SUMMARY OF LAND USE CASE LAW UNDER
RELIGIOUS LAND USE
AND INSTITUTIONALIZED PERSONS ACT
Michael S. Giaimo
Robinson & Cole LLP
The Religious Land Use and Institutionalized Persons Act was signed into law on September 22,
2000. Reported case law citing RLUIPA is increasing, as the statute becomes better known to
potential plaintiffs, and cases work their way through the judicial system. In addition to cases
applying the language of the Act to particular factual situations, the constitutionality of the act
has been hotly contested. Selected decisions that deal with RLUIPA claims in the land use
context are summarized below.
Midrash Sephardi, Inc. v. Town of Surfside, 2004 U.S. App. LEXIS 7706 (11th Cir. April
21, 2004). The Eleventh Circuit Court of Appeals found a violation of the “equal terms”
provision of RLUIPA where synagogues and churches are prohibited in the business district but
other assembly uses, including private and social clubs, lodges, and theaters, are allowed with a
conditional use permit. However it found no RLUIPA substantial burden where the local zoning
scheme restricts religious assembly use to a particular district, and congregants would have to
walk farther to a location where synagogues are allowed than to the location where plaintiff’s
had previously been holding services in violation of zoning. The Court defines “substantial
burden” as “significant pressure which directly coerces the religious adherent to conform his or
her behavior accordingly.” A substantial burden can result from “pressure that tends to force
adherents to forego religious precepts or from pressure that mandates religious conduct.” The
Court also upheld the constitutionality of RLUIPA against enforcement clause, establishment
clause and 10th amendment challenges.
San Jose Christian College v. City of Morgan Hill 360 F.3d 1024, (9th Cir. March 8, 2004).
The Ninth Circuit Court of Appeals upheld a District Court decision (2002 U.S. Dist LEXIS
4517 (N.D. Cal, 2002)) granting the City’s motion for summary judgment on a religiously
affiliated college’s RLUIPA and free exercise claims. The City had denied the college’s request
to rezone hospital property under a PUD ordinance for use as a college campus on the grounds
that the college had failed to submit required application material needed for review of the
application under state and local law. The Court interpreted the substantial burden rule as
requiring that land use regulation be “‘oppressive’ to a ‘significantly great’ extent” and
concluded that requiring the college to submit a complete application does not impose a
substantial burden on its religious exercise. Furthermore, the City’s regulations do not render
religious exercise impracticable and the college is not precluded from using other sites within the
City for its education and worship uses. Moreover, there was no evidence that the City would
not have imposed the same requirements on any other entity seeking to change the use of the
property. The District Court had earlier denied the college’s request for a preliminary injunction.
(2001 U.S. Dist. LEXIS 23162 (November 14, 2001).
Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003).
Association of Chicago-area churches and five individual churches challenged City zoning
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scheme under RLUIPA, contending that scarcity of available land where churches are allowed by
right, combined with complications, cost, difficulty and political aspects of special use permit
process, impose a substantial burden. The Court of Appeals for the Seventh Circuit held that
such conditions “which are incidental to any high-density urban land use” do not impose a
substantial burden on religious exercise. It defined “substantial burden” in the context of a land
use regulation as a regulation “that necessarily bears direct, primary, and fundamental
responsibility for rendering religious exercise – including the use of real property for the purpose
thereof within the regulated jurisdiction generally – effectively impracticable.” Because the City
amended its zoning ordinance to place churches on an equal footing with non-religious assembly
uses by requiring that all such uses receive special use permits, the plaintiffs’ claim under
RLUIPA’s nondiscrimination provision failed as well. The Court also considered and rejected
equal protection, free exercise, free speech and due process claims. Justice Posner dissented and
would have found that the City’s zoning restrictions on churches violate the equal protection
clause.
