What Counts As A "Church"?

RLUIPA Defense blog last week recounted the story of Spokane, Washington's "Jedi Alliance" which bills itself as a church.  Tim and Tyler Arnold purchased a large collection of arcade games. Looking for a place to house them permanently, they purchased a building that formerly was used as a Methodist church.  Then, however, city officials told them that the building was zoned only for residential use or use as church.  So the Arnolds registered as a church, opening the building on Sunday evenings for the public to play the arcade games or patronize the gift shop.  The Arnold brothers said:

Is it a church? Well, it’s a church in the sense that we took over a church building.  Are we here congregating? Yes, we’re here congregating getting together.  We can use all of this pop culture stuff to bring people together, to get people to have a reason to come together in a social setting.

Justice Department Investigating Mosque Zoning Dispute In Nebraska

According to yesterday's Omaha World-Herald, the U.S. Justice Department is investigating complaints by leaders of a mosque in Lexington, Nebraska, that the town is burdening their religious freedom in raising zoning objections to the use of a former downtown laundry building for Muslim prayer.  Somali workers from a local meat packing plant use the building for prayer 5 times a day. The paper reports:

City officials maintain that mosque leaders are ignoring local zoning laws and thumbing their noses at requirements for building permits and fire-code inspections.

They insist that the flap is about a lack of parking, not a denial of religious freedom, and that it wasn’t spurred by “Islamophobia.”

.... We’re just trying to plan and redevelop that part of our town,” said Lexington City Manager Joe Pepplitsch.... Let’s find an alternative.”

But local Muslim leaders question why a community that has hosted waves of immigrants seems to be taking such a hard line against them. They had gathered for prayers in two smaller buildings for eight years before expanding into and later buying the larger laundry next door. They see plenty of empty parking stalls nearby at two city-owned lots.

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.

Zoning For "Houses of Worship" Does Not Include Homeless Services Site

The Albany Times-Union reports that a New York state trial court judge last week overruled the Albany Board of Zoning Appeals decision that would have allowed the non-profit group Family Promise of the Capital Region to use a building in an area zoned to include "houses of worship" to provide services to homeless families.  The site-- a parsonage of the Bethany Reformed Church-- was used to provide daytime child care, access to computers, career and life counseling and a place to pick up mail and make phone calls.  The Board of Zoning Appeals held that the outreach services were part of Bethany's religious mission.  However the court disagreed, saying that a "house of worship" is a place set aside for for some form of religious devotion, ritual or service showing reverence. Critics of the court's decision say the ruling could create problems for all sorts of congregations that make their basements and meeting rooms available for social programs they deem part of their missions.  Family Promise can still apply for a zoning variance to allow it to continue its operations.

Suit Says Zoning Change To Permit Chabad Development Violated Establishment Clause

The South Florida Sun Sentinel  reported yesterday on an unusual lawsuit filed by two Christian residents of Boca Raton, Florida alleging secret arrangements between the city, a developer and Chabad of East Boca to allow Chabad to build a $10 million synagogue and museum on Boca Raton's barrier island. The complaint (full text) in Gagliardi v. City of Boca Raton, Florida, (SD FL, filed 2/8/2016), alleges that the arrangement, undertaken in response to public objections to Chabad's locating in a different area of the city, violated the Establishment Clause, the due process and equal protection clauses, and the state constitution. The complaint alleges that the change in the city code to permit Chabad to locate on the barrier island (followed by variances and other actions to further the project) was a "complete and and express violation of the prohibition of advancing, endorsing or promoting of religion as set forth in the First Amendment of the United States Constitution."

City Sues Mosque Over Renovation and Expansion Plans

AP reports that the city of Lexington, Nebraska has sued a mosque to keep it from renovating and expanding its downtown property.  The Islamic Center of Dawson County wants to renovate two buildings it has occupied since 2008 and renovate an adjacent former laundromat building that it has acquired.  The city says the Islamic Center has never obtained an occupancy permit, and that it needs a conditional use permit to use the former laundromat building for religious purposes.  In December, City Council voted to deny the permit over concerns about parking and downtown redevelopment plans.  The city's lawsuit seeks penalties of $600 per day for building code and zoning violations, and asks for a temporary injunction against expansion into the laundromat building. The city is urging the Islamic Center to look for property in residential areas, but the mosque says those areas are far from where its members-- mostly Somalian and other African immigrants-- live.

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.]

Church Sues Over Denial of Use Permit

According to Saturday's Fort Worth Star Telegram, earlier this month the 75-member Now Faith Deliverance Temple filed a state court lawsuit against the Pantego, Texas Town Council after the Council denied the church a special use permit.  The permit would have allowed the congregation to continue to operate in the building to which it relocated 6 months earlier.  Apparently the Town had received complaints from neighbors about noise levels at the church.  The non-denominational African-American church charges that the Town Council has a history of denying permits to religious groups whose members are racial or religious minorities. Last November, a mosque faced a similar refusal.

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.

New Jersey Synagogue Files Court Appeal of Zoning Decision

The Clifton Journal reported Friday that the Clifton, New Jersey Orthodox Jewish congregation, Shomrei Torah, has filed an appeal in state court of a zoning decision that severely limits the size of the synagogue that Shomrei Torah plans to build.  Plans to turn an existing house into a synagogue by building on an addition were rejected.  The city's planning board voted 7-0 to limit the size of the proposed synagogue to 7,000 square feet in area or 35 feet in height-- a 57% reduction in the originally proposed square footage in order to insure that the synagogue meets requirements for number of parking spaces and conform the building to the neighborhood.

