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Ripeness and RLUIPA

Written by Daniel P. Dalton on September 10, 2012 Category: Land Use and Zoning, RLUIPA

An August 2012 opinion out of the Southern District of Ohio provides a recent warning to all churches in the midst of the land use and zoning process not to ignore the specifics of local zoning law from the outset as you go about plans to purchase or update existing facilities. Attempting to comply with the letter of the law at every stage of permitting will save you time and money in the long run and give you a better chance at succeeding on a RLUIPA claim against a local governmental body, should you be met with an unfair or burdensome decision by local decision makers.

In Tree of Life Christian School v. City of Upper Arlington, a religious school mistakenly applied for a conditional use permit instead of making an application for rezoning, in accordance with the City zoning ordinance. When their application for a conditional use permit was denied, the School filed suit against the City of Upper Arlington arguing that the City’s denial violated RLUIPA’s substantial burden and equal terms provisions. The City disagreed, explaining that the School’s permit was denied because the wrong permit was sought, for while churches only needed a conditional use permit to set up shop in the zone at issue, schools had to apply for rezoning to do the same. Thus, the City argued that the School’s claims were not ripe for court review because the School erroneously applied to a conditional use permit when it should have applied for rezoning.

The Southern District of Ohio agreed with the City’s argument that it was not the right time to file suit because of the School’s error. Therefore, the Court held that the City’s position that the School needed to apply for rezoning and not a conditional use permit to cause its claim to be ripe for adjudication had merit because no administrative record had been established regarding rezoning. There was only a record regarding the erroneously applied-for conditional use permit, a permit that the School had no right to apply for and denial of which could, therefore, not have been in violation of RLUIPA. The Court further explained that the reason for the different treatment of schools and churches in the district was legitimate, given the different times that such bodies use their facilities. Churches are largely occupied on the weekends and during non-business hours. On the other hand, schools use their facilities most heavily during business hours.

The Court then went on to address the School’s other argument that the zoning ordinance was unconstitutional on its face and as applied to it because daycares are similar to schools and were permitted in the district. This argument spurred the City to revise its zoning ordinance and exclude daycares from the zone as well. Consequently, the Court held that the school was no longer being treated on less than equal terms than other secular comparators, such as daycares.

This Tree of Life Christian School v. City of Upper Arlington decision is relevant because it illustrates that RLUIPA plaintiffs must comply with a zoning scheme as closely as possible before bringing their grievances to federal court. This means submitting the correct type of application to local decision-makers and knowing how your particular use of land fits within a specific district’s zoning scheme. The School in Tree of Life ignored the language of the zoning ordinance and ignored the advice they had received when they purchased the office building in question. Thus, while its RLUIPA claim would likely have been strong at the outset, the School lost out on such a favorable finding and also expended time and money on an unnecessary application because it ignored local zoning rules and procedure at a critical juncture.

If you are a religious institution – or even an individual land owner – planning to make changes to or relocate your home, church building, school or other facilities, please do not hesitate to call Dalton & Tomich, plc. We deal with land use matters daily and can help you to use your property to its fullest potential as soon as possible.

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Dalton & Tomich, PLC is the national leader in successfully helping churches, other religious institutions and their insurers defend their rights in land use and zoning matters under RLUIPA, the Religious Land Use and Institutionalized Persons Act. We have helped clients win cases against municipalities and other local government bodies from coast to coast, with experience serving both as general counsel and special litigation counsel.