Christ Universal Mission Church v. City of Chicago, 362 F. 3d 423 (7th Cir. 2004). This case
addressed an issue concerning the effective date of the zoning amendments considered in
C.L.U.B. The zoning amendments in question eliminated a disparity in treatment between
churches and other assembly uses by making assembly uses subject to special use approval. The
Court followed C.L.U.B. in concluding that a church that purchased property subject to the
amended zoning ordinance, did not have a right under RLUIPA to continue to use its property as
a church. The case reversed the district court holding in Christ Universal Mission Church v.
City of Chicago, 2002 U.S. Dist. LEXIS 22917 (Sept 11, 2002) and vacated the injunction
issued in that case. The District Court had held that an earlier version of the zoning ordinance
was applicable to the plaintiff and that the earlier version’s treatment of community centers more
favorably than churches did not survive rational basis review under the equal protection clause,
let alone heightened scrutiny under RLUIPA.
Kaahumanu v. County of Maui, 315 F.3d 1215 (9th Cir. 2003). The County Council denied a
conditional use permit to the operator of a commercial wedding business on beach-front
residential property. The Plaintiffs (the operator of the commercial wedding business and the
pastor of a church) sued under RLUIPA and 42 U.S.C. §1983 naming the County Council and its
members in both their individual and official capacities. On appeal from the denial of the
officials’ motion to dismiss the individual claims, the Court held that Council's decision whether
to grant or deny the conditional use permit was an ad hoc administrative act that affected only
the plaintiffs, rather than a “legislative” act of formulating policy, and therefore that Council
members were not entitled to absolute legislative immunity.
Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570 (2d Cir. 2002). In this
dispute over whether the church may allow homeless people to sleep on its private property, the
Court affirmed a preliminary injunction issued to prevent the City from dispersing homeless
persons who chose to sleep on the church's outdoor property. The Court rejected the City’s
claim that allowing homeless persons to sleep outside is not a meaningful provision of services
and does not constitute legitimate religious conduct. The City failed to demonstrate a sufficient
government interest in justifying its actions in dispersing the homeless from the Church's
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landings and steps. In upholding the injunction against the City, the Court refused to consider
the City’s zoning argument because it was raised for the first time on appeal of the lower court’s
injunction. Therefore Court likewise did not express any opinion on plaintiff church’s rebuttal
argument under RLUIPA that strict scrutiny should apply to review of the City’s efforts to
prevent the church from accommodating the homeless.
DiLaura v. Ann Arbor Charter Township 30 Fed.Appx. 501 (6th Cir. 2002). The Sixth
Circuit Court of Appeals reversed the District Court and reinstated religious freedom claims
brought by plaintiffs who sought to use a large house for prayer retreats. The Court held that a
prior RFRA claim is to be adjudicated according to RLUIPA, that plaintiffs have standing under
RLUIPA based on their respective interests in the property, that the exhaustion of administrative
remedies is not required for RLUIPA claims brought as part of a §1983 action, that a claim for
injunctive relief against the enforcement of pre-RLUIPA zoning decision is prospective, not
retroactive, and that the plaintiffs stated a claim under the interstate commerce prong of
RLUIPA’s substantial burden provisions, based on the fact that guests could travel in interstate
commerce to attend a retreat.
Prater v. City of Burnside, 289 F.3d 417 (6th Cir. 2002). This was a challenge to the City’s
decision to develop a dedicated but previously undeveloped roadway located between two lots
owned by a Church. The Sixth Circuit Court of Appeals held that the Plaintiffs could not rely
upon RLUIPA in the absence of a demonstration of a statutory basis for jurisdiction. RLUIPA is
triggered when a government entity implements a "land use regulation" that limits the manner in
which a claimant may develop or use property in which the claimant has an interest. The Court
held that there was no statutory basis of jurisdiction under RLUIPA where the City obtained its
original interest long before the Church acquired the adjacent property.
