ACLU of Nebraska urges Lexington City Council to grant CUP for Islamic Center

The American Civil Liberties Union of Nebraska announced Tuesday that it sent a letter to the City of Lexington, urging the City to grant the Islamic Center of Lexington’s request for a conditional use zoning permit. The Center applied for the permit in 2015 so they could expand in their location at 401 N. Grant, but the Lexington City Council denied the request, stating that the expansion would harm the development of that area of downtown, as well as expressing concerns over parking. The Center, which has occupied a portion of the building in question for several years, actually expanded into the contested area in March 2015 without making a conditional use request.

The full story from the Lexington Exchange is here.

Judge rules MN township must allow Islamic cemetery

A follow up to a story posted here in November: A Dakota County District Court Judge has ordered Castle Rock Township to issue a conditional use permit for an Islamic cemetery.

Agstar Financial Services submitted an application to the township in March 2014 for a proposed Islamic cemetery and funeral home on property it owned.  In June 2014, Castle Rock Township’s planning commission recommended the approval of the application without the plan to build a funeral home on the property; however, the Castle Rock Township board rejected the application in August 2014, expressing concerns of potential loss of a “lot of tax base” and that the property “would not be open to the public for burials.”

When Al Maghfirah Cemetery Association closed on the sale of the property with Agstar, it submitted its own conditional use permit to the township on Nov. 17, 2014, and agreed not to build a funeral home on the property, but three days later, the board of Castle Rock Township denied Al Maghfirah Cemetery Association’s application.

The Dakota County District Court Judge wrote that he wrote that Al Maghfirah Cemetery Association “is entitled to free use of its property, subject to reasonable zoning restrictions….That right was denied to them by the arbitrary decision of the Castle Rock Township Board of Supervisors, which was later framed as a concern over the loss of tax base.”

The full Minnesota Public Radio article is here

News from around Minnesota: Islamic group alleges RLUIPA violation in denial of conditional use permit for cemetery

Castle Rock Township, in Dakota County Minnesota (a portion of St. Paul, and south) rejected an application submitted by the original property owner, and a subsequent owner, for a proposed Islamic cemetery to be located in the Township. The Minnesota chapter of the Council on American-Islamic Relations (CAIR-MN) has asked the US Department of Justice to investigate whether the township acted with an anti-Muslim bias in rejecting the application; specifically, whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) was violated when the Castle Rock Township Board rejected the application for a conditional use permit after the Planning Commission had recommended that the board approve it. At the time the application was filed cemeteries were allowed as conditional uses in the zoning district where the land is located. After the denial, however, the Castle Rock Township Board changed the zoning ordinance so that cemeteries were no longer a permissible use in that district.  More on the story from the Minneapolis Star Tribune here.

News from Minnesota: Minneapolis suburb settles RLUIPA suit

The US Justice Department and the city of St. Anthony, Minnesota have settled a RLUIPA lawsuit stemming from the denial of a conditional use permit to establish a mosque.  A group of Somali immigrants formed the Abu Huraira Islamic Center in 2009 in hopes of establishing a worship center in St. Anthony.  In June 2012, the St. Anthony City Council voted 4 to 1 to deny the conditional use permit for the Islamic center, despite a recommendation by the St. Anthony Planning Commission to approve the project. At the council meeting, several St. Anthony citizens voiced their objections to the Islamic center in a way that, Islamic center proponents asserted, clearly exposed the real reason for the delay and ultimate rejection.  The residents’ comments included: “There is no other religion in the world that condones violence. Islam is evil,” and, “Where did you come from? [Go] change your own country.”

According to Fox News 9 in the Twin Cities the terms of the settlement agreement include:

– The permit will allow Abu-Huraira to use the St. Anthony Business Center for religious worship.

– St. Anthony Village will not treat Abu-Huraira or any other religious groups in a discriminatory manner through the application of its zoning laws.

– Elected leaders, city managers and certain city employees will participate in educational training about requirements of RLUIPA.

– St. Anthony Village will make RLUIPA information available to the public through its website and will report periodically to the Justice Department.

The dispute was originally discussed in our blogpost here.

News from around Kansas: Garden City sued under RLUIPA

It’s the classic love story: Church fills vacant space downtown; church and city (appear to be) happy for 10 years; city gets restless, wants to start seeing other businesses, and tells church it doesn’t comply with zoning; church feels spurned and sues city in federal court under RLUIPA.

The KSN.COM article is here.  I can’t wait to read how it ends.

