chevron-down Created with Sketch Beta.
    July 01, 2015 Urban Lawyer

    Recent Developments: RLUIPA Land Use Update

    by Daniel Dalton

    Daniel Dalton, a founding member of Dalton & Tomich PLC located in Detroit, Michigan, is the author of Litigating Religious Land Use Cases, a book on litigating RLUIPA land use cases that was published by the ABA in July 2014. Mr. Dalton has been providing yearly updates of RLUIPA land use cases for the past eight years to The Urban Lawyer. Please see www.daltontomich.com and www.attorneysforlanduse.com for more information about Mr. Dalton and information about RLUIPA and related legal claims.

    With respect to religious liberty in the context of marriage, employment and land use cases, 2014 was a tumultuous year. Many states began the process of adopting Religious Freedom Restoration Acts (RFRAs) in light of the United States Supreme Court’s anticipated decision regarding the constitutional right to same sex marriage.1 The public reaction to state RFRAs has been swift and loud. Several celebrities and companies have condemned the idea and called for boycotts of the state and local governments who have considered, and in some instances enacted, RFRAs.2 Nevertheless, there is a vocal group attacking RFRAs, and this attack has spilled over to RLUIPA cases.3 Courts have arguably proven to be more hostile than ever to religious groups seeking a level playing field with comparable secular assembly places in the context of zoning. Indeed, the level of conflict over religious land uses has remained the same (and in many instances increased) compared to what existed fifteen years ago.4 Municipalities often take a “whatever it costs to defend a case” approach to RLUIPA cases.5 After fifteen years, courts have failed to define many of the terms in the Religious Land Use and Institutionalized Persons Act6 (RLUIPA) that were left undefined by Congress. For a religious land use plaintiff, the success rate of either settling a case or surviving summary judgment hovers around seventeen percent. Since the enactment of the law in 2000, there have only been eleven RLUIPA land use trials in the country.7 In light of these facts, the likelihood of success for a religious plaintiff in RLUIPA land use cases appears to have dimmed somewhat in this past year.

    While circuit splits still remain regarding some provisions of the statute — most notably regarding the Equal Terms provision8 — we are finding a more consistent body of case law for courts, communities and religious institutions to look to when evaluating potential cases. This year’s review of RLUIPA cases will be a bit different than reviews from years past. We will first consider the context in which RLUIPA was enacted, then review the different RLUIPA Equal Terms tests, and finally close with a review of the few significant RLUIPA cases that were published in 2014.

    I.  Brief Review of Religious Exercise Under the First Amendment

    Understanding RLUIPA requires a brief review of the history of Free Exercise Clause cases.9 The Free Exercise Clause of the First Amendment of the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ”10 This constitutional protection, the first freedom of the Bill of Rights, was based on the desire of the founding fathers to protect the religious diversity of the people who risked their lives to come to America and participate in their religious practices as they deemed fit.11 The founders hoped that by protecting the freedom to worship, they would eliminate the religious conflicts that had been present in Europe in previous centuries.12

    In the cases that followed the adoption of the Free Exercise Clause, the courts were asked if individuals or groups who had sincerely held religious beliefs were exempt from governmental regulations based on those beliefs. The issue first arose in 1878 when the federal government pursued a polygamy case. In Reynolds v. United States,13 the Court was faced with balancing a federal law prohibiting polygamy, enacted in 1862, with the religious practices of the Church of Jesus Christ of Latter-Day Saints, which had adopted the practice as a sincerely held religious belief.14 The unanimous Court held that “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may [interfere] with practices.”15 The effect of this decision was to give the federal government extremely broad authority to regulate and interfere with the religious behavior or practices of any individual or group.16

    The Supreme Court incorporated the Free Exercise Clause to the states sixty years later in Cantwell v. Connecticut.17 In that case, the Court reversed a state court criminal conviction of Cantwell, who incited a disturbance by playing an anti-Catholic record.18 While the decision focused more on free speech than the Free Exercise Clause, the Court affirmed the Reynolds decision when concluding that the Free Exercise Clause “embraces two concepts, freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.”19

    The Reynolds and Cantwell decisions remained the basis of Free Exercise Clause jurisprudence until 1963 when the Supreme Court decided Sherbert v. Verner.20 Adele Sherbert was a Seventh-day Adventist who observed Saturday as the Sabbath (holy) day.21 Her employer terminated her employment when she refused to work on Saturdays and the State of South Carolina rejected her unemployment claim, concluding that she refused to accept “suitable work when offered.”22 The Supreme Court found that South Carolina’s unemployment policy directly conflicted with Sherbert’s religious beliefs, forcing her to choose between her religion and unemployment benefits.23 Having determined that she was faced with a “substantial burden,” the Court asked whether the State of South Carolina had a “compelling state interest” to justify burdening her religious beliefs.24 Finding no evidence of a compelling state interest, the Court ordered the payment of unemployment benefits and concluded that “[i]t is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, ‘only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.’ ”25 This decision removed the Reynolds/ Cantwell standard and applied a strict scrutiny test to governmental conduct that impacted the religious beliefs of individuals and groups.26

    A decade later, the Court reaffirmed the strict scrutiny standard for a facially neutral state law in Wisconsin v. Yoder.27 Prior to the decision in Yoder, the state of Wisconsin required all children to attend school until the age of 16.28 The state criminally pursued an Amish family who did not send their children to high school.29 Applying the strict scrutiny test from Sherbert, the Court held that requiring the Amish children to attend high school would seriously burden their free exercise rights and that the state’s interest in educating Amish children was less than compelling because the alternative — education within the Amish communities — adequately achieved the two primary goals of compulsory education: preparing children for adult life and protecting them from child labor exploitation.30

    The Sherbert/ Yoder Free Exercise Clause test remained largely in- tact for the following three decades until the Court decided the case of Employment Division v. Smith31 in 1990. The Smith case involved the denial of unemployment benefits to two Native Americans who were fired from their jobs as drug rehabilitation counselors because they ingested peyote, an illegal drug, in a religious ceremony.32 After reviewing the Free Exercise Clause jurisprudence, the Court chose to reject the prior case law and concluded that government would no longer be required to demonstrate a “compelling state interest” to generally applicable laws that impose a burden on religious practices.33 The Court reasoned that, “if prohibiting the exercise of religion . . . is . . . merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”34 The Smith decision significantly narrowed Sherbert and its progeny to cases where a law is directly related to impact religious beliefs and rejected cases where a generally neutral law had a negative effect on religious behavior.35

    Three years later in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,36 the Court disappointed religious liberty advocates and adhered to the “neutral law of general applicability” test established in Smith. Although the Court conceded that a local ordinance banning animal sacrifice was generally neutral, it decided that a law was not neutral in its application because its purpose was to “infringe upon or restrict practices because of their religious motivation.”37 The Court in Lukumi Babalu concluded the City’s ordinances were not neutral as applied because there was evidence of animus by the city council against the Santeria church, the ordinance only burdened Santeria sacrifices, and the City could achieve its interests in preserving public health and preventing animal cruelty without banning the sacrifices outright.38

