Facing serious financial hardship and difficulty in maintaining their exisiting building due to significant declines in membership, the Third Church of Christ entered into a twenty-year lease agreement with a private venture, the Rose Group, allowing the group to hold catered social events in the Church. Prior to entering into the lease agreement, the Church sought and received pre-consideration approval from the City of New York that allowed the use as an accessory use to the Church. As part of the lease arrangement, the Rose Group agreed to invest millions of dollars in capital repair to the Church building, to pay rent and to pay ongoing costs. The lease allows the Rose Group to cover the Church sign when it holds events, and it requires the Rose Group to pay real estate taxes that may become due if religious tax exempt status is lost due to the catering business. The Church is located in an R-10 zoning district which allows residences, community facilities (such as a church) and uses that are “accessory” to residences and community facilities. Following neighbor complaints when the work was “well underway” on required capital repairs, the City revokes the pre-consideration, which was tantamount to an approval for the accessory use.
On appeal to the Southern District of New York the Church made two separate claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA). First they asserted that the City’s actions constituted a substantial burden on its exercise of religion; and second, that the City violated the Equal Terms Provision of the statute. The Court quickly determined that the City did not violate the statute’s substantial burden provision finding, “Under the law of the Circuit, a burden on a Church’s ability to hold catered social events is not a burden on ‘religious exercise’ as contemplated by RLUIPA.” The City did not fare as well with respect to the Equal Terms provision which states, ”No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” The Church argued that the City knowingly permits non-religious institutions in the same neighborhood to conduct revenue generating social events, but it is prohibiting the Church from doing the same.
The Second Circuit has not yet addressed the Equal Terms provision of RLUIPA, so in dealing with a case of first impression, the Southern District reviewed the varied interpretations of this provision from the Eleventh, Third and Seventh Circuits. The Court explained the rule in the 11th Circuit which “requires only a showing that the non-religious comparator is an ‘assembly’ or ‘institution’ as those terms are commonly understood.” Where both the religious and non-religious groups are understood as assemblies or institutions, then the classic strict scrutiny analysis is applied. see, Primera Iglesia Bautista Hispana of Boca Raton, 450 F.3d 1295, 1308 (2006). The 3rd Circuit disagrees with the 11th Circuit finding their interpretation too liberal. The 3rd Circuit holds that “a religious plaintiff…must identify a better-treated secular comparator that is similarly situated in regard to the objectives of the challenged regulation…” (emphasis added), finding that this analysis is more consistent with Congressional intent to codify existing Free Exercise Clause jurisprudence because “Under 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 objectives.” see, Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 268 (2007). The Southern District then explained that the 7th Circuit held that to find an Equal Terms violation, “a plaintiff need not demonstrate disparate treatment between two institutions similarly situated in all relevant respects,” and in the case before it found that schools were not a valid comparator for Churches because the rezoning process was an entirely different form of relief from obtaining a variance. see, Vision Church v. Village of Long Grove, 468 F.3d 975, 1003 (2006).
The Southern District of New York declared that it need not reach any one definitive interpretation of the Equal Terms Provision, finding that under any reading, the City has treated the Church on less than equal terms with other non-religious comparators. It was clear that the Court had many concerns about the City’s process, not the least of which was the lack of clearly articulated standards used to determine whether a particular use is an “accessory use,” noting that the process seemed arbitrary. The Court also noted that it appeared as though the City’s decision to withdraw pre-consideration relied heavily on the City’s perceived level of religious activity at the Church – suggesting that small religious groups could be treated less favorably under the Zoning Resolution. This, said the Court, is exactly what RLUIPA was designed to address. Another concern was that the Court determined that others in the neighborhood have been conducting food service and catering businesses in violation of City Zoning Resolution and none of them had permits revoked. Because of this fact, the Court said it did not need to reach the question of whether the Church’s use of the building was indeed an accessory use.
Third Church of Christ v. City of New York, 2008 WL 5102466 (S.D.N.Y. 12/2/2008).
The opinion can be accessed here.