News from around Minnesota: Justice department sues Minneapolis suburb over denial of permit for mosque

The Justice Department is suing the city of St. Anthony, Minnesota for denying a request for a permit to establish a mosque.  The U.S. Attorney contends that the city council applied its zoning laws unevenly, and the federal government is seeking an injunction (presumably under RLUIPA).

A group of Somali immigrants formed the Abu Huraira Islamic Center in 2009 in hopes of establishing a worship center.  After years of trying to find a suitable location, the group bought a building in an area zoned light industrial.  The group applied for a conditional use permit, which was rejected by the city council after a crowded, contentious public meeting.  St. Anthony previously approved a conditional use permit for the Operating Engineers Union Local 49, which is also located in a light industrial zone, allowing the union to rent out its banquet hall to other groups. The US Attorney asserts that the meetings at the union hall constitute assemblies, and that RLUIPA prohibits cities from treating religious meetings differently than secular assemblies.

The USA Today article is here.

6th Circuit boomerangs RLUIPA and related claims back to district court

by Kaitlin Heinen

Tree of Life Christian Schools v. City of Upper Arlington
(Federal 6th Circuit Court of Appeals, September 6, 2013)

Tree of Life Christian Schools purchased property in Upper Arlington, intending to open a private school that would consolidate its campuses. However, the property is located in the City’s Office and Research (ORC) zoning district, in which neither churches nor schools are allowed. Tree of Life unsuccessfully applied for a conditional use permit and unsuccessfully appealed to the Board of Zoning and Planning (BZAP) and the City Council. Upper Arlington uses what is known as ‘non-cumulative’ zoning, in which only building use categories that are designated as permissive uses are allowed as of right, and all other uses are either expressly listed as “conditional uses,” requiring a special permit, or are prohibited entirely.

Tree of Life filed a complaint in district court, alleging religious-based discrimination under the Religious Land Use and Institutionalized Persons Act (RLUIPA). Tree of Life filed four claims, which included “facial and as-applied ‘equal terms’ claims alleging that the City’s land use ordinance violates 42 U.S.C. § 2000cc(b)(1) by treating the School on less than equal terms with nonreligious assemblies or institutions, and facial and as-applied ‘substantial burden’ claims alleging that the ordinance violates 42 U.S.C. § 2000cc(a)(1) by imposing substantial burden on its religious exercise without a compelling government interest.” In addition, “Tree of Life…brought six constitutional claims alleging violations of the rights to free exercise, due process, equal protection, free speech, peaceable assembly; and a violation of the establishment Clause; as well as a claim under the Ohio Constitution.”

The district court ruled in favor of the City because the claims raised were not ripe as a result of Tree of Life not seeking a zoning amendment. Tree of Life appealed, “arguing that the claims are all ripe because the zoning ordinance was finally applied to it when BZAP and the City Council made a final determination that a private Christian School is a non-permitted use under the ordinance.” Tree of Life also argued because their equal terms claims are facial claims, they are not subject to the ripeness doctrine. The City countered that the claims are not ripe because an attempted zoning amendment is uncertain as it is a legislative process.

The court held that “[i]nsofar as Tree of Life alleges a facial claim, however, we have doubts as to its validity because the face of the statute appears to be neutral as to non-Church religious uses. We leave this issue to the district court.” The court also held that in Miles Christi Religious Order v. Township of Northville, the plaintiff’s claim challenging a zoning ordinance was not ripe “because the plaintiff did not seek a variance from the zoning board, and thus the zoning board had not reached a final decision regarding the property. However, the court declined to rule on “whether the holding in Miles Christi covers situations where the plaintiff did not seek a zoning amendment because new information has come to light.” Tree of Life filed a motion to supplement the record because “[w]hile this case was pending, Tree of Life indeed sought a zoning amendment, which the City Council voted to deny. Based on this change of circumstances, the present arguments before this panel are no longer sufficient.” The court remanded this issue to the district court.

Tree of Life also argued that the district court ruled on the merits of the RLUIPA equal terms claim.  However, the court determined “[t]his language [as] dicta, and it does not include an analysis…of any other claim on the merits.” So it is not construed as a separate holding. If the district court determines that this case is ripe on remand, the court left the district court “to rule on the merits of each claim in the first instance.” Finally, the City cross-appealed, asking for a reversal of the district court’s denial of the City’s summary judgment motion on the merits, even though it argued that the court did not have jurisdiction under the final judgment rule to consider its cross-appeal. “The [final judgment] rule is that a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated.” Even so, the court dismissed the cross-appeal because it does not issue advisory opinions. The court held “[t]hese issues are best left to the district court.”

