Greater Bible Way Temple of Jackson v. City of Jackson ( 2007 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 27, 2007
THE GREATER BIBLE WAY TEMPLE OF
JACKSON,
Plaintiff-Appellee,
v Nos. 130194, 130196
CITY OF JACKSON, JACKSON PLANNING
COMMISSION, AND JACKSON CITY COUNCIL,
Defendants-Appellants.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal to consider whether the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 42 USC 2000cc et seq., entitles
plaintiff to the rezoning of its property from single-family residential to multiple-
family residential to allow plaintiff to build an apartment complex. The lower
courts held that RLUIPA does entitle plaintiff to the rezoning of its property. We
conclude that a refusal to rezone does not constitute an “individualized
assessment,” and, thus, that RLUIPA is inapplicable. Further, even if RLUIPA is
applicable, the building of an apartment complex does not constitute a “religious
exercise,” and even if it does constitute a “religious exercise,” the city of
Jackson’s refusal to rezone plaintiff’s property did not substantially burden
plaintiff’s religious exercise, and even if it did substantially burden plaintiff’s
religious exercise, the imposition of that burden is in furtherance of a compelling
governmental interest and constitutes the least restrictive means of furthering that
interest. Therefore, even assuming that RLUIPA is applicable, it has not been
violated. For these reasons, we reverse the judgment of the Court of Appeals and
remand this case to the trial court for the entry of a judgment in favor of
defendants.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff wants to build an apartment complex across the street from its
church on property that it owns in the city of Jackson. The property consists of
eight lots totaling 1.13 acres. The property is zoned single-family residential (R-
1). One of the lots contains a single-family residence, and the remaining lots are
vacant. There are single-family residences on each side of the property. Plaintiff
petitioned the city to change the zoning of the property to multiple-family
residential (R-3) so that it could construct an apartment complex.
The Region 2 Planning Commission recommended denying plaintiff’s
rezoning petition. After a public hearing, the city planning commission also voted
to recommend that the city council deny plaintiff’s rezoning petition. Pursuant to
2
these recommendations, and following another public hearing, the city council
voted to deny plaintiff’s rezoning petition.
Plaintiff then filed a complaint against defendants, containing two counts:
count one directly challenged the city’s zoning decision and count two alleged a
violation of RLUIPA. The trial court granted defendants’ motion for summary
disposition with regard to count one, which decision was not appealed. With
regard to count two, the trial court denied defendants’ motion for summary
disposition and granted plaintiff’s motion for summary disposition in part.
Specifically, the trial court ruled that RLUIPA did apply because the city’s zoning
decision constituted an “individualized assessment,” and the refusal to rezone
plaintiff’s property imposed a “substantial burden” on the exercise of religion.
The trial court then ordered a trial on the issue whether the city had a compelling
interest for its refusal to rezone. After a bench trial, the trial court ruled that
defendants had failed to demonstrate such an interest. Therefore, it determined
that defendants had violated RLUIPA and that plaintiff was entitled to the
requested rezoning of its property. The trial court enjoined defendant from
interfering in any manner with plaintiff’s efforts to construct an apartment
complex on its property. After the final order was issued, plaintiff filed a motion
for attorney fees and costs and the trial court awarded plaintiff over $30,000 in
attorney fees and costs.
3
The Court of Appeals affirmed the trial court in all respects. 268 Mich. App.
673; 708 NW2d 756 (2005). The Court of Appeals also held that the application
of RLUIPA to compel the requested rezoning did not render the statute
unconstitutional. We granted defendants’ application for leave to appeal. 474
Mich. 1133 (2006).
II. STANDARD OF REVIEW
A trial court’s ruling on a summary disposition motion is a question of law
that this Court reviews de novo. Haynes v Neshewat, 477 Mich. 29, 34; 729 NW2d
488 (2007). Questions of statutory interpretation are also questions of law that
that this Court reviews de novo. Id.
III. ORIGINS OF RLUIPA
The First Amendment of the United States Constitution provides, in
pertinent part, “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof . . . .” US Const, Am I. The
second clause of this amendment is commonly known as the Free Exercise Clause.
The protections provided by the First Amendment, including the Free Exercise
Clause, have been “incorporated” and extended to the states and to their political
subdivisions by the Fourteenth Amendment. Cantwell v Connecticut, 310 U.S. 296,
303; 60 S. Ct. 900; 84 L. Ed. 1213 (1940); Santa Fe Independent School Dist v Doe,
530 U.S. 290, 301; 120 S. Ct. 2266; 147 L. Ed. 2d 295 (2000).
4
In Sherbert v Verner, 374 U.S. 398; 83 S. Ct. 1790; 10 L. Ed. 2d 965 (1963),
the plaintiff, a member of the Seventh-Day Adventist Church was discharged by
her employer because she would not work on Saturday, the Sabbath Day of her
faith. She was unable to obtain other employment because she would not work on
Saturdays. The South Carolina Unemployment Compensation Act, SC Code, Tit
68, § 68-1 et seq., provided that a claimant was ineligible for benefits if the
claimant had failed “without good cause” to accept available suitable work. The
Employment Security Commission determined that the plaintiff’s religious belief
against working on Saturdays did not constitute “good cause.” The United States
Supreme Court held that denying the plaintiff unemployment compensation
benefits solely because of her refusal to accept employment in which she would
have to work on Saturdays contrary to her religious belief imposed a substantial
burden on her exercise of her religion that was not justified by a compelling state
interest, and, thus, violated the Free Exercise Clause.
In Employment Div, Dep’t of Human Resources of Oregon v Smith, 494 U.S.
872; 110 S. Ct. 1595; 108 L. Ed. 2d 876 (1990), the United States Supreme Court
held that Oregon’s prohibition of the use of peyote in religious ceremonies, and
the denial of unemployment benefits to persons discharged for such use, does not
violate the Free Exercise Clause of the First Amendment. The Court explained
that generally applicable, religion-neutral laws that have the effect of burdening a
5
particular religious practice need not be justified, under the Free Exercise Clause,
by a compelling governmental interest.1
In response to Smith, Congress enacted the Religious Freedom Restoration
Act of 1993 (RFRA),2 prohibiting the government from substantially burdening a
person’s exercise of religion, even by means of a generally applicable, religion-
neutral law, unless the government could demonstrate that the burden imposed
furthers a compelling governmental interest and that it constitutes the least
restrictive means of furthering such interest.
1
Smith, supra at 884, held that Sherbert was distinguishable because
Sherbert involved an “individualized governmental assessment”; that is, the “good
cause” standard at issue in Sherbert allowed the government to consider the
plaintiff’s “particular circumstances.” See pp 15-17 infra. That is, Smith held that
while the “compelling governmental interest” test may be applicable to laws
allowing for an “individualized governmental assessment,” it is not applicable to
generally applicable laws that do not allow for an “individualized governmental
assessment.”
2
RFRA provides, in pertinent part:
(a) In general. Government shall not substantially burden a
person’s exercise of religion even if the burden results from a rule of
general applicability, except as provided in subsection (b).
(b) Exception. Government may substantially burden a
person’s exercise of religion only if it demonstrates that application
of the burden to the person--
(1) is in furtherance of a compelling governmental interest;
and
(2) is the least restrictive means of furthering that compelling
governmental interest. [42 USC 2000bb-1.]
