Code Enforcement Against Jewish Nursery School Does Not Violate Free Exercise Clause or RLUIPA

In Dreskin v. Borough of Bogota, (D NJ, July 31, 2026), a New Jersey federal district court rejected challenges under the Free Exercise Clause and RLUIPA to enforcement of building, fire and health code provisions against a small Jewish nursery school. The court said in part:

On their face and as applied, the Building, Fire, and Health Code provisions at issue are content neutral, and Plaintiff does not identify any specific provision that targets religious conduct.  Moreover, Plaintiff has failed to support her claim of disparate treatment with evidence of similarly situated secular comparators who were treated more favorably....

... [A] plaintiff must show more than a mere inconvenience to establish a “substantial burden” under the RLUIPA; the burden must render religious exercise “effectively impracticable” but does not require a showing of discriminatory governmental conduct....

The Borough’s enforcement actions have not rendered Plaintiff’s religious exercise “effectively impracticable”—Plaintiff remains free to practice her faith in other ways, and the enforcement regime does not permanently prohibit PLAYfully from operating or expanding in the future. Rather, the Borough is seeking to enforce the Building, Fire, and Health Codes based on Plaintiff’s prior noncompliance.  Once Plaintiff achieves compliance and resolves any penalties from past violations, her ability to provide religious instruction through the program is not foreclosed on the same grounds.  Accordingly, Plaintiff has not demonstrated a substantial burden under the RLUIPA.    

Plaintiff’s claim under the Equal Terms provision likewise fails, as she has failed to identify a secular comparator that is similarly situated in the context of the regulation....

3rd Circuit: RLUIPA's Institutionalized Persons Precedent Can Inform RLUIPA Land Use Cases as Well

 In Anash, Inc. v. Borough of Kingston, (3rd Cir., July 30, 2026), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision ordered a Pennsylvania federal district court to issue a preliminary injunction allowing a rabbi and his congregation access to two buildings that allegedly violated zoning provisions once building code violations were cured.  Rabbi Shimon Hellinger had acquired two properties, one used for office space and a yeshiva, and the other used for group living for ten Orthodox Jewish students who were members of the rabbi's congregation. The rabbi did not respond to notices of violations issued by zoning and code enforcement officials. On the day before Rosh Hashanah, enforcement officials obtained administrative search warrants and condemned the properties through no-occupancy orders. The rabbi and his yeshiva filed suit alleging that the official actions violated the Religious Land Use and Institutionalized Persons Act. The district court refused to grant a preliminary injunction. The 3rd Circuit affirmed the denial of a preliminary injunction against building code enforcement because building codes are not land use regulations covered by RLUIPA. However, the court reversed the denial of a preliminary injunction against enforcement of the zoning regulations, saying in part:

... [I]t is likely that the implementation of the 2023 Zoning Ordinance substantially burdens Rabbi Hellinger and his congregation’s religious exercise. ...

... [I]n Holt v. Hobbs, ... the Supreme Court adjudicated a RLUIPA substantial-burden claim by an institutionalized person.  It held that a prison policy that required an inmate to “engage in conduct that seriously violates [his] religious beliefs” was a substantial burden....  

... [A]lthough they are not identical, RLUIPA’s institutionalized persons provisions and its land-use provisions both use a substantial-burden standard subject to strict scrutiny....  The structural similarity allows the situations ... under which RLUIPA protects religious beliefs of institutionalized persons to be translated into the land-use context... Doing so yields two substantial-burden scenarios – both related to the protection of religious belief.  The first occurs when a person is forced to choose between following the precepts of his religion and avoiding the effect of a land use regulation.... The second occurs when a land use regulation places substantial pressure on a person to substantially modify his behavior in violation of his beliefs....

... [A] land use regulation imposes a substantial burden on religious exercise if it restricts access to real property that is otherwise available for the proposed exercise of religion. Second, a land use regulation – even one of general applicability – imposes a substantial burden if it limits the use of real property that is otherwise available for the proposed exercise of religion so as to prevent the proposed exercise of religion on the property.  Third, even when the imposition or implementation of a land use regulation does not directly impede religious exercise, the land use regulation may still impose a substantial burden if it has a significant adverse effect on real property that is used or otherwise available for the proposed exercise of religion....

... [I]t is unlikely that the Kingston Defendants will be able to demonstrate a compelling governmental interest in perpetuating the condemnation orders after the Building Code violations have been remediated....

Judge Restrepo dissented, saying in part:

The majority’s opinion contravenes a cohesive body of law among our sister circuits interpreting the substantial burden provision of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).... Commentators have described the courts as “coalesce[ing] around a totality-of-the-circumstances test, examining whether the government’s actions substantially inhibit religious exercise, rather than merely inconveniencing it.”... But the majority does not engage with this caselaw and merely offers in a footnote the vague statement that “[o]ur sister circuits have taken a variety of approaches” followed by a string cite..... 