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].

Mikveh OK In Area Zoned For Places of Worship

In Matter of Winterton Properties, LLC v Town of Mamakating Zoning Board of Appeals, (NY App., OCT. 22, 2015), a New York state appellate court held that the term "neighborhood places of worship"  in a town's zoning law includes a mikveh (Jewish ritual bath).  The proposed mikveh is located in an area zoned for neighborhood places of worship, but the city claimed that the term only includes places of communal worship. The appeals court concluded: "The terms of the ordinance do not support this requirement, nor do we find it to be either established or supported by the dictionary definition..." [Thanks to Steven H, Sholk for the lead.]

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.

Minister's Challenge To Applying Building Code To Home Bible Study Group Is Dismissed

In Salman v. Phoenix, City of, (D AZ, July 14, 2015), an Arizona federal district court dismissed a 42 USC Sec. 1983 suit by a minister and his wife seeking to enjoin the city from applying its building code to weekly bible studies held in a 2000 square foot game room built in their backyard. The minister had already been convicted criminally in state court for building code violations. The court dismissed the claim on the basis that a federal habeas corpus action is the only federal court route available to bring a suit that would necessarily challenge the validity of a state criminal conviction. The court said:

A § 1983 plaintiff’s request that a federal court declare unconstitutional the very statute (or its application to the plaintiff) under which he was convicted in state court is no different than a request that a federal court invalidate the conviction itself.

The court also dismissed plaintiffs' RLUIPA and state law claims.

Sex Club Evades Zoning Restrictions By Becoming A Church

The Washington Post yesterday published a lengthy and fascinating account of a Nashville, Tennessee swingers sex club that has apparently gotten around a number of zoning hurdles put in its way by turning itself into a church-- the United Fellowship Center.  The club sold its downtown building at a profit as its neighborhood gentrified, and it purchased a new building in the suburban community of Madison.  At the time, the building was properly zoned for the social club's activities.  However the building was located between two churches and an upscale Christian academy.  Local zoning laws were soon amended to bar private clubs of any kind in the area where the building was located.  And the state legislature passed a law prohibiting private clubs at which people can  view or engage in sex from operating within 1,000 feet of a school. So the club became a church at which swingers meet, mingle and engage in the regular practice of their faith. It revised its building plans to give areas of the church appropriate names. Actual sex will have to move off premises. The church's attorney says:

They can sue us and say they want an injunction to stop us from operating, and we can say we have some tenets of the church sort of like the Ten Commandments.... 

Dallas Sues Synagogue For Failing To Obtain Certificate of Occupancy

Last month, a Homeowners Association lost its attempt to enforce deed restrictions barring use of a north Dallas, Texas home by Congregation Toras Chaim, a group of 30 Orthodox Jewish families, for daily prayer services. (See prior posting.)  This week, however, the city of Dallas filed suit against the congregation claiming that it needs to obtain a certificate of occupancy to use the home for non-residential purposes. The complaint (full text) in City of Dallas v. Gothelf, (TX Dist. Ct., filed 3/2/2015), says that the congregation filed an incomplete application for a certificate last year.  It needs to comply with handicap accessibility, fire safety and parking regulations. The synagogue claims it is shielded from compliance by RLUIPA and the Texas Religious Freedom Restoration Act.  According to the Dallas Morning News, the synagogue says there is no way it can afford to make the changes the city has demanded.

DOJ Announces Settlement of RLUIPA Zoning Suit On Behalf of Minnesota Mosque

The Minnesota United States Attorney's Office announced yesterday that a settlement agreement in principle has been reached in its RLUIPA lawsuit against the City of St. Anthony Village (MN).  The suit challenges the city's refusal to issue a conditional use permit to the Abu Huraira Islamic Center-- with its largely Somali Muslim membership-- that sought to purchase an existing business center in an area zoned "light industrial," use the basement for worship space and continue to rent the remainder of the building to existing business tenants. (See prior posting.)  The agreement, which must still be approved by the St. Anthony City Council, the Justice Department and the federal district court, calls for the city to create a Planned Use Development that will allow the Islamic Center to use the basement space for worship. The city will also undertake various other initiatives to prevent future religious discrimination.  The Minneapolis Star-Tribune reports in more detail on the settlement terms.

Consent Injunction Issued In Church's RLUIPA "Equal Terms" Challenge

A Kansas federal district court last week issued a consent order (full text) granting a preliminary injunction barring Garden City, Kansas from enforcing its zoning code against a church that has been located in the city's central business district for ten years. The order in Mount Zion Church of God In Christ v. City of  Garden City, Kansas, (D KA, Nov. 14, 2014), comes in a RLUIPA challenge to provisions that fail to include churches as permitted uses in the area zoned as Central Business District.  The complaint (full text) in the case invokes RLUIPA's "equal terms" provision as well as the 14th Amendment.  In September the city told Mount Zion that it must stop using its location as a church after the city received a complaint from a citizen about another nearby church. RLUIPA Defense blog today reports on the case.

Ruling Requiring Change of Use Permit For Meditation Center Upheld By Court

In  MAUM Meditation House of Truth v. Lake County, Illinois, (ND IL, July 16, 2014), an Illinois federal district court dismissed free exercise, free speech, equal protection and due process challenges to a decision by zoning authorities that a "change of use" permit is necessary to use a residence also as a meditation center. The court held first that plaintiffs must exhaust administrative remedies by seeking court review of a zoning board of appeals decision. In addition, the court concluded that plaintiffs cannot succeed on any of their substantive challenges.