New Substantial Burden Framework in the Sixth Circuit; Court Upholds RLUIPA Verdict in Favor of Michigan Township

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In an important decision for municipalities across the Country, the Sixth Circuit upheld a district court decision that found Genoa Charter Township (Township) did not violate federal law in denying a church’s application for a special use permit to operate a religious school. The take away from the case? Asking students to drive an extra 12 miles does not impose a substantial burden.

Livingston Christian Schools (LCS) sought to use property owned by another church, Brighton Church of the Nazarene (Nazarene property) to operate its pre-kindergarten through 12th grade Christian school. After identifying the Nazarene property, but apparently before speaking with any Township officials, LCS prepaid the Church $70,000 in rent and began advertising its new location to prospective students. LCS was later informed by the Township that it needed to amend Nazarene’s special use permit to allow school operations.

From 2006 to 2015, LCS had been operating in Pinckney, Michigan (Pinckney property). LCS found the Nazarene property more desirable than the Pinckney property because the former has better access to commuter roads and is located in a more populated area.  LCS applied for the necessary permit in March, 2015 and the Township held two public meetings, where several neighbors expressed concern with  the expansion and change in the use of the Nazarene property. Primary concerns were that  “(1) LCS’s operations would worsen already heavy traffic, and (2) Nazarene Church had a history of failing to comply with its previous special-use permits by using its property in ways that neighboring residents found disruptive.” Given these concerns, LCS’ application was denied.

On August 20, 2015, after the special permit denial, LCS leased the Pinckney property to the Light of the World Academy (LOTWA), a charter school, for a term of seven years.  The lease also post-dated LCS’ original complaint, filed on August 7, 2015. LCS then entered into a short-term lease to use a former public middle school building in Whitmore Lake School District for its operations.

Substantial Burden Analysis

The Sixth Circuit began its analysis by noting that the Supreme Court has yet to consider a RLUIPA substantial burden case in the land-use context. It then briefly reviewed the two Sixth Circuit decisions that have considered the issue: (1) DiLaura v. Township of Ann Arbor, 112 F. App’x 445 (6th Cir. 2004) (affirming the “district court’s conclusion that a substantial burden existed based on a zoning ordinance that required the plaintiffs, who wanted to establish an overnight religious retreat, to operate as a bed-and-breakfast establishment.”); and (2) Living Water Church of God v. Charter Township of Meridian, 258 F. App’x 729 (6th Cir. 2007) (restriction on buildings proposed by church to 25,000 square feet was not a substantial burden).

In this recent decision, the Court noted that Living Water did not set a “bright line test” of what constitutes a substantial burden, but the Court recognized that it provided a framework, which requires the Court to ask, “[D]oes the government action place substantial pressure on a religious institution to violate its religious beliefs or effectively bar a religious institution from using its property in the exercise of its religion?”

The Court noted that no other circuit has adopted the “effectively bar” language since Living Water was decided. Additionally, the Court characterized Living Water as an attempt to avoid setting precedent and to craft “a framework to apply to the facts before us.” Therefore, the Court declined to follow the Living Water framework and reexamined the meaning of “substantial burden.”

After surveying other circuit decisions and reexamining Living Water, the Court concluded that “a burden must have some degree of severity to be considered ‘substantial.’” Additionally, it identified several factors that other circuits have found helpful in the substantial burden analysis: (1) whether there are feasible alternative locations to conduct the institution’s religious exercise; (2) whether the religious institution will suffer “substantial ‘delay, uncertainty, and expense’ due to the imposition of the regulation”; and (3) whether any burden is self-imposed.

Also, the Court noted that several circuits consider “whether there is evidence that the municipality’s decision making process was arbitrary, capricious, or discriminatory.” LCS did not allege that the Township acted with discriminatory intent, so the factor was irrelevant to this case. The Court went further, however, and concluded that applying evidence of discrimination in the substantial burden context was inappropriate: “Evidence of improper decisionmaking is more appropriately considered when evaluating whether a governmental action was narrowly tailored to serve a compelling state interest—an inquiry that the court should undertake only after finding that a substantial burden exists.”

Applying the three factors noted above, the Court concluded that LCS was not substantially burdened.  First, LCS had failed to show that any of its core religious beliefs could not be carried out at the Pinckney property. Therefore, as a matter of law, the Court found that remaining at the Pinckney property would not have imposed a substantial burden. Additionally, the Pinckney property is only a 12.1-mile drive from the Nazarene property and 11.1 miles from the center of Livingston County. For these reasons, LCS’ claim that the Pinckney property was too remote to support a student population was not evidence of a substantial burden.  Second, any burden imposed based on the seven-year lease to LOTWA was self-imposed and therefore not relevant to the analysis.  Finally, the court rejected LCS’ argument that the Court should limit its review of alternative properties to those within the Township’s boundaries.

The Sixth Circuit’s decision in Livingston Christian Sch. v. Genoa Charter Twp., No. 16-2060 (2017) is available here.

Original image by Kco Bort, some rights reserved.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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