No RLUIPA Or Free Exercise Violation In Denying Sewer Service To Proposed Church Building

In Canaan Christian Church v. Montgomery County Maryland, (4th Cir., March 22, 2022), the U.S. 4th Circuit Court of Appeals held that Montgomery County did not violate a church's rights under RLUIPA or the 1st Amendment when it refused to extend public sewer lines to properties on which the church proposed to construct a new larger building for its congregation. The land use and water plans covering the properties provided that no public sewer service would be permitted (except for public health requirements). The church's purchase contracts for the properties were contingent on the county's approval of sewer service. The court said in part:

Because Appellants were well aware of the difficulties in development of the Property when they entered into the contract to purchase the Property, they could not have a reasonable expectation of religious land use. Further, the land use restrictions are rationally related to the government’s interest in protecting the region’s watershed.

A concurring opinion by Judge Richardson took issue with some of the analysis in the majority opinion.

Ashram Loses RLUIPA "Equal Terms" Challenge

In Divine Grace Yoga Ashram Inc. v. County of Yavapai, (D AZ, Jan. 31, 2022), an Arizona federal district court rejected a RLUIPA claim by an Ashram that objects to the county's insistence it obtain a Conditional Use Permit to continue to operate its retreats and daily meditations on a 12.6 acre ranch property next to the Coconino National Forest.  Plaintiff contends that the Permit requirement violates the "equal terms" provision of RLUIPA because public and charter schools in the same area zoned Residential Single Family are exempt from the requirement.  The court concluded however that public and charter schools are not similarly situated to plaintiff.  State law prohibits localities from imposing zoning restrictions on such schools. That makes them different.

Synagogue Can Move Ahead With Damage Claim for Zoning Denial

In Khal Anshei Tallymawr, Inc. v. Township of Toms River, New Jersey, (D NJ, Dec. 3, 2021), a New Jersey federal district court allowed an Orthodox Jewish congregation to move ahead with its free exercise, RLUIPA, equal protection and state law claims for damages growing out of the zoning denial of a permit to construct a synagogue in an area zoned rural residential. However, since subsequently the challenged regulations have been amended to permit houses of worship as conditional uses in residential zones, the court denied prospective relief while plaintiff determines whether the zoning board will now permit the construction. The zoning amendments were enacted pursuant to the settlement of a RLUIPA lawsuit brought by the Department of Justice. (See prior posting.)

Conditions Of Special Use Permit For Church Upheld

In Alive Church of the Nazarene, Inc. v. Prince William County, Virginia, (ED VA, Nov. 10, 2021), a Virginia federal district court dismissed a suit brought by a church that sought to use its property for religious gatherings even though it could not yet afford to comply with conditions of its special use permit. The church was presently using space elsewhere in a farm winery/ brewery for religious services. It attempted to circumvent the special use permit requirements by obtaining approval to grow fruit trees and make non-alcoholic apple cider on its own property. However zoning authorities said that structures not associated with that agricultural use were not permitted, and that use of present structures for events such as wedding receptions would be allowed only if the church obtained a liquor license-- which the church refused to do because of its opposition to alcohol. The court rejected the church's RLUIPA, Free Exercise, Freedom of Assembly and Equal Protection challenges.

4th Circuit: Denial Of Church's Application For Water and Sewer Plan Amendment Violated RLUIPA

In Redeemed Christian Church of God (Victory Temple) Bowie, Maryland v. Prince George's County, Maryland, (4th Cir., Nov. 3, 2021), the U.S. 4th Circuit Court of Appeals held that the legislative amendment to the County’s Water and Sewer Plan which Victory Temple sought to recategorize its property constitutes a "land use regulation" subject to RLUIPA. It also concluded that the denial of Victory Temple's application for a recategorization imposed a substantial burden on its exercise of religion. The court concluded in part:

[T]he County never sought to show at trial that it considered alternatives — such as roadway improvements or additional road signs — before denying the Application. At bottom, we agree with the district court that the County’s denial of the Application fails strict scrutiny review. In these circumstances, the court did not abuse its discretion in granting Victory Temple the injunctive relief that is appealed from.

Mississippi City Is Sued Over Refusal To Approve Mosque Site Plan

Suit was filed yesterday in a Mississippi federal district court alleging that the City of Horn Lake denied approval of the site plan for a proposed mosque because of religious animus. The suit alleges violation of various provisions of RLUIPA as well as the 1st Amendment. The complaint (full text) in Abraham House of God and Cemetery, Inc. v. City of Horn Lake, (ND MS, filed 11/3/2021) alleges in part:

Despite the pretextual excuses for their decision, Board members did not work very hard to hide the true reason they denied approval for the project—anti-Muslim prejudice. As then Alderman John E. Jones Jr. told the local newspaper: “I don’t care what they say, their religion says they can lie or do anything to the Jews or gentiles because we’re not Muslims.” In making his motion to reject the mosque’s proposed site plan, Jones ominously warned his fellow Board members, “[I]f you let them build it, they will come. So I think we need to stop it before it gets here.”...

