Zoning – Part 1

A Michigan court ruled that a trial court acted improperly in dismissing a church’s claim that a city violated RLUIPA.

Church Law and Tax 2004-09-01

Zoning – Part 1

Key point. The federal Religious Land Use and Institutionalized Persons Act prohibits state and local governments from imposing a land use regulation in a manner that imposes a substantial burden on the exercise of religion unless the regulation is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

* A Michigan court ruled that a trial court acted improperly in dismissing a church’s claim that a city violated RLUIPA by prohibiting it from operating a primary school on church property. A church wanted to operate a religious primary school for children, kindergarten through third grade, in an area zoned as an office park. A city zoning board denied the church’s request on the ground that “primary schools” were not a permitted use in the office park district. The church sued the city, claiming that the denial of a zoning permit violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the first amendment guaranty of religious freedom. A trial court rejected the church’s claims, and the church appealed.

RLUIPA provides that:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates the imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

The court noted that this language imposes two conditions on any church wanting to prove that a government action violates RLUIPA: (1) the government action imposes a substantial burden on (2) religious exercise. The court conceded that the church met the second condition:

Challenges of zoning ordinances under RLUIPA are expressly contemplated. The use of the land does not have to be a core religious practice. Rather, the term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief. Further, RLUIPA explicitly states that ‘the use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.’ Here, we believe that the church has sufficiently shown that the contemplated use for the subject property—a faith-based primary school—falls within this broad definition of a religious exercise.”

The more difficult question was whether the church established that the city’s denial of a zoning permit imposed a “substantial burden” on religious exercise. The court concluded that this test was not met:

The substantial burden must be based on a “sincerely held” religious belief …. The Supreme Court [has ruled] that for a governmental regulation to substantially burden religious activity, it must have a tendency to coerce individuals into acting contrary to their religious beliefs. Conversely, a government regulation does not substantially burden religious activity when it only has an incidental effect that makes it more difficult to practice the religion. Thus, for a burden on religion to be substantial, the government regulation must compel action or inaction with respect to the sincerely held belief; mere inconvenience to the religious institution or adherent is insufficient.

The difference between a “substantial burden” on religious exercise and an “inconvenience” on religious exercise has been discussed in federal court cases dealing with RLUIPA. The district courts have concluded that the regulations must have a “chilling effect” on the exercise of religion or substantially burden religious exercise in order to be consistent with the Supreme Court’s substantial burden test. For example [one court concluded] that the denial of an application to build a church on its property constituted a substantial burden because “preventing a church from building a worship site fundamentally inhibits its ability to practice its religion.”

The court concluded that several factors must be considered in deciding if a government action imposes a substantial burden on religious exercise. Those factors include “whether there are alternative locations in the area that would allow the school consistent with the zoning laws; the actual availability of alternative property, either by sale or lease, in the area; the availability of property that would be suitable for a K-3 school; the proximity of the homes of parents who would send their children to the school; and the economic burdens of alternative locations.” Since neither the church nor the city had presented evidence addressing any of these factors, the appeals court ruled that the trial court had erred in dismissing the case, and it sent the case back to the trial court for further consideration.

Application. This case is helpful because of the court’s listing of specific factors to be considered in evaluating a church’s claim that its “religious exercise” has been “substantially burdened” by an adverse zoning decision. These factors will provide church leaders with the means to make a preliminary assessment of the strength of a potential RLUIPA claim. Shepherd Montessori Center Milan v. Ann Arbor Charter Township, 675 N.W.2d 271 (Mich. App. 2003).

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