Church Fails In RLUIPA Challenge To Village's Zoning Ordinance

In Truth Foundation Ministries, NFP v. Village of Romeoville, (ND IL, Feb. 26, 2016), an Illinois federal district court denied a preliminary injunction to a small congregation serving mainly African immigrants that found itself in violation of the village's zoning code after it had spent over $50,000 expanding a building it was leasing for use as a church.  The court concluded that the church had failed to show a substantial likelihood of success in its claim that the town's zoning requirements violate RLUIPA's complete exclusion, unreasonable exclusion and equal terms provisions.

4th Circuit: Variance Denial For Church Does Not Violate RLUIPA

In Andon, LLC v. City of Newport News Virginia, (4th Cir., Feb. 9, 2016), the U.S. 4th Circuit Court of Appeals rejected the argument that a Board of Zoning Appeals' refusal to grant a zoning variance amounted to a substantial burden on religious exercise under RLUIPA. Seeking to use a building that did not meet zoning requirements as a church facility, Reconciling People Together in Faith Ministries entered a lease of it contingent on obtaining a variance. The court held:

Because the plaintiffs knowingly entered into a contingent lease agreement for a non-conforming property, the alleged burdens they sustained were not imposed by the BZA’s action denying the variance, but were self-imposed hardships....  A self-imposed hardship generally will not support a substantial burden claim under RLUIPA, because the hardship was not imposed by governmental action altering a legitimate, pre-existing expectation that a property could be obtained for a particular land use.

[Thanks to Will Esser via Religionlaw for the lead.]

Suit Over Chabad House In Historic District Survives Almost All Motions To Dismiss

Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield, Connecticut, (D CT, Jan. 27, 2016), a decision on remand from the 2nd Circuit, is the latest installment in the long-running attempt of the Hasidic Jewish organization, Chabad, to expand a building it purchased in Lichtfield, Connecticut's Historic District.  In a 61-page opinion in the suit filed under RLUIPA,  the court first examined whether all parts of the proposed expansion of the building into a Chabad House would be used for religious purposes. It concluded:

Construction of the proposed facilities is in large measure religious exercise and, as to the remaining use / facilities, there exist genuine issues of material fact regarding their status as places of religious exercise.

The court then moved to consider whether the Historic District Commission's denial of a Certificate of Appropriateness placed a substantial burden on Chabad’s religious exercise. It concluded that there are genuine issues of material fact as to whether or not it did, so that defendants' motion for summary judgment on this point was denied. The court also refused to dismiss plaintiffs' discrimination claim under RLUIPA, holding that there is sufficient evidence in the record for the fact finder to conclude that the Commission acted with an intent to discriminate on the basis of religion. The court went on to reject various defenses. Finally the court granted defendants' motion to dismiss the Chabad Rabbi as a plaintiff in the discrimination claim, but not as to the substantial burden claim.

African-American Church Files RLUIPA Suit Over Denial of Special Use Permit

A Johnston, Rhode Island predominately African-American congregation has filed a lawsuit against the town and its zoning official who denied the church a special use permit to allow it to use the church building it purchased last year for religious assembly. The complaint (full text) in King's Tabernacle v. Town of Johnston, Rhode Island, (D RI, filed 1/25/2016) contends that even though the building has been used for worship by other congregations since 1891, city officials required King's Tabernacle to apply for a special use permit, and then denied the application. The town's zoning official, who subsequently was recorded making racist remarks about the church, told the church it would now have to pay property taxes. The suit contends that the denial of the special use permit violated RLUIPA and the church's free exercise rights. Johnston Patch reports on the filing of the lawsuit.

Yeshiva Files RLUIPA Action Against New Jersey Township

In New Jersey last week, a federal lawsuit was filed challenging the denial of a zoning variance by the Township of Ocean to plaintiffs who want to use an existing school building for a 96-student boarding school for advanced Jewish studies.  The 79-page complaint (full text) in Yeshiva Gedola Na’os Yaakov, Inc. v. Township of Ocean, New Jersey, (D NJ, filed 1/8/2016) contends that the denial violates RLUIPA, the Free Exercise and Equal Protection Clauses, the Fair Housing Act, the New Jersey Law Against Discrimination, as well as other provisions.  A press release by counsel filing the lawsuit describes it:

The Complaint explains the Yeshiva’s need for a religious school, as well as the Township’s zoning laws that completely prohibit religious education throughout the Township for students over 18 years of age, while permitting other adult education institutions. It also describes a long litany of examples of the substantial hostility faced by the Yeshiva during the variance application proceedings..... The Complaint states that “many Ocean Township residents hold animus toward the Orthodox Jewish community in nearby Lakewood, New Jersey”.... The variance application dragged on for approximately four times the statutory limit of 120 days, including proceedings shut down because of capacity being exceeded by crowds “packing” the venue.

