Illinois City Settles DOJ's Suit Over Mosque Rezoning

The Justice Department yesterday announced a Settlement Agreement (full text) with the City of Des Plaines, Illinois, settling a RLUIPA lawsuit brought against the city.  The suit alleged that the city improperly denied a zoning request that would have allowed a Bosnian Muslim religious organization to use property it wished to purchase for religious and educational purposes.  A federal district court ruled against the city in in February in refusing to grant it summary judgment. (See prior posting.) Under the settlement agreement, the city will comply with RLUIPA in the future and will provide training on RLUIPA to its officials and employees. Meanwhile, the Muslim group has acquired an alternative location for its mosque.

6th Circuit: Religious School Not Substantially Burdened By Relocation Denial

In Livingston Christian Schools v. Genoa Charter Township, (6th Cir., June 2, 2017), the U.S. 6th Circuit Court of Appeals dismissed a RLUIPA claim by a Christian school that was denied a special use permit needed for it to relocate.  The school had concluded that remaining in its present location on a long-term basis would end in the dissolution of the school from lack of enrollment and income.  However the Court held as a matter of law that the denial of the permit did not impose a "substantial burden" on the school:

LCS has not alleged that any functions of its religious school were unable to be carried out on the [current] property. LCS focuses on increasing enrollment and raising revenue, but has not identified any religious activity—or even any traditionally secular one—that could not be performed at the [current] property.

The school had also complained that it was burdened because there was no other suitable property in Genoa Township for it to use. But the court disagreed, saying in part:

... [T]he boundaries of jurisdictions on the local-government level are often arbitrary in practice. Holding that a religious institution is substantially burdened any time that it cannot locate within such a small area—even if it could locate just across the border of the town limits—would be tantamount to giving religious institutions a free pass from zoning laws. 

Settlements Reached In New Jersey Mosque Zoning Cases

The Justice Department announced Tuesday that a settlement has been reached with Bernards Township, New Jersey in the the Justice Department's Religious Land Use and Institutionalized Persons Act lawsuit over the town's refusal to grant zoning approval for construction of a mosque by the Islamic Society of Basking Ridge. Under the agreement, the town will permit the mosque to be built.  It will also amend its zoning ordinances.  A $3.25 million settlement was also reached in a suit by the Islamic Society of Basking Ridge similarly charging RLUIPA violations, as well as violations of the 1st and 14th Amendments, in the Bernards Township's refusal to grant site plan approval. The Atlantic reports on the settlements.

Suit Challenges Zoning Denial For Mosque

A suit was filed in a New Jersey federal district court yesterday claiming that the Bayonne (NJ) zoning board violated RLUIPA as well as the U.S. and New Jersey constitutions in denying a Muslim religious congregation zoning approval for construction of a mosque. The complaint (full text) in Bayonne Muslims v. City of  Bayonne, (D NJ, filed 5/25/2017) alleges in part:

Plaintiffs applied to the Zoning Board for routine variances, which were needed to convert a decrepit, abandoned, and trash-strewn warehouse on a blighted street into a vibrant community mosque. Plaintiffs then endured years of bigotry and hate crime from those opposed to the mosque. Ultimately, the Zoning Board capitulated to the community’s anti-Muslim animus and denied the application. It did so even though it had previously granted indistinguishable variances to Christian churches. The Zoning Board violated both federal and state law to achieve its desired outcome.

Jersey Journal reports on the lawsuit.

Mosque Sues Over Denial of Sewage Permit

As previously reported, last December the U.S. Department of Justice filed suit against Culpeper County, Virginia alleging that it violated the Religious Land Use and Institutionalized Persons Act by denying a sewage permit application to the Islamic Center of Culpeper. Now the Islamic Center has filed its own lawsuit making similar allegations.  The complaint (full text) in Islamic Center of Culpeper v. County of Culpeper, Virginia, (WD VA, filed 3/9/2017) alleges:

The County of Culpeper ... has denied the Islamic Center of Culpeper... essential religious freedoms and equal protection under the law by refusing a “pump and haul” permit to enable ICC to construct a mosque on its own property. This Nation is founded on the principle that there will be religious freedom for all, but the County’s actions in this case violate that tenet by treating ICC differently than other similarly situated religious congregations.

WVIR reports on the lawsuit.

