Posted by: Patricia Salkin | January 9, 2008

6th Circuit Finds Zoning Regulations Limiting Size of Buildings Does Not Constitute a Substantial Burden on Religious Exercise under RLUIPA

Living Water, a small but growing Christian congregation, sought and initially received, a special use permit to increase its existing facilities on a six acre parcel it owns in Meridian Township, Michigan. The parcel is located in a RA zoning district, which permits single family residential, medium density uses. On March 7, 2001, the Township informed Living Water that the special use permit would expire on May 19, 2001 unless they obtained an extension or began substantial construction on the project. The Township obtained new legal counsel who advised the Township that there was no authorization in the local code for the granting of extensions for special use permits.  As a result, Living Water, as well as another applicant, were denied extension requests.  The Township then passed a resolution effectively treating all extension requests as an application for a new permit subject to all of the requirements for a new special use permit.  Living Water then met with the Township planning staff and agreed to reductions in the number of students it would enroll in its school from 280 to 125, and they applied for a permit to build a Christian Education Building totaling 34,989 square feet, or 6,489 square feet more than what had initially been approved in 2000.  The footprint, however, was 1,500 square feet smaller than the earlier plan because it included a larger basement.  Following public hearings, the planning commission recommended approval of the special use permit which would result in a building that exceeded the 25,000 square-foot limit.  The Board approved the special use permit for the construction of a school for 125 students, but denied the special use permit for the construction of an addition that would result a building or combination of buildings with a gross floor area of 25,000 square feet or more.  In denying the permit, the Board explained that “the size of the proposed church and school facility in relationship to the size of the subject site is out of proportion to similarly situated schools and combined church and school facilities within the Township and inconsistent with those review criteria and standards for the granting of a special use permit…”  

Living Water alleged that the denial of the special use permit violate the Religious Land Use and Institutionalized Persons Act (RLUIPA) because it imposed a substantial burden on its religious exercise.  In a case of first impression for the Third Circuit, the Court first noted that RLUIPA fails to define the phrase “substantial burden” and then reviewed the interpretation of “substantial burden” adopted in other circuits. Commenting that the Third Circuit had not yet defined the phrase, the Court did note that in DiLaura v. Township of Ann Arbor, 112 F. App’x. 445 (6th Cir. 2004), the Court concluded that “the designation as a bed and breakfast would have effectively barred the plaintiffs from using the property in the exercise of their religion and, hence, the defendants’ refusal to allow a variance constituted a substantial burden on that exercise.”  In reaffirming opinions from the 2nd and 7th Circuits, the Court noted that religious institutions are not exempt from land-use regulations.    

In declining to follow Living Water’s argument that the Township’s denial based on the proposed size of the facility was a substantial burden, the Court framed the inquiry as: “though the government action may make religious exercise more expensive or difficult, does the government action place substantial pressure on religious institutions to violate its religious beliefs or effectively bar a religious institution from using its property in the exercise of its religion?”  Although Living Water argued in part, that the denial did not provide the Church with room to grow, the Court said that the question is “whether the Township’s denial substantially burdens Living Water’s religious exercise now – not five, ten or twenty years from now…” Recognizing that the Township did place a burden on Living Water, the Court noted that, “The fact that Living Water’s current facility is too small does not give the church free reign to construct on its lot a building of whatever size it chooses, regardless of limitations imposed by the zoning ordinances.” Based on the facts presented, although Living Water did not get all of what it wanted in terms of size of the facility, the Court said that they were “hard-pressed to concluded that Living Water will be unable to carry out its church missions and ministries without it,” and said that such denial was a mere inconvenience that does not equate to a substantial burden.  The Court found that the only thing Living Water has demonstrated is that it cannot operate its church on the scale it desires. The fact that the government action may make the religious exercise more expensive or difficult for Living Water, did not place substantial pressure on the Church to violate its religious beliefs nor did it effectively bar the Church from using its property in the exercise of its religion.   

With respect to the final issue regarding the Township’s change from prior practice in the granting of extensions for special use permits, the Court noted that there was no evidence that the Township did so as a result of any animus towards Living Water specifically or religious institutions generally.  Rather, the record showed that a new municipal attorney provided an opinion about the Township was treating the issue of extensions generically, without regard to any particular application.  Lastly, the Court concluded that “nothing the Township has done requires Living Water to violate or modify or forego its religious beliefs or precepts, or to choose between those beliefs and a benefit to which the church is entitled.” As a result, there was no substantial burden on religious exercise.  

Living Water Church of God v. Charter Tp. of Meridian, 2007 WL 4322157 (C.A. 6 (Mich.)). 

The opinion can also be accessed at:  http://www.ca6.uscourts.gov/opinions.pdf/07a0832n-06.pdf   


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