Development

Determination Revocation Violates RLUIPA

Third Church of Christ, Scientist v. City of New York

NYLJ 12/8/08, p. 22, col. 1

U.S.Dist. Ct., SDNY

(Batts, J.)

In an action by the church to enjoin the city from revoking its pre-consideration determination that catered social events at the church constituted a permitted accessory use, the church sought a preliminary injunction. The court granted the injunction, concluding that the city's action violated the equal terms provision of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA).

The church has occupied the subject building since its construction in 1924. The congregation has dwindled to fewer than 100 members, and the church has fallen into disrepair. To address the disrepair, the church located a prospective tenant interested in using the building as a catering facility. The proposed lease terms would permit the church to use the building's front door only for Sundays and Wednesday evening services, for Christmas and Thanksgiving services, and for church corporate and organizational meetings. Tenant would not agree to the lease without municipal approval. On April 19, 2006, the city issued a pre-consideration determination that church could use the premises for catered events, even though under the city's zoning ordinance, catering would be permitted only if it qualified as an “accessory use.” The church and the tenant then executed the lease, and the tenant spent several million dollars on capital repairs. At that point, neighbors began to complain about the catering use. The Department of Building revoked the prior pre-consideration determination, concluding that the comparison of the catering use with the “virtually non-existent primary use” made it clear that the catering use was not an accessory use within the meaning of the zoning resolution. The church then brought this action alleging a violation of RLUIPA.

In granting a preliminary injunction to the church, the court first agreed with the city that the limitation on the right to hold catered events in the church did not substantially burden religious exercise. The court then turned to the church's claim that the city had not subjected the church to “equal terms” with other, non-religious uses. In particular, the church had emphasized that other non-religious institutions in the zoning district had been permitted to use their facilities for catered events. The city had issued violations to those institutions for uses not permitted by their certificates of occupancy, but had entirely revoked the church's pre-consideration determination. The court concluded that this constituted unequal treatment within the meaning of RLUIPA, and justified grant of a preliminary injunction.

Determination Revocation Violates RLUIPA

Third Church of Christ, Scientist v. City of New York

NYLJ 12/8/08, p. 22, col. 1

U.S.Dist. Ct., SDNY

(Batts, J.)

In an action by the church to enjoin the city from revoking its pre-consideration determination that catered social events at the church constituted a permitted accessory use, the church sought a preliminary injunction. The court granted the injunction, concluding that the city's action violated the equal terms provision of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA).

The church has occupied the subject building since its construction in 1924. The congregation has dwindled to fewer than 100 members, and the church has fallen into disrepair. To address the disrepair, the church located a prospective tenant interested in using the building as a catering facility. The proposed lease terms would permit the church to use the building's front door only for Sundays and Wednesday evening services, for Christmas and Thanksgiving services, and for church corporate and organizational meetings. Tenant would not agree to the lease without municipal approval. On April 19, 2006, the city issued a pre-consideration determination that church could use the premises for catered events, even though under the city's zoning ordinance, catering would be permitted only if it qualified as an “accessory use.” The church and the tenant then executed the lease, and the tenant spent several million dollars on capital repairs. At that point, neighbors began to complain about the catering use. The Department of Building revoked the prior pre-consideration determination, concluding that the comparison of the catering use with the “virtually non-existent primary use” made it clear that the catering use was not an accessory use within the meaning of the zoning resolution. The church then brought this action alleging a violation of RLUIPA.

In granting a preliminary injunction to the church, the court first agreed with the city that the limitation on the right to hold catered events in the church did not substantially burden religious exercise. The court then turned to the church's claim that the city had not subjected the church to “equal terms” with other, non-religious uses. In particular, the church had emphasized that other non-religious institutions in the zoning district had been permitted to use their facilities for catered events. The city had issued violations to those institutions for uses not permitted by their certificates of occupancy, but had entirely revoked the church's pre-consideration determination. The court concluded that this constituted unequal treatment within the meaning of RLUIPA, and justified grant of a preliminary injunction.