Challenge To Boca's Zoning For Chabad Again Dismissed For Lack of Standing

As previously reported, last July a Florida federal district court dismissed on standing grounds a challenge by residents and taxpayers of Boca Raton to zoning changes by the city that permitted a Chabad (Hasidic Jewish) group to construct a religious center.  Plaintiffs, who identified themselves as Christians, claim that the city's actions violated the Establishment clause, the equal protection and due process clauses, and the Florida Constitution. Subsequently plaintiffs filed an amended complaint attempting to find standing by describing plaintiffs as citizens and residents of the United States residing in Boca Raton, and as members of the Christian religion.  In Gagliardi v. City of Boca Raton, 2017 U.S. Dist. LEXIS 46805 (SD FL, March 27, 2017), the court again found that plaintiffs lack standing, saying in part:

Far from the particularized and concrete injury required to confer standing, Plaintiffs have simply reasserted, again and again, a list of conjectural injuries to the whole of the area surrounding the proposed Chabad site, and potentially beyond.

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.

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. 

Minnesota County Rejects Muslim Cemetery

City Pages reports that in Chisago County, Minnesota, county commissioners on Dec. 21 by a vote of 3-2 rejected the recommendation of the county Planning Commission refused to approve the use of 16 acres as a cemetery for the Islamic Community of Bosniaks, a Bosnian congregation with a mosque in Minneapolis-St. Paul.  The vote came after many neighbors expressed opposition on grounds ranging from traffic concerns, to the Muslim practice of burying their dead without a casket, to openly anti-Muslim attitudes.

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.

Suit Challenges Zoning Approval For Temporary Jewish School

A resident of Ramapo, New York filed suit in a state trial court earlier this month challenging the decision of the Ramapo Zoning Appeals Board which allowed an Orthodox Jewish congregation to convert a single family residence into a temporary school.  The Board relied on a provision of the zoning code that allows use of temporary modular trailers as classrooms for up to two years while obtaining approval to build a permanent school. The residence meets fire and building codes.  The complaint (full text) in Katz v. Town of Ramapo, (Rockland Cty Sup. Ct., filed 12/19/2016) contends that zoning authorities should have required the school to go through the procedures to obtain a special use permit, including a public hearing.  According to the Lower Hudson News, zoning officials say it would not make sense to require tearing down of the house and replacing it with temporary modular trailers, and that kind of burden could not be justified under RLUIPA.

Settlement Reached In Dispute Over Muslim Cemetery

The town of Dudley, Massachusetts has reached an agreement to settle a suit brought by the Islamic Society of Greater Worcester that will allow a Muslim cemetery to be located in the town. Initial denial of permits led to widely publicized charges of religious discrimination.  The Boston Globe reports:

The settlement, approved Thursday evening by the Dudley Board of Selectmen, should result in an initial 6-acre cemetery on 55 acres of former farmland that would provide enough graves for “several generations of families of the Islamic Society of Greater Worcester,” said Jay Talerman, ... a lawyer for the Islamic Society. Along with some wetlands, the site also contains about another 6 acres that would be suitable for cemetery plots, but under the deal the Islamic Society agrees not to seek to expand the initial cemetery for at least a decade, he said....

Under the new settlement, the cemetery project will come back before the Dudley Zoning Board of Appeals, where “we’ve agreed there will be a special permit granted on mutually agreeable conditions,” [John] Davis [the town's counsel] said. The project will then be reviewed by the Board of Health, and, if plans affect wetlands, by the Conservation Commission...

Court Grants Variance To Allow Digital Church Sign

In Antioch Community Church v. Board of Zoning Adjustment, (MO App., Dec. 13, 2016), a Missouri state appeals court held that the Kansas City Zoning Adjustment Board abused its discretion when it refused to grant a church a variance from the city's sign ordinance.  The church modified its sign which displayed messages by way of manually hung letters to substitute a digital display.  The upgrade cost the church $11,000, and it installed it unaware that the Kansas City sign code prohibits digital displays on church property in residential zones. In ordering the variance granted, the appeals court said in part:

The Church is on a busy roadway nestled in the middle of considerable commercial development. Its sign does not substantially change the character of the neighborhood, and no evidence was introduced to show a substantial detriment to neighboring properties.

KCUR reports on the decision.