6
However, in City of Boerne v Flores, 521 U.S. 507; 117 S. Ct. 2157; 138 L. Ed.
2d 624 (1997), the United States Supreme Court held that Congress, in enacting
RFRA, had exceeded its powers under § 5 of the Fourteenth Amendment to enact
legislation enforcing the Free Exercise Clause of the First Amendment because
RFRA proscribes state conduct that the First Amendment itself does not
proscribe.3 The Court explained:
Congress’ power under § 5, however, extends only to
“enforcing” the provisions of the Fourteenth Amendment. The
Court has described this power as “remedial . . . .” The design of the
Amendment and the text of § 5 are inconsistent with the suggestion
that Congress has the power to decree the substance of the
Fourteenth Amendment’s restrictions on the States. Legislation
which alters the meaning of the Free Exercise Clause cannot be said
to be enforcing the Clause. Congress does not enforce a
constitutional right by changing what the right is. It has been given
the power “to enforce,” not the power to determine what constitutes
a constitutional violation. Were it not so, what Congress would be
enforcing would no longer be, in any meaningful sense, the
“provisions of [the Fourteenth Amendment].”
While the line between measures that remedy or prevent
unconstitutional actions and measures that make a substantive
change in the governing law is not easy to discern, and Congress
must have wide latitude in determining where it lies, the distinction
exists and must be observed. There must be a congruence and
proportionality between the injury to be prevented or remedied and
the means adopted to that end. Lacking such a connection,
legislation may become substantive in operation and effect. [Id. at
519-520.]
3
Section 5, the Enforcement Clause of the Fourteenth Amendment,
provides:
The Congress shall have power to enforce, by appropriate
legislation, the provisions of this article. [US Const, Am XIV, § 5.]
7
The Supreme Court then concluded that the substantial costs that RFRA exacted
through its “compelling governmental interest” test “far exceed any pattern or
practice of unconstitutional conduct under the Free Exercise Clause as interpreted
in Smith.” Id. at 534. Thus, “the Court invalidated RFRA as applied to the states,
finding it an unconstitutional exercise of Congress’ Enforcement Clause powers
because Congress had not shown a pattern of religious discrimination meriting
such a far-reaching remedy . . . .” Galvan, Beyond worship: The Religious Land
Use and Institutionalized Persons Act of 2000 and religious institutions’ auxiliary
uses, 24 Yale L & Policy R 207, 218 (2006).4
In response to City of Boerne, Congress enacted RLUIPA. Unlike RFRA,
RLUIPA does not attempt to bar all laws that substantially burden religious
exercise. Instead, it focuses on land use regulations5 and provides, in pertinent
part:
4
Although RFRA no longer applies to the states, it still applies to the
federal government. See Gonzales v O Centro Espirita Beneficente Uniao Do
Vegetal, 546 U.S. 418; 126 S. Ct. 1211; 163 L. Ed. 2d 1017 (2006) (holding that,
under RFRA, the Controlled Substances Act, 21 USC 801 et seq., cannot prohibit
a religious sect from receiving communion by drinking hoasca, a tea that contains
a hallucinogen).
5
RLUIPA also focuses on regulations pertaining to institutionalized
persons, but that portion of RLUIPA is not applicable here.
8
(a) Substantial burdens.
(1) General rule. No government[6] shall impose or implement
a land use regulation[7] in a manner that imposes a substantial burden
on the religious exercise of a person, including a religious assembly
or institution, unless the government demonstrates that imposition of
the burden on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental interest;
and
(B) is the least restrictive means of furthering that compelling
governmental interest.
6
“Government” is defined as:
(i) a State, county, municipality, or other governmental entity
created under the authority of a State;
(ii) any branch, department, agency, instrumentality, or
official of an entity listed in clause (i); and
(iii) any other person acting under color of State law; and
(B) for the purposes of sections 4(b) and 5 [42 USC 2000cc-
2(b) and 2000cc-3], includes the United States, a branch,
department, agency, instrumentality, or official of the United States,
and any other person acting under color of Federal law. [42 USC
2000cc-5(4).]
7
“Land use regulation” is defined as a
zoning or landmarking law, or the application of such a law, that
limits or restricts a claimant’s use or development of land (including
a structure affixed to land), if the claimant has an ownership,
leasehold, easement, servitude, or other property interest in the
regulated land or a contract or option to acquire such an interest. [42
USC 2000cc-5(5).]
That the city’s denial of plaintiff’s petition to rezone its property here constitutes a
“land use regulation” is uncontested.
9
(2) Scope of application. This subsection applies in any case
in which--
* * *
(C) the substantial burden is imposed in the implementation
of a land use regulation or system of land use regulations, under
which a government makes, or has in place formal or informal
procedures or practices that permit the government to make,
individualized assessments of the proposed uses for the property
involved. [42 USC 2000cc(a).][8]
“Religious exercise” is defined as “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” 42 USC 2000cc-
5(7)(A). RLUIPA specifically provides that “[t]he use, building, or conversion of
8
RLUIPA further provides:
(b) Discrimination and exclusion.
(1) Equal terms. No government shall impose or implement a
land use regulation in a manner that treats a religious assembly or
institution on less than equal terms with a nonreligious assembly or
institution.
(2) Nondiscrimination. No government shall impose or
implement a land use regulation that discriminates against any
assembly or institution on the basis of religion or religious
denomination.
(3) Exclusions and limits. No government shall impose or
implement a land use regulation that--
(A) totally excludes religious assemblies from a jurisdiction;
or
(B) unreasonably limits religious assemblies, institutions, or
structures within a jurisdiction. [42 USC 2000cc(b).]
Plaintiff does not argue that 42 USC 2000cc(b) was violated.
10
real property for the purpose of religious exercise shall be considered to be
religious exercise of the person or entity that uses or intends to use the property for
that purpose.” 42 USC 2000cc-5(7)(B). A plaintiff asserting a RLUIPA violation
has the burden of presenting prima facie evidence to support the assertion. 42
USC 2000cc-2(b).9 That is, the plaintiff has the burden to prove that RLUIPA is
applicable and that the government has implemented a land use regulation that
imposes a substantial burden on the exercise of religion. Id. Once the plaintiff has
proven this, the burden shifts to the government to prove that the imposition of
such burden is in furtherance of a compelling governmental interest and
constitutes the least restrictive means of furthering that interest. Id. As the United
States Supreme Court has explained, “RLUIPA is [a] congressional effort[] to
accord religious exercise heightened protection from government-imposed
burdens, consistent with this Court’s precedents.” Cutter v Wilkinson, 544 U.S.
709, 714; 125 S. Ct. 2113; 161 L. Ed. 2d 1020 (2005). Therefore, it is clearly
9
RLUIPA provides, in pertinent part:
If a plaintiff produces prima facie evidence to support a claim
alleging a violation of the Free Exercise Clause or a violation of
section 2 [42 USC 2000cc], the government shall bear the burden of
persuasion on any element of the claim, except that the plaintiff shall
bear the burden of persuasion on whether the law (including a
regulation) or government practice that is challenged by the claim
substantially burdens the plaintiff’s exercise of religion. [42 USC
2000cc-2(b).]