Congregation Kol Ami v. Abington Township, 309 F.3d 120 (3d Cir. 2002). The zoning
hearing board denied a Jewish congregation’s application for variance and special exception
relief that it needed in order to relocate to a zoning district that does not allow religious
institutions. The congregation sued in federal court, alleging constitutional violations, and
making claims under 42 U.S.C. § 1983 and RLUIPA as well as state law. The Congregation’s
motion for summary judgment was granted on the ground that, as applied, the Township’s
ordinance violated equal protection in treating religious uses differently than non-religious uses
with similar impacts. Congregation Kol Ami v. Abington Township, 161 F. Supp. 2d 432 (E.D.
Pa. 2001). On appeal by the Township, the Court of Appeals vacated and remanded to the
District Court for resolution of ambiguities in the local zoning ordinance bearing on the
similarity of uses issue, and to have the District Court place the burden on the plaintiff to
establish its similarity of situation with other permitted uses. The RLUIPA claim was not
addressed.
Sts Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin, U.S. Dist.
Ct E.D. Wisc. #2:02-cv-00630-JPS (3/26/04). A church in a residential zone sought to rezone
its property to an industrial district in which churches are allowed by right. The court upheld the
City’s denial of the rezoning against a RLUIPA and free exercise challenge. The Court,
following the Seventh Circuit’s C.L.U.B. decision, noted that there was no evidence in the record
as to the church’s inability to locate elsewhere in the City, and that the church could have, but
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refused to, apply for a conditional use permit or to seek PUD rezoning, either of which would
have been alternate ways to permit the church to use its property for worship without opening the
property up to industrial use.
Castle Hills First Baptist Church v. City of Castle Hills, 2004 WL 546792 (W.D. Tex.
3/17/04). The Court held that the City’s refusal to even consider a special use permit application
to allow a Christian school to expand onto a vacant floor in an existing building already used for
the school and other religious purposes, worked a substantial burden on the church, and was not
justified by a compelling interest. The court went on to state that a substantial burden would
likely be found even if the permit had been denied after substantive review, given the burden on
both the number of children who can be educated and the quality of the educational programs
offered. However the Court found no substantial burden from the City’s denial of a special use
permit for expanded parking, where the existing parking was sufficient to meet the City’s zoning
requirements to serve the existing church facility. The Court noted that the City need not afford
the church its “ideal situation,” and found that any burden was merely one of financial cost,
inconvenience and “the frustration of not getting what one wants”. The Court also found no
violation of RLUIPA discrimination provisions, where the record suggested no hostility or
discrimination against the church that would not also have attended a large commercial or
institutional land use, and the City’s actions were consistent with a concern about the church’s
growth in light of the city’s character and size. The Court upheld RLUIPA against
establishment clause, enforcement clause, commerce clause, separation of powers and federalism
challenges.
Konikov v. Orange County, 302 F. Supp. 2d 1328 (M.D. Fla. 2004). The Court found no
RLUIPA violation where the County enforced its zoning requirement that religious organizations
obtain a special exception to operate in residential zone, against a Jewish shul located in a home
within a subdivision. The requirement to apply for a permit is itself not a substantial burden, and
even assuming that plaintiff had applied for and been denied zoning relief, there was no
substantial burden where the plaintiff could have practiced his religion at other locations.
Furthermore, the government has a compelling interest in enforcing its zoning requirements, and
the enforcement order requiring that the plaintiff receive zoning relief or cease operating was the
least restrictive means of enforcing those requirements. This case is on appeal to the Eleventh
Circuit Court of Appeals.
Philadelphia's Church Of Our Savior, v. Concord Township (2004 U.S. Dist. LEXIS 1941,
E.D. Pa. Feb. 4, 2004) A motion to amend a complaint to add board members and the building
inspector as individual defendants to a RLUIPA claim was allowed because the claim would
survive a motion to dismiss where it alleged that the building inspector: wrongfully rejected the
Church's request for a building permit after promising to issue one; improperly demanded a
permanent easement from the Church as a quid pro quo for the building permit; and improperly
refused to accept for filing or to review the Church's written application for a building permit,
despite the fact that the proposed sanctuary complied with all applicable zoning, building and
safety codes; and where the Township in its answer had claimed that officials had acted in their
individual rather than official capacities.