NJ.com has more on the lawsuit.

Two RLUIPA Zoning Decisions From Last Month

Two RLUIPA zoning cases of interest were decided last month.  In Mesquite Grove Chapel v. DeBonis, (9th Cir., Dec. 18, 2015), the U.S. 9th Circuit Court of Appeals upheld a zoning official's denial of a permit to develop land zoned for church use.  The court, rejecting plaintiff's RLUIPA challenge, said in part:

The primary burdens presented here—relocating or submitting a modified application—were not substantial, especially because Mesquite presented no evidence that other sites are unsuitable.

RLUIPA Defense blog reports on the decision.

In Matter of Septimus v Board of Zoning Appeals for the Incorporated Village of Lawrence, (NY Nassau Co. Sup. Ct., Dec. 16, 2015), a New York trial court upheld a creative judgment by a Zoning Board of Appeals in a case in which a synagogue sought to have a restriction on weekday use of its building-- part of it original zoning arrangements-- lifted so that it could hold regular weekday services.  Neighbors objected because of concern about traffic. The BZA lifted the restrictive covenant precluding weekday services for a one year trial period, with the issue to be re-evaluated after the year had passed.  The court found that under RLUIPA the original ban on weekday use constitutes a substantial burden, and the BZA's trial approach is the least restrictive means of furthering a compelling governmental interest in maintaining the integrity of an established residential neighborhood.  New York Law Journal reports on the decision.

Illinois Nuns Sue To Challenge Zoning Denial

A federal lawsuit was filed last week by an order of Catholic nuns to challenge the denial of a conditional use permit by McHenry County, Illinois. Fraternité Notre Dame already has a monastery, church, seminary, convent, retreat center, bakery, printing press and cemetery on its 95 acres of property. It now wants to add a barn in order to build a commercial kitchen, process grapes and brew beer.  It also wants to add a school with attached dormitory; nursing home with hospice services; and gift shop and tasting area to sell pastries, religious and inspirational articles, and its own wine and beer. The complaint (full text) in Fraternité Notre Dame, Inc. v. County of McHenry, (ND IL, filed 12/16/2015), contends that the denial of zoning approval violates RLUIPA as well as the equal protection clauses of the Illinois and federal constitutions.  Northwest Herald reports on the lawsuit.

Church Gets Preliminary Injunction Under RLUIPA For Zoning Exclusion

In Hope Rising Community Church v. Municipality of Penn Hills, 2015 U.S. Dist. LEXIS 160148 (WD PA, Nov. 30, 2015), a Pennsylvania federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 160852, Oct. 28, 2015) and granted a preliminary injunction to a church that was ordered to stop holding worship services in a warehouse building it leased in an area zoned only for "Light Industrial" uses.  The city also denied a zoning variance.  The court concluded that the city's zoning law violates RLUIPA's "equal terms" provision by not allowing churches as a permitted use in areas zoned "Light Industrial," given the other types of uses that are allowed. The court concluded that:

the City has failed to show how a religious institution would cause greater harm to the Light Industrial District and its objectives than parks, playgrounds and educational institutions [which are permitted].

Homeless Shelter's Challenge To Permit Revocation Dismissed As Not Yet Ripe

In New Life Evangelistic Center, Inc. v. City of St. Louis, Missouri, (ED MO, Oct. 27, 2015), a Missouri federal district court dismissed as not ripe a lawsuit by a Christian church seeking to continue to operate its homeless shelter. The city's Board of Public Service voted to revoke the shelter's 32-bed hotel permit when, after receiving a petition from neighbors, it found that the shelter was housing up to 300 individuals per night.  The shelter however was given the option of coming into compliance with its license or obtaining a new appropriate permit.  The church responded by suing for a declaratory judgment and injunction, alleging that its rights under RLUIPA and the 1st and 14th Amendments had been infringed. However the court concluded:

at the time New Life filed this litigation, it had several options before it which made any claimed injury contingent on several possibilities and fairly speculative. Although the grace period in the Board's Order has elapsed, the Court finds that Plaintiff cannot escape the requirements of either appealing the Board's Order or proceeding with the filing of a new application as required by the Board's Order simply by prematurely filing a case in federal court.

DOJ Sues Michigan Township Over Denial of Zoning Approval for Muslim School

The U.S. Department of Justice announced yesterday that it has filed a civil suit under RLUIPA against a township just south of Ann Arbor, Michigan challenging the refusal to rezone a vacant parcel of land to allow construction of a Muslim pre-K through 12 school. The complaint (full text) in United States v. Pittsfield Charter Township, (ED MI, filed 10/26/2015), contends that various findings by the township Planning Commission were unjustified and that the rezoning denial makes it impossible for Michigan Islamic Academy to carry out its religious mission. Detroit News reports on the lawsuit.