11
appropriate to examine the United States Supreme Court’s precedents when
analyzing RLUIPA.
IV. ANALYSIS
A. INDIVIDUALIZED ASSESSMENT
The threshold question is whether RLUIPA is applicable to this dispute.
The burden is on plaintiff to prove that RLUIPA is applicable. 42 USC 2000cc-
2(b). RLUIPA “applies only if one of three jurisdictional tests is first met . . . .”
Midrash Sephardi, Inc v Town of Surfside, 366 F3d 1214, 1225 (CA 11, 2004);
see also Prater v City of Burnside, 289 F3d 417, 433 (CA 6, 2002) (“the Church
may not rely upon RLUIPA unless it first demonstrates that the facts of the present
case trigger one of the bases for jurisdiction provided in that statute”); Shepherd
Montessori Ctr Milan v Ann Arbor Charter Twp, 259 Mich. App. 315, 326-327;
627 NW2d 271 (2003) (“[i]n order to establish a claim under RLUIPA, a party
must establish that at least one of these three jurisdictional elements exists”).
RLUIPA states that it “applies in any case in which,”
(C) the substantial burden is imposed in the implementation
of a land use regulation or system of land use regulations, under
which a government makes, or has in place formal or informal
procedures or practices that permit the government to make,
individualized assessments of the proposed uses for the property
involved. [42 USC 2000cc(a)(2) (emphasis added).][10]
10
RLUIPA also “applies in any case in which,”
(continued…)
12
Therefore, the issue is whether a substantial burden has been imposed in the
implementation of a land use regulation under which a government is permitted to
make an individualized assessment of the proposed uses for the property involved.
This is not the first time that the phrase “individualized assessment” has
been employed. The United States Supreme Court distinguished its decision in
Bowen v Roy, 476 U.S. 693; 106 S. Ct. 2147; 90 L. Ed. 2d 735 (1986), from its
decisions in Sherbert and Thomas v Review Bd of Indiana Employment Security
Div, 450 U.S. 707; 101 S. Ct. 1425; 67 L. Ed. 2d 624 (1981), on the basis that the
latter decisions, unlike Bowen, involved “individualized assessments.”11 “The
(…continued)
(A) the substantial burden is imposed in a program or activity
that receives Federal financial assistance, even if the burden results
from a rule of general applicability;
(B) the substantial burden affects, or removal of that
substantial burden would affect, commerce with foreign nations,
among the several States, or with Indian tribes, even if the burden
results from a rule of general applicability . . . . [42 USC
2000cc(a)(2).]
However, it is uncontested that A and B are not applicable to the instant case.
11
In Sherbert, as discussed above, the United States Supreme Court held
that South Carolina’s denial of unemployment compensation benefits to a member
of the Seventh-Day Adventist Church who could not find work because her
religious convictions prevented her from working on Saturdays abridged her right
to the free exercise of her religion. In Thomas, the United States Supreme Court
held that Indiana’s denial of unemployment compensation benefits to a Jehovah’s
Witness who terminated his employment because his religious beliefs prevented
him from participating in the production of weapons abridged his right to the free
exercise of his religion.
13
statutory conditions at issue in [Sherbert and Thomas] provided that a person was
not eligible for unemployment compensation benefits if, ‘without good cause,’ he
had quit work or refused available work. The ‘good cause’ standard created a
mechanism for individualized exemptions.” Roy, supra at 708. In Sherbert and
Thomas, the Court held that when the government applies individualized
exemptions, but refuses to extend an exemption to an instance of genuine
“religious hardship,” the government must demonstrate a compelling reason for
denying the requested exemption. Id.
In Smith, supra at 884, the United States Supreme Court again emphasized
the distinction between governmental action requiring and not requiring
individualized assessments.
The Sherbert test, it must be recalled, was developed in a
context that lent itself to individualized governmental assessment of
the reasons for the relevant conduct. . . . [A] distinctive feature of
unemployment compensation programs is that their eligibility
criteria invite consideration of the particular circumstances behind
an applicant’s unemployment. . . . [O]ur decisions in the
unemployment cases stand for the proposition that where the State
has in place a system of individual exemptions, it may not refuse to
extend that system to cases of “religious hardship” without
compelling reason. [Id., quoting Bowen, supra at 708.]
In Church of the Lukumi Babalu Aye, Inc v City of Hialeah, 508 U.S. 520,
527; 113 S. Ct. 2217; 124 L. Ed. 2d 472 (1993), the United States Supreme Court,
against the backdrop of a ritualistic practice of animal sacrifice by practitioners of
the Santerian faith, held that a city ordinance that prohibits a person from
14
“unnecessarily . . . kill[ing] . . . an animal” violates the Free Exercise Clause of the
First Amendment. The Court explained:
[B]ecause it requires an evaluation of the particular
justification for the killing, this ordinance represents a system of
“individualized governmental assessment of the reasons for the
relevant conduct . . . .” As we noted in Smith, in circumstances in
which individualized exemptions from a general requirement are
available, the government “may not refuse to extend that system to
cases of ‘religious hardship’ without compelling reason.” [Id. at 537
(citations omitted).]
“Individualize” is defined as “to . . . consider individually; specify;
particularize.” Random House Webster’s College Dictionary (1991). Therefore,
an “individualized assessment” is an assessment based on one’s particular
circumstances. Accordingly, RLUIPA applies when the government makes an
assessment based on one’s particular or specific circumstances or has in place
procedures or practices that would allow the government to make an assessment
based on one’s particular or specific circumstances. As the Ninth Circuit Court of
Appeals recently held, “RLUIPA applies when the government may take into
account the particular details of an applicant’s proposed use of land when deciding
to permit or deny that use.” Guru Nanak Sikh Society of Yuba City v Sutter Co,
456 F3d 978, 986 (CA 9, 2006).
In the instant case, the city adopted a zoning ordinance that applied to the
entire community, not just to plaintiff. See West v City of Portage, 392 Mich. 458,
469; 221 NW2d 303 (1974) (“‘[Z]oning ordinances . . . are classified as general
policy decisions which apply to the entire community.’”) (Citation omitted.)
15
Concomitantly, if the city had granted plaintiff’s request to rezone the property,
such rezoning would also have applied to the entire community, not just
plaintiff.12 A decision whether to rezone property does not involve consideration
of only a particular or specific user or only a particular or specific project; rather,
it involves the enactment of a new rule of general applicability, a new rule that
governs all persons and all projects. See Sherrill v Town of Wrightsville Beach, 81
NC App 369, 373; 344 SE2d 357 (1986) (“it is the duty of the zoning authority to
consider the needs of the entire community when voting on a rezoning, and not
just the needs of the individual petitioner”). Thus, if the city had granted
plaintiff’s request to rezone the property from single-family residential to
multiple-family residential, plaintiff could then have sold the property to any third
party and that third party could have sold the property to any other third party and
any of these parties could have built an apartment complex or any other
conforming building on that property. Therefore, the city’s decision whether to
rezone the property would not have been predicated on plaintiff’s particular
circumstances or plaintiff’s particular project.13 Even if the city had affirmatively
12
Although a request to rezone a particular piece of property “‘may be
differentiated on the basis that such a determination is narrowly confined to a
particular piece of property,’” West, supra at 469 (citation omitted), it still applies
to the “entire community.” That is, the “entire community” would be bound by
the city’s decision to rezone or not rezone the property.
