Editor’s Note: The following summary appears in September 2017 issue of Religious Freedom Focus published by the Civil Rights Division of the USDOJ: the https://www.justice.gov/crt/religious-freedom-focus-volume-71-september2017

On September 5, the Civil Rights Division announced that it had reached an agreement with Bensalem Township, Pennsylvania, to resolve allegations that the Township violated the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) when it denied zoning approval to allow a local Muslim organization to build a mosque on land it owned in the Township.
The United States filed suit in July 2016, alleging that the Township violated the RLUIPA rights of the Bensalem Masjid when it denied it a variance to build a mosque on three parcels of land that it had purchased on a main road in the Township.  The suit alleged that the denial imposed a substantial burden on the Bensalem Masjid’s religious exercise, treated the group less favorably than the Township treated nonreligious assemblies in similar zones, and discriminated against it on the basis of religion in light of its treatment of prior variance applications by other religious entities. The suit also alleged that the Township violated RLUIPA’s prohibition on governments placing unreasonable limitations on religious assemblies, based on the zoning code’s restrictions on places of worship generally.  The United States District Court for the Eastern District of Pennsylania denied the Township’s motion to dismiss in November 2016.
As part of the agreement, the Bensalem Masjid will be permitted to build its mosque. The Township has also agreed to review and amend its zoning ordinance to comply with the requirements of RLUIPA, and take other remedial measures.  The Township also resolved a private lawsuit brought by the Bensalem Masjid against Bensalem Township.
On the day the agreement was announced, Acting Assistant Attorney General John Gore, head of the Justice Department’s Civil Rights Division, stated:  “Federal law protects the rights of all religious communities to build places of worship free from discrimination. This agreement ensures that all citizens of Bensalem Township may freely exercise this important civil right.”


Editor’s Note: This posting originally appeared on the RLUIPA Defense Blog and is reposted with permission. See: https://www.rluipa-defense.com/2017/09/municipality-prevails-in-dispute-over-personal-chapel/

The City of Brier, Washington (City) has prevailed over claims that it violated the Religious Land Use & Institutionalized Persons Act (RLUIPA) and other federal law in a dispute over a variance application to construct a personal Serbian Orthodox chapel.
The case was brought by Vladan Milosavlejevic and his company (the Plaintiff), who sought to build a personal Serbian Orthodox chapel on company-owned property. The Plaintiff claimed that his chapel had to meet specific architectural dimensions, including two domes, each spanning more than 40 feet in height, to be used as “vehicle[s] for … prayers to be sent to the heavens.” The Plaintiff required a variance to construct the chapel, as the property is in the City’s single-family residential zone, which has a maximum height of 30 feet. The City denied the variance because the Plaintiff failed to satisfy 6 of the 8 zoning criteria, and the Plaintiff sued, alleging violations of RLUIPA’s substantial burden and equal terms provisions and 42 U.S.C. § 1983. The United States District Court for the Western District of Washington at Seattle granted summary judgment in favor of the City on these claims.

The Court found that denial of the variance application did not impose a substantial burden on religious exercise, because there were other suitable sites for worship within the City. In the Ninth Circuit: “[a] substantial burden exists where the government authority puts substantial pressure on an adherent to modify his behavior and to violate his belief. When the religious institution has no ready alternatives, or where the alternatives require substantial delay, uncertainty, and expense, a complete denial of the application might be indicative of a substantial burden.” The Plaintiff’s own witness, an orthodox priest, stated that religious prayer could occur anywhere, including at the Plaintiff’s home – where the Plaintiff had worshipped in the past. Further, there was no evidence that the distance between the Plaintiff’s residence and alternative places of worship or the cost of travel would force the Plaintiff to modify his religious behavior, or that there was any difference in the type of worship services between the churches. “While worshipping within a home or church in Snohomish and King Counties is unsatisfactory to Petitioner, this inconvenience does not rise to the level of a substantial burden,” according to the Court.