    A.  The Origins of RLUIPA

    The impetus behind the passage of RLUIPA stems from the Supreme Court’s decision in Smith concerning a state’s neutral laws of general applicability.39 Congress responded to the Smith decision by passing the Religious Freedom Restoration Act40 (RFRA) on November 16, 1993.41 RFRA was designed to prevent the government (federal and state) from substantially burdening a person’s free exercise rights unless the burden furthered a compelling state interest and was the least restrictive means of furthering that interest.42 When RFRA was passed in 1993, the bill “was supported by one of the broadest coalitions in recent political history,” with sixty-six religious and civil liberties groups, “including Christians, Jews, Muslims, Sikhs, Humanists, and secular civil liberties organizations.”43

    RFRA was introduced in the House by then-Representative Charles Schumer, and it attracted no less than 170 co-sponsors from both political parties.44 The bill was unanimously approved in committee and, after years of congressional hearings, the full House subsequently passed the bill by a unanimous vote.45 The Senate’s companion bill was jointly presented by Senators Orrin Hatch and Edward Kennedy.46 It garnered a bipartisan group of fifty-eight co-sponsors and passed the full Senate by a vote of 97-3.47 Indeed, in his signing remarks, President Clinton noted “what a broad coalition of Americans came together to make this bill a reality,” and that “many of the people in the coalition worked together across ideological and religious lines.”48 The President praised the “shared desire . . . to protect perhaps the most precious of all American liberties, religious freedom,” even joking that “the power of God is such that even in the legislative process miracles can happen.”49 Thus, RFRA essentially reinstated the pre-Smith “Sherbert test” which reigned from 1963-1990. However, the Supreme Court struck down RFRA as an unconstitutional use of Congress’s enforcement of powers in 1997.50

    In 1997, the constitutionality of RFRA came before the Supreme Court in City of Boerne v. Flores.51 The case involved a dispute between a Texas town and the Catholic archbishop of the diocese who wanted to enlarge an existing building that would result in the violation of local historic preservation laws.52 The Court found that RFRA was unconstitutional as applied to the states based primarily on federalism concerns.53 In reviewing the enactment of the law, the Court concluded that Congress offered limited evidence that state and local governments were systematically imperiling religious liberty.54 The Court suggested that evidence of the same could be sufficient to restore the compelling interest test established by the Court in Smith.55

    It is important to recognize that RFRA remains applicable against the federal government, even after Flores, and prohibits the government from substantially burdening a person’s exercise of religion unless the government can prove that the burden furthers a “compelling government interest” and is the “least restrictive means” of furthering that interest.56 RFRA was at the heart of the cases challenging the Affordable Care Act’s requirement that employers provide comprehensive health insurance as part of total compensation, including prescription coverage for contraceptives — contraceptives that some employers believe function as abortifacients — even if the religious beliefs of the employer prohibit contraceptives and abortion.57

    Soon after the Flores decision, Congress contemplated another statute, the Religious Liberty Protection Act (“RLPA”), which essentially mirrored the RFRA except that the authority to pass such legislation was based on Congress’ broad powers under the Commerce and Spending Clauses.58 In looking at the issue, Congress investigated state and local level burdens on religious freedom and amassed evidence in nine congressional hearings that took place over the course of three years.59 This bill, however, never made it out of the Senate Judiciary Committee.60

    Congress determined it was necessary to pass an additional law to address those areas of law where the congressional record of religious discrimination and discretionary burden was the strongest: laws governing institutionalized persons (i.e., prisoners and persons in mental institutions) and land use laws. In their joint statement to the Senate discussing the need for the legislation, Senators Hatch and Kennedy observed:

    The right to assemble for worship is at the very core of the free exercise of religion. Churches and synagogues cannot function without a physical space adequate to their needs and consistent with their theological requirements. The right to build, buy, or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes.61

    Proponents of both statutes recognized that these laws would protect religious expression that is unpopular, poorly understood, or otherwise unable to receive protection through the political process.62 The President of the ACLU testified that “members of minority religious groups . . . should not have to depend on accidents of political process to protect their fundamental freedoms,” and that without the passage of RFRA, religious liberty would be “[g]ravely [t]hreatened.”63 Representative Nadler noted that Congress’s “experience in the 3 years since Smith . . . demonstrated that religious minorities — and even majority religions — have been placed at a tremendous disadvantage. . . . It was no accident that the Framers of our Bill of Rights chose to place the free exercise of religion first among our fundamental freedoms. This House should do no less.”64

    In hearings focused on the context of religious land use, both statistical and anecdotal evidence demonstrated widespread resistance to churches in the zoning context.65 Thus, RLUIPA was proposed and, like RFRA, it was enacted with overwhelming bipartisan support.66 It passed both the House and Senate by unanimous consent67 and President Clinton signed it into law on September 22, 2000.68 In his signing statement, President Clinton expressly applauded “Senators Kennedy, Hatch, Reid, and Schumer, and Representatives Canady and Nadler for their hard work in passing this legislation,” and noted that RLUIPA “once again demonstrates that people of all political bents and faiths can work together for a common purpose that benefits all Americans.”69

    Though it is much more limited in scope than RFRA and RLPA, the RLUIPA reestablished the Sherbert test to include the “substantial burden” and “compelling governmental interest” standards that were displaced by the Smith decision in two areas: land use and religious practices in prisons.70 In enacting RLUIPA’s land use provisions, Congress relied in part on its authority under section five of the Fourteenth Amendment, which provides that Congress “shall have power to enforce this article by appropriate legislation” and the “Spending and Commerce” Clauses found in Article I, Section 8, Clause 1 of the Constitution.71 In so doing, Congress was mindful of City of Boerne v. Flores, where the Supreme Court held that Congress lacked authority solely under section five to apply the Religious Freedom Restoration Act to governmental entities.72 Congress also sought to comply with Flores by compiling a legislative record that would satisfy Flores’s “congruence and proportionality” test even if RLUIPA were to exceed existing constitutional requirements in some way Congress did not anticipate.73

    B.  Equal Terms Test

    The parameters of Equal Terms claims continue to evolve over time. We now have five different tests and the Sixth Circuit Court of Appeals is considering a case in which it is being asked to consider which test to adopt. As the Second Circuit noted, “We have yet to decide the precise outlines of what it takes to be a valid comparator under RLUIPA’s Equal Terms provision, but three of our sister circuits have done so and have come to essentially the same result.”74 The tests utilized by the various circuit courts fall into two basic camps. The Eleventh Circuit follows one test and the Third, Fifth, Seventh, and Ninth Circuits follow a slightly different test. Yet none of the circuit courts require an identical comparator to a religious assembly or institution.