13
Plaintiff’s counsel told the trial court that “even at the planning
commission level, they don’t care what’s being built”; “they don’t consider a site
(continued…)
16
wanted plaintiff to build an apartment complex on its property, it could not have
granted the requested zoning change unless it was also prepared to accommodate
all projects falling within the scope of the rezoning. Plaintiff’s particular
circumstances were simply not determinative of the city’s decision whether to
rezone, and, thus, the city’s decision did not constitute an “individualized
assessment” within the meaning of that term.14 Plaintiff has cited no cases in
support of its position that a refusal to rezone property constitutes an
“individualized assessment,” and we have found none.
Moreover, plaintiff has presented no evidence to suggest that the city has in
place procedures or practices that would permit the city to make “individualized
assessments” when determining whether to rezone property.
(…continued)
plan”; “the site plan itself is irrelevant when it comes to requesting rezoning from
R-1 to R-3.” Appellant’s appendix at 238a, 523a.
14
Possibly, if plaintiff had requested a variance and the city had refused
that request, this might constitute an “individualized assessment.” See Shepherd,
supra at 320 (holding that “[w]hen the Ann Arbor Charter Township Zoning
Board of Appeals examined and subsequently denied plaintiff’s petition for a
variance, an individualized assessment pursuant to 42 USC 2000cc(a)(2)(C)
occurred”). A request for a variance is significantly different from a request to
rezone. When one requests a variance, one is requesting permission to use the
property for a specific use. By contrast, when one requests a rezoning, one is
asking the city for permission to use the property for any use that would be
permitted under the new classification. Therefore, when the city considers a
request for a variance, it does consider the specific site plan proposed by the
landowner. But, when the city considers a request for rezoning, it considers the
numerous different uses that would be permitted under the new classification, and
it does not consider a specific site plan.
17
Because the city’s refusal to rezone the property did not constitute an
“individualized assessment,” and because there is no evidence that the city has in
place procedures or practices that would permit it to make “individualized
assessments” when determining whether to grant requests to rezone property,
RLUIPA is not applicable here.
B. RELIGIOUS EXERCISE
Assuming that RLUIPA is applicable here, the next question is whether the
building of an apartment complex constitutes a “religious exercise.” The burden is
on plaintiff to prove that the building of an apartment complex constitutes a
“religious exercise.” 42 USC 2000cc-2(b). RLUIPA provides in pertinent part:
No government shall impose or implement a land use
regulation in a manner that imposes a substantial burden on the
religious exercise of a person, including a religious assembly or
institution, unless . . . . [42 USC 2000cc(a)(1) (emphasis added).]
“Religious exercise” is defined as “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” 42 USC 2000cc-
5(7)(A). RLUIPA specifically provides that “[t]he use, building, or conversion of
real property for the purpose of religious exercise shall be considered to be
religious exercise of the person or entity that uses or intends to use the property for
that purpose.” 42 USC 2000cc-5(7)(B). A “religious exercise” consists of a
specific type of exercise, an exercise of religion, and this is not the equivalent of
an exercise-- any exercise-- by a religious body. “The term ‘religion’ has
reference to one’s views of his relations to his Creator, and to the obligations they
18
impose of reverence for his being and character, and of obedience to his will.”
Davis v Beason, 133 U.S. 333, 342; 10 S. Ct. 299; 33 L. Ed. 637 (1890), overruled on
other grounds in Romer v Evans, 517 U.S. 620, 634; 116 S. Ct. 1620; 134 L. Ed. 2d
855 (1996). The United States Supreme Court has explained that “‘[t]he “exercise
of religion” often involves not only belief and profession but the performance of . .
. physical acts [such as] assembling with others for a worship service [or]
participating in sacramental use of bread and wine . . . .’” Cutter, supra at 720,
quoting Smith, supra at 877.15 The Supreme Court has further held that
“[a]lthough RLUIPA bars inquiry into whether a particular belief or practice is
‘central’ to a prisoner’s religion, see 42 U.S.C. § 2000cc-5(7)(A), the Act does not
preclude inquiry into the sincerity of a prisoner’s professed religiosity. Cf. Gillette
v. United States, 401 U.S. 437, 457, 91 S. Ct. 828, 28 L. Ed. 2d 168, (1971) (‘“The
‘truth’ of a belief is not open to question”; rather, the question is whether the
objector’s beliefs are “truly held.”’ (quoting United States v. Seeger, 380 U.S. 163,
185, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965))).” Cutter, supra at 725 n 13. Nor,
obviously, does RLUIPA bar inquiry into whether a particular belief or practice
constitutes an aspect, central or otherwise, of a person’s religion.
15
In Cutter, supra at 718, the United States Supreme Court held that
“RLUIPA’s institutionalized-persons provision, § 3 of the Act, is consistent with
the Establishment Clause of the First Amendment.” The Court also made clear
that “Section 2 of RLUIPA [the land use regulation provision] is not at issue here.
We therefore express no view on the validity of that part of the Act.” Id. at 716 n
3.
19
The question that we must answer is whether plaintiff is seeking to use its
property for the purpose of religious exercise.16 Obviously, not everything that a
religious institution does constitutes a “religious exercise.” Plaintiff bears the
burden of establishing that its proposed use of the property constitutes a “religious
exercise.” 42 USC 2000cc-2(b). In the instant case, the only evidence that
plaintiff has presented to establish that its proposed use of the property constitutes
a “religious exercise” is an affidavit signed by the bishop of the Greater Bible Way
Temple. The affidavit states that plaintiff’s mission is set forth in its letterhead as
follows:
The Greater Bible Way Temple stands for truth, the
promotion of the Gospel of Jesus Christ through the Apostolic
Doctrine, and an exceptional level of service to the community.
This includes housing, employment, consulting and supports as
determined appropriate in fulfilling our Mission.
16
Notwithstanding the inquiry required by RLUIPA into what constitutes a
“religious exercise,” this Court is extremely cognizant of the difficulties inherent
in a judicial body’s evaluating the practices of particular religious faiths or
assessing the “centrality” of particular religious precepts. In accord, Smith, supra
at 890 (“It may fairly be said that leaving accommodation to the political process
will place at a relative disadvantage those religious practices that are not widely
engaged in; but that unavoidable consequence of democratic government must be
preferred to a system in which each . . . judge[] weigh[s] the social importance of
all laws against the centrality of all religious beliefs.”); Lemon v Kurtzman, 403
U.S. 602, 613; 91 S. Ct. 2105; 29 L. Ed. 2d 745 (1971) (expressing concern about
fostering an “‘excessive government entanglement with religion’”) (citation
omitted).
20
The affidavit further states that plaintiff “wishes to further the teachings of Jesus
Christ by providing housing and living assistance to the citizens of Jackson.”17
No evidence has been presented to establish that the proposed apartment
complex would be used for religious worship or for any other religious activity.