In sum, what should have been an uncomplicated approval of the site plan for the Abraham House of God foundered in a storm of anti-Muslim bias.

ACLU of Mississippi issued a press release announcing the filing of the lawsuit.

Home-Based Synagogue Sues Over Zoning Restrictions

Suit was filed this month in an Ohio federal district court by a home-based synagogue in a Cleveland suburb alleging that the city's land use regulations violate the Religious Land Use an Institutionalized Persons Act, as well as the federal and state constitutions. The complaint (full text) in Aleksander Shul v. City of University Heights, Ohio, (ND OH, filed 10/13/2021), alleges in part:

Since 2009, Rabbi Shnior Zalman Denciger ... has engaged in prayer services at his residence.... The Property has become known throughout the City as the “Aleksander Shul,” ... that offers Orthodox Jewish prayer services in the Polish Chassidic style, and according to the unique customs of the Aleksander Chassidic sect, which was decimated by the Nazis during the Holocaust.

The City for many years permitted the Aleksander Shul to operate informally at the Property. For many residents of the City, the Aleksander Shul is the only place for them to exercise their religion because, pursuant to their Orthodox Jewish beliefs, they do not travel in cars on the Sabbath....The City, however, has taken various actions to shut down Orthodox Jewish shuls, including the Aleksander Shul, and the City’s zoning scheme makes it impossible to locate any parcel within the City where a place of worship can legally operate.

News 5 Cleveland has additional background on the lawsuit.

Zoning Ordinance Violates Equal Terms Provision of RLUIPA

In The Church at Jackson v. Hinds County, Mississippi, (SD MS, Sept. 23, 2021), a Mississippi federal district court held that the equal terms provision of the Religious Land Use and Institutionalized Persons Act is violated by provisions on Agricultural Districts in Hinds County's zoning ordinance. The court issued a preliminary injunction, holding that the ordinance treats religious assemblies on less than equal terms with nonreligious assemblies, specifically recreational facilities. Recreational facilities are permitted unconditionally to locate in areas zoned Agricultural, while religious institutions are required to obtain a Special Use Permit in order to do so.

No Judgment On Pleadings In Mosque's RLUIPA Lawsuit

In Minhal Academy of Turnersville, Inc. v. Township of Washington,(D NJ, Aug. 25, 2021), a New Jersey federal district court denied plaintiffs' motion for judgment on the pleadings in a RLUIPA challenge to the Township's refusal to allow a mosque to continue to operate in a commercial condominium complex. The court said in part:

Plaintiffs allege that Defendants’ denial of a use variance has made their religious exercise inconvenient and costly, but nothing more. The Court will therefore deny Plaintiffs’ motion on this ground because they have not conclusively shown that Defendants’ denial caused them substantial hardship....

Plaintiffs are not entitled to judgment on the pleadings on their equal terms claim because the Complaint does not identify a “nonreligious assembly or institution” that received comparatively better treatment under the zoning laws at issue here....

[I]n order to establish their RLUIPA nondiscrimination claim, Plaintiffs must show that the Township treated Plaintiffs worse than non-Muslim comparator institutions because Plaintiffs are Muslim.... 

Ultimately the Court finds that Plaintiffs’ fact intensive RLUIPA nondiscrimination claim should be resolved with a complete factual record.

Court Allows Equal Protection Challenge To Zoning Law To Proceed

In Orthodox Jewish Coalition of Chestnut Ridge v. Village of Chestnut Ridge New York, (SD NY, Aug. 13, 2021), a New York federal district court granted plaintiff's motion to reconsider its March 31, 2021 decision that dismissed an equal protection challenge to the Village's former zoning law. The court now held that Equal Protection and state law claims by three Orthodox synagogues and three individual plaintiffs may proceed, saying in part:

Plaintiffs argue that “the Court erred in holding that [Plaintiffs] were required to allege that . . . facially discriminatory laws were enacted with a discriminatory purpose.” ... They are correct.

