Requiring a Religious Use to Locate in Another Township Is Not a Substantial Burden Under RLUIPA

LCS was located in an area of declining population and its existing building needed substantial repairs. It determined that moving to another township within the same county was needed for its survival. After exploring several townships, LCS entered into an agreement with the church to lease space for its school in Genoa. Thereafter, the Town notified the church that it was required to amend its special permit to operate the school.

Neighbors objected to the amended special permit both because of traffic and because of a history of the church conducting activities not covered by its existing special permit. Nevertheless, after a traffic study, the local planning commission recommended approving the amended special permit with several conditions. Despite the recommendation, the special permit was not approved by the township board.

After the denial, LCS leased its prior building (Pinckney Property, located in another town) to a charter school and entered into a year-to-year lease for its own use of a former middle school in the adjoining county (Whitmore Lake Property).

LCS contends that the year-to-year lease could end at any time, and is not a long-term solution for a number of reasons. On the Town's motion for summary judgment the district court held, as summarized by the Sixth Circuit, “… the Township's denial of the application did not impose a substantial burden on LCS because LCS had both the Pinckney and Whitmore Lake properties as adequate alternatives to the Church property.” Livingston Christian Sch. v. Genoa Charter Twp., 858 F.3d 996, 1000 (6th Cir. 2017).

The Sixth Circuit's Reasoning

In affirming, the Sixth Circuit began by concluding that LCS' leasehold interest in the church property was an interest that could be protected under RLUIPA. The court then noted that neither the statute nor the U.S. Supreme Court have defined what constitutes a substantial burden on religious exercise. It analyzed other courts' interpretations, concluding that ” … not just any imposition on religious exercise will constitute a violation of RLUIPA. Instead, a burden must have some degree of severity to be considered 'substantial.' See, e.g., Int'l Church of the Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1067 (9th Cir. 2011) … .”

After noting that one factor in determining whether a burden is substantial is “…whether the religious institution has a feasible alternative location from which it can carry on its mission,” citing Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 352 (2d Cir. 2007), the court noted that “when a plaintiff has imposed a burden upon itself, the government cannot be liable for a RLUIPA substantial-burden violation.” 858 F.3d 996, 1004.

The court then determined it would not examine whether the Town's actions were motivated by discriminatory intent, emphasizing that RLUIPA includes a separate prohibition on discrimination in implementation of land-use regulations, a provision that would be superfluous if evidence of discrimination were relevant to the substantial burden determination. Id. at 1005. The court then analyzed the evidence submitted by LCS, concluding that various declarations were either hearsay or unsupported by specific admissible evidence, thus requiring the granting of summary judgment. But perhaps the most unusual portion of the analysis was with respect to the argument that LCS required a more central location in order to attract more students and maintain its viability. The court focused on the argument that the distance to another location could be as much as 12.1 miles:

Requiring students to travel an additional 12.1 miles is somewhat of a burden, but we conclude as a matter of law that this is not so significant as to 'impose[ ] a substantial burden on the religious exercise of [LCS].' See RLUIPA, 42 U.S.C. § 2000cc. As discussed above, the Eleventh Circuit has held that walking an additional several blocks would not impose a substantial burden on religious adherents whose beliefs bar motor-vehicle travel on the Sabbath. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227–28 (11th Cir. 2004).”

Id. at 1008-09.

A Substantial Burden?

The court then noted that the availability of the Pinckney Property in particular, which was within the same county as the church at issue, precluded a substantial burden claim and that a religious use should not be permitted to claim that it suffers a substantial burden merely because it cannot establish itself within the boundaries of a specific township. It concluded, in perhaps the greatest departure from the general approach taken by other courts: ” … the boundaries of jurisdictions on the local-government level are often arbitrary in practice. Holding that a religious institution is substantially burdened any time that it cannot locate within such a small area — even if it could locate just across the border of the town limits — would be tantamount to giving religious institutions a free pass from zoning laws … ” Id. at 1011.

Conclusion

While moving a short distance may not create a substantial burden, the cases cited by the court dealt with moving across the street or to a different building on the same campus. Here, where the move is arguably 12.1 miles, it would appear that, based upon prior precedent, there is enough of a potential burden to, at the very least, preclude granting summary judgment dismissing the RLUIPA claim. If the same test in Livingston Church School is applied more broadly, it may provide some relief to smaller municipalities in the face of RLUIPA claims. On the other hand, some of the facts of this case (leasing the Pinckney Property after the special permit was denied) may be sufficient to distinguish this decision.

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Steven M. Silverberg, a member of this newsletter's Board of Editors, is a partner in Silverberg Zalantis LLP, where he concentrates his practice in municipal and land-use law and related litigation. He blogs on related topics at http://blog.szlawfirm.net/.