Posted by: Patricia Salkin | July 29, 2008

Financial Burden Resulting from Inability to Use Property as Desired Does Not Constitute a Substantial Burden on Religious Exercise under RLUIPA

The City denied the Church a special exemption to allow the operation of a faith-based counseling center for members and for the general public out of a single-family residence the Church purchased adjacent to its existing church and “fellowship hall.”  The City determined that the proposed use would be a “professional office” that is not permitted in the zoning district. The District Court granted the City’s motion for summary judgment on the Church’s claims alleging violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA) and its rights under the State and federal constitutions.


In reviewing the applicable zoning code, the Court noted that professional offices are not permitted as of right in the zoning district, although they are permitted if they qualify as an accessory use only if they comply with the definition of “home office” in the code.  The Church’s application for the special exception permit indicated that it planned to use the newly purchased building for a church office and for counseling professional services. The Church indicated that it intended to charge for the counseling services. The application was denied by the City Plan Commission, after which the Church convinced the new Mayor to place the request on Planning Commission’s agenda.  The City attorney then informed the Church that the matter was removed from the agenda since the Planning Commission had no legal authority under City ordinances to take further action since the special exception being sought was not authorized by law.  In the course of the legal pleadings, the Church conceded that it could not meet its burden of proof as to its claim that the City violated the “Equal Terms” provision of RLUIPA, and it failed to serve the written notice of its claim required to maintain its state law claim. The District Court dismissed these claims and turned to the Church’s claims that the denial violated the “substantial burden” provision of RLUIPA and the Free Exercise and Equal Protection Clauses of the U.S. Constitution.  


The Church argued that the denial imposed a substantial burden on its religious exercise because: 1) it lacks the financial resources to purchase property for a counseling center elsewhere, it has made a substantial investment in the property it purchased, and it knows of no alternative sites available for a reasonable price; and 2) the location of the building adjacent to its existing church would be convenient and would facilitate recognition that the center was a ministry for the church.


The District Court concluded that the Church has no reasonable expectation that it would be allowed to operate a professional office in the district as it was aware of the zoning at the time of purchase, having assumed the risk of having to sell the property and look elsewhere. The Church offered no evidence that other sites were unavailable or that they would be financial infeasible. Yet the City offered evidence of many other residential buildings in close proximity to the district that would be able to accommodate this use. Further, the Court said that “RLUIPA does not require municipal authorities to create exceptions to their land use regulations for every church that finds it too expensive to comply,” concluding that the fact that the Church may incur additional expense to sell it property to enable it to purchase property elsewhere that would allow for a professional office, does not amount to a substantial burden on religious exercise.

With respect to its second argument that denial of its proposed use on the site in close proximity to its existing Church facilities constitutes a substantial burden on its religious exercise, the Court noted that “a burden must be more than a mere inconvenience” (see, Vision Church v. Village of Long Grove, 468 F.3d at 999 (2006)) and that potential inconvenience to counselors and clients is not a substantial burden under RLUIPA. Likewise, the potential inconvenience of finding other means to inform the public that the center is part of the Church ministry does not amount to a substantial burden.  The Court concluded, “That the zoning code prevents the establishment of a professional office at the…Property may be inconvenient, but it does not rise to the level of a substantial burden on…religious exercise.”


Turning to the constitutional claims, the Court noted that since the land use regulation did not impose a substantial burden, the Church’s Free Exercise claim must fail, and since the City did not act arbitrarily in refusing to consider the Church’s application where the zoning did not permit the requested use, its Equal Protection claim also fails.  



Calvary Temple Assembly of God v. City of Marinette, Wisconsin, 2008 Westlaw 2837774 (E.D. WI 7/21/2008 ).


Special thanks to Dwight Merriam, Esq. of Robinson & Cole in Hartford, CT for bringing this case to my attention.

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