The Court also rejected the Plaintiff’s RLUIPA equal terms claim. While the Court questioned whether the Plaintiff and his family constitute a religious assembly subject to the protection of the equal terms provision, it nevertheless considered the merits of the claim. The Court ruled that the equal terms claim failed because the Plaintiff could not identify a comparator that was treated better by the City. The Plaintiff claimed that utility towers were suitable comparators and received preferential treatment by the City. However, utility towers were not suitable comparators, because “[t]hey serve completely different purposes, and they are located within different City zones with different zoning criteria.” The Court also entered judgment in favor of the City with respect to the § 1983 claims, which relied on the same facts and theories as the RLUIPA equal terms claim.

Milosavlejevic v. City of Brier, C16-1414RSM (W.D. WA 9/7/2017). The opinion can be accessed here: https://www.rluipa-defense.com/wp-content/uploads/sites/9/2017/09/doc-45.pdf

Plaintiffs, Paul and Tamara Attard, desired to develop their two properties in Contra Costa County, but failed to obtain the necessary regulatory approvals. Because the properties were located well outside local urban limits, they were not served by any municipal sewage system. Although the Attards attempted to obtain County approval of two different means for individual sewage disposal on their property, they were unsuccessful. Despite this, the county issued the Attards permits to develop their properties, including a permit for construction of an 8400-square foot home. By the time the County discovered its error and notified the Attards, the Attards had made substantial progress toward installing a foundation for the new home on one of the properties. The County nonetheless revoked the permits, and this decision was affirmed by the county Board of Supervisors. The Attards then filed a petition for writ of mandate challenging the revocation. In the petition, they contended the County was precluded from revoking their permits under the doctrines of vested rights and equitable estoppel. The trial court denied the writ petition.

As to the vested rights claim, the applicable Oakland Municipal Code requires any person performing any work “for the purpose of discharging sewage into the city’s sewer system” to obtain a permit for that activity from the city. Here, not only had the Attards failed to obtain the required permit, Oakland confirmed in a letter to the County that they had not even applied for a permit. Moreover, the County’s alleged issuance of permits approving the Attards’ plans did not grant the Attards a vested right to pursue them, as that same Oakland letter stated that no county Local Agency Formation Commission (LAFCo) approval had been sought or obtained. This fact defeated the Attards’ vested rights claim, as Government Code section 56133 prohibits an agency from providing such services “outside its jurisdictional boundary” without permission from the LAFCo.

As to the equitable estoppel claims, the court first noted that in land use cases, “courts have severely limited the application of estoppel … by expressly balancing the injustice done to the private person with the public policy that would be supervened by invoking estoppel.” Here, while the Attards had invested approximately $550,000 installing foundation piers on their property, any injustice they suffered was mitigated by their failure to obtain the necessary approvals from Oakland and LAFCo and to disclose to the County the unpermitted nature of their proposal, prior to issuance of the permit.

The Attards lastly contended they were denied a fair hearing of their appeal as a result of the bias of one member of the Board, Gayle Uilkema. In an e-mail, Uilkema stated that “an illegal connection has been made to a CalTrans sewer in the Caldecott Tunnel without the necessary land use permits,” and claimed the Attards “have been bypassing the legal authority of Contra Costa County for many years.” While the court determined that Uilkema’s e-mail could potentially demonstrate bias, it held that the Attards forfeited this claim when they failed to raise the issue of bias at the Board hearing and seek Uilkema’s recusal.

Attard v Board of Supervisors of Contra Costa County, 2017 WL 3711765 (CA App. 8/29/2017)


South Grande View Development Company, Inc. (SGV) was a real estate development company which bought approximately 140 acres of land in the City of Alabaster for $1.65 million. When SGV purchased the land, a portion of it was zoned for a mixture of single-family residences (“R-2”), garden homes (“R-4”), and townhomes (“R-7”). Between 2005 and 2007, SGV spent approximately $3.5 million clearing and grading the property for the development of R-4 lots. However, in 2011, the city re-zoned SGV’s property for R-2 lots only. SGV’s owner, Concetta Givianpour, testified that the property was not topographically suitable for a residential development of R-2 lots, and even if it was suitable there was no market for R-2 lots in Alabaster. SGV therefore argued that the re-zoning constituted a taking under the Fifth Amendment for which the City of Alabaster must compensate SGV.


