The U.S. District Court in Ohio recently considered religious land uses in Tree of Life Christian Schools v. The City of Upper Arlington, Case No. 2:11-cv-009 (U.S. Dist. Ct., Southern Dist. OH, April 18, 2014). The City’s adopted Master Plan, recognizes that only 4.7% of its useable land area was zoned “Commercial,” included that one purpose of preserving the limited commercial land is to generate more revenue from commercial uses. As a result, the Master Plan specifically limited the uses permitted in commercial zones. The City did not offer a pathway for an applicant to obtain approval for school uses in a commercial zone.
In early 2009, City officials became aware that Tree of Life was considering purchasing a commercial office building within city limits for use as a school. The City’s Economic Development Director advised the Tree of Life school superintendent directly that schools were not a permitted use. Notwithstanding, Tree of Life filed an application for a conditional use permit to use the property for a place of worship, a church and residential use, to the extent that residential use includes a private school. The City responded that a private school is neither a permitted nor conditional use in the commercial zone. The church responded that the primary purpose of the application was a church or place of worship that could be considered a conditional use. The City disagreed with this characterization and found that the primary use of the property as a private school did not constitute the use of the property as a “place of worship, church.” The City instructed that the church could file for a zone change to a zone that would allow a private school use.
Despite that City’s denials of its applications, Tree of Life completed the purchase of the commercial office building, then proceeded to file suit for violations of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), among other claims. The Court determined the case was not ripe because Tree of Life had not petitioned the City to rezone the property. While the appeal was pending to the Sixth Circuit Court of Appeals, Tree of Life made the rezone application, which the City denied. The Sixth Circuit allowed Tree of Life to supplement the record on appeal with the denial of the rezoning and the Sixth Circuit remanded back to the District Court.
Tree of Life’s RLUIPA claim was made under the “equal terms” provision that states, “No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” RLUIPA’s equal terms provision is treated differently between the various Circuits of Court of Appeals. The District Court analyzed the Circuit split related to its analysis of the “equal terms” provision, and recognized that the Sixth Circuit has yet to frame its own interpretation.
The District Court determined the Third and Seventh Circuits’ equal terms analysis to be the most reasonable and pragmatic. Under the Third Circuit’s “Regulatory Purpose” approach, a regulation will violate the equal terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions. The regulatory purpose approach allows cities or local governments to justify unequal treatment by pointing to their objectives in enacting zoning regulations and proving that the secular assemblies treated more favorably do not damage those objectives. The burden of proof is on the church to show that equal terms have been violated. In the Tree of Life case, the court found that the City had carefully set forth its regulatory purpose for designating a commercial district to allow office and research facilities that contribute to the City’s physical pattern of planned, healthy, safe, and attractive neighborhoods; provide job opportunities; contribute to the City’s economic stability; and that all schools are forbidden in the district. Therefore, the City’s decision to deny Tree of Life’s proposal for a school in the commercial district was proper.
The Seventh Circuit’s test, which substitutes “accepted zoning criteria” for the Third Circuit’s regulatory purpose approach, did not provide Tree of Life with any better position because the City had designated that generating municipal revenue was an important criterion for allowed uses in the commercial district.
Moreover, the District Court held that Tree of Life’s RLUIPA claim lacked merit because an apples-to-apples comparison of a secular and non-secular use showed the City prohibited a school in the commercial zone regardless of whether it had a religious affiliation.
The Ninth Circuit applies the equal terms test of the Third Circuit along with the Seventh Circuit’s refinement to the test. In Centro Familiar Cristiano Buenas Nevas v. City of Yuma, 651 F.3d 1163 1172-1173 (9th Cir. 2011), that Court held that the “city may be able to justify some distinctions drawn with respect to churches, if it can demonstrate that the less-than-equal-terms are on account of a legitimate regulatory purpose, not the fact that the institution is religious in nature.” (Note the burden of proof in the Ninth Circuit is on the government.) As cases come forward in your neck of the woods, be aware of the circuit split and that your case might be the one to push the question to the U.S. Supreme Court for a determination of the correct analysis of the equal terms provision.
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