Instead, the majority relies on RLUIPA’s separate provisions governing prison inmates despite recognizing that the substantial burden analysis in the prison context is “not applicable” to RLUIPA land use cases.... RLUIPA land use decisions uniformly caution against relying on principles from prison cases because “land-use regulations do not typically compel plaintiffs to ‘violate their beliefs’ in the way that, for example, prison rules might require an inmate to engage in conduct that goes against his or her religious tenets....

Unlike the majority, I would follow the approach and guidance of our sister circuits. The circuits consider two factors that are particularly apposite here: (1) whether the plaintiff had a reasonable expectation of religious land use or whether the plaintiff’s burden was self-imposed; and (2) whether the plaintiff had ready alternatives....

Separate from the merits, this appeal fails on justiciability grounds....

Church Wins Its Fight Over Fire Code Requirements

Last November, an Ohio state appellate court remanded to the trial court a church's appeal of an injunction that had been issued against it enforcing Ohio's fire code requirements for residential buildings. (See prior posting.) At issue was whether the church's "overnight ministry" triggered fire code requirements for residential use. The appellate court remanded the case because the trial court had not applied strict scrutiny as required by the Conscience Clause of the Ohio Constitution. Now in Pool v. Dad's Place, (OH Com. Pl., April 1, 2026), the Ohio trial court on remand held in favor of the Church and dismissed the fire department's request for injunctive relief. The court said in part:

Having applied strict scrutiny as set forth in the Sixth District's instructions, the Court concedes that the Fire Chief's enforcement of the fire code fails because it lacks a compelling interest and isn't the least restrictive means of enforcing fire safety. The City has given waivers to other businesses like hotels, but has refused to give the church a similar accommodation. this is fatal under strict scrutiny. Therefore, a judgment in favor of Dad's Place must be entered.

First Liberty Institute issued a press release announcing the decision. 

No Religious Discrimination Shown in Enforcement of Septic Tank Code

In Schoff v. Illinois Human Rights Commission, (IL App., Dec. 4, 2025), an Illinois state appellate court affirmed the decision of the state Human Rights Commission to dismiss religious discrimination claims brought by property owners who were cited by the Village of South Barrington for violating its septic tank code. The court concluded that the property owners had failed to produce substantial evidence to sustain any of their claims. According to the court:

In 1985, the property at issue, a single-family residence, was built with 5 bedrooms and two 1,500-gallon septic tanks in the Village, resulting in a 3,000-gallon septic capacity. At some point prior to 2014, the property owner added two unpermitted bedrooms to the residence, bringing the total number of bedrooms to seven. In 2014, the Schoffs, who are Episcopalian Christians, bought the property. Due to their faith, the Schoffs believed they were called to provide short-term housing to people in need, specifically asylum seekers, missionaries and refugees. The Schoffs’ beliefs led them to house, at various times, predominantly Black individuals from Africa, but also occasionally Chinese, Japanese, Colombian and white individuals. 

The Schoffs were granted a religious accommodation from a municipal ban on short term rentals but were cited for violation of the septic tank code that required a minimum tank capacity of 3,500 gallons for a 7-bedroom home. The court said in part:

The Schoffs alleged that the Village’s prosecution of the septic code violations against them amounted to harassment, interfered with their religious beliefs, and interfered with their association with Black and African asylum seekers and missionaries. The Schoffs asserted that the Village’s interpretation of its septic code was unreasonable and the Village engaged in selective enforcement of it....

... [T]he Schoffs posit that, when an ordinance contains a variance procedure and the government refuses to grant a variance based upon an applicant’s need to use a property for religious observance and practice, an inference of religious practice discrimination exists....

All the Schoffs can do with the fact that the Village denied them a variance is speculate that the denial had a discriminatory intent. But speculation cannot create substantial evidence....  Consequently, the Commission properly found that the Schoffs failed to make a prima facie showing on Count F, and therefore, it did not abuse its discretion by sustaining the Department’s dismissal on Count F for lack of substantial evidence....

Church's Challenge to Fire Code Applicability Triggers Strict Scrutiny

 In Pool v. Dad's Place of Bryan, Ohio, (OH App., Nov. 21, 2025), an Ohio state appellate court remanded to the trial court a church's appeal of an injunction subjecting it to Ohio's fire code requirements for residential buildings. The city contends that the church's overnight ministry constitutes use of the building for "residential" as well as "assembly" purposes because the building is used in part for "sleeping purposes."  Categorizing the building as "residential" would require the church to install a sprinkler system whose cost is beyond the church's financial ability. 