As the parties did not dispute SGV retained at least some economic benefit of their land, the court found that for SGV’s takings claim to survive the city’s motion for summary judgment, the record needed to show a genuine dispute of material fact regarding whether a taking occurred under Penn Central. To this point, Ms. Givianpour testified that the re-zoning rendered the property valueless because, even though she could spend money to develop the property to conform to the new zoning, “no one would buy it.” In rebuttal, former Alabaster city planner Harry Still testified that R-4 and R-7 zoning were inconsistent with the established developments surrounding SGV’s property, and a market existed in Alabaster for R-2 lots. The court noted that neither party presented expert evidence in this case in support of its motion for summary judgment. Accordingly, the Court declined to determine as a matter of law whether the re-zoning constituted a taking under the Fifth Amendment.

South Grande View Development Co., inc. v City of Alabaster, 2017 WL 3704839 (ND AL 8/28/2017)


Robert and Carin Diercks purchased a vacant lot in the subdivision located directly behind their house and began construction of a garage. Plaintiffs, group of homeowners in the subdivision, sued the Dierckses in the Escambia Circuit Court, contending that construction of the garage violated various restrictive covenants. The trial court entered summary judgment in favor of the plaintiffs, enjoined the Dierckses from further construction on the garage, and ordered the removal of what had been constructed. On appeal, the Court of Civil Appeals reversed the judgment of the trial court, holding that the trial court had not properly applied the restrictive covenants.

The court first noted that even though lots can be combined and re-subdivided, absent an express provision of the covenants permitting a combined lot to be treated as a single lot for the purposes of applying the restrictive covenants, the property must always conform with the covenants as they originally attached to the property. Here, Covenant 1.C. originally provided that “carports and garages must not open on or face toward the front of the lot.” The Dierckses argued that their combination of lot 58 that fronted Brooks Boulevard, and lot 47 that fronted Robin Drive, created an ambiguity as to which side of the combined lot is the “front.” The court therefore looked to the covenant as originally intended by the parties at the time the covenant was created. In doing so, the court determined the intent of the covenant was to prohibit a garage or carport located on lot 58 from opening onto Brooks Boulevard. Accordingly, the Court of Civil Appeals’ decision was reversed and remanded.

Odom v Odom, 2017 WL 3821466 (AL 9/1/2017)

Denton County Cowboy Church built a church building and an outdoor rodeo arena on its property that hosted weekly rodeo events. The Church then purchased another twelve-acre tract adjoining the original property, and then began construction of a 350-foot by 175-foot rodeo arena. Four months after the Church began construction, it filed an application with Ponder for a commercial building permit, which the Town of Ponder issued. Appellants – Peter Schmitz, Sean Pollock, and Larry and Becky LaDuke – brought a suit seeking a temporary restraining order and injunctions prohibiting the Church from continuing construction. Appellants amended their petition, alleging nuisance injuries and claims against Ponder for impermissible spot zoning. The trial court dismissed these claims.

At the outset, the court first noted that since many of the claims sought only a declaration of rights or alleged an ultra vires claim without naming any individual actors, rather than attacking the validity of the amendments voted on by the Town Council, the trial court properly dismissed them. On appeal, appellants argued that Ponder’s immunity for the declaratory judgment claims was waived under section 37.004 of the Uniform Declaratory Judgments Act (UDJA) and section 154.99 of Ponder’s zoning ordinance. Here, however, the court found that Ponder’s actions in granting the zoning change and issuing the SUP were not an “ordinance” within the meaning of section 37.004(a), as the Town Council merely voted on motions to change the zoning classification of the new property and to issue the SUP. Accordingly, the court held Ponder’s immunity was not waived. Furthermore, because the court found there was no valid government action, it held that the trial court did not err by determining appellants failed to allege a viable takings claim upon which their section 1983 claim could be based.

Appellants’ next argued that Ponder acted outside its authority in issuing the building permits and approving the zoning change and issuance of an SUP by vote of the Town Council. However, because appellants sued only Ponder and did not name any town officials as defendants, the court held that the trial court did not err by dismissing those claims without allowing appellants to file amended pleadings.

