Posted by: Patricia Salkin | August 28, 2008

Michigan Appeals Court Finds Variance Denial Was Not a Substantial Burden under RLUIPA

Following their decision in Greater Bible Way Temple of Jackson v City of Jackson, 478 Mich. 373 (2007), the Supreme Court of Michigan remanded the Shepherd Montessori Center Milan case back to the Court of Appeals with instructions to “reconsider whether the denial of the zoning variance imposed a ‘substantial burden’ on the plaintiff’s religious exercise, i.e., whether the denial of the variance ‘coerce[s] individuals into acting contrary to their religious beliefs.’”


Following the State Supreme Court’s interpretation of the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Appeals Court concluded that since the Plaintiffs did not show that the denial of the variance forces them to do something that their religion prohibits, or to refrain from doing something that its religion requires, and since they did not allege that the property at issue has any religious significance, the denial of the variance did not impose a substantial burden on its religious exercise. The Court acknowledged that although the cost may be prohibitive and space may not be suitable, the Plaintiff could operate its school at another location in the area.  Therefore, the court said, “plaintiff may operate a faith-based school, but it must do so on property that is zoned for schools.”


However, with respect to the second claim, that the Township violated the Plaintiff’s right to Equal Protection when it denied the Plaintiff the right to operate a school in the same space that a non-religious entity operated its daycare program, the Appeals Court reaffirmed its holding that the application of the zoning ordinance in this manner violated the Plaintiff’s Equal Protection rights. The Appeals Court noted that on remand it was asked to reconsider the facts in light of the Greater Bible Way Temple of Jackson case, and that case did not involve an equal protection challenge. 


Shepherd Montessori Center Milan v. Ann Arbor Charter Township, 2008 WL 3914605 (Mich. App. 8/26/2008 ).


For a recent article with a chart on case holdings regarding what courts have held constitute substantial burdens, see:



  1. The issue of granting variances for religious uses is a difficult one because it creates a very fine line. This case required the church to show that without the variance, they would not be able to practice or would have to do something prohibited by their religion. Right now, on Long Island, residents are protesting a mosque that is seeking a variance to tear down buildings on the 1.77 acres they own to create more parking and additionally, build a new three-story mosque. While, the additional parking would allow the large mosque to accommodate it’s worshippers during service hours, the mosque has been functioning ‘as is’ for 20 years. It seems the size of the religious use should be taken into consideration, since neighbors will still have members of the religious community parking along their side streets, and creating a traffic burden. While it is important that religious uses not be prohibited from residential communities, there should be a greater burden placed upon the religious use, especially when changing the character of the neighborhood.

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