions.
The facts showed that the religious organization spent great sums of money to rent space to fulfill weekly and other religious services to its members and had brought the Litchfrield property, which was located in a historic district and had significant historic components, and thus was subject to the Historic District Commission’s authority for any modification of structures. Plaintiffs’ proposed changes that were significant (a 17,000 sq. foot addition to the existing house, a 5,000 sq. foot residence for the Rabbi and his family, and a new clock tower with a Star of David on top). Defendant divided its review of the project into two pieces – one to deal with the modification of the historic structures and the other to determine whether any denial would place “substantial burden” on plaintiffs’ religious exercise. Plaintiffs continued to modify the proposed design and asserted its need for a larger structure but did not provide certain data, such as the size of its congregation or the number of students that would attend its religious classes. Defendant denied the application, but added that if certain changes were made, the application could be approved. Plaintiffs did not take any administrative appeal but rather filed this suit in Federal District Court.
As to the Rabbi’s standing, the court undertook a de novo review to determine whether the factual allegations of the complaint allows a court to draw a reasonable inference that defendants are liable for the alleged misconduct, drawing all inferences in favor of the non-moving party in reviewing the grant of summary judgment to Defendant.
Turning first to the substantial burden claim of the religious organization, the court looked to whether there were any individualized assessment in the evaluation of the proposed use of property under the town’s land use regulations. If a substantial burden be found, the public agency must show a compelling governmental interest applied in the least restrictive manner. The court noted that if there were no such assessment required, there would be no RLUIPA liability; however, it found such an individualized assessment required under the Connecticut statute and the Litchfield code. The Connecticut statute relating to historic districts necessarily involves application of subjective criteria by the local governments implementing the same. The District Court had found that there were individualized assessments, but also found that RLUIPA was inapplicable because the statutory scheme was of general applicability. In doing so, the trial court erred in applying RLUIPA, particularly its substantial burden provision.
The Second Circuit made an analogy of the substantial burden provision in RLUIPA to the disparate impact analysis used in employment discrimination cases. The court had used such an analysis in Westchester Day School v. Village of Maronek, 504 F3rd 308 (2007). On remand, the trial court was instructed to apply these factors which the court summarized as follows:
whether the conditions attendant to the HDC's denial of the Chabad's application themselves imposed a substantial burden on the Chabad' s religious exercise, whether feasible alternatives existed for the Chabad to exercise its faith, and whether the Chabad reasonably believed it would be permitted to undertake its proposed modifications when it purchased the property at 85 West Street. The district court should also consider, of course, whether the proposed modifications shared a "close nexus" with and would be consistent with accommodating the Chabad's religious exercise.
As to the equal term’s claims under RLUIPA, plaintiffs bear the initial burden to make a prima facie case of unequal treatment, after which the government bears the burden of persuasion. The court noted a division among Federal Appeals Courts as whether evidence of a secular comparator must be shown to evaluate similarly situated structures of a religious or non-religious nature to religious use and on what grounds the comparison is made. However, the court found it unnecessary to deal with this issue as there was no evidence to establish a prima facie case under any equal terms standard. However, the court said that different treatment by different zoning regimes is not necessarily equivalent to unequal treatment. An HDC decision regarding the Wolcott Library, another secular historical structure in the historic district, under which a permit was granted to make a substantial addition to its historic structure, was done under a different land use scheme and a different land use authority and thus was an insufficient comparator in any event.
As to the non-discrimination claims under RLUIPA, plaintiff again bears the initial burden of proof to establish a prima facie case, after which the government bears the burden of persuasion. The Second Circuit, as a matter of first impression, required intent to target to the religious use and found the United States Supreme Court’s decision in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) pertinent. In that case, the Supreme Court used an equal protection analysis applicable to a religious discrimination claim now used under RLUIPA, looking at both direct and circumstantial evidence of discrimination. Three types of equal protection violations were possible in such case: (1) a facial discrimination; (2) a facially neutral law adopted and applied in a discriminatory manner; and (3) a facially neutral law applied in a discriminatory manner. The trial court erroneously required an identical comparator in lieu of the required “sensitive inquiry” into the direct and circumstantial evidence of intent to discriminate. The trial court thus overlooked that evidence, instead focusing upon an identical comparator. However, RLUIPA’s non-discrimination provisions prohibit facial or as applied discrimination on the basis of religion or religious denomination. The Second Circuit thus remanded this claim to determine whether there was discrimination on the basis of religion in the Historic District proceedings.
The court also determined that the remainder of the religious organization’s claims was waived by failure to brief them adequately. The federal claims were called out and the trial court’s ruling identified, but no more. Two other claims before the trial court were not even raised on appeal.
