does require the Church to show more than simply that its religious use is forbidden and some other nonreligious use is permitted. The “less than equal terms” must be measured by the ordinance itself and the criteria by which it treats institutions differently. When we analyze the City’s ordinance within this framework, we are convinced that it is invalid because it prohibits the Church from even applying for a SUP when, e.g., a nonreligious private club may apply for a SUP....The court added in a footnote: "This analysis should not be interpreted as necessarily adopting any of the tests heretofore adopted by the other circuits." Becket Fund issued a press release on the decision. The release contains links to the briefs that were filed in the case.
Thursday, June 16, 2011
5th Circuit Interprets "Equal Terms" Clause of RLUIPA
In The Elijah Group, Inc. v. City of Leon Valley, Texas, (5th Cir., June 10, 2011), the U.S. 5th Circuit Court of Appeals weighed in on an issue that has split various circuits-- what test to use to determine whether a zoning decision violates RLUIPA's "equal terms" clause. At issue was the city's zoning law that prohibits churches from operating in areas zoned B-2 (business). Plaintiff argued that it was being treated on less than equal terms because it could not apply for a special use permit to operate in B-2 areas. The court held that the equal terms clause:
