In Third Church of Christ v. The City of New York, (2010 WL 486976, 2nd Cir. 12/1/2010), the Second Circuit Court of Appeals, considered an equal terms challenge to the City’s decision prohibiting the use of a Church facility for private, catered events. In exchange for paying for capital building improvements and ongoing Church operating expenses, a catering company received the right to hold private functions in the church building. The neighbors complained and the City revoked a previously granted permit finding that the catering use was not accessory to the religious activities.
As comparisons for its equal terms challenge under RLUIPA, the Church looked to an apartment and hotel that operated restaurants and event facilities that were similarly located in the R-10 zone. The City distinguished these uses claiming that the hotel restaurant/ event activities constituted an accessory use whereas they were primary activities at the Church. The City also argued that the hotels were non-conforming; they never sought and obtained formal land use approval. The court found these distinctions without any difference. “In a formal sense, the City may be correct that the hotels and the Church were differently situated from this point of view. RLUIPA, however, is less concerned with whether formal differences may be found between religious and non-religious institutions—they almost always can—than with whether, in practical terms, secular and religious institutions are treated equally.” In this case, all of the entities were allegedly operating in violation of the zoning rules, and the district court reasonably concluded that the City responded differently to each entity. “Most notably, the City’s revocation letter appears, under threat of sanction, to deny the Church the opportunity to hold any catering events, thus denying it the benefit of the accessory-use law altogether … in contrast to the firm prohibition embodied in the Intent to Revoke, there is no evidence that the City ever threatened to shutter the catering facilities at either hotel.”
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