Lastly, appellants argued that the trial court had jurisdiction to determine declaratory judgment claims against the Church because they alleged sufficient jurisdictional facts to show that the Church sought impermissible spot zoning from Ponder. The court first determined that nothing in the local government code section 211.012(c) precluded or limited any common law or other right of a landowner directly affected by a neighbor’s use of property from seeking intervention from the court. Additionally, the court noted nothing in RLUIPA purported to deprive a trial court of jurisdiction to consider whether a church’s use of its property encroaches upon a neighboring property owner’s right to use and enjoy their property. However, since only Schmitz testified at the hearing on the plea to the jurisdiction, and he was the only plaintiff who presented evidence relative to whether he had suffered a particularized injury. Specifically, Schmitz claimed that the operation of the old Arena had substantially interfered with his use and enjoyment of his property due to excessive noise, light, and odor, which sometimes prohibited him from using his backyard. Schmitz further claimed that the same type of injuries would occur temporarily due to the construction activities. Based on these allegations, the court held that Schmitz sufficiently alleged at least a reasonable likelihood that his claim would soon ripen and was therefore sufficient to plead a particularized injury.

For the aforementioned reasons, the court affirmed the trial court’s dismissal of Pollock’s and the LaDukes’ claims against the Church and Town of Ponde, affirmed the trial court’s dismissal of Schmitz’s claims against Ponder, and reversed the dismissal of Schmitz’s claims against the Church and remanded that part of the case to the trial court.

Schmitz v Denton County Cowboy Church, 2017 WL 3821466 (Tx. App. 8/31/2017)

In this case, 1050 Ashbourne Associates, LLC (Developer) appealed an order of the Court of Common Pleas of Montgomery County, which affirmed the decision of the Cheltenham Township Board of Commissioners to disapprove Developer’s plan for an age-restricted development in Cheltenham Township. The trial court held that Developer’s proposed development was governed exclusively by the zoning requirements of the Age-Restricted Overlay District. The trial court also affirmed the Commissioners’ disapproval of Developer’s plan because it proposed buildings that exceeded the height requirements for new construction in the Age-Restricted Overlay District. On appeal, Developer contended that the trial court erred because the height requirements in question were enacted after it filed its request for a special exception.

The court first noted that the Preservation Overlay District limited the number of dwelling units per building to eight, unlike the Age-Restricted Overlay District that did not impose a limit. The court determined that the silence in the Zoning Code authorized as many units in a single building in the Age-Restricted Overlay District as were structurally feasible and tailored to the needs of residents over 55 years of age. Thus, the Board of Commissioners erred in finding the Preservation Overlay District limitation prevailed.

The 2012 amendments to the Township’s Age-Restricted Overlay District revised the height requirement for new buildings. Developer contended that these requirements did not apply to its project because it submitted its special exception application to the Zoning Board before the amendments were enacted. The trial court disagreed, finding that under Section 917 of the MPC, Developer filed its sketch plan three months too late, and therefore lost its exemption from the 2012 height requirements. However, Section 917 of the MPC also authorized the municipality to establish a “longer” period than six months “in accordance with the provisions of the governing ordinance. Here, the Township established a longer period by enacting Section 295–211 of the Zoning Code, which gave a landowner two years from the date the special exception was granted to implement its special exception, including the completion of the planning requirements. Accordingly, the court held the Developer had two years after the trial court affirmed the grant of the special exception, to finalize its approved project. Therefore, the court found the trial court erred in affirming that aspect of the Commissioners’ decision.

1050 Ashbourne Associates, LLC v Chelteham Township Board, 2017 WL 3254493 (PA Cmwlth 8/1/2017)

Applicant Land Endeavor O-2, Inc. applied to the Philadelphia Department of Licenses & Inspections (L&I) for a zoning permit to build two structures containing multiple single family dwelling units. This application was denied, and in a new hearing, Land Endeavor presented a new development plan to reduce the number of dwelling units and still provide for access to the units by a shared driveway. The Board granted the variance per the Revised Plans. Brian J. O’Neill, a Philadelphia City Councilman, appealed from the Board’s decision to the trial court, arguing that Land Endeavor failed to establish that it was entitled to a variance. The trial court issued an order denying O’Neill’s appeal on the merits and affirming the Board’s decision.
O’Neill first argued that he had standing under the Home Rule Act and the Code. Under the plain language of the Home Rule Act, standing to appeal a zoning decision in the City is limited to two classes: aggrieved persons and the governing body vested with legislative powers. The court found that while the plain language of both the Home Rule Act and the Code granted standing to City Council as a body; it did not grant standing to the individual councilmembers.