City's Use Permit Requirement Violated State Free Exercise Law

In  Henry v. City of Somerton, (D AZ, June 17, 2021), an Arizona federal district court held that an Arizona city violated the state's Free Exercise of Religion Act when, under a now-amended ordinance, it required a church to obtain a conditional use permit to use rented space for religious services. The court held in part:

The Court finds the unamended Ordinance’s CUP requirement treated the Iglesia on less than equal terms than nonreligious assemblies, such as fraternal organizations.

Because there is no genuine dispute of material facts, the Court will grant summary judgment on the FERA claim. ...

Various other claims against the city were dismissed, including plaintiffs' prior restraint claim:

... [W]ithout even having tried to apply for a CUP, any injury Plaintiffs claim that resulted from the CUP evaluation process is purely conjectural. Plaintiffs cannot claim they were deterred by the CUP evaluation process because, by all accounts, they have been conducting services uninterrupted since the Iglesia opened.

Catholic Group Challenges Zoning Refusal To Allow Building Of Chapel

Suit was filed this week in a Michigan federal district court challenging Genoa Township's refusal to allow a Catholic religious organization to develop and construct a 95-seat Chapel and prayer campus on land it acquired from the Diocese of Lansing in 2020. The Township has also demanded that all religious signage already on the property be removed. The complaint (full text) in Catholic Healthcare International, Inc. v. Genoa Charter Township, (ED MI, filed 6/2/2021), alleges that the Township's actions violate plaintiff's rights under RLUIPA, the Michigan Constitution and the First and 14th Amendments of the U.S. Constitution. American Freedom Law Center issued a press release announcing the filing of the lawsuit.

Court Enjoins Enforcement of NJ Township's Ordinances Aimed At Orthodox Jewish Community

In WR Property LLC v. Township of Jackson, (D NJ, May 5, 2021), a New Jersey federal district court issued a preliminary injunction against enforcement of two township ordinances which effectively prevent construction of Jewish schools in most of Jackson Township's residential zones and which interfere with constructing of eruvim  (symbolic religious boundary markings). The court concluded that plaintiffs were likely to succeed on the merits of their free exercise and equal protection claims, finding sufficient evidence that the ordinances were enacted with a discriminator purpose. Both the Department of Justice and the state of New Jersey have previously sued the township over its targeting of Orthodox Jews.

New Jersey Sues Township Alleging Anti-Jewish Zoning Actions

New Jersey's Attorney General yesterday announced that the state has filed a lawsuit against Jackson Township (NJ) alleging that in response to residents who have complained about the number of Orthodox Jews moving in, the Township has adopted discriminatory zoning ordinances and enforcement practices. The complaint (full text) in Grewal v. Jackson Township, (NJ Super. Ct., filed 4/27/2021) alleges that New Jersey's Law Against Discrimination has been violated and reads in part:

Defendants have exercised their zoning authority to intentionally target Orthodox Jewish religious practices and rituals, such as communal prayer, the erection of sukkahs, and the establishment of yeshivas and eruvim. They have exercised their zoning authority to enact ordinances for the purpose of deterring Orthodox Jews from building and operating religious schools, as well as the dormitories associated with those schools within the Township. And they have exercised their authority by discriminatorily investigating alleged violations of Township ordinances by Orthodox Jews, while acknowledging that resident complaints have been “exaggerated” and that significant resources have been wasted on enforcement without the discovery of any significant ordinance violations.

Insider NJ reports on the lawsuit.

Consent Decree Orders End To Village's Zoning Rules That Discriminate Against Orthodox Jewish Residents

Yesterday a New York federal district court in United States v. Village of Airmont, (SD NY, March 15, 2021), entered a consent decree requiring modification of the village's zoning code. A press release by the Department of Justice describes the order:

[The preliminary injunction mandates] that the Village... immediately cease enforcement of zoning code provisions enacted in 2018 that discriminate against Orthodox Jewish residents in violation of the Religious Land Use and Institutionalized Persons Act....  [T]he zoning code provisions at issue limit the amount of space in private homes that can be used as a Residential Place of Worship..., restrict whom residents are allowed to invite into their own homes to pray, and expand the use of an arbitrary, drawn-out application process designed to delay and effectively deny permits for even minor alterations to private houses.... [T]he Government presented evidence that the provisions had been motivated by discriminatory animus and served no legitimate governmental purpose....

RLUIPA Bars City's Enforcement of Parking Lot Restrictions On Church

In Pass-A-Grille Beach Community Church, Inc. v. City of St. Pete Beach, Florida, (MD FL, Jan. 26, 2021), a Florida federal district court, relying on the Religious Land Use and Institutionalized Persons Act, granted a preliminary injunction barring the city from enforcing restrictions on the way in which the church can use its own parking lot. The church, which is located across the street from the beach, allows the public to use its parking lot, free of charge, to access the beach. The city contends that its ordinances prohibit the church from allowing anyone who is not there on legitimate church business from parking in the lot. According to the court:

[The church] states that a vital aspect of its beliefs and ministry is outreach to the local community and the world, heeding a direct command from Christ himself. It desires to use “biblically-based hospitality” to help people enjoy a day at the beach with their families. The Church cites several Biblical verses in support of its beliefs on this point.