As to the Rabbi’s claims for standing, the Second Circuit found that a property interest was not required for these claims to be made. The issue is whether a particular statute confers standing, which thus required statutory interpretation. The court concluded that the Rabbi met Article III standing requirements – he and his family proposed to live at the facility, so that denial and the proposed conditions deprived him of the ability to do so – an injury that may be redressed by the court. The case was remanded to allow the trial court to determine whether the Rabbi had standing under RLUIPA and the claims that were made. However, the court affirmed dismissal of most of the Rabbi’s federal and state claims as those claims merely involved assertions made in a conclusorily manner and without record citations, to support the Rabbi’s conclusion that there were “independent constitutional claims” clearly expressed in the complaint. Without more, the claims were waived.
The court also remanded defenses of immunity to the trial court for resolution in the first instance. The trial court decision was thus affirmed in part and remanded in part.
This case demonstrates the necessity of careful pleading of both RLUIPA claims and defenses and the preservation of error. There is no doubt that RLUIPA will be interpreted in a fairly broad manner, but much will depend upon the facts alleged and pleading of adequate facts.
Chabad Lubavitch of Litchfrield County, Inc. v. Litchfield Historic District Commission. United States Court of Appeals, Second Circuit, Case Nos. 12-1057-cv and 12-1495-cv, (September 19, 2014).
The U.S. District Court in Ohio recently considered religious land uses in Tree of Life Christian Schools v. The City of Upper Arlington, Case No. 2:11-cv-009 (U.S. Dist. Ct., Southern Dist. OH, April 18, 2014). The City’s adopted Master Plan, recognizes that only 4.7% of its useable land area was zoned “Commercial,” included that one purpose of preserving the limited commercial land is to generate more revenue from commercial uses. As a result, the Master Plan specifically limited the uses permitted in commercial zones. The City did not offer a pathway for an applicant to obtain approval for school uses in a commercial zone.
In early 2009, City officials became aware that Tree of Life was considering purchasing a commercial office building within city limits for use as a school. The City’s Economic Development Director advised the Tree of Life school superintendent directly that schools were not a permitted use. Notwithstanding, Tree of Life filed an application for a conditional use permit to use the property for a place of worship, a church and residential use, to the extent that residential use includes a private school. The City responded that a private school is neither a permitted nor conditional use in the commercial zone. The church responded that the primary purpose of the application was a church or place of worship that could be considered a conditional use. The City disagreed with this characterization and found that the primary use of the property as a private school did not constitute the use of the property as a “place of worship, church.” The City instructed that the church could file for a zone change to a zone that would allow a private school use.
Despite that City’s denials of its applications, Tree of Life completed the purchase of the commercial office building, then proceeded to file suit for violations of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), among other claims. The Court determined the case was not ripe because Tree of Life had not petitioned the City to rezone the property. While the appeal was pending to the Sixth Circuit Court of Appeals, Tree of Life made the rezone application, which the City denied. The Sixth Circuit allowed Tree of Life to supplement the record on appeal with the denial of the rezoning and the Sixth Circuit remanded back to the District Court.
Tree of Life’s RLUIPA claim was made under the “equal terms” provision that states, “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” RLUIPA’s equal terms provision is treated differently between the various Circuits of Court of Appeals. The District Court analyzed the Circuit split related to its analysis of the “equal terms” provision, and recognized that the Sixth Circuit has yet to frame its own interpretation.
The District Court determined the Third and Seventh Circuits’ equal terms analysis to be the most reasonable and pragmatic. Under the Third Circuit’s “Regulatory Purpose” approach, a regulation will violate the equal terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions. The regulatory purpose approach allows cities or local governments to justify unequal treatment by pointing to their objectives in enacting zoning regulations and proving that the secular assemblies treated more favorably do not damage those objectives. The burden of proof is on the church to show that equal terms have been violated. In the Tree of Life case, the court found that the City had carefully set forth its regulatory purpose for designating a commercial district to allow office and research facilities that contribute to the City’s physical pattern of planned, healthy, safe, and attractive neighborhoods; provide job opportunities; contribute to the City’s economic stability; and that all schools are forbidden in the district. Therefore, the City’s decision to deny Tree of Life’s proposal for a school in the commercial district was proper.
The Seventh Circuit’s test, which substitutes “accepted zoning criteria” for the Third Circuit’s regulatory purpose approach, did not provide Tree of Life with any better position because the City had designated that generating municipal revenue was an important criterion for allowed uses in the commercial district.
Moreover, the District Court held that Tree of Life’s RLUIPA claim lacked merit because an apples-to-apples comparison of a secular and non-secular use showed the City prohibited a school in the commercial zone regardless of whether it had a religious affiliation.
The Ninth Circuit applies the equal terms test of the Third Circuit along with the Seventh Circuit’s refinement to the test. In Centro Familiar Cristiano Buenas Nevas v. City of Yuma, 651 F.3d 1163 1172-1173 (9th Cir. 2011), that Court held that the “city may be able to justify some distinctions drawn with respect to churches, if it can demonstrate that the less-than-equal-terms are on account of a legitimate regulatory purpose, not the fact that the institution is religious in nature.” (Note the burden of proof in the Ninth Circuit is on the government.) As cases come forward in your neck of the woods, be aware of the circuit split and that your case might be the one to push the question to the U.S. Supreme Court for a determination of the correct analysis of the equal terms provision.
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