Church May Move Ahead With RLUIPA Objections To Denial of Demolition Permit

Village of West Dundee v. First United Methodist Church of West Dundee, (IL App., March 7, 2017), involves a church's attempt to obtain a permit to demolish a building located in the Village's Historic District.  The Church used the building as a parsonage until it fell into disrepair. The Village sought to have the church repair the building instead of demolish it.  The Church, in a counter complaint, alleged that denial of a demolition permit imposed a substantial burden in violation of the Religious Land Use and Institutionalized Persons Act, amounted to unequal treatment under RLUIPA and constituted an inverse condemnation. The appeals court held that the trial court should not have dismissed the Church's counter complaint because it sufficiently stated several claims and was not barred on failure-to-exhaust grounds.

Muslim Organization Gets Rulings In Its Favor In Zoning Challenge

In an opinion covering two suits-- one by a Sufi Muslim religious organization and the other by the United States--, an Illinois federal district court concluded that the city of Des Plaines, Illinois may well have violated RLUIPA and the 1st and 14th Amendments, as well as state law, in denying a zoning amendment that would allow the Muslim group to use property it had purchased for religious and educational purposes.  In Society of American Bosnians and Herzegovinians v. City of DesPlaines, (ND IL, Feb. 26, 2017), the court denied summary judgment to both sides, but concluded that a reasonable fact finder could infer that the City imposed a substantial burden on the religious organization's free exercise of religion and that the city's parking concerns did not constitute a compelling interest. The court also concluded that the city violated RLUIPA's equal terms provision, and that there is a genuine dispute on whether the city acted with discriminatory intent. Cook County Record reports on the decision.

Settlements In Mosque's and DOJ's Suits Against Michigan City

Detroit Free Press reported yesterday that settlements have been reached in two related lawsuits against the city of Sterling Heights, Michigan over the city's denial of Special Approval Land Use application that would have allowed the American Islamic Community Center to construct a mosque on five adjoining lots in the city. One suit was brought by the Islamic Center, while the other was filed by the Department of Justice. (See prior posting.)  The settlement requires the city to allow the mosque to be built, but calls for the height of the mosque's dome and spires to be reduced by approximately two feet. No amplified outdoor sound-- including the Muslim call for prayer-- will be permitted.  Parking will be allowed only in the mosque's parking lot.  The financial arrangements in the Islamic Center's suit are unclear.  The settlement calls for the city to pay a $350,000 deductible to its insurance carrier. A Department of Justice press release yesterday says that the settlement also calls for the city to publicize its nondiscrimination policies, undergo RLUIPA training, and report periodically to the Department of Justice. The settlements must still be approved by the court.

Jewish School's Challenge To Zoning Decision Is Ripe For Litigation

In Congregation Kollel, Inc. v. Township of Howell, N.J., (D NJ, Feb. 16, 2017), a New Jersey federal district court rejected a township's lack of ripeness defense in a suit by an Orthodox Jewish organization that is attempting to construct a classroom building, dormitory and faculty housing for a Talmudic academy.  The township rejected the academy's permit application and instead insisted that it apply for a zoning variance. Plaintiffs, believing that the land use decision was based on religious animus towards the Orthodox Jewish faith, sued claiming violations of RLUIPA, the Fair Housing Act, the 1st and 14th Amendments and state law.  The township argued that the suit should not be decided until plaintiffs had applied for a zoning variance.  The court held, however, that a variance application would not result in development of any additional factual record and that (except for one state law claim) plaintiffs can move ahead with their suit.

Church Loses Its Challenge To Town's Sign Ordinance

In Signs for Jesus v. Town of  Pembroke, NH, (D NH, Jan. 27, 2017), a New Hampshire federal district court upheld a New Hampshire town's application of its Sign Ordinance to prohibit a church (that was outside the commercial district) from installing an electronic changing sign. The court, summarizing its conclusions, said:

First, the Town’s decision to deny the Church’s request for an electronic sign had nothing to do with either religion or the content of the Church’s speech. Second, the decision served the Town’s important governmental interests in aesthetics and traffic safety in a manner that was narrowly tailored to serve those interests. Third, the decision does not unreasonably burden the Church’s right to practice its religious beliefs, to practice free speech, or to use its property. Finally, the Town has not treated the Church differently from any other similarly situated landowner. In light of these conclusions, the Church’s contention that it should be free from the effect of the Town’s electronic sign ordinance amounts to a demand, not for a level playing field, but instead for a right to be treated differently from all other private landowners. Neither the state and federal constitutions nor RLUIPA requires this result. 