After concluding that the city has imposed a "substantial burden" on the church, the court analyzes the primary disagreement between the parties-- the sincerity of the church's religious beliefs regarding use of the parking lot. The court said in part:

When inquiring into a claimant's sincerity ... our task is ... limited to asking whether the claimant is (in essence) seeking to perpetrate a fraud on the court – whether he actually holds the beliefs he claims to hold.... 

The Church is certainly not attempting to perpetrate a fraud upon the Court when it states it desires to use its parking facilities to further its mission by attracting new people. Common sense shows that attracting new members is an important goal for almost all community organizations and mainstream religious groups. Likewise, giving away something for free (in this case parking) is a time-honored strategy used to generate attention create interest, and attract new customers.

At most, the City has demonstrated that the Church may have changed its mind over the years regarding the religious implications of its use of its parking lot.... Well respected religious leaders and institutions throughout the world change their minds on certain matters from time to time, and no one would suggest those changes evidence insincere religious beliefs.

Minnesota Town Approves Asatru Zoning Request

The Washington Post reported yesterday on a controversial religious zoning battle in the 273-person town of Murdock, Minnesota:

The Murdock City Council voted 3-1 ... to allow the Asatru Folk Assembly to turn the run-down church it purchased in July into its first “hof,” or gathering place, in the Midwest. The looming presence of the obscure Nordic folk religion, widely classified as a White supremacist hate group by extremism and religious experts, promoted months of pushback from concerned residents.

City leaders, meanwhile, were advised that denying the AFA’s permit could leave Murdock vulnerable to a potentially devastating religious discrimination suit.

Consent Decree Allows Construction of Chabad House

 A consent decree was entered this week in United States v. Borough of  Woodcliff Lake, (D NJ, Sept. 15, 2020), ordering the Borough to grant zoning variances that will permit construction of a Chabad synagogue. The decree, citing RLUIPA, orders zoning approvals in accordance with a site plan approved in the settlement of a parallel private action. The consent decree also contains provisions to assure future compliance with RLUIPA.  NJ.com reports on the consent decree. [Thanks to Steven H. Sholk for the lead.]

Zoning Board Members Have Qualified Immunity In Mosque's Suit

In Adam Community Center v. City of Troy, (ED MI, Aug. 26,2020), a Michigan federal district court held that members of a city's Zoning Board of Appeal who voted to deny a zoning variance sought by a mosque are entitled to qualified immunity in a suit against them personally for damages.  The court said in part:

The record does not present sufficient evidence to establish that the Individual Defendants knew or should have known their straightforward application of the seemingly legal zoning regulations, which impose different setback requirements on places of worship and places of business, would violate Plaintiff’s constitutional rights. And Plaintiff provides no legal authority clearly establishing that a government official violates a citizen’s right to freedom of religion when it enforces an apparently valid zoning ordinance for facially neutral reasons that may or may not interfere with the citizen’s right to express her religion. 

Moreover, Plaintiff fails to present sufficient evidence to establish that each of the of the Individual Defendants, in voting to deny Plaintiff’s variance application, acted with discriminatory intent or religious annimus...

However, in finding that the Individual Defendants are entitled to qualified immunity, the Court cautions that its decision here should in no way be construed as a finding that Plaintiff’s constitutional rights were not violated by the ZBA’s decision, or as absolving the ZBA , the City, or any of the Entity Defendants from potential liability.

Oregon State Law Overrides County Limit On Zoning For Mosque

 In Tarr v. Multnomah County, (OR App., Aug. 19, 2020), an Oregon state appellate court held that a state statute governing zoning for houses of worship prevents a county from applying a "compatibility standard" that appears in the county zoning code.  In a suit by individuals living next door to property on which it is proposed to build a mosque, the court concluded that the county code's requirement that a community service use be "consistent  with  the  character  of  the  area" cannot be invoked to prevent construction of the mosque.  The court said in part:

the  plain  terms  of  ORS  215.441(1)  and  (2),  in context, leave no room for the application of the county’s compatibility  standard—or  standards  like  it—to  proposed  religious  land  uses  where,  as  here,  a  place  of  worship  is  allowed  on  a  particular  piece  of  real  property  under  state  law  and  county  zoning  laws.