Posted by: Patricia Salkin | February 13, 2014

Fed. Dist. Court in MI Holds Religious Institutions May Be Excluded from Certain Zoning Districts on the Grounds that they do not Generate Tax Revenue Under Certain Conditions

Special thanks to the RLUIPA Defense Blog for this posting – http://www.rluipa-defense.com/home.cfm

the United States District Court for the Eastern District of Michigan has ruled that excluding religious institutions from certain zoning districts on the grounds that they do not generate tax revenue is a legitimate exercise of zoning power if (1) the intent of the district is to produce revenue and promote commercial growth and (2) other secular uses are excluded for the same reason.

Alger Bible Baptist Church (Church), which has existed in Michigan’s Moffat Township communities for approximately 30 years, sought to relocate to a new location to hold religious worship services because the small size of the dilapidated space it had been leasing restricted its ability to attract new parishioners. Also, because the Church did not own the space, it could not make much needed repairs, including repairing the roof which was unable to protect its congregants from rain water leaking through. The Church’s pastor believed that its location inhibited its ability to grow beyond its current membership and thus sought to relocate elsewhere to operate from a larger facility in a more prominent location.

The Church identified a former ice cream shop sitting on approximately 5.5 acres in Alger’s Highway Commercial zoning district as ideal space to relocate. The Church’s pastor “strongly felt that God had called [him] to relocate the Church and the congregation to the new location.” The Church paid a deposit to purchase the property, but only after putting down the deposit did it learn that the Highway Commercial zone precluded churches and other religious buildings. Despite allegations that the Township’s zoning ordinance violated RLUIPA, the Township denied the Church’s use variance application, as well as its applications to rezone the property and also for a special land use permit.

The Church sued, alleging that the Township violated RLUIPA’s Equal Terms Clause, RLUIPA’s Nondiscrimination Clause, RLUIPA’s Exclusion and Limits Clause, the First and Fourteenth Amendments to the United States Constitution, and the Michigan Constitution. The Church sought a preliminary injunction and the Township moved to dismiss for failure to state a claim on which relief could be granted.

The Court rejected the Church’s claim that the zoning ordinance on its face violated the First Amendment’s Free Exercise Clause. Specifically, the Court found that the zoning ordinance was neutral on its face:

“Although churches and other religious buildings are not permissible by right in any of Moffatt’s six zoning districts, the same is true for many secular institutions: cemeteries, landfills, day care facilities, lodges and clubs, stables, kennels, bed and breakfasts, and natural resource extraction operations . . . . And just like churches and other religious buildings, none of these structures are permissible, even conditionally, in Moffatt’s two commercial districts. Even schools – both private and public – are excluded in Moffatt’s commercial districts.”

Although facially neutral zoning ordinances may still violate the Free Exercise Clause if they “target[] religious conduct for distinctive treatment,” the Court found no such illegal targeting in the Township’s zoning ordinance: “For even if the Township Supervisor stated ‘that he did not want [the Church] to operate at the Property because it would not generate any tax revenue,’ this statement does not impermissibly target religion; instead, the statement aligns with the Zoning Ordinance’s purpose: promoting taxpayer’s commercial retail services in conjunction with a major highway interchange area.” Although the Church contended that secular institutions, such as theatres and commercial recreational uses, are permitted in the Highway Commercial zone while religious institutions are not, those secular uses “fall directly in line with Moffatt’s goal of ‘encourag[ing] the development of general retail’” in the Highway Commercial zone. Further, the Court found it significant that the Church did not advance any non-secular institutions that do not produce some form of tax revenue.

In sum, the Court stated: “Moffatt’s Zoning Ordinance is a facially-neutral law that is applied generally to all citizens; only structures that promote commercial retail and generate revenue are permissible in the highway commercial district. Thus, the Zoning Ordinance does not violate the Free Exercise Clause, and [the Church’s] claim is without merit.”

The Court also rejected the Church’s claim that the zoning ordinance prevents it from practicing its religion in the precise location where it seeks to do so in violation of the First Amendment’s protection of freedom of speech. Relying on Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643 (10th Cir. 2006), the Court concluded that “a church has no ‘constitutional right to build its house of worship where it pleases.’”

The Church’s Equal Protection claim failed because the Church did not identify a similarly-situated secular institution treated more favorably than religious institutions. While the Court dismissed this claim, it did so without prejudice, allowing the Church the opportunity to re-plead to identify similarly situated religious institutions.

Finally, the Court dismissed the Church’s claims under RLUIPA’s: (1) Equal Terms Clause; (2) Nondiscrimination Clause; and (3) Exclusion and Limits Clause. First, the Court determined that the Church’s Equal Terms Clause claim failed because it did not identify a similarly situated comparator, as discussed above. In so doing, the Court declined to adopt a test to identify comparators, simply noting the Church’s failure to identify one. It also concluded that the zoning ordinance is facially neutral: “Importantly, the fact that Moffatt’s Zoning Ordinance prohibits all churches and other religious buildings, in addition to other secular uses, from commercial zones is not inconsistent with facial neutrality. On the contrary, the Zoning Ordinance prohibits any use in its commercial districts – religious or otherwise – if the institution does not produce revenue and promote commercial growth.” The Court dismissed this claim without prejudice, allowing the Church the opportunity to replead to identify comparators.

Because the Church did not put forth any evidence to raise an inference that the Church’s rezoning request was denied specifically because of its religious beliefs, its Nondiscrimination Clause claim failed. The Church’s Exclusion and Limits Clause claim also failed because religious institutions are allowed in the Township’s six zoning districts, just not in its two commercial districts. Further, the Court found significant that Township officials had actually suggested an alternate site for the Church to locate. The Court dismissed the Church’s claims under the Michigan Constitution for the same reasons it dismissed its claims under the federal constitution.

Daniel Dalton, attorney for Alger Bible Baptist Church, and an experience RLUIPA litigator, has indicated that an appeal may soon be filed:

“While we respect the Court, we disagree with the decision as it conflicts with not only the clear congressional intent of RLUIPA, but also a body of case law developed over the past 15 years. Congress, and the Courts, have clearly and unequivocally stated that local governments cannot use the loss of a tax basis for the reason to deny zoning to a Church. This decision is a devastating loss to this religious body who exist solely to worship God and provide for this poor community. The decision hurts all religious uses in Michigan, and beyond, who seek to find a place of worship. Given the gravity of the case, we have no other choice but to appeal this decision.”

Dalton has been involved in approximately 20 other RLUIPA lawsuits on the plaintiff’s side, obtaining favorable results either through court decision or settlement in each of those cases.

Marci Hamilton, the Paul R. Verkuil Chair of Public Law at the Benjamin N. Cardozo School of Law stated: “This is a hyperbolic response typical of those who litigate for extreme religious liberty. Congress never intended to create a presumptive right to trump zoning laws at will. The church here lacked evidence to prevent dismissal. It is nice to see the system working as it should.” Professor Hamilton regularly defends municipalities in RLUIPA litigation.

Alger Bible Baptist Church v. Township of Moffatt, 2014 WL 462354 (E.D. Michigan 2/42014)

The opinion can be accessed at: http://rluipa-defense.com/docs/Alger%20Bible%20Case.pdf


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