    1.  THE ELEVENTH CIRCUIT’S TEST

    The Eleventh Circuit’s test asks whether a religious assembly or institution is subject to a land use regulation that treats it on less-than-equal terms with a nonreligious assembly or institution.75 If a religious assembly meets this test, then “the offending conduct may be upheld if the defendant establishes that the conduct employs a narrowly tailored means of achieving a compelling government interest.”76

    The Eleventh Circuit has specifically rejected an analysis under RLUIPA’s Equal Terms provision that requires an identical secular comparator.77 The court stated that while the Equal Terms provision of RLUIPA “has the ‘feel’ of an equal protection law, it lacks the ‘similarly situated’ requirement usually found in equal protection analysis.”78

    2.  THE THIRD CIRCUIT’S TEST

    The Third Circuit’s approach to Equal Terms holds that “if a land[]use regulation treats religious assemblies or institutions on less-than-equal terms with nonreligious assemblies or institutions that are no less harmful to the governmental objectives in enacting the regulation, that regulation — without more — fails under RLUIPA.”79 The Third Circuit’s approach allows the government to justify unequal treatment by pointing to its objectives in enacting the regulation and proving that the secular assemblies treated more favorably do no damage to those objectives.80 This is, in different terms, a type of heightened scrutiny such as that employed by the Eleventh Circuit.

    In Lighthouse Institute, the Third Circuit specifically held that the district court in that case “erred in requiring the religious plaintiff to point to a secular comparator that proposes the same combination of uses.”81 Instead, the Third Circuit looked to a “secular comparator that is similarly situated as to the regulatory purpose of the regulation in question — similar to First Amendment Free Exercise jurisprudence.”82 The court noted that “[u]nder Free Exercise cases, the decision whether a regulation violates a plaintiff ’s constitutional rights hinges on a comparison of how it treats entities or behavior that have the same effect on its objectives.”83 Thus, “[t]he impact of the allowed and forbidden behaviors must be examined in light of the purpose of the regulation.”84

    3.  THE SEVENTH CIRCUIT’S TEST

    The Seventh Circuit’s test mimics the Third Circuit’s test but substitutes “accepted zoning criteria” for the Third Circuit’s focus on “governmental objectives in enacting the regulation.”85 It is worth noting that some of the judges on the Seventh Circuit felt that there was no appreciable difference between the Third and Seventh Circuits’ tests.86

    4.  THE NINTH CIRCUIT’S TEST

    The Ninth Circuit adopted the Third Circuit’s approach along with the Seventh Circuit’s refinement of the test.87 The Court held that the “city may be able to justify some distinctions drawn with respect to churches, if it can demonstrate that the less-than-equal-terms are on account of a legitimate regulatory purpose, not the fact that the institution is religious in nature.”88 The Court realized that its “analysis is about the same as the Third Circuit’s” but also recognized that the Seventh Circuit’s refinement of this test was appropriate.89 The Court ultimately stated the test to be used as follows:

    The city violates the [E]qual [T]erms provision only when a church is treated on a less than equal basis with a secular comparator, similarly situated with respect to accepted zoning criteria. The burden is not on the church to show a similarly situated secular assembly, but on the city to show that the treatment received by the church should not be deemed unequal, where it appears to be unequal on the face of the ordinance.90

    In Centro Familiar Cristiano Buenas Nevas v. City of Yuma, the Ninth Circuit stated that, “[u]nder the [E]qual [T]erms provision, analysis should focus on what ‘equal’ means in the context. Equality . . . signifies not equivalence or identity, but proper relation to relevant concerns.”91 The court held that the church was not treated on equal terms with secular assemblies or institutions.92 The City attempted to justify the unequal treatment by arguing that it was attempting to create a zoning district for the generation of tax revenue.93 But the Ninth Circuit noted that the City “allows all sorts of non-taxpayers to operate as of right, such as the United States Postal Service, museums, and zoos.”94 The court did not look at equivalence of identity to determine a valid comparator, but looked instead at the City’s proffered zoning interest and then determined if other secular assemblies or institutions undercut that interest to the same extent as churches.95 The Ninth Circuit noted that its test departed from that utilized by the Third Circuit in its burden shifting.96 The Third Circuit placed the burden on the church while the Ninth Circuit placed the burden on the government “once the plaintiff establishes a prima facie case.”97

    5.  THE FIFTH CIRCUIT’S TEST

    In Opulent Life Church v. City of Holly Springs Miss.,98 the Fifth Circuit adopted a test that “differs slightly from the Third Circuit’s ‘regulatory purpose’ test and the Seventh and Ninth Circuits’ ‘accepted zoning criteria’ test.”99 Under the Fifth Circuit’s formulation, the “ ‘less than equal terms’ must be measured by the ordinance itself and the criteria by which it treats institutions differently.”100 Thus, the Fifth Circuit determines:

    (1)  the regulatory purpose or zoning criterion behind the regulation at issue, as stated explicitly in the text of the ordinance or regulation; and (2) whether the religious assembly or institution is treated as well as every other nonreligious assembly or institution that is “similarly situated” with respect to the stated purpose or criterion.101

    The Fifth Circuit also contains a burden-shifting in the analysis where, once the religious assembly establishes a prima facie case, “the government must affirmatively satisfy this two-part test to bear its burden of persuasion on this element of the plaintiff ’s Equal Terms Clause claim.”102

    II.  Recent Equal Terms Challenges

    In Corporation of the Catholic Archbishop of Seattle v. City of Seattle,103 Bishop Blanchet, a Catholic high school, was located in a single-family residential zone in Seattle.104 In order to light its athletic fields, “Bishop Blanchet sought approval from the City to install four, 70-foot-tall light poles.”105 Since the poles would exceed the thirty-foot height limit for such structures, Bishop Blanchet needed to obtain a variance from the City.106 The City Department of Planning and Development (DPD) granted Bishop Blanchet’s variance with twenty-one conditions that the school was required to meet.107 Soon after, a group of neighbors opposed to the new lighting appealed the decision to the Hearing Examiner.108 The Hearing Examiner reversed the approval and found that Bishop Blanchet did not meet the criteria for granting a variance.109 The lawsuit arose because Seattle provides an exemption from the thirty-foot height limit for field lighting for public schools.110 The same exception is not provided to private or religious schools.111 Bishop Blanchet brought suit under the Equal Terms provision of RLUIPA.112

    The City argued that the less-than-equal treatment of Bishop Blanchet was justified by the zoning criteria of “fostering the provision of public facilities by governmental agencies.”113 The court, however, concluded that “fostering the provision of public facilities by governmental agencies” had no relation to zoning criteria and was simply a subjective statement.114 The phrase appeared nowhere in the relevant zoning code sections and did not require the City to deny Bishop Blanchet the exemption afforded to public schools.115