The Federal 6th Circuit Court granted Tree of Life’s motion to supplement the record, reversed and remanded this case to the district court on the issue of ripeness in light of new information, and dismissed the City’s cross-appeal.

RLUIPA claim of religious order not ripe for adjudication

by Gary Taylor

Miles Christi Religious Order v. Township of Northville, Michigan
(Federal 6th Circuit Court of Appeals, December 21, 2010)

Plaintiffs owned a house where several of the brothers and fathers of a religious order lived.  They conducted private services and hosted Bible studies.  Several neighbors complained about the number of cars parked on the grass area during these times.  The township wrote a letter asking plaintiffs to provide a description of the activities taking place at the residence and a parking plan.  Plaintiffs did not submit a plan but informed the zoning administrator that they did not have the space to add parking in the back of their property.  As a result, they were told to submit an application requesting a variance to allow parking in the front yard as well as to submit a site plan that would detail the intended expansion of parking spaces.  Plaintiffs failed to submit a site plan, and subsequently were issued a citation for violating the local ordinance that governed site plan review procedures. 

Rather than appeal the citation or apply to the Zoning Board of Adjustment (ZBA) for a variance Plaintiffs filed a claim in federal court challenging the legality of the zoning ordinances as applied to their situation.   Plaintiffs invoked the First and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons Act (RLUIPA) as well as the Michigan State Constitution.  The federal district court held Plaintiffs’ case was not ripe for judicial resolution, in that they had not taken their case to the ZBA, and further that Plaintiffs’ failed to demonstrate that they would suffer irreparable hardship by delaying a federal court decision until they did so.  Plaintiffs appealed the decision to the 6th Circuit. 

To decide whether a dispute is ripe for judicial resolution, the court asks – (1) is the dispute “fit” for a court decision in that it arises in “a concrete factual context” and involves “a dispute that is likely to come to pass” and (2) “what are the risks to the claimant if the federal courts stay their hand?”  In the land-use context, the requirements of a concrete factual context and a dispute that is likely to come to pass “converge in an insistence on ‘finality,’ an insistence that the relevant administrative agency resolve the appropriate application of the zoning ordinance to the property in dispute.”

The religious order conceded that it had not gone to the ZBA to determine whether the ordinances required it to submit a site plan and, if so, which regulations imposed this obligation and why. The religious order also did not deny that the administrative process allows residents to seek a variance. Instead, they argued that the township’s request that they provide a site plan amounted to the kind of final decision necessary to overcome ripeness concerns. The 6th Circuit concluded that this position did not square with the relevant regulations. An administrative appeal to the ZBA would resolve at least three questions about the religious order’s obligations or whether it has any obligations at all, and that an appeal to the ZBA may help Plaintiffs because the ZBA may grant it a variance or provide a different intensive-use determination.

Department of Justice marks 10th anniversary of RLUIPA

September 22 marked the 10th anniversary of President Clinton’s signing of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The press release issued by the U.S. Department of Justice offered that:

The law was enacted in response to concerns that places of worship, particularly those of religious and ethnic minorities, were often discriminated against in zoning matters, and that individuals in prisons, mental health facilities, nursing homes and other institutions were frequently denied full religious freedom.

To mark the anniversary the DOJ issued a report detailing the efforts of the DOJ to enforce the law.  The report contains a number of interesting case examples.

The DOJ also released a Q and A policy statement on the law, what it is, and how it should be interpreted.  Good reading for planners unfamiliar with RLUIPA.

Church’s request for preliminary injunction under RLUIPA fails

by Allison Arends

River of Life Kingdom Ministries v. Village of Hazel Crest
(Federal Seventh Circuit Court of Appeals, October 27, 2009)

The River of Life Kingdom ministries, a nonprofit religious organization, attempted to move the location of its congregation from a warehouse in Chicago Heights to Village of Hazel Crest. The church stated that its main objective in choosing the Village, which had been in serious economic decline since the 1990s, was to promote its mission of promoting literacy, empowering communities, developing leaders, transforming economic conditions, and improving life, health, and safety for local citizens in this particular struggling community.  The property purchased by the church was in a Tax Increment Financing (TIF) district established to “provide an attractive commercial area that enhances the regional image of Hazel Crest.”  The zoning ordinance that controlled the TIF district was “Service Business District” and authorized commercial uses for the property but excluded religious services except by special use permit.  The church, expecting to receive a special use permit from the Village, bought the property regardless of the specific provisions of the zoning ordinance.  The Village denied the church’s request for a special use permit.

