Circuit Court Finds Boulder County Violated RLUIPA

Last week the Tenth Circuit Court of Appeals found a RLUIPA violation based upon a denial of a special permit to expand a church. In Rocky Mountain Christian Church v. Board of County Commissioners of Boulder County Colorado the Circuit Court overturned the denial of a special permit application to significantly expand an existing church on the grounds that (1) the Church (RMCC) was not treated on equal terms with other applicants, (2) a substantial burden had been placed on the Church and (3) unreasonable limitations were placed upon the Church's proposed expansion.

Significantly, the County had a long standing comprehensive plan which sought to maintain the rural character of the County. The legislation which implemented the comprehensive plan required a special permit for any project with an occupancy of 100 or more people in an Agricultural District. The criteria for the special permit had both objective (height requirements) and subjective (compatibility) criteria. The proposed application met the threshold requirements for a special permit and ultimately sought "a 28,000 square foot gymnasium, a 6,500 square foot chapel, expanding the school building by 57,500 square feet, gallery space connecting the buildings,and an expansion of the main worship building’s seating capacity by 150 seats." The review by the County staff found compliance with the objective criteria but also found the project to be "incompatible with the surrounding area, an over-intensive use of the land, likely to cause undue traffic congestion, and likely detrimental to the welfare of the residents of Boulder County."

The Circuit Court found that the staff had modified its methodology for determining if a proposal was over-intensive. The usual criteria was based upon a calculation of whether the expansion resulted in 50% or more of the property being covered by buildings and parking. The Court noted, in this case the coverage was only 35%, yet there was a determination by staff that the proposal was "over-intensive." However, rather than using the coverage criteria, County staff determined the proposal was over-intensive because it doubled the church's square footage and significantly increased parking. In reciting the facts, the Circuit Court made a point of noting that one of the Commissioners greeted a consultant for the Church privately before the public hearing stating "you can bring in your Christians now." The final decision permitted the 150 seat expansion and 10,000 square foot building to replace the modular building but denied the balance of the application.

The Church sued under RLUIPA. A jury found for the Church on the substantial burden, equal terms and unreasonable limitations claims but failed to award any damages. The District Court then issued a permanent injunction directing issuance of the special permit.

The County appealed the decision, including the injunction and further argued that if the Court found the substantial burden provisions of RLUIPA had been violated that the law should be declared unconstitutional both on its face and as applied in this case.

On the issue of equal terms the County argued that evidence of a similar application of the Dawson School, which was approved, was not really a similar application. The Court however found that while the projects were not identical "the many substantial similarities allow for a reasonable jury to conclude that RMCC and Dawson School were similarly situated." The County argued in the alternative that it had an affirmative defense that "a generally applicable law that is rationally related to a legitimate governmental interest cannot violate the equal terms provision." The Court rejected that defense in this case and found: "evidence at trial was sufficient to demonstrate the County applied the zoning ordinance non-neutrally. As noted above, the Church was treated less favorably than Dawson School, a similarly situated comparator. Further, there was evidence the County singled out the Church for adverse treatment in “processing” and “determining” its application. For example, the County applied a less advantageous method to calculate whether the Church’s proposed use was over-intensive, and treated the Church’s application as a new application, even though it was an existing use. .... As a result, if an affirmative defense to the equal terms provision exists, only a strict scrutiny defense would apply here. The County has not argued that it should enjoy a strict scrutiny defense to the equal terms provision, and thus the argument is waived."

The Court then went on to review evidence as to whether the County placed unreasonable limitations on religious uses. Included in the evidence was information about other religious groups that either had been discouraged to not apply or, in one case, a group that ran out of money during the review process. The Court also found evidence of "disparate treatment" of the Church in the application process and concluded that there was adequate evidence to support the jury's verdict. The Court went on to decline to address the substantial burden issue in view of its findings upholding the determination on the basis of equal terms and unreasonable limitations.

The Court also found that the County had not adequately preserved its constitutional challenges on the issues of equal terms and unreasonable limitations. Therefore, the Court held it was not necessary to address the constitutional challenge to the substantial burden provisions of the statute, finding instead that the "district court based the permanent injunction on all three RLUIPA counts. Because the jury’s verdicts on the equal terms and unreasonable limitations claims are sufficient to support the injunction, we do not address the constitutionality of RLUIPA’s substantial burden provision."

Finally, the Court concluded that the permanent injunction granting the entire application was not overly broad. This is rather interesting because the proposal by the Church was based upon a projection of potential needs over the next twenty years and the County argued it was therefore not necessary to approve the entire application. Yet, the Court concluded that not granting the relief would require the Church to address its expansion in a "piecemeal fashion."

-Steven Silverberg