Posted by: Patricia Salkin | November 21, 2008

No RLUIPA Violation Found in Zoning Board’s Denial of Variance and Special Use Permit

The Great Lakes Society, a Michigan ecclesiastical corporation and an IRS recognized religious organization, describes itself as ministering to persons having varying degrees of chemical sensitivities to common environmental pollutants. It sought to construct a two-story building on a six-acre parcel located in a low-density residential district. The zoning ordinance permitted construction of a “church” in a residential district subject to a special use permit.  The proposed building was to include: a 2,400 square foot sanctuary for up to 60 people to participate in Sunday worship services; a 1,600 square foot counseling ministry area; a 1,500 square foot tape/publication ministry area including a recording studio and publishing equipment; an 1,800 square foot ministerial training ministry area including classrooms, a library, a study area, an exercise room a kitchen and a bathroom; a 1,200 square foot administration area; a 375 square foot health ministry area(a food cooperative or nutritional service that provides specialty food items in a fragrance free environment); a youth center (to also be used for weddings, funerals, Bible forums and other religious worship services); and a large garage.  The ministry does not charge for its services, and there are no membership fees.  Revenue is derived from purely voluntary contributions.  As a result, the zoning board of appeals concluded that the principal purpose of the proposed building was not for public worship, and that it therefore did not constitute a “church” within the meaning of the zoning ordinance.   The zoning board subsequently denied both the requested special use permit and an area variance that would have been needed to meet setback requirements. Great Lakes filed two separate complaints alleging violations of the Religious Land Use and Institutionalized Persons Act and the state and federal constitutions.

 

The Trial Court concluded that under Michigan law to determine whether a building is a church, the principal use to which it is put is controlling.  In upholding the zoning board’s determination, based on the evidence in the record about all of the other uses to which the building would be put, the Court did not consider the variance denial since the applicant would not have been eligible to apply given its status.  In response to later cross-motions, the trial court did conclude that the proposed structure would constitute “religious exercise” under RLUIPA, and that the determination that the building was not a church and the denial of the variance amounted to a substantial burden on the exercise of religion in violation of RLUIPA and constitutional rights to freely associate and to equal protection. 

 

The Appeals Court concluded that the Trial Court erred in finding that the proposed building was not a “church” for zoning purposes, since the proper standard for this determination is not whether the “principal use” is public worship but rather “whether the building is used for public worship and reasonably closely related activities or uses.”  The Appeals Court found that evidence in the record substantiated both public worship and related activities would take place in the proposed building.  Further supporting the broader interpretation of church building, the Court also noted that churches are generally afforded favored status and that courts have held that zoning authorities should be flexible and accommodating in reviewing permits for church buildings.    

 

With respect t the denial of the variance, which was not reviewed by the Trial Court, the Appeals Court held that the zoning board’s decision not to grant the variance was based upon the large deviation requested, the purpose of the road frontage requirement, as well as traffic and safety issues that could result from locating the church on the particular parcel. As such, the Court determined that the decision was based on competent, material and substantial evidence and the denial was affirmed.

 

With respect to the RLUIPA claim, the Appeals Court disagreed with the Trial Court’s conclusion that the township violated RLIUPA, noting that since the trial court decision was rendered, the Appeals Court had decided Shepherd Montessori Center Milan v. Ann Arbor Charter Twp, 2008 WL 3914605(2008), which was dispositive here. The Court concluded that the church could locate at some other site within the Township so long as the property selected complied with the applicable regulations or a variance was obtained. The Court noted that Great Lakes Society “makes no argument whatsoever that the particular parcel of property upon which it would like to place the facility has any religious significance or that it is unique in any way.”  Therefore, the application of the zoning regulations leading to a denial of the use of this particular property by the church does not constitute a “substantial burden” under RLUIPA.

 

As to the remaining constitutional claims, the Court held that the zoning regulations, which were neutral laws of general applicability, did not run afoul of the free exercise clause.  Since there were other channels for the Great Lakes Society to exercise its right to associate on other parcels within the Township, its freedom of association rights were not violates. Lastly, its Equal Protection claim failed because Great Lakes Society failed to show that it had been treated differently from any other similarly situated church.
 
 
 

 

Great Lakes Society v. Georgetown Charter Township, 2008 WL 4823972 (MI App. 10/30/2008).  

 

The opinion can be accessed at: http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20081030_C270031_63_270031.OPN.PDF  

 


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