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).

Deed Restrictions Upheld To Prevent Construction of Synagogue

In Welch v. Chai Center For Living Judaism, Inc., (NJ App., Aug. 15, 2016), a New Jersey appeals court upheld the enforcement of a deed restriction that prevents an Orthodox Jewish group from constructing a synagogue with classrooms, social hall and playrooms on property it owns.  The restrictions limit property use to a single-family residence. The court said in part:

We are unpersuaded by defendants' suggestion the Center must be permitted to conduct prayer groups and social gatherings as a free exercise of religion. We reject the suggestion the deed restriction unconstitutionally prohibits private religious observances within the confines of one's own home.

RLUIPA Applies To Law Aimed At Transitional Housing For Sex Offenders

In Martin v. Houston, (MD AL, July 25, 2016), an Alabama federal district court held that a pastor can invoke RLUIPA in challenging an Alabama law that would require him to close down his mobile home transitional housing arrangement for recently-released male sex offenders.  The law, which the state legislature made applicable to only one county, prohibits unrelated adult sex offenders from establishing residency in the same home or living less than 300 feet apart on the same property. The court concluded that the law constitutes a land use regulation under which the government makes individualized assessments of the proposed use of property.

Plaintiffs Lack Standing To Challenge Florida Chabad Center

In Gagliardi v. City of Boca Raton, (SD FL, July 21, 2016), a Florida federal district court dismissed on standing grounds a challenge by residents and taxpayers of Boca Raton to zoning changes by the city that permitted a Chabad (Hasidic Jewish) group to construct a religious center.  Plaintiffs, who identified themselves as Christians, claim that the city's actions violated the Establishment clause, the equal protection and due process clauses, and the Florida Constitution.  Dismissing the complaint, with leave to file an amended complaint, the court said in part:

Plaintiffs fail to allege any injury at all, let alone one that is concrete and particularized. The closest they come to asserting an injury is when they allege that the building is “injurious to residents in the area including” Plaintiffs.... This allegation is insufficient because it merely states in conclusory fashion that the building is “injurious” without specifying how it causes injury...

Rejecting plaintiff's claim of taxpayer standing, the court said in part:

The only expenditure they identify is the payment of salaries to City employees who allegedly “provided favorable treatment to one religious group.”... “Nearly all governmental activities are conducted or overseen by employees whose salaries are funded by tax dollars. To confer taxpayer standing on such a basis would allow any municipal taxpayer to challenge virtually any governmental action at anytime...."

Palm Beach Sun Sentinel reports on the decision.

DOJ Sues Township Over Denial of Zoning Variance For Mosque

The U.S. Department of Justice announced yesterday that it has filed suit against  Bensalem Township, Pennsylvania over the township's denial of a zoning variance to permit Bensalem Masjid to construct a mosque on property near a commercial area.  The complaint (full text) in United States v. Bensalem Township, Pennsylvania, (ED PA, filed July 21, 2016), alleges that the zoning denial violates the substantial burden, equal terms, discrimination and unreasonable limitations provisions of the Religious Land Use and Institutionalized Persons Act. Washington Times reports on the lawsuit.

Denial of Use Permit Did Not Impose "Substantial Burden" Under RLUIPA

In Livingston Christian Schools v. Genoa Charter Township, (ED MI, June 30, 2016), a Michigan federal district court held that a township's denial of a special use permit did not impose a substantial burden on the religious exercise rights of a Christian school.  The school sought to move to a building currently owned by a church and recently leased to the school. The court said in part:

The term “substantial burden” is not defined in the RLUIPA. The Sixth Circuit in Living Water Church of God v. Charter Twp. of Meridian articulated a standard which requires LCS to show that, “ . . . the government action place[s] substantial pressure on [it] to violate its religious beliefs or effectively bar[s] [it] from using its property in the exercise of its religion[.]” ... While it may be less convenient or more expensive for LCS to operate its school from a different location, the circumstances present here do not constitute a substantial burden.... Because LCS has not “proffered evidence showing that it cannot carry out its church missions and ministries due to the Township’s denial,” it has not established a substantial burden on its free exercise of religion.

The court also rejected the school's 1st and 14th Amendment challenges.