Most of Rabbinical College's Challenges To Land Use Restrictions Are To Proceed To Trial

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, (SD NY, Sept. 29, 2015), a New York federal district court ruled on various motions in challenges to the land use ordinances of the Village of Pomona, New York that allegedly were adopted to prevent plaintiffs from constructing a planned rabbinical college. (See prior related posting.)  In a 145-page opinion, the court imposed limited sanctions on defendants for their destruction of a relevant Facebook posting:

Because Defendants concealed—and failed to disclose—the relevant Facebook post and potentially a portion of the accompanying text messages, the jury will be instructed that it may infer that the contents of the Facebook Post indicated discriminatory animus towards the Hasidic Jewish population. Defendants also will be precluded from offering evidence to rebut that specific inference, though they can still present evidence to indicate that the Challenged Laws were not adopted for discriminatory reasons.

The court went on to allow plaintiffs to proceed on their equal protection, free exercise, freedom of association, RLUIPA, Fair Housing Act and various state law challenges, denying motions by both parties for summary judgment.  However the court dismissed plaintiffs' free speech challenge, holding that "the fact that building a rabbinical college might enable religious speech does not render its construction speech itself."

DOJ Files RLUIPA Suit Against Illinois City Over Mosque Rezoning

The U.S. Department of Justice announced yesterday that it has filed suit against the city of Des Plaines, Illinois alleging that the city violated RLUIPA when it refused to rezone a vacant office building to allow the American Islamic Center to operate a place of worship there. The complaint (full text) in United States v. City of Des Plaines, Illinois, (ND IL, filed 9/30/2015) alleges the city violated the substantial burden, equal terms and discrimination provisions of RLUIPA. As summarized in the press release:

The complaint alleges that the city imposed parking standards and other zoning criteria that were not supported under its zoning ordinance and that it had never imposed on non-Muslim places of worship.

Chicago Tribune reports on the lawsuit.

Mosque Can Proceed With RLUIPA Challenge To Denial of Use Variance

Bensalem Masjid, Inc. v. Bensalem Township, Pennsylvania, (ED PA, Sept. 22, 2015), is a suit by an Islamic religious organization that was denied a use variance to allow it to build a mosque on a split-zoned parcel of property.  Plaintiff alleges that its application was scrutinized much more harshly than those from other groups. Here a Pennsylvania federal district court held that plaintiff can proceed on its substantial burden, non-discrimination, unreasonable limitation and equal terms claims under RLUIPA, its free exercise and equal protection claims, and its state Religious Freedom Protection Act claim.

Denial of Use Permit Did Not Violate RLUIPA

In Livingston Christian Schools v. Genoa Charter Township, (ED MI, Sept. 15, 2015), a Michigan federal district court denied a temporary restraining order to a Christian school that wants to move to property owned by the Brighton Church of the Nazarene.  The township board denied the Church's application to amend its special use permit to allow the school to operate on the property because of objections from neighbors about traffic and non-compliance with the current special use permit. The school claims this violate its rights under RLUIPA.  The court held that the school had not shown a likelihood of success on that claim:

LCS cannot meet its burden in establishing that the denial has more than a minimal impact on its free exercise of religion. The township’s denial of the church’s special use permit does not preclude either the church ... or LCS from freely exercising their religious tenets. The church is free to continue its normal operations pursuant to its existing special use permit. Similarly, LCS is free to continue operating as a religious school, and it has a building in Pinckney that it owns and has been using as the location for its school for the past nine years. Moreover, LCS recently found a second location from which it can operate. The fact that LCS has “ready alternatives” more than sufficient to meet its religious needs despite the township’s denial makes it unlikely that it has suffered a substantial burden on its free exercise of religion.

Catholic Diocese Can Move To Trial In 20-Year Battle To Create A Cemetery

Last week, a New York federal district court came down with another decision in the battle-- waged since 1994-- by the Catholic Diocese of Rockville Centre, New York to develop the Queen of Peace Cemetery in the Long Island village of Old Westbury.  The cemetery, which would be on a vacant 97-acre parcel that was once a horse farm, has already been the subject of extensive state court litigation. At issue in this lawsuit are restrictions imposed by the Village under its Places of Worship (POW) zoning law.  In Roman Catholic Diocese of Rockville Centre, New York v. Incorporated Village of  Old Westbury, (ED NY, Sept. 3, 2015), the court rejected a facial constitutional challenge to the POW law as well as a RLUIPA equal terms claim.  A 2011 federal court decision rejected various other federal and state claims. (See prior posting.), However last week's decision allowed the Diocese to proceed to trial on a RLUIPA substantial burden claim, an as-applied constitutional challenge to the POW law, a First Amendment Free Exercise claim, a retaliation claim and a claim for unlawful search of the cemetery site by a village official. New York Law Journal today has more background on the case.

