Posted by: Patricia Salkin | September 7, 2018

Fed. District Court in MO Affirms Denial of Lighting Variance for High School and Denies RLUIPA Claims Finding the Sports Field Lighting is not a Religious Exercise

This post was authored by Matthew Loeser, Esq.

Vianney, an all-male Marianist high school located in the City of Kirkwood since 1960, had a turfed football, soccer, and track facility on the south side of its campus that had lights and a sound system, which Vianney operated without any restrictions from the City. The lights for Vianney’s football and soccer facility were installed prior to 2012. In November 2012, Kirkwood adopted a revised Zoning Code that included lighting regulations “limiting the height of all pole-mounted lighting fixtures for outdoor sports activities and play fields to 80 feet and limiting the maximum illumination level of light cast off-site onto adjoining residential properties to less than or equal to 0.1 footcandles.” Vianney submitted a variance application to the City that requested the ability to use lights at the Sports Field Property that exceeded the 0.1 footcandle requirement in the Zoning Code. Vianney submitted a site plan, which the City approved in September 2016, subject to several conditions that severely restricted the use of the light and sound systems. Despite this, the Kirkwood Board of Adjustment unanimously voted to deny the Variance.
Vianney first brought a claim under RLUIPA’s equal terms provision, naming Kirkwood HS as a proposed comparator as part of its “as applied challenge.” Specifically, Vianney complained that the City allowed Kirkwood HS, also in the R-3 single-family residential zoning district, to use lights and a sound system at its outdoor athletic complex without restrictions or conditions. Vianney further claimed that it had been treated differently because it provided educational services that were “inherently religious,” while Kirkwood HS did not have to go through any site plan approvals or variances and had not been subject to any restrictions on turning off its lights or sound system. Here, the Court noted that Kirkwood HS was not subject to the same process for obtaining lights because the Kirkwood Zoning Code did not have any lighting regulations or illumination limitations before 2012. Additionally, the lights on Vianney’s Sports Field Property were installed after 2012, and were thus subject to Kirkwood’s Lighting Regulations and illumination limitations. Accordingly, the Court held that Kirkwood HS was not a valid comparator for purposes of Vianney’s equal terms claim under RLUIPA.
Vianney next alleged that Kirkwood imposed a substantial burden on its use of its land in violation of RLUIPA. Specifically, Vianney contended that its proposed use of the Sports Field Property was a “religious exercise,” as it educated young men in the Catholic, Marianist tradition, and athletic activities were explicitly cited in two of the five educational characteristics that Marianist educational ministries pledged to uphold and promote in its educational institutions. Additionally, Vianney noted that the City did not approve the proposed variance conditions or craft alternative variance conditions that would have addressed the neighbors’ concerns and still allowed Vianney to utilize its light and sound systems. The Court rejected this claim, and found that Vianney failed to demonstrate that its ability to use the lights and sound system constituted a “religious exercise” or that it needed to use lights and a sound system as part of its religious exercise.
Lastly, Vianney brought a free speech claim under §1983 based upon the Site Plan Conditions. Vianney alleged that the Site Plan Conditions prohibited the playing of any music, including religious hymns or songs. The record reflected, however, that Vianney had only limited the amplified sound restriction for a sports field that was adjacent to residential homes. As such, the Court held that the Site Plan Conditions did not restrict Vianney’s free speech rights.
Marianist Province of U.S. v City of Kirkwood, 2018 WL 4286409 (ED MO 9/7/2018)


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