The court said in part:

... [N]ot only has appellant presented undisputed evidence that it cannot afford to open a second location to provide sleeping accommodations, appellant maintains that its religious beliefs require it to welcome the stranger to live among the church, not to operate an offsite homeless shelter.  Moreover, appellant cannot simply relocate to somewhere else in the surrounding area with the appropriate use occupancy.  Because appellant’s ministry involves gatherings for religious worship, during which individuals are permitted to fall asleep, appellee maintains that appellant’s use occupancy is mixed....  Outside of a fire official exercising discretion in favor of appellant, appellant is left with only one option to comply with the fire code: cease permitting individuals to sleep in its premises, which would violate appellant’s religious beliefs....

The lack of objective criteria in the fire code to categorize appellant’s use as residential combined with appellee’s shifting interpretations throughout the matter’s pendency demonstrates that the fire code provisions at issue are not generally applicable....  

... [A]ppellant maintains that it has no intention of creating a homeless shelter, but instead its intention is to provide an overnight ministry in which individuals can pray, engage in fellowship, and listen to scripture, and it would violate its sincerely held religious beliefs to wake individuals who fall asleep during its ministry....  [A]ppellee had to consider the reasons for appellant’s conduct—including its religious reasons—when exercising his discretion to determine that appellant impermissibly changed its use occupancy, and therefore the fire code provisions at issue are not generally applicable.... Accordingly, appellee’s attempted enforcement of the fire code is subject to strict scrutiny under federal constitutional law, and the trial court erred in applying a rational basis review....

Here, appellant opposed the preliminary injunction under both the federal Constitution’s Free Exercise Clause and the Ohio Constitution’s Conscience Clause.... The trial court did not apply a strict scrutiny test as required by Ohio constitutional law, and therefore the trial court neglected to address appellant’s rights under the Ohio Conscience Clause. 

[CORRECTED: An earlier version of this post incorrectly stated that the injunction being appealed was one granted to the church.]

9th Circuit: Requiring Tree Trimming Did Not Violate Plaintiff's Free Exercise Rights

In Joseph v. City of San Jose, (9th Cir., Sept. 11, 2024), the U.S. 9th Circuit Court of Appeals rejected plaintiff's claim that enforcement of municipal code restrictions violated his 1st Amendment religious free exercise rights. The court said in part:

Joseph asserts that the City’s assessments against his trees placed a substantial burden on the free exercise of his “religious and spiritual beliefs,” which he describes as having “Buddhist, Taoist, Celtic, quantum physics, evolutionary, neurological, numerological, and cosmological foundations.”  Although “[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds,” a court may properly consider “whether the alleged burden imposed by the [challenged state action] is a substantial one.”... We hold that the City’s actions did not create a substantial burden.  Joseph voluntarily complied with the generally applicable municipal code requirements to trim the trees’ overgrown vines, and he stated during his deposition that such trimming did not impair the trees’ spiritual or religious value.... .  “The right to freely exercise one’s religion ... ‘does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”....

Court Says Center's Food Distribution Is Likely a Religious Exercise Under RLUIPA

In Micah's Way v. City of Santa Ana, (CD CA, June 8, 2023), a California federal district court refused to dismiss a suit by a center that provides aid to impoverished and disabled individuals claiming that the city has violated its rights under RLUIPA and the First Amendment by refusing to issue it a Certificate of Occupancy unless it agrees to stop providing food and beverages to its clients. While the center had operated for 5 years without a certificate of occupancy, the city began a concerted effort to get Micah's Way as well as a needle exchange program nearby to move out of the neighborhood after the city's mayor who lived nearby experienced a break-in at his home. The court held that Micah's Way plausibly alleged that its food distribution activities are a "religious exercise" under RLUIPA and that the city has substantially burdened that religious exercise. The court also concluded that plaintiff has plausibly alleged a violation of the 1st Amendment's Free Exercise clause. Voice of OC reports on the decision.

Village Sues Church Over Its Homeless Shelter

RNS reports that the affluent Chicago suburb of Village of Orland Park has filed suit against Hope Covenant Church seeking to close down its homeless shelter== the first in the village in over 30 years.  According to RNS:

With temperatures dipping down near the single digits, the seasonal shelter has housed between 15 and 50 people one night every week, including a toddler and local public high school students.

The overnight shelter, the result of a partnership with Illinois’ Beds Plus community organization, is open every Tuesday until April — unless a lawsuit by The Village of Orland Park succeeds in closing it down.

Last week, Village attorneys filed a lawsuit against the church, arguing that the shelter “constitutes an ongoing threat to public health and safety.” The lawsuit cited 28 health and safety code violations caused by the church using the building, which was intended solely for religious services, as an overnight shelter.

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.

Court Refuses To Allow Amended Complaint On Building Code Application To Home Bible Study Groups

In Salman v. Phoenix, (D AZ, Jan. 27, 2016), an Arizona federal district court refused to permit an ordained minister who used his home for weekly Bible study meetings  and worship to file a third amended complaint seeking damages and injunctive relief against the city's application of its building code to his activities.