The church filed a complaint in which alleged that the Village’s ordinance violated the 1st Amendment, the Equal Protection clause, and the Substantial Burden and Equal Terms Provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA). While the motion for preliminary judgement was pending before the court, the Village changed the zoning ordinance to also exclude other forms of assemblies such as community centers, non-religious schools, meeting halls etc. This change in the ordinance was the Village’s attempt to conform to the provisions of RLUIPA. The district court rejected the church’s request for preliminary injunction and the church appealed. The issue of this appeal to the Seventh Circuit revolves around the equal terms provisions set out in RLUIPA and whether the Village violated those provisions.  RLUIPA states;

“No government shall impose or implement a land use regulation in a manner that greats a religious assemblyor institution less than equal terms with a non-religious assembly or institution.” 42 U.S.C. 2000cc(b)(1)

The Seventh Circuit was given the task of reviewing the district court’s refusal to issue a preliminary injunction.  To obtain a preliminary injunction, the church was required to show (1) the church was likely to succeed on the merits of the case, and (2) the harm to the church that would come without the injunction would outweigh the harm done to the Village if the injunction were granted.  

As to the first requirement of awarding a preliminary injunction, the court evaluated whether the church was likely to win on the merits of the case.  The church argued that the Village’s ordinance violates RLUIPA in the fact that laws must treat religious and non-religious assemblies on equal terms.  The interpretation and application of the equal terms provision of RLUIPA was a matter not previously addressed by the Seventh Circuit.  The Seventh Circuit looked to conflicting interpretations by the Eleventh and Third Circuits for guidance.  

The Eleventh Circuit court used the natural meaning of “assembly” from the dictionary to determine that private clubs and lodges were assemblies similarly situated to churches and synagogues, therefore only looked at the definition of assembly to determine whether there was a violation of RLUIPA. This logic, applied to the present case, would most likely find the Village’s ordinance in violation of RLUIPA.

The Third Circuit court, however, not only takes into account the definition of assembly but analyzes the intent of the Village’s ordinance to determine its neutrality. The Third Circuit evaluated the objectives of the ordinance by determining the principles of neutrality that The Supreme Court established in Employment Div. Dept. of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) The Supreme Court found that, “the right of free exercise of religion does not require the courts to invalidate neutral laws of general applicability.” The principles of neutrality find an ordinance discriminatory 1.) if it refers to a religious practice without a secular meaning discernible from the language or context and 2.) if its object is to suppress religious practice. Based on these principles the court argues that,

“facial differentiation between religious and non-religious institutions alone was insufficient to demonstrate that the ordinance was non-neutral. Only when the institutions had the same effect on the city’s objectives was the regulation discriminatory.”

The court noted that the Eleventh Circuit court’s rationale would, “significantly expand the scope of local ordinances implicated under RLUIPA. There is no shortage of hypotheticals demonstrating the dangers of such an expansive reading of the Equal Terms provision.” and that, “if used would significantly impede the ability of local governments to pass legislation that place incidental burdens on any religious practice.” The court finds that the proper interpretation of “less than equal” lies within the Third Circuit’s decision because they found it is, “more consistent with Congress’s intent and with the case law interpreting the Free Exercise Clause.”

The court then went on to evaluate the other issue in the question of preliminary injunction. The court was challenged with deciding whether the Church will suffer irreparable harm if it is not allowed to relocate immediately, and if so, whether it exceeds the harm an injunction would cause to the Village. Because the court cannot presume that RLUIPA and First Amendment violations are one and the same, the Church must explain how the inability to relocate to the Village’s TIF District inhibits its religious exercise (irreparable harm). The Church attempts to argue that its mission is directly tied to the specific location. The court recognizes the possible harm this may cause to the Church, but the court goes on to explain that it must use a “sliding scale” approach in evaluating the harm to both parties. Because it has been determined the Church will most likely lose in the merits of the case, the Church must show their harm significantly outweighs the harm to the Village. The court finds that allowing the church to locate to this district would be incompatible with the Village’s development plan and recognizes that, “uncertainty over the Village’s ability to enforce its zoning ordinance, or the future direction of the community, would likely compromise this goal in the future… presenting a significant but unquantifiable threat to the village’s redevelopment plan.” The court concludes that the Church’s harm does not significantly outweigh that of the Village. The judgement of the district court is affirmed.





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