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Murphy v. Zoning Commission of the Town of New Milford 289 F. Supp. 2d 87
(D. Conn. 2003). The Plaintiffs, residents of a single family home at the end of a cul de sac in a
residential neighborhood of seven houses, began holding prayer group meetings on Sunday
afternoons that would attract a number determined by the zoning commission as “an average of
40” attendees in 25 to 40 cars parked along the cul de sac and in Plaintiffs’ driveway and rear
yard. Neighbors’ complaints resulted in an investigation by the zoning enforcement officer
(ZEO), an opinion by the zoning commission that the meetings were not a “customary accessory
use” in a residential zone, and a cease and desist order by the ZEO. The Court found for the
plaintiffs on summary judgment, holding that having to turn people away from the prayer
meetings was a substantial burden on plaintiffs’ religious exercise, and that the defendants had
not met their burden to show that the cease and desist order was narrowly tailored to advance a
compelling governmental interest. Earlier, in Murphy v. Zoning Commission of the Town of
New Milford 148 F. Supp. 2d 173 (D. Conn. 2001), the plaintiffs had prevailed under RLUIPA
on a motion for a preliminary injunction to prevent the enforcement of the cease and desist order.
The Court held that the RLUIPA claims (but not the accompanying constitutional claims) were
ripe, and that there was no requirement that Plaintiffs appeal the cease and desist order to the
ZBA before going to court. The Court also found evidence of a substantial burden on religious
exercise, and found that the Town had a compelling state interest in imposing the burden, but
that the ZEO’s order was not the least restrictive means of doing so. In Murphy v. Zoning
Comm'n of Town of New Milford, 223 F.Supp.2d 377 (D. Conn. 2002), the Court denied
defendant’s motion to dismiss for failure to exhaust administrative remedies, holding that
RLUIPA does not require administrative remedies to be exhausted.
Hale O Kaula Church v. Maui Planning Commission, 229 F.Supp.2d 1056 (D. Hi. 2002).
When their church was denied a special use permit for facility expansion, the Plaintiffs
challenged state statute sections requiring a religious organization to obtain a special use permit
as violations of RLUIPA’s “equal terms” and “nondiscrimination” provisions. The Court held
that state statutory provisions that classify land into agricultural, rural, urban and conservation
districts were “land use restrictions” subject to RLUIPA because they “limit or restrict . . . use or
development of land” but that the provisions did not facially violate RLUIPA in that they did not
facially discriminate against religious institutions. On an “as applied” challenge, the Court held
that strict scrutiny under the free exercise clause would apply to the denial of a special permit
under Hawaii’s land use scheme regardless of RLUIPA, and that it therefore need not reach
questions concerning RLUIPA’s constitutionality. Later, in Hale O Kaula Church v. Maui
Planning Commission, 2003 U.S. Dist. LEXIS 24509 (March 24, 2003), the Court denied
summary judgment to defendants on the RLUIPA and related constitutional claims, holding that
the question of why the defendant denied the special use permit and whether the denial created a
substantial burden on the plaintiffs involved disputed facts. More recently, in Hale O Kaula
Church v. Maui Planning Commission, 2003 U.S. Dist. LEXIS 24510 (July 18, 2003), the
Court refused to dismiss the church’s claim for relief under Section 1983 and RLUIPA on
ripeness grounds, holding that such claims based on the action of the Planning Commission in
denying a special use permit were ripe notwithstanding a pending administrative appeal in state
court from that denial. The Court also declined to abstain from deciding the federal claims. The
plaintiff was required to go to state court if it wanted to get the special use permit, but that did
not preclude the federal court from addressing civil rights claims for damages and declaratory
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relief regarding RLUIPA or federal constitutional provisions with respect to the County denial
that was the subject of the administrative appeal.