New Jersey Mosque Wins Zoning Challenge

In Islamic Society of Basking Ridge v. Township of Bernards, (D NJ, Dec. 31, 2016), a New Jersey federal district court granted partial summary judgment to plaintiffs claiming religious discrimination by a township against an Islamic organization.  The court summarized its 57-page decision as follows:

This case requires the Court to examine a township planning board’s denial of a Muslim congregation’s site plan application to build a mosque.... Plaintiffs challenge the Planning Board’s decision on two bases: (1) Defendants’ disparate application of an off-street parking requirement between Christian churches and Muslim mosques, pursuant to the Religious Land Use and Institutionalized Persons Act...; and (2) the purported unconstitutional vagueness of a parking ordinance... under the Federal and New Jersey Constitutions. After careful consideration, the Court determines that Plaintiffs are entitled to judgment on the pleadings with regard to both issues.

NJ Advance Media reports on the decision.

U.S. Sues Sterling Heights, Michigan Over Zoning Denial For Mosque

The Department of Justice announced yesterday that it has filed suit against the city of Sterling Heights, Michigan claiming that the city violated the Religious Land Use and Institutionalized Persons Act by denying a Special Approval Land Use application that would have allowed construction of a mosque on five adjoining lots in the city.  The complaint (full text) in United States v. City of Sterling Heights, (ED MI, filed 12/15/2016), alleges that this is the only special use application for a house of worship that has been denied by the city since 2006.  The mosque became the subject of opposition framed in anti-Muslim terms, and also became a local election issue especially among local Chaldean Christian business owners. Click On Detroit reports on the lawsuit.

This is the second RLUIPA suit filed this week by the Justice Department over denials of land use permits for a mosque. (See prior posting.)

Feds Bring RLUIPA Suit Against County That Barred Mosque Construction

The U.S. Department of Justice announced yesterday that it has filed suit against Culpeper County, Virginia alleging that it violated the Religious Land Use and Institutionalized Persons Act by denying a sewage permit application to the Islamic Center of Culpeper.  The complaint (full text) in United States v. County of Culpeper, VA, (WD VA, filed 12/12/2016) alleges that denial of the"pump and haul" permit prevents the Islamic Center from building a mosque on land it has purchased. The land's zoning classification permits religious land use by right.

Justice Department Sues Under RLUIPA Challenging Mosque Zoning Denial

Yesterday the Justice Department filed a civil lawsuit under the Religious Land Use and Institutionalized Persons Act against Bernards Township, New Jersey over the town's refusal to grant zoning approval for construction of a mosque. (DOJ press release). The complaint (full text) in United States v. Township of Bernards, New Jersey, (D NJ, filed 11/22/2016), contends that:

The mosque proposal met with vociferous public opposition. Flyers, social media, and websites denounced the mosque and were filled with anti-Muslim bigotry and references to terrorism and the 9/11 attacks....

The Planning Board ultimately held thirty-nine public hearings over three and a half years. The Planning Board had never held such a large number of hearings for any previous site plan application.... Since at least 1994, this was the first time that the Planning Board had denied a site plan application for a house of worship.

NY Town Settles Construction Dispute With Sikh Temple

According to NBC News, on Wednesday a settlement agreement between the Town of Oyster Bay, New York and the Guru Gobind Singh Sikh Center was filed with a federal district court. The Sikh Temple had sued under RFRA claiming that the town's stop work and environmental review orders were issued to appease residents who are hostile to the temple and its worship. (See prior posting.) Under the settlement the temple agreed to make certain construction changes and the town board agreed that it would no longer be authorized to serve as the oversight committee for the site plan approval process.

Chabad Files RLUIPA Lawsuit In New Jersey Town

North Jersey.com reports on a RLUIPA lawsuit filed Nov. 1 by an Orthodox Jewish Chabad group against the mayor, property maintenance officer and Zoning Board of Adjustment of Woodcliff Lake, New Jersey. The suit challenges denials of variances and waivers by the zoning board which Chabad sought in order to build a house of worship on its property. According to the report:

The lawsuit ... allege[s] that the congregation has been the victim of a "targeted effort" to block them from developing a house of worship in Woodcliff Lake - something that the congregation alleges has caused "unjustified fear" and "prejudice" of Orthodox Jews. Chabad also alleges that Mayor Carlos Rendo made various statements that Chabad was attempting to "turn the borough into a little Jerusalem" and that the "town will be littered with black hats walking the town on Saturdays," (a reference to Hassidic Orthodox Jews.)

Buddhist Center Can Pursue Misrepresentation and As Applied, But Not Facial, RLUIPA, Challenges [CORRECTED]

In Thai Meditation Association of Alabama v. City of Mobile, 2016 U.S. Dist. LEXIS 142651 (SD AL, Oct. 12, 2016), an Alabama federal magistrate judge recommended dismissing facial claims under RLUIPA by a Buddhist meditation center whose zoning approval was denied.  The court rejected facial RLUIPA equal terms, discrimination and substantial burden challenges, but allowed plaintiff to proceed on its "as applied" challenges under RLUIPA.  The magistrate judge also recommended allowing plaintiff to move ahead with a negligent misrepresentation claim growing out of a zoning official's assurances that the meditation center would be treated as a house of worship for zoning purposes and that planning approval rather than seeking  use variance was the proper procedure to follow.