Court Again Denies Minister Right To File Amended Complaint In Building Code Dispute

In Salman v. City of Phoenix, (D AZ, June 6, 2016), an Arizona federal district court denied a motion by an Arizona minister to file a fourth amended complaint in a suit challenging Phoenix's application of its building code to his use of his house for weekly Bible study meetings and worship.

6th Circuit Remands RLUIPA "Equal Terms" Zoning Challenge

In Tree of Life Christian Schools v. City of Upper Arlington, (6th Cir., May 18, 2016), the U.S. 6th Circuit Court of Appeals in a 2-1 decision reversed and remanded in a RLUIPA land use case, finding that material facts remain as to the application of RLUIPA's "equal terms" provision.  At issue is an Ohio city's refusal to rezone a large office building for use as a religious school. The office building is in an area zoned as an "Office and Research District" -- an area designed for uses that would maximize the city's tax revenues. The majority said in part:

The religious land use that TOL Christian Schools proposes is, we assume without deciding, deleterious to the purpose of the regulation at issue (which we assume to be increasing income-tax revenue). But the nonreligious uses that the government concedes it would allow seem to be similarly situated to the regulation..... [T]he government suggested at oral argument that it would prefer that [the property] be used for an ambulatory care center or outpatient surgery center. But we cannot assume as a fact... that an ambulatory care center (or an outpatient surgery center, or a data and call center, or office space for a not-for-profit organization, or a daycare) would employ higher-income workers than TOL Christian Schools would.... 

Hasidic Challengers To Zoning Law Suffer a Defeat on Appeal

LostMessiah blog reports:

A [New York] state appeals court has upheld the Village of Woodbury’s Comprehensive Plan and zoning laws, reversing a 2014 ruling that branded the zoning “exclusionary” for failing to accommodate the high-density housing needs of the Hasidic residents of neighboring Kiryas Joel.

In Matter of Village of Kiryas Joel, N.Y. v Village of Woodbury, N.Y., (NY App. Div., April 10, 2016), the appeals court concluded that the trial court should not have annulled the village's zoning action on environmental review and other procedural grounds. It sent the case back to the trial court, holding that "triable issues of fact exist as to whether the Comprehensive Plan and the Zoning Amendments amount to unconstitutional exclusionary zoning." (See prior related posting).

New Resource On RLUIPA Land Use Cases

The Dalton & Tomich law firm announced yesterday that it has posted on its website the first comprehensive list of RLUIPA land use cases along with basic information about the claims involved. It has also posted a bibliography of leading articles on RLUIPA's land use provisions.

Business Owner Unsuccessful In Suing Churches That Opposed New Strip Club

In Harrington v. Hall County Board of Supervisors, (D NE, March 31, 2016), a Nebraska federal district court dismissed a number of claims brought by the owner of an adult entertainment company against two churches that circulated a petition opposing attempts to open a strip club in Hall County, Nebraska. The court also dismissed claims against a director of one of the churches.  The adult entertainment company owner alleged that the churches engaged in a conspiracy to adopt and enforce an unconstitutional zoning resolution. Plaintiff also alleged violations of the antitrust laws, defamation, tortious interference with business relationships, infliction of emotional distress, and negligence.  The court additionally rejected the claim that individual members of the County Board of Supervisors violated the Establishment Clause when at a public hearing they thanked supporters of the petition for supporting Christian values.

Chabad Center Sues New Jersey Town Claiming Discrimination

A lawsuit was filed in a New Jersey federal district court yesterday by the Chabad Jewish Center of Toms River, New Jersey and Rabbi Moshe Gourarie. The suit claims that the town violated plaintiffs' free exercise and equal protection rights by refusing permission for the Chabad Center, which usually attracts fewer than 15 people, to operate out of a large home and garage on 8 acres on Church Road purchased by Gourarie in 2011. As reported by NJ Advance Media:

The town changed the zoning of that section of Church Road in 2009 to ban churches from operating there and since then, the township has engaged in a systematic practice of discrimination against ultra-Orthodox Jews and are seeking to have them contained in neighboring Lakewood where there is a large population of Orthodox Jews, the complaint contends....

In claiming discrimination, the suit notes that the zone permits activities at the adjacent American Legion, a church, Ocean County College, the county fire academy and other sites that are not residential uses.

(See prior related posting.) [Thanks to Steven H. Sholk for the lead.]