    While the court did consider the acceptable zoning criteria, such as “noise, parking, and lighting,” it found that Bishop Blanchet was similarly situated to public schools in the area.116 The court concluded that since Bishop Blanchet was similarly situated to the public schools, which received the exemption sought by Bishop Blanchet, the City violated the Equal Terms provision of RLUIPA by treating Bishop Blanchet on less than equal terms with the public school.117 The court ordered the City to reconsider Bishop Blanchet’s proposal for outdoor lighting “using the same standard that applie[d] to public schools.”118 

    In Tree of Life Christian Schools v. City of Upper Arlington,119 a 600-student Christian school sought to purchase an office building and use it as the new location of its school.120 The building was located in the city of Upper Arlington, which is landlocked and in critical need of additional office space.121 The building itself was the largest office building in Upper Arlington and had previously housed AOL/ Time Warner.122 The school contracted to buy the building in 2009.123 City officials informed the school that “schools were not a permitted use” in the building.124

    Nevertheless, the school submitted a Conditional Use Permit to use the building as a Christian school.125 The City denied the application, and the school was advised that it needed to submit a rezoning application.126 The school then appealed this decision to the City’s Board of Zoning and Planning.127 The City ultimately denied the request for a Conditional Use Permit after finding that such an action would be in “direct opposition to numerous master plan goals and objectives.”128 The school brought suit in federal court in the United States District Court for the Southern District of Ohio alleging violations of RLUIPA, among other claims.129 After several actions had been taken in litigation, the court considered cross-motions for summary judgment.130

    Turning to the school’s as-applied Equal Terms claim, the court first noted that it found the Third and Seventh Circuits’ Equal Terms tests to be the “most reasonable,” which is particularly significant since the Sixth Circuit has yet to adopt an Equal Terms test.131 Under the Third Circuit approach, “a regulation will violate the Equal Terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose.”132

    The City argued that it did not violate the Equal Terms provision since it treated both religious and nonreligious schools the same.133 The City explained in detail why schools were not a proper use for the Office and Research District.134 The court agreed with the City, and also pointed out that the school had not identified a particular secular comparator.135 A plaintiff who brings an as-applied Equal Terms claim must identify a nonreligious comparator that received better treatment.136 If there is no comparator, there can be no evidence of less than equal treatment.137 Finally, the court stated that the Upper Arlington Unified Development Ordinance (UDO) treats all schools the same, and that allowing a religious school where nonreligious schools were not permitted would not be equal treatment, it would be preferential treatment.138 Thus, the court found that Upper Arlington’s UDO did not violate RLUIPA’s Equal Terms Clause.139

    The School appealed the decision to the Sixth Circuit Court of Appeals and oral argument is scheduled for May 2015.140 A decision on this issue should be released in 2015.

    III.  Recent Ripeness & RLUIPA Cases

    One important hurdle to bringing a RLUIPA case in federal court is ripeness. Federal courts are very wary of disturbing local zoning decisions if there has not been an absolute final decision made by the local governing body.141 Below are recent cases that examine ripeness developments with respect to RLUIPA.

    In St. Vincent De Paul Place v. City of Norwich,142 the Second Circuit recently vacated the dismissal on ripeness grounds of a RLUIPA case from the District of Connecticut.143 The plaintiff “obtained a temporary . . . zoning permit for use of a former religious school building to offer food, shelter, and other services to the homeless in the city of Norwich, Connecticut,” then submitted an application to the City to allow them to continue to operate the homeless ministry permanently.144 The City denied the application.145 The plaintiffs promptly filed a lawsuit in federal court that included claims under RLUIPA.146

    After the lawsuit had been filed, the plaintiffs applied to the City for a variance.147 The district court dismissed the plaintiffs’ claims for lack of subject matter jurisdiction because the claim, in its view, was unripe.148 The district court said that since the plaintiffs had not filed for a variance when the claim was filed, and since the pending variance “had not yet been denied, [the] injury was merely speculative” since it might not ever occur.149 The plaintiffs had argued that their claims were ripe under the “relaxed ripeness inquiry” found in Dougherty v. Town of North Hempstead Board of Zoning Appeals,150 but the district court refused to apply that test.151

    On appeal, the Second Circuit declined to address what ripeness test would have been appropriate for the district court to employ.152 By the time the case was before the Second Circuit, the City had denied the plaintiffs’ variance.153 In light of the changed factual circumstances, the Second Circuit remanded the case back to the district court to reevaluate the ripeness question based on the new developments.154

    A few months later, in Sunrise Detox V, LLC v. City of White Plains,155 the Second Circuit Court of Appeals ruled that a land use claim was not ripe where the plaintiff had not sought a variance or appealed the negative zoning decision.156 In this case, Sunrise Detox V, LLC (Sunrise) applied for a special permit in White Plains, New York to establish a facility for people recovering from drug or alcohol ad- diction.157 City officials determined that the facility was not suitable for use as a community residence.158 The City could thus take no further action on the application unless Sunrise either applied for a variance or appealed the initial denial of its application.159 Instead of seeking a variance or an appeal of the decision, Sunrise elected to file suit in federal court.160

    At the district court, the City moved for dismissal of the suit.161 The district court granted the City’s motion to dismiss for lack of jurisdiction due to lack of ripeness, finding that Sunrise’s claims presented “a zoning dispute as to which there has been no final determination.”162 The district court also found that the futility exception did not apply because Sunrise had not shown that it would be denied a variance or appeal.163

    On appeal, Sunrise argued that because it was alleging intentional discrimination as part of its claim under the Americans with Disabilities Act, there was a “uniquely immediate injury” which should not be subject to the typical ripeness requirements of land use matters.164 The Second Circuit noted that the argument did have some appeal, but ultimately declined to create an exception to the finality requirement of land use decisions.165 The Second Circuit added that while a facial challenge to a discriminatory ordinance did not carry any finality requirement, this was not such a case.166 The district court’s dismissal of all claims was therefore affirmed.167

    IV.  Recent RLUIPA and Immunity Cases

    Another issue that RLUIPA plaintiffs must consider is that of immunity. Since RLUIPA claims typically involve a municipality, immunity is usually at play in one form or another.168 Plaintiffs who seek to join individual employees or decision makers to their RLUIPA claims will need to be especially wary of immunity defenses.169 A recent decision, Muslim Community Association of Ann Arbor v. Pittsfield Charter Township,170 addresses the interesting issue of absolute legislative and qualified immunity of elected officials in the context of religious land use.