Instead, it appears that the only connection between the proposed apartment
complex and “religious exercise” is the fact that the apartment complex would be
owned by a religious institution. Generally, the building of an apartment complex
would be considered a commercial exercise, not a religious exercise. The fact that
the apartment complex would be owned by a religious institution does not
transform the building of an apartment complex into a “religious exercise,” unless
the term is to be deprived of all practical meaning. Something does not become a
“religious exercise” just because it is performed by a religious institution.
Because plaintiff has not shown that the building of the apartment complex
constitutes an exercise in religion, the city’s decision not to rezone the property
cannot be said to have burdened plaintiff’s “religious exercise,” and, thus,
RLUIPA has not been violated.
17
The bishop’s affidavit proceeds to state that “there is a substantial need in
the City of Jackson for clean and affordable housing, especially for the elderly and
disabled.” However, because there is no evidence that the proposed complex
would either be limited to housing elderly and disabled persons or be designed to
accommodate elderly and disabled persons to any particular extent, it is
unnecessary to address whether the building of such a complex would constitute a
“religious exercise.”
21
C. SUBSTANTIAL BURDEN
Assuming, however, that the building of an apartment complex does
constitute a “religious exercise,” the next question is whether the city’s refusal to
rezone the property to allow the apartment complex constitutes a “substantial
burden” on that “religious exercise.” The burden is on plaintiff to prove that the
city’s refusal to rezone the property constitutes a “substantial burden” on
plaintiff’s exercise of religion. 42 USC 2000cc-2(b). RLUIPA provides in
pertinent part:
No government shall impose or implement a land use
regulation in a manner that imposes a substantial burden on the
religious exercise of a person, including a religious assembly or
institution, unless . . . . [42 USC 2000cc(a)(1) (emphasis added).]
RLUIPA does not define the phrase “substantial burden.” However, this is not the
first time that the phrase “substantial burden” has been used.
Before deciding Smith, the United States Supreme Court held that a
“substantial burden” on one’s religious exercise that was not justified by a
compelling governmental interest violated the Free Exercise Clause. Jimmy
Swaggart Ministries v Bd of Equalization of California, 493 U.S. 378, 384-385;
110 S. Ct. 688; 107 L. Ed. 2d 796 (1990), quoting Hernandez v Comm’r of Internal
Revenue, 490 U.S. 680, 699; 109 S. Ct. 2136; 104 L. Ed. 2d 766 (1989) (“Our cases
have established that ‘the free exercise inquiry asks whether government has
placed a substantial burden on the observation of a central religious belief or
practice and, if so, whether a compelling governmental interest justifies the
22
burden.’”). The United States Supreme Court’s definition of “substantial burden”
in its free exercise cases is instructive in determining what Congress understood
“substantial burden” to mean in RLUIPA.
In Sherbert, supra at 404, the United States Supreme Court held that a
“substantial burden” exists when an individual is “force[d] . . . to choose between
following the precepts of her religion and forfeiting benefits, on the one hand, and
abandoning one of the precepts of her religion . . . on the other hand.”
In Thomas, supra at 717-718, the Supreme Court explained:
Where the state conditions receipt of an important benefit
upon conduct proscribed by a religious faith, or where it denies such
a benefit because of conduct mandated by religious belief, thereby
putting substantial pressure on an adherent to modify his behavior
and to violate his beliefs, a burden upon religion exists. While the
compulsion may be indirect, the infringement upon free exercise is
nonetheless substantial.
In Lyng v Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 450;
108 S. Ct. 1319; 99 L. Ed. 2d 534 (1988), the United States Supreme Court
explained that “incidental effects of government programs, which may make it
more difficult to practice certain religions but which have no tendency to coerce
individuals into acting contrary to their religious beliefs” do not constitute
“substantial burdens.”18
18
Relying on Lyng, our Court of Appeals held that “for a burden on
religion to be substantial, the government regulation must compel action or
inaction with respect to the sincerely held belief; mere inconvenience to the
religious institution or adherent is insufficient.” Shepherd, supra at 330.
23
Several federal circuit courts of appeal have also defined the term
“substantial burden.” Although we are not bound by these decisions, Abela v Gen
Motors Corp, 469 Mich. 603, 606; 677 NW2d 325 (2004), we find them
persuasive.
In Civil Liberties for Urban Believers v Chicago, 342 F3d 752 (CA 7,
2003), the Seventh Circuit Court of Appeals held that a Chicago zoning ordinance
that allows churches as a matter of right in residential zones, but requires them to
obtain special use permits in other zones, does not violate RLUIPA. That court
explained:
Application of the substantial burden provision to a regulation
inhibiting or constraining any religious exercise, including the use of
property for religious purposes, would render meaningless the word
“substantial,” because the slightest obstacle to religious exercise
incidental to the regulation of land use-- however minor the burden
it were to impose-- could then constitute a burden sufficient to
trigger RLUIPA’s requirement that the regulation advance a
compelling governmental interest by the least restrictive means. We
therefore hold that, in the context of RLUIPA’s broad definition of
religious exercise, a land-use regulation that imposes a substantial
burden on religious exercise is one that necessarily bears direct,
primary, and fundamental responsibility for rendering religious
exercise-- including the use of real property for the purpose thereof
within the regulated jurisdiction generally-- effectively
impracticable.[19]
While [the ordinance] may contribute to the ordinary
difficulties associated with location (by any person or entity,
religious or nonreligious) in a large city, [it does] not render
19
In Lighthouse Institute for Evangelism Inc v City of Long Branch, 100
Fed Appx 70 (CA 3, 2004), the Third Circuit Court of Appeals adopted this same
definition of “substantial burden.”
24
impracticable the use of real property in Chicago for religious
exercise, much less discourage churches from locating or attempting
to locate in Chicago. See, e.g., Love Church v. City of Evanston,
896 F.2d 1082, 1086 (7th Cir. 1990) (“Whatever specific difficulties
[plaintiff church] claims to have encountered, they are the same ones
that face all [land users]. The harsh reality of the marketplace
sometimes dictates that certain facilities are not available to those
who desire them”) . . . . Otherwise, compliance with RLUIPA
would require municipal governments not merely to treat religious
land uses on an equal footing with nonreligious land uses, but rather
to favor them in the form of an outright exemption from land-use
regulations. Unfortunately for Appellants, no such free pass for
religious land uses masquerades among the legitimate protections
RLUIPA affords to religious exercise. [Id. at 761-762 (emphasis in
the original).]
In San Jose Christian College v City of Morgan Hill, 360 F3d 1024 (CA 9,
2004), the Ninth Circuit Court of Appeals held that there was no RLUIPA
violation where the city denied the plaintiff’s rezoning application.20 That court
explained:
A “burden” is “something that is oppressive.” BLACK’S
LAW DICTIONARY 190 (7th ed. 1999). “Substantial,” in turn, is
defined as “considerable in quantity” or “significantly great.”
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1170
(10th ed. 2002). Thus, for a land use regulation to impose a
“substantial burden,” it must be “oppressive” to a “significantly
great” extent. That is, a “substantial burden” on “religious exercise”
must impose a significantly great restriction or onus upon such
exercise.
20
We note that the court did not address the preliminary question whether
RLUIPA was even applicable to the denial of the rezoning application.
