Supreme Court Denies Cert in RLUIPA Case

At the hearings, neighbors objected to the amended special permit both because of traffic concerns and because of a history of the church conducting activities not covered by its existing special permit. Nevertheless, after a traffic study, the local planning commission recommended approving the amended special permit with several conditions. Despite the recommendation, the special permit was not approved by the township board.

What ultimately became important factors to the circuit court were actions by LCS after the denial. LCS leased its prior building (“Pinckney Property” located in another town) to a charter school and entered into a year-to-year lease for its own use of a former middle school in the adjoining county (Whitmore Lake Property). In response to claims that the year-to-year lease was a solution for LCS, LCS contended that the year-to-year lease could end at any time and presented other arguments that it was not a long-term solution. On the town's motion for summary judgment, the District Court held, as summarized by the Sixth Circuit, “… the Township's denial of the application did not impose a substantial burden on LCS because LCS had both the Pinckney and Whitmore Lake properties as adequate alternatives to the Church property.” Livingston, 858 F.3d 996, 1000.

In affirming, the Sixth Circuit started by concluding that LCS' leasehold interest in the church property was an interest that could be protected under RLUIPA. The court then noted that neither the statute nor the U.S. Supreme Court have defined what constitutes a substantial burden on religious exercise and analyzed other courts' interpretations, concluding that “… not just any imposition on religious exercise will constitute a violation of RLUIPA. Instead, a burden must have some degree of severity to be considered 'substantial.' See, e.g., Int'l Church of the Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1067 (9th Cir. 2011) ….”

After noting that one factor in determining whether a burden is substantial is “… whether the religious institution has a feasible alternative location from which it can carry on its mission” [citing Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 352 (2d Cir. 2007)], the court noted that “when a plaintiff has imposed a burden upon itself, the government cannot be liable for a RLUIPA substantial-burden violation.” 858 F.3d 996, 1004.

After rejecting other arguments, the court addressed what appears to be the most unusual aspect of the court's ultimate decision, whether LCS required a more central location in order to attract more students and maintain its viability. The court focused on the argument that the distance to another location could be as much as 12.1 miles and concluded the distance would not constitute a substantial burden noting:

“… the Eleventh Circuit has held that walking an additional several blocks would not impose a substantial burden on religious adherents whose beliefs bar motor-vehicle travel on the Sabbath. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227–28 (11th Cir. 2004).”

Id. at 1008-09.

The court then noted the availability of the Pinckney Property in particular, which was within the same county as the church at issue. It then concluded, in perhaps the greatest departure from the general approach taken by other courts: “… the boundaries of jurisdictions on the local-government level are often arbitrary in practice. Holding that a religious institution is substantially burdened any time that it cannot locate within such a small area — even if it could locate just across the border of the town limits — would be tantamount to giving religious institutions a free pass from zoning laws ….” Id. at 1011.

Conclusion

The denial of cert by the Supreme Court opens the question of how far municipalities may go to outright deny religious uses. In places such as upstate New York that have many small municipalities, the argument could be applied quite broadly. Yet, how many municipalities must deny the use before there is a substantial burden if there are, for example, six municipalities within 12 miles of each other? The answer may lie in the specific facts of the availability of other properties to LCS, as opposed to the number of municipal boundaries within a relatively small radius.

On the other hand, this case may provide some relief for small municipalities that become overwhelmed with religious uses that in total create an impact on traffic, local services and taxes but have land available in nearby municipalities. *****

Steven M. Silverberg, a member of this newsletter's Board of Editors, is a partner in Silverberg Zalantis LLP, where he concentrates his practice in municipal and land-use law and related litigation. He blogs on related topics at http://blog.szlawfirm.net/.