Agenda - Planning Commission - 12/06/2018

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October 25, 2018 I Volume 12 I Issue 20 Zoning Bulletin § 2000cc(b)(1).) Tree of Life argued that daycares and partially used of- fices —which were permitted in the office district —were similarly situated to its proposed school in terms of their "minimal capacity to generate rev- enue for [the City]." Tree of Life argued that therefore, under the Develop- ment Ordinance, its religious school was being treated on less than equal terms than those nonreligious institutions, in violation of RLUIPA. The district court granted final judgment to the City. It held that the Development Ordinance was "no more onerous to Tree of Life than it [was] to nonreligious entities that generate comparably small amounts of revenue for the City." More specifically, the court rejected daycares as a comparator, holding that that daycares were not similarly situated to Tree of Life's proposed school as evidence showed that a daycare would gener- ate seven times more tax revenue for the City than would Tree of Life. The court also rejected partially used offices as a comparator, saying "full use of one assembly or institution compared to the full use of another type of assembly or institution" is the "proper lens through which to analyze RLU- IPA equal terms claims." Tree of Life appealed. DECISION: Judgment of District Court affirmed. The United States Court of Appeals, Sixth Circuit, held that Tree of Life failed to establish a prima facie case under RLUIPA's equal terms provi- sion because it failed to identify a permitted land use that would generate a comparably small amount of revenue for the City. In so holding, the court addressed how RLUIPA's equal terms provision should be applied, including what elements must be proven to establish a prima facie case under RLUIPA's equal terms provision. The court determined that under RLUIPA's equal terms provision, a plaintiff —such as Tree of Life here— had to prove: (1) the plaintiff was a religious as- sembly or institution; (2) subject to a land use regulation, that (3) treats the plaintiff on less than equal terms, compared with (4) a nonreligious as- sembly or institution. In the case at hand, only the third and fourth elements were at issue. In seeking to address those elements, the court found that RLUIPA's equal terms provision-42 U.S.C.A. § 2000cc(b)(1)—did not specify the basis upon which religious and nonreligious uses should be compared. The court found that most other circuit courts that had analyzed the issue had concluded that the statute required that "a comparator for an equal terms claim must be similarly situated with regard to the regulation at issue." Ultimately, the court held that "the comparison required by RLUIPA's equal terms provision is to be conducted with regard to the legitimate zon- ing criteria set forth in the municipal ordinance in question." Here, the court first found that the City's asserted regulatory purpose for the exclusion of the school from the office district —revenue maximiza- tion —was a "legitimate zoning criterion." Next, the court found that partially used offices were not a valid comparator put forward by Tree of 4 © 2018 Thomson Reuters