    The plaintiff sought rezoning permission from the local community to build an Islamic school and community center.171 The Township denied rezoning based, in part, on the argument that the use would unreasonably increase local traffic volumes.172 The Muslim Community Association filed suit against the Township and its trustees alleging numerous federal constitutional claims as well as claims under RLUIPA.173 The claims against the Township trustees were asserted in their official and individual capacity as defendants.174

    The defendants filed a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) arguing, in part, that the Township board members should be dismissed in their official capacity, as the claim was duplicative to the claims raised against the Township itself, and in their individual capacity based on legislative and qualified immunity.175 The court agreed with the defendants that the official capacity claims were duplicative of the constitutional claims raised against the Township and dismissed the same.176 However, with respect to the claims against the individuals in their individual capacity, the court denied the Motion to Dismiss.177 The court found that the individual defendants were not entitled to absolute legislative immunity with respect to their decision to deny the rezoning application.178 With respect to the issue of qualified immunity, the court found that there were sufficient facts alleged in the complaint to demonstrate the individual defendants’ personal involvement in the claimed deprivations of a federal constitutional right.179 In reaching this conclusion, the court relied on the allegations in the complaint that the plaintiff was treated differently than non-Islamic zoning petitioners both in the review process and the ultimate rezoning decision.180

    In American Islamic Center v. City of Des Plaines,181 American Islamic Center (AIC) executed a contract which would allow it to purchase a piece of property on the condition that the City of Des Plaines agreed to “adopt a zoning map amendment that would allow AIC to use the property for religious and educational activities.”182 The city council subsequently voted against the amendment by a 5-3 margin.183 AIC brought a federal lawsuit against the City and against the five city council members who voted against the proposed amendment.184 The complaint included counts under RLUIPA and other state and federal constitutional provisions.185 The defendants moved to dismiss the complaint arguing, inter alia, that the council members named in the suit were entitled to absolute legislative immunity.186

    AIC argued that the council members were not entitled to absolute legislative immunity because the denial of AIC’s zoning amendment was an administrative function rather than a legislative function.187 In determining whether the action was administrative or legislative, the court followed the traditional functional approach, examining what function the defendants were performing when the alleged misconduct was committed.188 AIC argued that the action of denying the zoning amendment was administrative because the defendants were only “enforcing an existing zoning ordinance against AIC.”189 AIC further argued that the action was administrative since it dealt with a “specific petition presented by the plaintiffs to the legislative body.”190

    The court disagreed with AIC and said that the actions of the council members in this case were legislative rather than administrative.191 The court reasoned that while the most direct and immediate impact of the denial was indeed on AIC, the impact also extended to others, such as the property owner who lost the ability to sell the property to AIC.192 Further, the court stated that the property will remain in its existing zoning category for all future purchasers.193 For these reasons, the court found that the action of voting to deny AIC’s proposed zoning amendment was legislative in nature.194 Thus, the council members named in the complaint were entitled to absolute legislative immunity and the court dismissed all claims against them.195

    V.  Recent Substantial Burden Cases

    In 2014, there were not many reported Substantial Burden cases that directly impact the future of RLUIPA. However, there seems to be a trend of religious assemblies using RLUIPA in the context of specific ministries that are excluded, namely homeless ministries.

    In the case of Harbor Missionary Church v. City of San Buenaventura,196 the district court granted a church’s motion for a temporary restraining order (TRO) against the City of San Buenaventura, then subsequently denied a preliminary injunction.197 The case is now pending before the Ninth Circuit Court of Appeals.198

    In that case, the church operated a homeless program out of the church building, which provided several different services to the poor, while church personnel also conducted activities such as prayer and scripture study for attendees.199 The City informed the church that it would need a conditional use permit to continue to operate the homeless program.200 When the church applied for the permit, the City denied it.201 The church subsequently filed suit against the City in federal court alleging violations of RLUIPA, among other claims.202 The church also moved for a TRO.203

    In evaluating the criteria for a TRO, the court found first that the church had established a likelihood of success on its substantial burden RLUIPA claim.204 The court found that the church was likely to succeed in showing that the City imposed a substantial burden on its religious exercise, since the City effectively prevented the church from operating its homeless program, which was a significant part of the church’s religious expression.205

    The court then stated that while the City did have a compelling government interest in seeking to further public safety, the City had not shown that its actions in denying the church’s use were narrowly tailored to accomplish its interest.206 The City had presented evidence of a general public safety concern in the church’s neighborhood, but it was not clear to what extent the homeless program was responsible for those concerns.207

    The court also found in favor of the church on the remaining TRO factors, stating that a plaintiff alleging a violation of RLUIPA satisfies the irreparable injury requirement since RLUIPA “enforces First Amendment freedoms.”208 The court granted the TRO and restrained the City from any action preventing the church from operating its homeless program.209 Soon thereafter, however, the Court denied a Motion for a Preliminary Injunction based on a factual assumption that the church has another location in the City and that the church could perform its homeless ministry at that location without any substantial burden on its religious exercise.210

    In Chabad Lubavitch of Litchfield County, Inc. v. Litchfield Historic District Commission,211 the Second Circuit Court of Appeals addressed the substantial burden and nondiscrimination provisions of RLUIPA in the context of historic preservation.212

    In this case, the plaintiff (Chabad) bought property in the historic district of the Borough of Litchfield, Connecticut.213 The Chabad planned to expand the existing building on the property to better accommodate its religious goals.214 Under Connecticut law, the Chabad was required to apply to Litchfield’s Historic District Commission (HDC) for permission to make any alterations to the property.215 After multiple meetings regarding the plan, and multiple changes made by the Chabad, the HDC voted to deny the Chabad’s application.216 Thereafter, the Chabad and its rabbi filed suit in federal district court against the HDC and brought a variety of claims, including several under RLUIPA.217 When ruling on cross-motions for summary judgment, the district court concluded that “Connecticut’s statutory scheme governing historic districts is ‘neutral and generally applicable’ and, consequently, that the HDC’s denial of the Chabad’s application could not ‘as a matter of law’ impose a substantial burden on the Chabad’s religious exercise under RLUIPA’s substantial burden provision.”218 The district court granted summary judgment in favor of the HDC.219

    On appeal, the Second Circuit did not agree with the district court’s interpretation of RLUIPA’s substantial burden provision.220 The court stated that RLUIPA did indeed apply in this case because the HDC engaged in an individualized assessment of the Chabad’s proposed use.221 The court pointed out that even though the Connecticut law applied in this case may have been neutral, it still gave the HDC the responsibility of “applying loosely defined and subjective standards to discrete applications.”222 This, the court said, was certainly an individualized assessment, which fell under the purview of RLUIPA.223 The court remanded the Chabad’s substantial burden RLUIPA claim back to the district court for determination of whether the HDC’s individualized assessment resulted in a substantial burden on the Chabad.224

    The Second Circuit also addressed RLUIPA’s nondiscrimination provision. The court first made clear there must be evidence of discriminatory intent in order to establish a successful claim under the non-discrimination provision.225 Next, the Second Circuit addressed the fact that the district court required the Chabad to identify comparator religious institutions that were “identical in all relevant respects” to the Chabad.226 The Second Circuit stated that this requirement was made “in error.”227 In the court’s view, a nondiscrimination claim should be evaluated on a “multitude of factors” and on evidence which would tend to show discrimination.228 The court said that while evidence of a comparator institution would be helpful, it was not necessary. 229The court further stated it was especially unnecessary to identify an “identical” comparator, as the district court had found, since such a requirement is “unduly restrictive.”230 The court thus remanded the Chabad’s nondiscrimination RLUIPA claim back to the district court for further consideration.231