25
* * *
[W]hile the PUD ordinance may have rendered College
unable to provide education and/or worship at the Property, there is
no evidence in the record demonstrating that College was precluded
from using other sites within the city. Nor is there any evidence that
the City would not impose the same requirements on any other entity
seeking to build something other than a hospital[21] on the Property.
[Id. at 1034, 1035.]
In Midrash Sephardi, the Eleventh Circuit Court of Appeals held that an
ordinance that prohibits churches and synagogues in the town’s business district
does not impose a “substantial burden” on the exercise of religion. That court
explained:
[A] “substantial burden” must place more than an
inconvenience on religious exercise; a “substantial burden” is akin to
significant pressure which directly coerces the religious adherent to
conform his or her behavior accordingly. Thus, a substantial burden
can result from pressure that tends to force adherents to forego
religious precepts or from pressure that mandates religious conduct.
[Midrash Sephardi, supra at 1227.]
In Adkins v Kaspar, 393 F3d 559 (CA 5, 2004), the Fifth Circuit Court of
Appeals held that requiring the presence of a qualified outside volunteer at prison
congregations did not impose a “substantial burden” on the plaintiff’s exercise of
religion. That court explained:
[A] government action or regulation creates a “substantial
burden” on a religious exercise if it truly pressures the adherent to
21
A city task force concluded that the city urgently needed a hospital and
this particular piece of property was the only suitable location in the city for a
hospital.
26
significantly modify his religious behavior and significantly violates
his religious beliefs. [T]he effect of a government action or
regulation is significant when it either (1) influences the adherent to
act in a way that violates his religious beliefs, or (2) forces the
adherent to choose between, on the one hand, enjoying some
generally available, non-trivial benefit, and, on the other hand,
following his religious beliefs. On the opposite end of the spectrum,
however, a government action or regulation does not rise to the level
of a substantial burden on religious exercise if it merely prevents the
adherent from either enjoying some benefit that is not otherwise
generally available or acting in a way that is not otherwise generally
allowed. [Id. at 570.]
In Spratt v Rhode Island Dep’t of Corrections, 482 F3d 33 (CA 1, 2007),
which involved a blanket ban against all preaching activities by prison inmates,
the First Circuit Court of Appeals asserted:
The district court decided that a “substantial burden” is one
that “put[s] substantial pressure on an adherent to modify his
behavior and to violate his beliefs,” citing Thomas v. Review Board
of Indiana Employment Security Division, 450 U.S. 707, 718, 101 S.
Ct. 1425, 67 L. Ed. 2d 624 (1981); see also Lovelace v. Lee, 472
F.3d 174, 187 (4th Cir. 2006) (applying the Thomas standard in a
RLUIPA case). Assuming arguendo that Thomas applies, . . . Spratt
has made a prima facie showing that his religious exercise has been
substantially burdened. [Id. at 38.]
In Grace United Methodist Church v City of Cheyenne, 451 F3d 643 (CA
10, 2006), the Tenth Circuit Court of Appeals held that the city’s denial of the
plaintiff church’s request for a variance from an ordinance prohibiting any entity
from operating a commercial day care center in a residential zone did not violate
RLUIPA. That court explained:
[T]he incidental effects of otherwise lawful government
programs “which may make it more difficult to practice certain
religions but which have no tendency to coerce individuals into
27
acting contrary to their religious beliefs” do not constitute
substantial burdens on the exercise of religion. [Id. at 662 (citation
omitted).][22]
After reviewing the above decisions, we believe that it is clear that a
“substantial burden” on one’s “religious exercise” exists where there is
governmental action that coerces one into acting contrary to one’s religious beliefs
by way of doing something that one’s religion prohibits or refraining from doing
something that one’s religion requires. That is, a “substantial burden” exists when
one is forced to choose between violating a law (or forfeiting an important benefit)
and violating one’s religious tenets. A mere inconvenience or irritation does not
constitute a “substantial burden.” Similarly, something that simply makes it more
difficult in some respect to practice one’s religion does not constitute a
22
In Murphy v Missouri Dep’t of Corrections, 372 F3d 979, 988 (CA 8,
2004), the Eighth Circuit Court of Appeals held that, to constitute a substantial
burden, the government policy or actions
must “significantly inhibit or constrain conduct or expression that
manifests some central tenet of a [person’s] individual [religious]
beliefs; must meaningfully curtail a [person’s] ability to express
adherence to his or her faith; or must deny a [person] reasonable
opportunities to engage in those activities that are fundamental to a
[person’s] religion.” [Citation omitted.]
Although the Sixth Circuit Court of Appeals has applied the same test when
applying RFRA, Miller-Bey v Schultz, 1996 US App LEXIS 6541 (CA 6, 1996), it
has not yet addressed the meaning of “substantial burden” under RLUIPA. The
Murphy definition of “substantial burden” seems inconsistent with RLUIPA
because RLUIPA specifically defines “religious exercise” as “any exercise of
religion, whether or not compelled by, or central to, a system of religious belief.”
42 USC 2000cc-5(7)(A).
28
“substantial burden.” Rather, a “substantial burden” is something that “coerce[s]
individuals into acting contrary to their religious beliefs . . . .” Lyng, supra at
450.23
In the instant case, plaintiff argues that the city’s refusal to rezone its
property to allow it to build an apartment complex constitutes a “substantial
burden” on its “religious exercise.” Even assuming that the building of an
apartment complex constitutes a “religious exercise,” the city’s refusal to rezone
the property so plaintiff can build an apartment complex does not constitute a
“substantial burden” on that exercise. The city is not forbidding plaintiff from
building an apartment complex; it is simply regulating where that apartment
complex can be built. If plaintiff wants to build an apartment complex, it can do
so; it just has to build it on property that is zoned for apartment complexes. If
plaintiff wants to use the property for housing, then it can build single-family
23
We recognize that some courts have held that a “substantial burden”
exists where there is “delay, uncertainty, and expense.” See, for example, Sts
Constantine & Helen Greek Orthodox Church v City of New Berlin, 396 F3d 895,
901 (CA 7, 2005), and Living Water Church of God v Meridian Charter Twp, 384
F Supp 2d 1123, 1134 (WD Mich, 2005). However, we reject this definition of
“substantial burden” both because it is inconsistent with the United States
Supreme Court’s definition of the phrase and because it is inconsistent with the
common understanding of the phrase “substantial burden.”
29
residences on the property. In other words, in the realm of building apartments,
plaintiff has to follow the law like everyone else.24
“While [the zoning ordinance] may contribute to the ordinary difficulties
associated with location (by any person or entity, religious or nonreligious) in a
large city,” Civil Liberties for Urban Believers, supra at 761, it does not prohibit
plaintiff from providing housing. “Whatever specific difficulties [plaintiff church]
claims to have encountered, they are the same ones that face all [land users].” Id.,
quoting Love Church, supra at 1086. The city has not done anything to coerce
plaintiff into acting contrary to its religious beliefs, and, thus, it has not
substantially burdened plaintiff’s exercise of religion. Lyng, supra at 450.25
D. COMPELLING GOVERNMENTAL INTEREST
Assuming that the city’s refusal to rezone the property constitutes a
“substantial burden” on plaintiff’s “religious exercise,” the next question is
whether it is “in furtherance of a compelling governmental interest.” The burden
is on defendant to prove that the imposition of the burden on plaintiff is in
24
Plaintiff was aware when it purchased the property that it was zoned
single-family residential. Thus, plaintiff’s claim that the city’s refusal to rezone
the property will cause it to lose the money that it invested in the property is
meritless.
