The Sixth Circuit Court of Appeals held that a zoning ordinance that limited permitted uses, based upon potential tax revenue generated by the uses, did not violate the Religious Land Use and Insttutionalized Persons Act (RLUIPA). In Tree of Life Christian Schools v. City of Upper Arlington, Ohio, the Court held that the School had failed to establish a prima facie RLUIPA claim.
The U.S. Fourth Circuit Court of Appeals upheld the dismissal of an action claiming the denial of a variance for a church use was a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). In Andon, LLC v. The City of Newport News, the Court held that the denial of a setback variance to permit a church use did not impose a substantial burden on the religious exercise of the church.
A congregation found a building for lease located in a commercial zoning district which permits religious uses, provided it meets the following requirements: Continue reading →
The Town of Greenburgh has agreed to pay a reported record setting 6.5 million dollars to settle the RLUIPA claims of Fortress Bible Church. The long saga of the claims against the Town of Greenburgh (located in Westchester County, New York), which we have reported at length in this Blog, reached a settlement on December 16 when the Town Board approved the settlement with only 1 million of the 6.5 million dollar settlement covered by insurance.
The case arose out of the request by Fortress Bible for approval to construct a new church on property it acquired in the Town. The Town engaged in a lengthy SEQRA review only to reject the application. Once Fortress Bible brought suit the Town made a number of claims, including that SEQRA was not a land use regulation within the meaning of RLUIPA. After a bench trial, the Town’s claims were rejected and the Federal District Court found the Town had, among other things, violated RLUIPA. On appeal to the Second Circuit Court of Appeals, that court, in affirming the District court, stated:
“The Town’s own Planning Commissioner (subsequently replaced by the Town) believed that the alleged environmental impacts did not warrant a positive declaration, but the Town initiated the SEQRA review process anyway after the Church refused to accede to the Town’s demand that it donate a fire truck or provide some other payment in lieu of taxes. The Town then manipulated its SEQRA findings statement to “kill” the project on the basis of zoning concerns despite the fact that there were no serious environmental impacts. We decline to insulate the Town from liability with regard to its decisions on zoning issues simply because it decided them under the rubric of an environmental quality review process.”
The Second Circuit Court of Appeals affirmed the decision of the U.S. District Court for the Southern District of New York finding that the Town of Greenburgh had violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) in its handling of an application for land use approvals by a church. In Fortress Bible Church v. Feiner (10-3634-cv), the Circuit Court affirmed the District Court which had ” ordered broad relief: (1) it annulled the positive declaration and findings statement; (2) it ordered that the Church’s 2000 site plan be deemed approved for SEQRA purposes and enjoined any further SEQRA review; (3) it ordered the Board to grant the Church a waiver from the landscaped parking island requirement; (4) it ordered the Zoning Board to grant a variance permitting a side building location; (5) it ordered the Town to issue a building permit for the 2000 site plan; (6) it enjoined the Town from taking any action that unreasonably interferes with the Church’s project; and (7) it imposed $10,000 in sanctions for spoliation of evidence.”
For a detailed discussion of the facts and the District Court’s findings see our August 2010 Blog post on that decision.
In its appeal, the Town raised several arguments: “(1) RLUIPA is by its terms inapplicable to the environmental quality review process employed by the Town to reject the proposal, (2) there was insufficient evidence that the defendants had imposed a substantial burden on plaintiffs’ religious exercise under RLUIPA, (3) plaintiffs’ class-of-one Equal Protection claim is not viable because they have not alleged a single comparator similarly situated in all respects, (4) plaintiffs’ Free Exercise rights were not violated, (5) the Town did not violate Article 78, and (6) the district court lacked the authority to order the Town Zoning Board, a non-party, to take any action with regard to the Church.”
In a 206 page decision, the U.S. District Court for the Southern District of New York found the Town of Greenburgh had violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it refused to grant a church permission to build a new building, for what the court termed “contrived” reasons. In Fortress Bible Church v. Feiner, the Court found, contrary to the claim of the Town, that the State Environmental Quality Review Act (SEQRA) constitutes an individualized assessment of a land use application, that the review falls within the RLUIPA definition of land use regulation as the application of SEQRA “can limit or restrict a claimant’s use or development of land” and that the actions of the Town in issuing findings pursuant to SEQRA, which limited the use of the Church’s property, constitute a “substantial burden” on religious exercise under RLUIPA.