United States of America v. Maui County (2003 U.S. Dist. LEXIS 23735, D. Haw. Dec. 29,
2003). In a companion case to Hale O’ Kaula Church v. Maui Planning Commission, the Court
upheld the timeliness of and the government’s standing to bring an enforcement action under
RLUIPA, and upheld the constitutionality of RLUIPA against establishment clause, enforcement
clause, commerce clause and 10th amendment challenges.
Elsinore Christian Center v. City of Lake Elsinore, 2003 U.S. Dist. LEXIS 24058,
(C.D.Cal., Aug. 21, 2003). The Plaintiff was denied a conditional use permit to convert a
former school building currently used as a food store, into a church. The Court found that this
violated RLUIPA because the denial imposed a substantial burden and that it was not narrowly
tailored to address the City’s asserted interest in preventing urban blight. But it ruled for the City
on the grounds that RLUIPA violates the commerce clause and the enforcement clause of the
U.S. Constitution. This case is on appeal to the Ninth Circuit Court of Appeals.
Westchester Day School v. Village of Mamaronek, 250 F. Supp. 2d 230 (S.D.N.Y. 2003). The
Plaintiff, a private secondary school with a Orthodox Jewish religious mission sought zoning
relief for a planned expansion, was denied, and appealed under RLUIPA. The Court upheld the
constitutionality of the Act against challenge under the commerce clause, enforcement clause,
establishment clause and Tenth Amendment, found that the denial resulted in a substantial
burden on the plaintiff because it interfered with the plaintiff’s ability to fulfill its religious and
educational mission, and held that the municipality’s asserted concerns with traffic and parking
were not sufficient to demonstrate a compelling governmental interest. This case is on appeal to
the Second Circuit Court of Appeals.
North Pacific Union Conference Association of the Seventh-Day Adventists v. Clark
County, 2003 Wash. App. LEXIS 1778 (Ct. App. Wash. August 12, 2003). The Seventh-Day
Adventist Church applied for a permit to build a 40,000 square-foot church administrative office
building in an agricultural district. Churches are allowed in the agricultural area, but office
buildings are not. Plans showed a 2,400 square-foot sanctuary. The Court of Appeals reversed
the trial court and upheld a decision of the hearing examiner under state zoning law that the
building was intended primarily for use as an office building rather than a place of worship, and
therefore was prohibited. The denial of plaintiff’s right to build at a highly convenient and
visible location did not constitute a substantial burden on religious exercise within the meaning
of RLUIPA.
Petra Presbyterian Church v. Village of Northbrook, 2003 U.S. Dist. LEXIS 15105 (N.D.
Ill. August 28, 2003). The Church was denied a permit to operate in an industrial district and
brought a challenge to the Village’s zoning code alleging violations of RLUIPA, equal
protection, free speech and free exercise clauses of the Constitution, and state law. The Court
found that the plaintiff is unlikely to succeed on the merits under RLUIPA, in that it has
continued to hold worship services and would be entitled to locate in18 of the village’s 24
districts, and therefore has not sustained a substantial burden. Nor has it demonstrated a
likelihood of success under the equal protection provision of RLUIPA, because the zoning code
treats religious and non-religious membership organizations equally by excluding both from the
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industrial district. Nor can it demonstrate a claim under the exclusion provisions of RLUIPA
where religious organizations can locate in 70 percent of the Village.
Shepherd Montessori Center Milan v. Ann Arbor Charter Township, 259 Mich. App. 315
(2003). The operator of religious primary school was denied a permit to locate in a space that
previously contained a day care use in an area zoned as an office park and brought suit under
RLUIPA. The court held that the denial of a variance for the use was an individualized
assessment satisfying RLUIPA’s jurisdictional requirement, and that there are issues of material
fact that prevent granting summary judgment for defendant.
