The First Presbyterian Church of Auburn (the “Church”) has hosted a musical theater day camp (“Glee Camp”) in Auburn, New York for approximately three years.  In July of 2014, Auburn’s code enforcement officer issued a citation that alleged the Glee Camp was a commercial use, a use that is prohibited in the subject R-2 zoning district.  On December 17, the Church filed a brief in the City’s pending enforcement action to dispute the City’s characterization of the Glee Camp as a commercial use, and to claim that the City’s actions violate the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First Amendment.

The Glee Camp has been held in Case Mansion, by nonprofit lessee, Ministro Ministries.  According to one news source, the property is owned by the Church and is also used as an affordable housing shelter, a youth center and a vocational training center.  Apparently, the City had not attempted to regulate the Glee Camp’s first two years of operation but issued a citation only after near-by residents complained about the multiple uses of the property.

The Church is represented by the Liberty Institute and attorney Andrew Leja of Hiscock & Barclay.  The Church’s brief explains “three principal grounds” on which it contests the enforcement action:

• The Glee Camp is not a “commercial use” under the City Zoning Code, thus the City’s citation was improperly issued;
• Even if the Glee Camp use was assumed to be a commercial use, the City’s attempt to ban it from the Church’s campus violates RLUIPA’s Equal Terms Clause, because the Church can make a prima facie showing that the City is banning activity, i.e. alleged commercial activity, that it allows others to engage in within the same R-2 Zoning District classification; and
• Even if the Glee Camp use is a commercial use, the City’s attempt to ban it from the Church’s campus is a violation of the Free Exercise Clause of the First Amendment—because the City’s zoning code contains exceptions and exemptions allowing commercial activity in the R-2 District, the City’s ban by definition is not the neutral enforcement of a generally applicable law and thus cannot stand.

According to the Church’s brief, the $100-per-student Glee Camp registration fee is used to cover material and instructor costs.  The Church’s motivation is not profit-driven, but is religious-based, according to the brief, and is in furtherance of the Church’s longstanding religious mission to support arts in the community. 

In support of its equal terms claim, the Church likens the City’s enforcement action to that at issue in Third Church of Christ, Scientist v. City of New York, 626 F.3d 667 (2d Cir. 2010).  In Third Church, the Second Circuit found that New York City’s differing treatment of a church’s and two hotels’ catering activities, which all violated the terms of their occupancy permits, violated RLUIPA’s Equal Terms provision.   Since there are commercial uses operating in the R-2 District and some commercial operations are allowed in the R-2 District, the Church claims, the City’s enforcement action similarly violates RLUIPA’s Equal Terms provision.

The Church has requested dismissal of the enforcement action as well as fees and costs.  We will continue to monitor this situation as we ponder the potential that the Church will decide to go on the offensive and file its own complaint.