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The Elijah Group (hereinafter “the Church”) sued the City of Leon Valley, Texas (hereinafter “the City”), in federal district court, claiming violations of the Texas Civil Practice and Remedies Code, the Texas Religious Freedom Restoration Act (hereinafter “TRFRA”), the federal Religious Land Use and Institutionalized Persons Act (hereinafter “RLUIPA”) and both the Texas and United States constitutions.  The district court granted the City’s motion for summary judgment, and the Church appealed, challenging only the dismissal of its RLUIPA and TRFRA claims. 

In March 2007, the City made changes to its zoning code with the goal of creating a “retail corridor” in a particular area.  The zoning scheme previously allowed churches to obtain special use permits to operate in B-2 (“business”) zones.  The City reclassified several B-2 uses, eliminated churches’ rights to apply for special use permits in B-2 zones but continued to allow similarly nonretail, but nonreligious, organizations to obtain special use permits in B-2 zones.  The Church signed a contract to buy a property in a B-2 zone.  However, the contract was conditioned on a successful petitioning of the City to rezone the property to B-3, which would allow the Church unrestricted occupation of the property.  The rezoning petition failed, but the Church leased the property anyway, using it for specific nonreligious activities.  When the Church began conducting religious services on the property, the City obtained a temporary restraining order against the services, claiming a zoning ordinance violation.  The Church responded by filing this lawsuit. 

The Equal Terms Clause of the RLUIPA (hereinafter “the Clause”) prohibits land use regulations that give preference to nonreligious (over religious) institutions.  Here, the Church made a facial challenge to the zoning ordinance that disfavors “churches” for other nonretail, secular institutions.  To determine if a religious institution is being disadvantaged by an ordinance, the Clause requires a comparison to a non-religious counterpart (called a “comparator”).  The Court went on to explain the four different tests for determining comparators.  The relevant standards relied on are those articulated in the Third and Eleventh Circuits.  

The Third Circuit does not distinguish claims based on the nature of the zoning ordinance – it but applies the same test for all claims under the Clause, stating that “a regulation will violate [the Clause] only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose.”  The Eleventh Circuit, on the other hand, looks at whether the ordinance at issue is neutral or facially discriminatory.  If the ordinance is facially discriminatory, virtually any nonreligious institution suffices as a comparator.  Taken broadly, this means that every facially discriminatory ordinance violates the Clause, but the Eleventh Circuit deals with this by extra-statutorily engrafting strict scrutiny review onto its test.  Claims involving facially neutral ordinances are funneled into different analyses based on how they are classified, for example, as a “religious gerrymander” or “discriminatory application,” but that is irrelevant for the case at hand as it involves a facial challenge. 

The district court applied the Third Circuit’s test, and recommended dismissal based on the ordinance’s purpose, because the Church didn’t identify a non-religious assembly that was favored over a religious assembly in “creating a retail corridor,” the ordinance’s stated goal.  The Church argued that the court must utilize the Eleventh Circuit test, and insist that the district court erred in upholding the ordinance because it 1) differentiated between religious and nonreligious assemblies and 2) failed to pass strict scrutiny review.  

The Fifth Circuit Court of Appeals looked at the text of the ordinance, and took issue primarily with a “Permitted Use Table” that said “churches” were not allowed in B-2 zones at all, but many nonreligious, nonretail buildings were allowed in B-2 zones after first obtaining a special use permit.  In reversing the decision of the district court, this court invalidated the ordinance because it prohibited the Church from even applying for a special use permit but allowed a private club to do so, and thus, according to the Court, “obviously” violated the Clause. 

Elijah Group, Inc. v. City of Leon Valley, 2011 WL 2295215 (5th Cir. 6/10/2011) 

The opinion can be accessed at: http://www.ca5.uscourts.gov/opinions/pub/10/10-50035-CV0.wpd.pdf