Daily Development for Monday, June 11, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ZONING AND LAND USE; RELIGIOUS ACTIVITIES; RLUIPA: To demonstrate burden religious activities that government zoning officials must accommodate, applicant may simply demonstrate that alternative properties with property zoning are not available to it because it lacks adequate financial resources. 

Shepherd Montessori v. Anne Arbor Charter Township, 2007 WL 2486238 (Mich. App. 5/22/07)

Applicant, which apparently has some affiliation with the Ave Maria Foundation, a religiously oriented nonprofit foundation with considerable resources, sought to obtain a variance to operate a Montessori primary school adjacent its existing day care facility.  The subject property was within the Dominos Industrial park, and the zoning for the Park permitted day care centers within the zoning district, but only to serve employees of businesses operating within the district.  The Township, however, had earlier granted a variance to another day care operator, Rainbow Rascals, to operate on the site a day care facility substantially larger than that proposed by applicants. 

The applicant applied for a variance, noting that the impact of its use would be far less than that of Rainbow Rascals, as it would have only one quarter the number of students, and that the proximity to the existing day care facility enabled it to make use of the chapel on that facility, which was vital to its religious education mission.  The zoning authorities refused the variance and this action ensued, alleging both RLUIPA and Equal Protection Clause violations. 

The trial court granted summary disposition to the defendant Township, and that case had been reversed and remanded by the court of appeals, instructing the trial court to determined whether the denial of the zoning variance placed a significant burden on plaintiffs religious activities and to address (1) whether there were alternative locations that would allow the school consistent with the zoning laws; (2) the actual availability of alternative property, by sale or lease, within the area; (3) the availability of property that would be suitable for a K-3 school; (4) the proximity of the homes of parents who would send their children to the school; and (5) the economic burdens of alternative locations.   The Michigan Supreme Court denied an appeal from the Appeals Courts remand. 

On remand, the trial court, at least according to the view of the current appeals court panel, chose not to believe the evidence supplied by the plaintiffs, even though the defendants made scant effort to refute it, and granted summary judgment again for the Township.  Critical to the trial courts ruling was that it viewed the evidence of what the plaintiff could afford as essentially self serving.  It noted that other cases elsewhere had held that a RLUIPA claim cannot be based upon the claimed lack of funding of a religious institution to support its activities elsewhere because the institution is in complete control of its estimate not only of costs but of probable revenues and other funding.  The court apparently was of the view, and the Township strongly argued, that the close ties between the plaintiff and the Ave Maria Foundation meant that it had access to extensive financial resources.

The Appeals Court this time spanked the trial court hard.  It criticized the court for looking to authority from other jurisdictions when the law of the case, established by its prior ruling and other rulings it had made, was that the subjectively reported financial ability of the applicant to acquire other properties and operate its activities was relevant to a RLUIPA claim.  It indicated that there was no evidence in the record of any commitment or contract from the Ave Maria Foundation or any other funding source - in fact quite the contrary, as the Foundation had indicated it had no plans to fund the school.  The appeals court not only overturned summary judgment for the Township, it found that the trial court should have granted summary judgment for the plaintiff on both the RLUIPA claim and the Equal Protection Clause claim (do we smell a 1983 claim for the costs of this litigation in the wind?)

Importantly, the court ruled that it is not necessary for an RLUIPA claim to show that the property in question is essential to the plaintiffs proposed religious activity - but only to show that the denial of the requested zoning relief would place a burden on that activity.  That would arise, of course, if the plaintiff could show that it could not afford to conduct its proposed activity anywhere else convenient.  Note that since plaintiff already owned the subject property, its costs in using that property would be substantially lower than comparable sites. 

The trial court had elected not to credit the comments by plaintiff that it could not afford the other sites, commenting:

Courts have held with good reason that inconvenience and/or high cost of real property in a  particular area should not suffice to establish a substantial burden . . . It will always be relatively easy for a plaintiff, such as [plaintiff], to articulate some ostensibly logical reasons for rejecting any property but the property in dispute.

Whoops - said the appeals court.  We specifically told you on remand to consider plaintiffs evidence about comparable sites.  And now we find that evidence was substantial and credible and inadequately refuted by the Township.

Comment 1: Somehow lost in all of this was the fact that we had a primary school, not a day care center, applying for a variance.  The Township apparently loaded all its ammunition in establishing that there was inadequate basis for the religious claim, and made no serious effort to show that its zoning objectives in denying primary schools at this location would be compromised.  The fact that the Township had earlier permitted a facility caring for 100 kids was too much for the appeals court to ignore when the applicant, wanting to care for only 25 kids, albeit a little bigger kids, came in.  The traffic and other impacts, of course, were going to be substantially less. 

Comment 2: This did seem to be a pretty dumb case for the Township to blow its litigation budget on.  Maybe the trial court did detect some religious animus here.  The more the Township litigated, the more hollow its nondiscrimination claim became.  There clearly was something personal going on here. 

Comment 3: Nonetheless, the case does establish a proposition that a RLUIPA case will be pretty easy to make where the applicant has a low land cost (perhaps because of donated land) and proposes a use that works with cheap land and doesnt work otherwise without other institutional support.  The court apparently will not be able to take into account the likelihood of that institutional support, at least not when there is no prior history of such support.  And eliminating prior history is no more difficult that setting up a new entity to conduct the proposed use. 

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