UPDATE: The magistrate's recommendations were adopted by the court in Thai Meditation Association of Alabama v. City of Mobile, 2016 U.S. Dist. LEXIS 150360 (SD AL, Oct. 31, 2016).

Two RLUIPA Suits Over Rezoning For Islamic School Are Settled

According to the Ann Arbor News, Pittsfield Township, Michigan yesterday reached agreements to settle two related RLUIPA lawsuits challenging the township's refusal to rezone a vacant parcel of land for construction of a pre-K through 12 school by the Michigan Islamic Academy. One suit was brought by the Justice Department (see prior posting). The Consent Order (full text), which must still be approved by the court, is described in a DOJ press release:

As part of the settlement, the township has agreed to permit MIA to construct a school on the vacant parcel of land, to treat the school and all other religious groups equally and to publicize its non- discrimination policies and practices [by signage and on the Internet].  The township also agreed that its leaders and various township employees will attend training on the requirements of RLUIPA.  In addition, the county will report periodically to the Justice Department.

The other suit was brought by the Michigan Islamic Academy (see prior posting).  In settling that suit, Pittsfield Township's insurers will pay $1.7 million in damages and attorneys' fees.  CAIR-MI described this as "one of the largest-ever RLUIPA settlements."  As part of the settlement, Michigan Islamic Academy agreed to add a residential development with "significant landscape buffering" between the school and adjacent residential lots.

Faith-Based Recovery Home Loses Challenges To Fire Code Enforcement

In Affordable Recovery Housing v. City of Blue Island, (ND IL, Sept. 21, 2016), an Illinois federal district court in a 40-page opinion dismissed a claim under RLUIPA and its Illinois counterpart, the 1st and 14th Amendments, as well as under the Fair Housing Amendments Act, brought against the city by a faith-based recovery home for drug and alcohol addicts. At issue was the city's enforcement of its fire code sprinkler system requirement that led to the eviction of 73 men from the facility, and the city refusal to grant an accommodation that would have given the facility 3 years to install a sprinkler system.

The court held that the eviction was pursuant to the fire code, not the zoning code, so RLUIPA does not apply. Moving to the claim under the Illinois Religious Freedom Restoration Act, the court then held that the eviction stemming from a delayed enforcement of the fire code and the refusal to grant an accommodation did not impose a substantial burden on the facility's religious exercise and, in any event, the city's enforcement of its sprinkler regulations was in furtherance of a compelling governmental interest. The court also rejected the claim that the city violated RLUIPA by demanding that the facility apply for a special use permit.

Inmate Has Broader Damage Remedy Under RFRA Than Under RLUIPA

In Crowder v. Lariva, 2016 U.S. Dist. LEXIS 122966 (SD IN, Sept. 12, 2016), an Indiana federal district court permitted a Hebrew Israelite inmate to move ahead against one of the prison chaplains on his complaint that he was denied a kosher diet. Because plaintiff was a federal inmate, he sued (in addition to his 1st Amendment claim) under RFRA instead of RLUIPA, and the court held that he had broader remedies as a result:

Jones [the chaplain] also argues that because the Seventh Circuit in Nelson v. Miller, 570 F.3d 868, 887 (7th Cir. 2009), held that the similarly-worded RLUIPA does not allow for the collection of money damages against individuals, the same reasoning should apply to RFRA. But there are at least two important differences between RLUIPA and RFRA that compel a different conclusion. First, ... the statutory language of RFRA defines "government" as, among other things, an "official (or other person acting under color of law)." ...Congress thus envisioned at least some individual-capacity suits under RFRA.... Second, RFRA, which applies to federal action, and RLUIPA, which is applicable to state action, arise from different principles.,,, [T]he portion of RFRA that authorizes lawsuits against the states was held unconstitutional because such an application exceeded Congress's power under the Enforcement Clause of the Fourteenth Amendment in City of Boerne v. Flores.... RLUIPA was enacted in response to City of Boerne ... as an exercise of Congress's spending power[.] ...[I]nterpreting that statute to allow damages actions against state officials in their individual capacities would 'raise serious questions regarding whether Congress had exceeded its [constitutional] authority.'" ... [S]uch considerations are not at issue when applying RFRA because RFRA's application to federal action is not based on the Spending Clause.... For these reasons, the Court concludes that RFRA does allow for the recovery of monetary damages against officers in their individual capacities