The Court was no doubt brought to this conclusion in large part by its finding that the “majority” of the Town’s witnesses were lacking in credibility. The Court went so far as to find “not only the admitted destruction of probative evidence, but the existence of evidence relevant to the issues before this Court that Defendants never produced to Plaintiffs. Outrageously, Defendants attempted to enter such previously undisclosed documents into evidence during trial.” The Court therefore held “that the conduct of Defendants warrants both an adverse inference based on spoliation of evidence and sanctions.”
The Court reviewed the history of RLUIPA and its purpose to “protect against inter alia ‘subtle forms of discrimination.'” It then went on to note that under RLUIPA, once a plaintiff demonstrates that conduct in implementing a land use regulation imposes a substantial burden upon religious exercise, the burden shifts to the defendant to demonstrate that the burden imposed is “in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.” The Court found that the activities at issue fall within the jurisdiction of RLUIPA noting that a number of courts have held that construction of a church implicates interstate commerce. It further found that since the activities of the church will support missionary efforts that too implicate interstate and international commerce.
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.
In a decision addressing two separate claims of substantial burden under the Religious Land Use and Institutionalized Persons Act (RLUIPA) the Seventh Circuit Court of Appeals reached two different conclusions as to the effects of municipal actions on religious groups. In World Outreach Center v. City of Chicago and Trinity Evangelical Lutheran Church v. City of Peoria, the court held that World Outreach Center had been substantially burdened but that Trinity Evangelical Church had not.
In the World Outreach case the district court had dismissed the action. The building at issue contains mainly recreational and living quarters with some space for religious service. However, the circuit court found that the building’s uses were all in furtherance of the religious mission of the organization. Before being purchased the building had been operated as a YMCA for many years and included renting out 168 single room occupancy (SRO) units. During the 80 years of operation by the YMCA the City never required a special permit. Rather the building’s use was considered legal nonconforming as it was legal when established and subsequent changes in zoning regulations requiring a special permit for such use did not change its status. Under the Chicago zoning code the legal nonconforming status runs with the land and is not changed by changes in ownership.
However, World Outreach was required to apply for a license to operate the SRO units and the City took the position that it would not issue the SRO licenses without World Outreach first obtaining a special permit. This was despite the fact that the YMCA was issued SRO licenses without being required to apply for the special permit, even after the zoning was changed to require a special permit for the use.
After a five year struggle in the Courts, the Village of Mamaroneck settled the RLUIPA claim of the Westchester Day School by agreeing to pay 4.75 million dollars in three installments. After the Village lost in the Second Circuit Court of Appeals this law firm was brought in to handle the case and evaluate the claim by the Day School for an estimated 22 million dollars in damages, including over three million dollars in attorneys fees. The Village Board voted last night to settle the case and approval of the settlement by the Day School Board is expected later this week. See our earlier Blogs about the decisions in the case under the topic heading RLUIPA.
For what others think about the case and the settlement see: http://harringtononline.blogspot.com/
Our partner, Steven Silverberg was quoted extensively today in a Westchester Business Journal Article concerning the Religious Land Use and Institutionalized Persons Act (RLUIPA) which can be read at http://www.westchestercountybusiness.com/archive/121707/1217070004.php4. Citing the large number of cases that have been brought against municipalities the article notes: “I think it’s gotten out of balance at this point,” Silverberg said. “There should be a way to provide balance, to protect religious groups but not give them a bludgeon to beat municipalities into submission.”
In a significant decision regarding the application and interpretation of the Religious Land Use and Institutionalized Persons Act (RLUIPA) the Second Circuit Court of Appeals today affirmed the Southern District (Connor, J.) in finding that the Zoning Board of Appeals of the Village of Mamaroneck violated RLUIPA by denying a special permit to the Westchester Day School (see our March 6, 2006 Blog on the earlier decision).
The School is a Jewish day school which has been in existence for 60 years and applied for a modification of its special permit in order to construct a new classroom building. In upholding the District Court the Second Circuit, which had avoided ruling on the constitutionality of RLUIPA previously, held that the statute is constitutional.
In response to the argument that RLUIPA violates the Establishment Clause the Court held: “RLUIPA cannot be said to advance religion simply by requiring that states not discriminate against or among religious institutions.” The Court further found that RLUIPA was properly applied under the authority of the Commerce Clause as the 44,000 square foot nine million dollar building proposed to be constructed by the School implicated interstate commerce. The Court noted that even if the impact upon interstate commerce is minimal it is sufficient to meet that jurisdictional element.