Court Rejects Second Amended Complaint In RLUIPA Land Use Case

In Salman v. City of Phoenix, (D AZ, Aug. 27, 2015), an Arizona federal district court denied plaintiffs' motion for leave to file a Second Amended Complaint after dismissing plaintiffs' RLUIPA and state Free Exercise of Religion Act claims. At issue is the city's application of its building code to plaintiffs' use of their home for weekly Bible studies for 35 people. (See prior posting.) The court however gave plaintiffs two weeks to file another amended complaint curing prior pleading defects.

Church May Continue With Its RLUIPA and State RFRA Claims

In Church of Our Lord and Savior Jesus Christ v. City of Markham, Illinois, (ND IL, Aug. 19, 2015), plaintiff claimed that after it had operated in the same location for ten years without issue, it received a summons telling it to close on safety grounds because it had not received a conditional use permit. An Illinois federal district court allowed plaintiff to proceed with its "substantial burden" claims under RLUIPA and Illinois' RFRA, but dismissed its discrimination claim. It also allowed plaintiff to move ahead with its claim under the state constitution that the city's refusal to amend its zoning ordinance was arbitrary and capricious.

RLUIPA Lawsuit Challenges Denial of Permit To Christian School

According to the Livingston (MI) Daily, on Friday Livingston Christian Schools filed a RLUIPA lawsuit in federal district court against Genoa County, Michigan over Genoa Township's denial to it of a special use permit that would have allowed it to relocate to the Brighton Church of the Nazarene facilities.  In turn, Light of the World Academy planned to move into the facility in Pickney that Livingston Christian would vacate. The township board voted 4-3 to deny the permit that had been recommended by the planning commission because of traffic concerns.

11th Circuit Upholds Alabama's Prison Grooming Rules Despite Supreme Court's Remand After Holt v. Hobbs Decision

After the U.S. Supreme Court earlier this year decided Holt v. Hobbs, concluding that RLUIPA invalidated the Arkansas prison system's grooming requirements as applied to a Muslim inmate seeking to grow a one-half inch beard, it remanded for further consideration an Alabama case in which Native American inmates challenged grooming requirements banning their long hair. (See prior posting.) Deciding the case on remand, in Knight v. Thompson, (11th Cir., Aug. 5, 2015), the U.S. 11th Circuit Court of Appeals held that despite Holt, the Alabama grooming requirements are valid. The 11th Circuit distinguished Holt:

While Holt sought to grow a ½-inch beard, such that the Department had to show how denying him a ½-inch beard actually furthered its compelling interests, the Plaintiffs here request a complete exemption of long, unshorn hair from the ADOC’s short-hair policy....

[T]he “detailed record developed” below distinguishes this case from Holt, where the lower courts gave “unquestioning deference” to prison officials’ conclusory and speculative assertions. As we stated in our previous opinion, the ADOC has “shown that Plaintiffs’ requested exemption poses actual security, discipline, hygiene, and safety risks” and neither we nor Plaintiffs can “point to a less restrictive alternative that accomplishes the ADOC’s compelling goals.”

The 11th Circuit reinstated its prior opinion in the case, with modifications in Section 3(b)(ii) of the opinion. (Full text of modified opinion.) AP reports on the decision.

9th Circuit Rejects Inmate's RLUIPA Claim For Racially Segregated Cell

In Walker v. Beard, (9th Cir., June 18, 2015), the U.S. 9th Circuit Court of Appeals rejected an Aryan Christian Odinist prison inmate's claim that under RLUIPA he should be exempt from being classified as eligible for placement in a racially mixed cell-- just as inmates who have a history of perpetrating or being victimized by racial violence are exempted. Here inmate Dennis Walker claimed that part of his Odinist religious practice is "the spiritual circle of Odinist Warding" ritual. The presence of a non-Aryan in his cell during the ritual would pollute the spiritual circle.  The court held that even though "the racially eligible classification  under the Housing Policy substantially burdens his religious exercise," the state has a compelling interest in complying with constitutional requirements barring racial segregation in prisons, and its actions were the least restrictive means to further this compelling interest.  The court added:

it is possible to imagine how the State might have maintained its race-neutral celling policy and offered an accommodation to Walker – for example, by giving him time outside his cell to perform the warding ritual by himself. But Walker never asked for such relief, nor has he given any indication that he would accept anything short of being assigned a white cellmate. The State has no additional obligation under RLUIPA independently to research and propose every possible way of mitigating that practice’s negative effects.... If Walker wants time outside his cell to perform the ritual, he needs to ask for it. If the State were to refuse him, that might be the basis for a separate RLUIPA challenge, but it does not bear on the challenge here, which is to the application of the Housing Policy to him without an exemption.

The court also rejected Walker's 1st Amendment free exercise argument.  Sacramento Bee reports on the decision.