Agenda - Planning Commission - 09/08/2011

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July 25, 2011 'Volume 5 1 No. 14 Zoning Bulletin The court explained that the Equal Terms Clause of RLUIPA pro- vides that: "No government shall impose or implement a land use reg- ulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." The court interpreted the Clause as: "prohibiting the government from ... enacting, a facially discriminatory ordinance or ... enforcing a facially neutral ordinance in a discriminatory manner." Here, the Church had not taken issue with enforcement of the Or- dinance. It had taken issue with enactment of the Ordinance. The Church had made a facial challenge (i.e., that the ordinance was in- valid on its face) to the Ordinance's treatment of "churches" less favor- ably than other nonretail, nonreligious institutions. The Church argued that the Ordinance should be invalidated "for differentiating between religious and nonreligious assemblies ...." The court agreed that in analyzing the validity of a challenged or- dinance, "the [Equal Terms] Clause by its nature require[d] that the religious institution in question be compared to a nonreligious 'coun- terpart." The Church needed to show more than simply that its reli- gious use was forbidden and some other nonreligious use was permit- ted. It needed to show, said the court, that the Ordinance failed to treat churches and other nonreligious uses —such as private clubs —the same and on "equal terms." Looking at the Ordinance here, the court found that its "Permitted Use Table" specifically provided that: "churches" were not allowed in B-2 zones at all; but that many nonreligious, nonretail, buildings (e.g., "Club or Lodge (private)") were allowed to request SUPs and, if grant- ed, to occupy a B-2 zone. The court agreed with the Church that, in light of the way that B-2 zones were defined, the Ordinance facially treated a church differently than a private club. The court concluded that the Ordinance was invalid because "it prohibit[ed] the Church from even applying for a SUP when, e.g., a nonreligious private club may apply for a SUP despite the obvious conclusion that the Church and a private club must be treated the same, i.e., on `equal terms' by the [O]rdinance, given the similar non-B-2 nature of each." In other words, the court found the Ordinance invalid in violation of the Equal Terms Clause of RLUIPA because it treated the Church on terms that were less than equal to the terms on which it treated similarly situated nonreligious institutions. See also: Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Bro- ward County, 450 F.3d 1295 (11th Cir. 2006). See also: Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007). See also: River of Life Kingdom Ministries v. Village of Hazel Crest, Ill., 611 F.3d 367 (7th Cir. 2010). 8 © 2011 Thomson Reuters