    A district court in Virginia recently dismissed a RLUIPA claim be- cause the plaintiffs had not pled a plausible substantial burden on their religious exercise.232 In Andon v. City of Newport News,233 the plaintiffs were a property owner (Andon) and a church congregation (Church).234 Andon had agreed to lease property to the Church on the condition that the Church would obtain the proper City approval to operate a church on the property.235

    Andon submitted a variance application to City officials, but the variance was denied.236 The denial was appealed to the Newport News Circuit Court, and the denial was upheld.237 After the Circuit Court upheld the denial, Andon and the Church filed a RLUIPA claim in federal court.238 The City promptly moved to dismiss the claim.239

    The City first argued that since Andon did not claim to be engaged in religious activity, it should be dismissed as a plaintiff for lack of standing.240 The court rejected this claim.241 The court first noted that RLUIPA specifically states “[s]tanding to assert a claim or defense under this section shall be governed by the general rules of standing under Article III of the Constitution.”242 Next, the court pointed out that RLUIPA also must be interpreted in favor of “broad protection of religious exercise.243 The court concluded that adding a standing requirement to RLUIPA that is not in the statutory text is improper.244 The court further determined that Andon met the traditional Article III standing requirements to bring a claim in federal court.245

    The City next argued that the plaintiffs did not sufficiently allege a substantial burden upon religious exercise.246 On this point, the court agreed with the City.247 First, the City noted that the Fourth Circuit requires a substantial burden RLUIPA plaintiff to show that a “government regulation puts substantial pressure on it to modify its behavior.”248 In this case, the plaintiffs simply pled that the denial of the zoning variance causes the Church “delay, uncertainty, and expense.”249 The court stated that it was “questionable” as to whether the City’s denial had caused the Church to modify its behavior since, due to the lease being voided, the Church was in the same position it had been in prior to the denial — searching for a place to worship.250 The court then concluded that the uncertainty and delay incurred by the Church due to the denial were minimal and common to any entity searching for property in an urban market.251 The court said that “the cost of having to search for an affordable location alone does not amount to a substantial burden.”252 The court therefore dismissed the suit for failure to state a plausible claim.253

    VI.   Conclusion

    The cases discussed in this article are just a sample of the cases being decided by federal courts nationwide. In the fifteen years since RLUIPA was passed, the courts have been working diligently to interpret the meaning of the statute’s various provisions, as well as to provide guidance for future courts addressing similar RLUIPA claims. While the progress being made by these courts is evident, several of the aforementioned cases demonstrate that uncertainty and ambiguity remain with respect to many areas of RLUIPA interpretation. This uncertainty and ambiguity will surely lead to more litigation in the coming years, and will provide further opportunity for federal courts across the country to evolve the realm of RLUIPA jurisprudence.