O’Neill next contended that the Board usurped City Council’s authority to create public streets, and that Land Endeavor bypassed the process by providing a private street by means of a variance. As a result, O’Neill claimed that he suffered an impairment or deprivation of his official authority to act as a legislator. The court found that the variance did not create a street, and that Land Endeavor was not proposing a public street. Accordingly, the could held O’Neill lacked legislative standing to appeal the Board’s decision.

O’Neill v Philadelphia Zoning Board of Adjustment, 2017 WL 3722015 (PA Cmmlth 8/30/2017)

The Rhoadses filed an application for a Zoning Certificate of Compliance to build a two–story unfinished detached garage on its property, and attached architectural drawings of the proposed Garage. The Richmond County zoning administrator, Morgan Quicke, approved this application on November 18, 2013. The Rhoadses completed the Garage in June 2014 at a cost of approximately $27,000. In July 2014, Joseph Quesenberry, the new County zoning administrator, told the Rhoadses that the previously approved Garage was in violation of Richmond County Zoning Ordinance Section 2–3–6, because it was taller than the primary structure on the Property. The Rhoadses appealed the Notice to the County Board of Zoning Appeals, which denied the Rhoadses’ appeal, and affirmed Quesenberry’s decision. The circuit court reversed the BZA decision, and entered judgment in favor of the Rhoadses in the Rhoadses’ appeal.
On appeal, the Board argued that Code § 15.2–2311(C) did not apply, because Quicke lacked the authority to approve a plain violation of the Zoning Ordinance, and the Certificate he issued was void ab initio. The record reflected that more than 60 days elapsed between the zoning administrator’s initial approval of the zoning and his successor’s assertion of a zoning violation. Here, Quesenberry did not advise the Rhoadses that the Garage violated the Ordinance until more than 240 days after Quicke signed the Certificate approving the Garage. Furthermore, it was undisputed that the Rhoadses materially changed their position in good faith reliance on the zoning administrator’s approval of the zoning for their building plans, in their construction of the Garage at a cost of nearly $27,000.

For the aforementioned reasons, the court found the circuit court did not err in rejecting the Board’s claim that the Certificate was void ab initio because the Certificate granted a right to use property in a manner that otherwise would not have been allowed under the Zoning Ordinance. Moreover, the approval of the Certificate was an action within the scope of the authority delegated by the Board to the zoning administrator. Thus, the issuance of the Certificate constituted a determination within the meaning of Code § 15.2–2311(C). Accordingly, the court held that the circuit court did not err in applying Code § 15.2–2311(C) to uphold the Rhoadses’ vested rights to use their property in the manner originally approved by the zoning administrator.

Board of Supervisors of Richmond County v Rhoads, 2017 WL 3765193 (VA 8/31/2017)

The City of Delafield, the City of Delafield Common Council and the City of Delafield Plan Commission appealed from an order granting the motion of Hartland Sportmen’s Club, Inc. (HSC) to invalidate the City’s revocation of HSC’s conditional use permit (CUP) to operate a sport shooting range and the denial of HSC’s application for a CUP to operate a sport shooting range.

On appeal, the City contended that its denial of the CUP application was supported by the record. Specifically, the City claimed that it “did not feel the plan was adequate to protect the safety of its citizens or the immediate neighborhood.” The City further alleged that it worked extensively with HSC, but HSC’s plan did not address the City’s safety concerns. However, the court noted that while the City’s denial was based on safety concerns, it never articulated what exactly in HSC’s application it found did not satisfy its concerns. The court found that the City instead imposed ever-changing standards, issued new demands when the previous demands were met, and failed to make any findings of fact other than general denials. Accordingly, the court held the City’s denial was arbitrary and capricious.

Hartland Sportsmen’s Club, Inc. v City of Delafield, 2017 WL 3741466 (WI App. 8/30/2017)


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