Life Teen, Inc. v. Yavapai County, 2003 U.S. Dist. LEXIS 24363 (D. Az, March 26, 2003)
The Court upheld the constitutionality of RLUIPA against establishment clause, enforcement
clause, separation of powers, commerce clause and 10th amendment challenges.
Grace United Methodist Church v. City of Cheyenne, 235 F.Supp.2d 1186 (D. Wyo. 2002).
A Church was denied a variance to operate a day care facility with a component of religious
instruction in a low-density residential neighborhood. The Court held that summary judgment on
the plaintiff’s RLUIPA claim would be inappropriate because there are genuine issues of
material fact as to whether operating a day care with a religious component constitutes religious
exercise under the Act, whether requiring that a day care center be located in an area of the city
zoned for that use constitutes a “substantial burden” on religious exercise, and whether the
operation of a day care center is a “sincere” exercise of the plaintiff’s religion. The case is on
appeal to the Tenth Circuit Court of Appeals.
Ventura County Christian High School v. City of San Buenaventura, 233 F.Supp.2d 1241
(C.D. Cal. 2002). The plaintiff private religious school’s motion for preliminary injunction was
denied. The Court held that RLUIPA was not violated where the City required that the private
religious school obtain a city conditional use permit before installing or using classrooms.
Plaintiffs were not treated on “less than equal terms” than secular entities where eight of ten
other private entities were required by the City to apply for conditional use permits when
operating facilities on school district property.
Freedom Baptist Church of Delaware County v. Township of Middletown, 204 F.Supp.2d
857 (E.D. Pa. 2002). The plaintiff church leased office building space for worship services. The
Township zoning officer ordered that worship use cease, and zoning board denied a use variance.
The Church brought a claim under various statutory and constitutional provisions, including
several counts under RLUIPA. In response to the municipal government’s motion to dismiss, the
Court upheld RLUIPA’s land use provisions, declaring that they are “constitutional on their face
as applied to states and municipalities.” The Court rejected government arguments that RLUIPA
violates the establishment clause and that it exceeds congressional authority under the commerce
and enforcement clauses. However it certified the question of the constitutionality of RLUIPA
“as applied to states and municipalities in cases involving land use” to the Third Circuit for an
interlocutory ruling. The case subsequently settled.
Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203
(C.D. Cal. 2002). Cottonwood brought suit after failing to get the appropriate land use permits
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from the City to build a church facility that would include a 4,700 seat auditorium and
surrounding buildings for use in its ministries. The City wanted to use Cottonwood’s property as
commercial retail space in order to locate a major discount retailer, and proposed to take the land
by eminent domain in order to accomplish its objectives. The Court held that RLUIPA’s strict
scrutiny for review of land use cases applied because Cottonwood’s construction project and
proposed church affect interstate commerce and because the City’s refusal to grant Cottonwood’s
conditional use permit application “involves a land use regulation or system of land use
regulations, under which a government makes, or has in place formal or informal procedures or
practices that permit the government to make, individualized assessments.”
State ex rel. Scadden, 2002 WL 452472 (Ohio App, 10th Dist, 2002). The Court did not need
to address the applicability of RLUIPA or related constitutional questions where the property
owner alleging religious use (church and distribution point for a “food ministry”) had not sought
a certificate of zoning compliance, which could hypothetically still be granted.
Omnipoint Communications v. City of White Plains 202 F.R.D. 402 (S.D. N.Y. 2001). In
this overlap between two federal legislative forays into local land use law, the would-be
intervener, a Jewish congregation, asserted that the proposed construction of a communications
tower on property adjacent to its place of worship would violate RLUIPA. The congregation’s
large glass window overlooks the golf course on which the monopole tower would be placed,
and the visual impact would adversely affect the congregation’s worship rights. The Court found
no legally protected interest and denied the motion to intervene.
5-18-04
Michael S. Giaimo, Esq.
Robinson & Cole LLP
One Boston Place
Boston, MA 02108
617-557-5959
mgiaimo@rc.com
www.rc.com
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