    Entity:
    Topic:
    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.
    1. See Mark A. Kellner, Here’s Why Your State May Be Expanding Religious Freedom Protections This Year, DESERET NEWS ( Jan. 16, 2015), http://national.deseretnews.com/article/3269/here8217s-why-your-state-may-be-expanding-religious-freedom-protections-this-year.html.
    2. See Nick Offerman, Wilco Cancel Indiana Shows Because of New Religious Freedom Act, FOXNEWS (Mar. 31, 2015), http://www.foxnews.com/entertainment/2015/03/31/wilco-cancles-indiana-concert-because-new-religious-freedom-act/.
    3. See Vanessa Wolbrink, “Religious Freedom” Bills in the States and RFRA on the Hill, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE (Mar. 12, 2015), https://www.au.org/blogs/legislative/religious-freedom-bills-in-the-states-and-rfra-on-the-hill.
    4. See Claudia McDonnell, Edward Cardinal Egan Lecture Examines Religious Freedom in Peril, CATHOLIC NEW YORK ( June 10, 2015), http://cny.org/stories/Edward-Cardinal-Egan-Lecture-Examines-Religious-Freedom-in-Peril,12747.
    5. See Paul Strand, Bellwether? Why This Tiny Synagogue Should Concern You, CBNNEWS ( June 12, 2015), http://www.cbn.com/cbnnews/us/2015/June/Toras-Chaim-Synagogue/.
    6. 42 U.S.C. §§ 2000cc to cc-5 (2015).
    7. Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548 (4th Cir. 2013); Fortress Bible Church v. Feiner, 694 F.3d 208 (2d Cir. 2012); Rocky Mt. Christian Church v. Bd. of County Comm’rs, 605 F.3d 1081 (10th Cir. 2010), cert. denied, 562 U.S. 1136 (2011); Reaching Hearts Int’l, Inc. v. Prince George’s County, 368 Fed. Appx. 370 (4th Cir. 2010); Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007); Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006); Church of Our Savior v. Jacksonville Beach, No. 3:13-CV-1346-J-32JBT, 2014 U.S. Dist. LEXIS 165308 (M.D. Fla. Nov. 25, 2014); Acad. of Our Lady of Peace v. City of San Diego, 835 F. Supp. 2d 895 (S.D. Cal. 2011); Chabad of Nova, Inc. v. City of Cooper City, 533 F. Supp. 2d 1220 (S.D. Fla. 2008); Redwood Christian Schs. v. County of Alameda, No. C-01-4282 SC, 2007 U.S. Dist. LEXIS 22626 (N.D. Cal. 2007); Joan Dachs Bais Yaakov Elem. Sch.—Yeshivas Tigeres Tzvi v. City of Evanston, No. 1-13-1809, 2015 Ill. App. Unpub. LEXIS 421 (Ill. App. Ct. 2015).
    8. See Sarah Keeton Campbell, Note, Restoring RLUIPA’s Equal Terms Provision, 58 DUKE L.J. 1071 (2009) (discussing the approaches of the appellate circuit’s in their application of the provision).
    9. This review touches upon the history of the Free Exercise Clause. A more thorough review of the Free Exercise clause can be found in Professor Michael McConnell’s landmark article, The Origins and Historical Understanding of the Free Exercise of Religion, 103 HARV. L. REV. 1409 (1990).
    10. U.S. CONST. amend. I (emphasis added).
    11. See McConnell, supra note 9, at 1421.
    12. See id.
    13. 98 U.S. 145 (1878).
    14. Id. at 161.
    15. Id. at 166.
    16. See id. at 165-67.
    17. 310 U.S. 296, 300-03 (1940).
    18. Id. at 301.
    19. Id. at 303-04.
    20. 374 U.S. 398 (1963).
    21. Id. at 399.
    22. Id. at 401.
    23. Id. at 403-04.
    24. Id. at 406-09.
    25. Id. at 406 (quoting Thomas v. Collins, 323 U.S. 516, 530 (1945)).
    26. See Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793, 805 (2006).
    27. 406 U.S. 205 (1972).
    28. Id. at 207.
    29. Id. at 208.
    30. See id. at 219-29.
    31. 494 U.S. 872 (1990).
    32. Id. at 874.
    33. Id. at 881-86.
    34. Id. at 892.
    35. See Kenneth Marin, Note, Employment Division v. Smith: The Supreme Court Alters the State of Free Exercise Doctrine, 40 AM. U.L. REV. 1431 (1991).
    36. 508 U.S. 520 (1993).
    37. Id. at 533-34.
    38. See id. at 534-39.
    39. See American Center for Law and Justice, ACLJ Memorandum: An Overview of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—2004, ACLJ, http://aclj.org/us-constitution/aclj-memorandum-an-overview-of-the-religious-land-use-and-institutionalized-persons-act-rluipa-2004 (last visited Jun. 13, 2015).
    40. 42 U.S.C. § 2000bb (1993).
    41. See American Center for Law and Justice, supra note 39.
    42. See id.
    43. Douglas Laycock & Oliver S. Thomas, Interpreting the Religious Freedom Restoration Act, 73 TEX. L. REV. 209, 210, 244 (1994); see also id. at 211 n.9 (“The Coalition for the Free Exercise of Religion included: Agudath Israel of America; American Association of Christian Schools; American Civil Liberties Union; American Conference on Religious Movements; American Humanist Association; American Jewish Committee; American Jewish Congress; American Muslim Council; Americans for Democratic Action; Americans for Religious Liberty; Americans United for Separation of Church and State; Anti-Defamation League; Association of Christian Schools International; Association on American Indian Affairs; Baptist Joint Committee on Public Affairs; B’nai B’rith; Central Conference of American Rabbis; Christian Church (Disciples of Christ); Christian College Coalition; Christian Legal Society; Christian Life Commission of the Southern Baptist Convention; Christian Science Committee on Publication; Church of the Brethren; Church of Jesus Christ of Latter-day Saints; Church of Scientology International; Coalitions for America; Concerned Women for America; Council of Jewish Federations; Council on Religious Freedom; Episcopal Church; Evangelical Lutheran Church in America; Federation of Reconstructionist Congregations and Havurot; First Liberty Institute; Friends Committee on National Legislation; General Conference of Seventh-day Adventists; Guru Gobind Singh Foundation; Hadassah, The Women’s Zionist Organization of America, Inc.; Home School Legal Defense Association; House of Bishops of the Episcopal Church; International Institute for Religious Freedom; Japanese American Citizens League; Jesuit Social Ministries, National Office; Justice Fellowship; Mennonite Central Committee U.S.; NA’AMAT USA; National Association of Evangelicals; National Council of Churches; National Council of Jewish Women; National Drug Strategy Network; National Federation of Temple Sisterhoods; National Islamic Prison Foundation; National Jewish Commission on Law and Public Affairs; National Jewish Community Relations Advisory Council; National Sikh Center; Native American Church of North America; North American Council for Muslim Women; People for the American Way Action Fund; Presbyterian Church (USA), Social Justice and Peacemaking Unit; Rabbinical Council of America; Traditional Values Coalition; Union of American Hebrew Congregations; Union of Orthodox Jewish Congregations of America; Unitarian Universalist Association of Congregations; United Church of Christ, Office for Church in Society; United Methodist Church, Board of Church and Society; United Synagogue of Conservative Judaism. . . . The American Bar Association did not formally join the Coalition, but repeatedly endorsed the bill.”)
    44. H.R. 1308, 103d Cong. (1st Sess. 1993).
    45. H.R. Rep. No. 103-88 (1993).
    46. S. 578, 103d Cong. (1st Sess. 1993).
    47. S. Rep. No. 103-111 (1993).
    48. 29 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS 46, 2377 (Nov. 22, 1993) (statement of President Clinton on Nov. 16, 1993).
    49. Id.
    50. City of Boerne v. Flores, 521 U.S. 507 (1997).
    51. Id.
    52. Id. at 512.
    53. See id. at 516-36.
    54. See id. at 530-32.
    55. See id. at 534-35.
    56. See O’Bryan v. Bureau of Prisons, 349 F.3d 399, 400-01 (7th Cir. 2003).