25
We note that the lower courts’ interpretation of the “substantial burden”
provision of RLUIPA would seem to render the “discrimination and exclusion”
provision of RLUIPA effectively meaningless because it will almost always be
easier to prove a “substantial burden” on one’s “religious exercise,” as those terms
(continued…)
30
furtherance of a compelling governmental interest. 42 USC 2000cc-2(b).
RLUIPA provides in pertinent part:
No government shall impose or implement a land use
regulation in a manner that imposes a substantial burden on the
religious exercise of a person, including a religious assembly or
institution, unless the government demonstrates that imposition of
the burden on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental
interest . . . . [42 USC 2000cc(a)(1) (emphasis added).]
After a bench trial on this issue, the trial court held that “this mere concern
over zoning [does not] establish[] a compelling State interest.” We respectfully
disagree. It has long been recognized that “local governments have a compelling
interest in protecting the health and safety of their communities through the
enforcement of the local zoning regulations.” Murphy v Zoning Comm of the
Town of New Milford, 148 F Supp 2d 173, 190 (D Conn, 2001). “‘All property is
held subject to the right of the government to regulate its use in the exercise of the
police power so that it shall not be injurious to the rights of the community or so
that it may promote its health, morals, safety and welfare.’” Austin v Older, 283
Mich. 667, 677; 278 N.W. 727 (1938), quoting State v Hillman, 110 Conn 92, 105;
147 A 294 (1929). Therefore, a municipal body “clearly has a compelling interest
in enacting and enforcing fair and reasonable zoning regulations.” First Baptist
(…continued)
are defined by the lower courts, than it will be to prove discrimination or
exclusion. See n 8 supra.
31
Church of Perrine v Miami-Dade Co, 768 So 2d 1114, 1118 (Fla App, 2000). “A
government’s interest in zoning is indeed compelling.” Konikov v Orange Co,
302 F Supp 2d 1328, 1343 (MD Fla, 2004); see also Midrash Sephardi v Town of
Surfside, 2000 US Dist LEXIS 22629, *51 (SD Fla, 2000) (holding that “the
zoning interests of Surfside may properly be characterized as compelling”). “The
compelling state interest and, hence, the municipal concern served by zoning
regulation of land use is promotion of health, safety, morals or general welfare.”
Home Bldg Co v Kansas City, 609 S.W.2d 168, 171 (Mo App, 1980). “[T]he
ordinance serves a compelling state interest; the City[’s] . . . police power to
regulate the private use of the land.” Lyons, supra at 5-6. “The city has a
cognizable compelling interest to enforce its zoning laws. . . . Reserving areas for
commercial activity both protects residential areas from commercial intrusion and
fosters economic stability and growth.” Chicago Hts v Living Word Outreach Full
Gospel Church and Ministries, Inc, 302 Ill App 3d 564, 572; 707 NE2d 53 (1998);
see also Daytona Rescue Mission, Inc v City of Daytona Beach, 885 F Supp 1554,
1560 (MD Fla, 1995) (holding that “the City’s interest in regulating homeless
shelters and food banks is a compelling interest”).
In the instant case, the city has a compelling interest in regulating where
apartment complexes can be built within the city. As the United States Supreme
Court has explained:
The matter of zoning has received much attention at the hands
of commissions and experts, and the results of their investigations
32
have been set forth in comprehensive reports. These reports, which
bear every evidence of painstaking consideration, concur in the view
that the segregation of residential, business, and industrial buildings
will make it easier to provide fire apparatus suitable for the character
and intensity of the development in each section; that it will increase
the safety and security of home life; greatly tend to prevent street
accidents, especially to children, by reducing the traffic and resulting
confusion in residential sections; decrease noise and other conditions
which produce or intensify nervous disorders; preserve a more
favorable environment in which to rear children, etc. With particular
reference to apartment houses, it is pointed out that the development
of detached house sections is greatly retarded by the coming of
apartment houses, which has sometimes resulted in destroying the
entire section for private house purposes; that in such sections very
often the apartment house is a mere parasite, constructed in order to
take advantage of the open spaces and attractive surroundings
created by the residential character of the district. Moreover, the
coming of one apartment house is followed by others, interfering by
their height and bulk with the free circulation of air and
monopolizing the rays of the sun which otherwise would fall upon
the smaller homes, and bringing, as their necessary accompaniments,
the disturbing noises incident to increased traffic and business, and
the occupation, by means of moving and parked automobiles, of
larger portions of the streets, thus detracting from their safety and
depriving children of the privilege of quiet and open spaces for play,
enjoyed by those in more favored localities-- until, finally, the
residential character of the neighborhood and its desirability as a
place of detached residences are utterly destroyed. Under these
circumstances, apartment houses, which in a different environment
would be not only entirely unobjectionable but highly desirable,
come very near to being nuisances. [Village of Euclid v Ambler
Realty Co, 272 U.S. 365, 394-395; 47 S. Ct. 114; 71 L. Ed. 303 (1926).]
See also Kropf v Sterling Hts, 391 Mich. 139, 159-160; 215 NW2d 179 (1974)
(adopting the above analysis in addressing “why the local zoning board could
reasonably restrict multiple dwellings in a residential area”). That a court will
defer to zoning authorities and will only overturn a zoning ordinance excluding
other uses from a single-family residential area if it is arbitrary or capricious is
33
evidence of the magnitude of the municipalities’ interest in such zoning
ordinances. Kropf, supra at 161 (holding that “[i]t is not for this Court to second
guess the local governing bodies in the absence of a showing that that body was
arbitrary or capricious in its exclusion of other uses from a single-family
residential district”).
In this case, much testimony was presented regarding the city’s interest in
preserving single-family neighborhoods. Charles Reisdorf, the Executive Director
of the Regional Planning Commission, testified:
[I]n an area where you have a large number of single-family
residences, people have made purchases with the expectation that
there will be some stability in the neighborhood. For most of us, the
purchase of a home is the major expense of our life . . . . And so
when you–- when you have something that’s incompatible
interjected into a neighborhood area, it creates problems and often
results in a blighting situation . . . .
Dennis Diffenderfer, a planner who has been with the city’s Department of
Community Development for nearly 20 years, testified:
[A]ny time you even add a duplex or a three- or four-unit or a
number of buildings that convert to rental, it does have a negative
effect on the adjoining neighbors. I can speak not only as a housing
professional, but from experiences.
Charles Aymond, who has served as the chairman of the Jackson Planning
Commission for over ten years, testified:
[T]he City has experienced a great deal of blight and
destabilization as the result of commercial enterprises . . . or
different residential uses coming into what is generally referred to as
a higher residential use.
34
Plaintiff’s own architect, James Pappas, testified that if the property was
rezoned multiple-family residential, as the plaintiff desires, a 45-foot apartment
complex would be permitted and this would be “inappropriate with that
neighborhood.”
Given the city’s general interest in zoning, and the city’s specific interest in
maintaining the character of this single-family residential neighborhood, we
conclude that the city has a compelling interest in maintaining single-family
residential zoning and in not rezoning this area of the city.
E. LEAST RESTRICTIVE MEANS
Given that the imposition of the burden on plaintiff is in furtherance of a
compelling governmental interest, the final question is whether a particular
governmental action constitutes the “least restrictive” means of furthering that
interest. 42 USC 2000cc(a)(1)(B). The burden is on defendant to prove that an
action constitutes the least restrictive means of furthering the compelling
governmental interest. 42 USC 2000cc-2(b). RLUIPA provides in pertinent part:
No government shall impose or implement a land use
regulation in a manner that imposes a substantial burden on the
religious exercise of a person, including a religious assembly or
institution, unless the government demonstrates that imposition of
the burden on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental interest;
and
(B) is the least restrictive means of furthering that compelling
governmental interest. [42 USC 2000cc(a)(1) (emphasis added).]
35
In the instant case, plaintiff asked the city to rezone the property from
single-family residential to multiple-family residential. In response, the city could
have done one of two things-- it could have granted or it could have denied
plaintiff’s request to rezone the property. The city decided to deny plaintiff’s
request to rezone the property. That is, the city decided to maintain the single-
family residential zoning. There do not appear to be any less restrictive means of
maintaining the single-family residential zoning.
For these reasons, we conclude that any burden placed on plaintiff’s
exercise of religion is in furtherance of a compelling governmental interest and
constitutes the least restrictive means of furthering that compelling governmental
interest.26 Therefore, even assuming that RLUIPA is applicable in the instant
case, it has not been violated.27
26
42 USC 1988(b) provides, “In any action or proceeding to enforce a
provision of . . . the Religious Land Use and Institutionalized Persons Act of 2000
. . . the court, in its discretion, may allow the prevailing party, other than the
United States, a reasonable attorney’s fee as part of the costs . . . .” For the
reasons discussed herein, plaintiff is not a “prevailing party,” and, therefore, is not
entitled to attorney fees.
27
As discussed above, in City of Boerne, the United States Supreme Court
held that Congress, in enacting RFRA, had exceeded its power under § 5 of the
Fourteenth Amendment to enact legislation enforcing the Free Exercise Clause
because RFRA proscribes state conduct that the First Amendment itself does not.
In Smith, the United States Supreme Court held that generally applicable, religion-
neutral laws that have the effect of burdening a particular religious practice need
not be justified under the Free Exercise Clause by a compelling governmental
interest. However, “where the State has in place a system of individual
exemptions, it may not refuse to extend that system to cases of ‘religious hardship’
(continued…)
36
V. CONCLUSION
RLUIPA applies to burdens imposed by governmental bodies on “religious
exercises” in the course of implementing land use regulations under which
“individualized assessments” may be made of the proposed uses for the land. An
“individualized assessment” is an assessment based on one’s particular or specific
circumstances. A decision concerning a request to rezone property does not
involve an “individualized assessment.” Therefore, RLUIPA is not applicable
here.
A “religious exercise” constitutes “any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.” 42 USC 2000cc-
5(7)(A). However, something does not become a “religious exercise” just because
it is carried out by a religious institution. Because the only connection between
religion and the construction of the apartment complex in this case is the fact that
(…continued)
without compelling reason.” Smith, supra at 884. Proponents of RLUIPA argue
that Congress has the authority to enact RLUIPA because it merely codifies Smith.
However, the lower courts in the instant case held that, under RLUIPA, a religious
institution need not abide by a generally applicable, religion-neutral zoning
ordinance unless it is justified by a compelling governmental interest. This seems
inconsistent with the Free Exercise Clause as interpreted in Smith, which, held that
a generally applicable, religion-neutral law does not have to be justified by such
an interest. Whenever possible, courts should construe statutes in a manner that
renders them constitutional. People v Bricker, 389 Mich. 524, 528; 208 NW2d 172
(1973). Because the lower courts’ interpretation of RLUIPA would render
RLUIPA unconstitutional, we reject their interpretation and instead adopt the
interpretation set forth in this opinion.
37
the apartment complex would be owned by a religious institution, the building of
the apartment complex does not constitute a “religious exercise.”
A “substantial burden” on one’s “religious exercise” exists where there is
governmental action that coerces one into acting contrary to one’s religious beliefs
by way of doing something that one’s religion prohibits or refraining from doing
something that one’s religion requires. A mere inconvenience or irritation does
not constitute a “substantial burden”; similarly, something that simply makes it
more difficult in some respect to practice one’s religion does not constitute a
“substantial burden.” Because the city has not done anything to coerce plaintiff
into acting contrary to its religious beliefs, the city has not substantially burdened
plaintiff’s religious exercise.
Even if the city did substantially burden plaintiff’s religious exercise,
imposition of that burden here is in furtherance of a compelling governmental
interest, namely, the enforcement of local zoning ordinances, and constitutes the
least restrictive means of furthering that compelling governmental interest.
Therefore, even assuming that RLUIPA is applicable, RLUIPA was not violated.
For these reasons, we reverse the judgment of the Court of Appeals and remand
this case to the trial court for the entry of a judgment in favor of defendants.
Stephen J. Markman
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
38
STATE OF MICHIGAN
SUPREME COURT
THE GREATER BIBLE WAY TEMPLE OF
JACKSON,
Plaintiff-Appellee,
v Nos. 130194, 130196
CITY OF JACKSON, JACKSON PLANNING
COMMISSION, AND JACKSON CITY COUNCIL,
Defendants-Appellants.
______________________________
CAVANAGH, J. (concurring).
I agree with part IV(B) of the majority opinion. I write separately because
I believe it is unnecessary to determine whether defendants made an
individualized assessment in this case or whether the statutory test of strict
scrutiny was met, because plaintiff failed to show that its petition for rezoning
was related to plaintiff’s exercise of religion. Thus, I would reverse the Court of
Appeals judgment on that basis and remand to the trial court for dismissal of
plaintiff’s claim.
Michael F. Cavanagh
Elizabeth A. Weaver
STATE OF MICHIGAN
SUPREME COURT
THE GREATER BIBLE WAY TEMPLE OF
JACKSON,
Plaintiff-Appellee,
v Nos. 130194, 130196
CITY OF JACKSON, JACKSON PLANNING
COMMISSION, AND JACKSON CITY COUNCIL,
Defendants-Appellants.
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KELLY, J. (concurring).
I agree with the order in which the majority opinion interprets the relevant
provisions of the Religious Land Use and Institutionalized Persons Act, 42 USC
2000cc et seq. I concur in the majority’s holding that there was no individualized
assessment in this case and therefore that RLUIPA is not applicable.
I write separately because I believe it is unnecessary to discuss (1) whether
the building of an apartment complex was a religious exercise, (2) whether the
refusal to rezone plaintiff’s property substantially burdened the alleged religious
exercise, and (3) whether the alleged burden was in furtherance of a compelling
governmental interest and constituted the least restrictive means of furthering that
interest. The majority’s discussion of these issues is mere dicta.
I would reverse the Court of Appeals judgment because RLUIPA is
inapplicable in the instant case.
Marilyn Kelly
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