    57. See Michael Gryboski, Supreme Court Schedules Arguments for Hobby Lobby Case, CHRISTIAN POST ( Jan. 13, 2014, 11:42 AM), http://www.christianpost.com/news/supreme-court-schedules-arguments-for-hobby-lobby-case-112509/.
    58. H.R. 1691, 106th Cong. (1st Sess. 1999).
    59. H.R. REP. No. 106-219 (1999).
    60. See S. 2081, 106th Cong. (2d Sess. 2000).
    61. 146 CONG. REC. S7774 ( July 27, 2000) (emphasis added).
    62. Religious Freedom Restoration Act of 1991: Hearing on H.R. 2797 Before the Subcomm. on Civil and Constitutional Rights of the H. Comm. on the Judiciary, 102d Cong. (1992).
    63. Id. at 64, 80.
    64. 139 CONG. REC. H2356 (daily ed. May 11, 1993) (statement of Rep. Nadler).
    65. H.R. REP. No. 106-219 (1999); 146 CONG. REC. S7774 (daily ed. July 27, 2000) ( joint statement of Sen. Hatch and Sen. Kennedy noting “massive evidence” of widespread discrimination against churches).
    66. David L. Hudson, Jr., Zoning Gets Religion, ABA JOURNAL (Mar. 1, 2004), http://www.abajournal.com/magazine/article/zoning_gets_religion.
    67. U.S. DEP’T OF JUSTICE CIVIL RIGHTS DIV., A GUIDE TO FED. RELIGIOUS LAND USE PROTECTIONS, available at http://www.justice.gov/crt/spec_topics/religiousdiscrimination/rluipa_guide.pdf.
    68. Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. No. 274, 114 Stat. 803 (2000).
    69. 36 WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS 38 (Sept. 25, 2000) (statement of President Clinton on Sept. 22, 2000).
    70. Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc to cc-5 (2000).
    71. See 146 CONG. REC. S7774 (daily ed. July 27, 2000) ( joint statement of Sen. Hatch and Sen. Kennedy).
    72. Id.
    73. See supra notes 51-56 and accompanying discussion.
    74. Third Church of Christ, Scientist v. City of New York, 626 F.3d 667, 669 (2d Cir. 2010).
    75. See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295, 1307 (11th Cir. 2006).
    76. Id. at 1308 (emphasis in original).
    77. See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004).
    78. Id. at 1229.
    79. Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 269 (3d Cir. 2007).
    80. Id.
    81. Id. at 264.
    82. Id.
    83. Id. (emphasis in original).
    84. Id. at 265.
    85. Compare River of Life Kingdom Ministries v. Vill. of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010) with Lighthouse Inst., 510 F.3d at 269.
    86. River of Life, 611 F.3d at 374-75 (Cudahy, J., concurring).
    87. Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163 (9th Cir. 2011).
    88. Id. at 1172.
    89. Id. at 1172-73.
    90. Id. at 1173.
    91. Id. at 1172.
    92. Id. at 1175.
    93. See id. at 1166.
    94. Id. at 1173.
    95. See id.
    96. Id. at 1173 n.47.
    97. Id.
    98. 697 F.3d 279 (5th Cir. 2012).
    99. Id. at 292.
    100. Id.
    101. Id.
    102. Id. at 293.
    103. 28 F. Supp. 3d 1163 (W.D. Wash. 2014).
    104. Id. at 1165.
    105. Id.
    106. Id.
    107. Id.
    108. Id.
    109. Id.
    110. Id. at 1166.
    111. See id.
    112. Id.
    113. Id. at 1168.
    114. Id.
    115. See id. at 1169.
    116. Id.
    117. Id. at 1169-70.
    118. Id. at 1170.
    119. 16 F. Supp. 3d 883 (S.D. Ohio 2014).
    120. Id. at 887-88.
    121. Id. at 888.
    122. Id.
    123. Id. at 890.
    124. Id.
    125. Id.
    126. Id.
    127. Id.
    128. Id. at 892 (quoting a staff report from Upper Arlington’s Senior Planning Officer to the City Council).
    129. Id. at 891.
    130. Id.
    131. Id. at 897.
    132. Lighthouse Inst., 510 F.3d at 266 (emphasis in original).
    133. Tree of Life, 16 F. Supp. 3d at 898.
    134. Id.
    135. See id. at 898-99.
    136. Id. at 899.
    137. See id.
    138. Id. at 900.
    139. Id.
    140. Tree of Life Christian Schools v. City of Upper Arlington, No. 14-3469, 2014 WL 4657225 (6th Cir. filed May 13, 2014).
    141. See Daniel P. Dalton, The Religious Land Use and Institutionalized Persons Act—Recent Decisions and Developments, 45 URB. LAW. 741, 752-55 (2013).
    142. 535 Fed. Appx. 57 (2d Cir. 2013).
    143. Id. at 58-59.
    144. Id. at 58.
    145. Id.
    146. Id.
    147. Id.
    148. Id.
    149. Id.
    150. 282 F.3d 83 (2d Cir. 2002).
    151. St. Vincent De Paul Place, 535 Fed. App’x at 58.
    152. See id. at 59.
    153. Id.
    154. Id.
    155. 769 F.3d 118 (2d Cir. 2014).
    156. Id. at 124.
    157. Id. at 120.
    158. See id. at 120-21.
    159. Id. at 121.
    160. Id.
    161. Id.
    162. Id.
    163. Id.
    164. Id. at 121-22.
    165. See id. at 122-23.
    166. Id. at 123-24.
    167. Id. at 124-25.
    168. See Daniel P. Dalton, Immunity Issues with RLUIPA and Other Federal Constitutional Claims, DALTON & TOMICH BLOG (May 29, 2013), http://www.daltontomich.com/blog/motion_to_dismiss_denied_in_recent_rluipa_case_muslim_community_association.
    169. Id.
    170. 947 F. Supp. 2d 752 (E.D. Mich. 2013).
    171. Id. at 755-56.
    172. Id. at 758.
    173. Id. at 756.
    174. Id. at 755-56.
    175. Id. at 759.
    176. Id. at 761-62.
    177. See id. at 759-61.
    178. See id. at 759-60.
    179. Id. at 760-61.
    180. See id. at 759-61.
    181. 32 F. Supp. 3d 910 (N.D. Ill. 2014).
    182. Id. at 911-12.
    183. Id. at 912.
    184. Id.
    185. Id.
    186. Id.
    187. Id. at 913.
    188. See id. at 913-14.
    189. Id. at 914.
    190. Id.
    191. See id. at 914-15.
    192. Id. at 914.
    193. Id.
    194. Id. at 914-15.
    195. Id. at 915.
    196. No. 2:14-cv-03730-R (C.D. Cal. May 30, 2014) (order granting temporary restraining order).
    197. No. 2:14-cv-03730-R (C.D. Cal. May 14, 2014) (order denying preliminary injunction), available at http://rluipa-defense.default.wp1.lexblog.com/files/2015/01/Harbor-Church-Preliminary-Injunction-Ruling1.pdf.
    198. No. 2:14-cv-03730-R (C.D. Cal May 14, 2014), appeal docketed, No. 14-56137 (9th Cir. Sep. 2, 2014).
    199. No. 2:14-cv-03730-R (C.D Cal. May 14, 2014) (order denying preliminary injunction).
    200. Id.
    201. Id.
    202. Id.
    203. Id.
    204. No. CV 14-3730-R (C.D. Cal. May 30, 2014) (order granting temporary restraining order), available at http://rluipa-defense.default.wp1.lexblog.com/files/2015/01/Harbor-Church-Preliminary-Injunction-Ruling1.pdf.
    205. Id.
    206. Id.
    207. Id.
    208. Id.
    209. Id.
    210. No. 2:14-cv-03730-R (C.D. Cal. May 14, 2014) (order denying preliminary injunction).
    211. 768 F.3d 183 (2d Cir. 2014).
    212. Id. at 187-88.
    213. Id. at 187.
    214. Id.
    215. Id.
    216. Id.
    217. Id.
    218. Id. at 187-88.
    219. Id. at 191.
    220. See id. at 192-96.
    221. See id.
    222. Id. at 193-94.
    223. Id. at 194-95.
    224. Id. at 196.
    225. Id. at 198.
    226. Id. at 199.
    227. Id.
    228. Id.
    229. Id.
    230. Id.
    231. Id. at 200.
    232. Andon, LLC v. City of Newport News, No. 4:14cv76, 2014 U.S. Dist. LEXIS 162754 (E.D. Va. Nov. 20, 2014).
    233. Id.
    234. Id. at *1.
    235. Id. at *4.
    236. Id. at *4-6.
    237. Id. at *6-7.
    238. Id. at *8.
    239. Id.
    240. See id. at *10-11.
    241. See id. at *10-19.
    242. Id. at *12 (quoting 42 U.S.C. § 2000cc-2(a)).
    243. Andon, 2014 U.S. Dist. LEXIS 162754, at *12 (quoting 42 U.S.C. § 2000cc-3(g)).
    244. Id.
    245. Id. at *19.
    246. See id. at *19-20.
    247. See id. at *19-33.
    248. Id. at *20 (emphasis in original).
    249. Id. at *20-21.
    250. Id. at *26.
    251. See id. at *26-29.
    252. Id. at *29.
    253. Id. at *32-33.