Greater Bible Way Temple of Jackson v. City of Jackson

Temple Way v Jackson CITY OF JACKSON TEMPLE OF JACKSON v GREATER BIBLE WAY (Calendar 13, Argued No. Nos. 130196. November Docket 5). Rehearing Mich _. denied 480 Decided June 2007. brought an action the The Greater Bible of Jackson city Jackson, against the the Jackson Jackson Circuit Court Commission, City Council, challenging Planning and the Jackson deny by plaintiff city’s request to rezone decision the the multiple-family single-family residential it owns from complex. apartment The an residential so it could construct Religious alleged plaintiff violated the that the defendants’ actions (RLUIPA), 42 Land and Persons Act USC Use Institutionalized Perlos, court, J., granted seq. The Alexander C. the 2000cc et trial summary disposition challeng- of the motion for count defendants’ zoning court, ing The trial Chad C. the defendants’ decision. J., summary Sehmucker, denied the defendants’ motion for then disposition alleging a of RLUIPA and of the count violation summary disposition granted part plaintiff’s motion for the city’s applied because the The court ruled that RLUIPA that count. zoning assessment” and decision constituted an “individualized property imposed a “substantial burden” the to rezone the refusal religion. a bench the free The court then conducted city compelling governmental had a trial to determine whether had interest its refusal to rezone and concluded interest, the defendants had failed to demonstrate such an RLUIPA, plaintiff to the and that was entitled violated enjoined requested rezoning. defendants from The court interfering its efforts construct with attorney complex fees. The and awarded the costs and JJ., PJ., Appeals, and and Court of Fort Meter Schoette, Hood, holding affirmed, the defendants had violated compel requested rezoning application RLUIPA to that the App 268 Mich did not render the statute unconstitutional. (2005). application Supreme granted defendants’ (2006). appeal. Mich for leave to joined opinion Justice Justice Chief In an Markman, by Corrigan Supreme Court held-. Young, and Justices Taylor 478 Mich 373 A refusal to rezone does not constitute an “individualized assessment,” therefore, and, applicable RLUIPA is not to this building applicable, matter. Even if RLUIPA were apartment complex “rehgious exercise,” would not constitute a exercise,” “rehgious if it did even constitute a the defendants’ plaintiffs property substantially refusal to rezone the not would plaintiffs exercise, rehgious burden the if and even it did substan- tially rehgious exercise, plaintiffs imposition the burden the of compelling governmental that burden would in a be furtherance of interest and would constitute the least restrictive of means fur- Therefore, thering apphcable, that if interest. even RLUIPAwere judgment Appeals it has been not violated. The of the Court of must be reversed and the case remanded to the trial court for the entry judgment of a in favor the defendants. apphes any 1. to case in which substantial burden is imposed implementation regulation system the in of a land use or regulations, government makes, of land use under which a or has place procedures practices permit in formal or informal or the government make, to proposed individualized assessments the property uses for the involved. 2. An “individualized assessment” is an assessment based on particular Here, city’s one’s the circumstances. decision whether grant rezoning predicated plaintiffs particular not was on the plaintiffs particular project circumstances or the and did not an constitute “individualized assessment.” There is no evidence city place procedures practices permit that the has in or that would it to make determining “individualized in assessments” whether grant requests rezoning. Therefore, apph- for RLUIPA is not cable to this case. Something “rehgious 3. just does not become a exercise” performed by rehgious because it institution. Because the plaintiff building apartment complex has not shown that the of the religion, constitutes an in the defendants’ decision not to rezone plaintiffs the cannot said to have burdened the “rehgious exercise,” and, thus, RLUIPAhas been not violated. “rehgious 4. A “substantial burden” one’s exercise” exists governmental there is acting where action that coerces one into contrary rehgious by way doing something to one’s behefs religion prohibits refraining doing something one’s or from religion requires. irritation, one’s A mere inconvenience something simply respect makes more difficult in some practice religion, one’s does not constitute “substantial burden.” Here, forbidding plaintiff building defendants are not from apartment complex; they simply regulating are where that Jackson Greater Bible complex have not done built. The defendants can be acting contrary plaintiff to its anything into to coerce the substantially beliefs, and, thus, they burdened the have religion. plaintiffs exercise of “compelling governmental inter- governments have a 5. Local safety their protecting health communities est” Here, zoning regulations. through of local the enforcement apart- regulating where compelling interest has a city. complexes can be built within ment religion plaintiffs as Any placed on exercise of 6. burden rezoning the least restrictive constitutes result of the denial of city’s compelling governmental furthering interest. means of single- maintaining appear any means There do not to be request zoning denying family less restrictive than residential rezoning. for concurring, agreed joined Justice Justice Cavanagh, Weaver, IV(B) majority opinion, separately part wrote of the but with unnecessary the defendants to determine whether it was because in this case whether the made an individualized assessment statutory scrutiny failed to was met. test strict petition rezoning was related to the that its show judgment religion. Appeals should be The Court of exercise of basis, to be remanded that and the matter should reversed on of claim. trial court for dismissal concurring, separately to state that be- wrote Justice Kelly, unnecessary inapplicable, to discuss it was cause RLUIPA religious complex building an was a whether the plaintiffs property exercise, rezone the the refusal to whether exercise, religious substantially alleged and whether burdened compelling governmen- alleged burden in furtherance a was restrictive means of further- tal interest and constituted the least ing that interest. Reversed and remanded. Rezoning Religious Zoning — — Use and Institutionalized Persons

1. Land — Assessments. Act Individualized applies Religious Persons Act to Land and Institutionalized The Use imple- any imposed in the a substantial burden is case which regula- regulation system of land use a or mentation of land use makes, place tions, government has in formal or which a or under government permit practices procedures that to informal or make, proposed uses for the assessments individualized involved; is an assess- an “individualized assessment” 478 Mich 373 Opinion particular circumstances; ment based on one’s a refusal to (42 does an rezone not constitute “individualized assessment” 2000cc[a][2]). USC Zoning Religious — 2. — Land Use and Institutionalized Persons Act Religious Exercise. Religious

The Use Land and Institutionalized Act a Persons forbids government imposing implementing regulation from use land imposes religious that a substantial burden on the exercise of person; religious equivalent any exercise is not the exercise religious body; prove the burden is on the that (42 religious 2000cc[a][1]; exercise is a exercise USC 42 USC [B]). 2000cc-5[7][A]and Zoning Religious — — 3. Land Use and Institutionalized Persons Act Religious — Exercise Substantial Burden. Religious Land Use and Institutionalized Persons Act forbids a imposing implementing regulation from a land use imposes religious a substantial burden on the aof person; a substantial burden one’s exercise exists acting where there is action that coerces one into contrary by way doing something one’s beliefs religion prohibits refraining one’s doing something from religion requires; something simply one’s makes it more respect practice religion difficult some one’s does not consti (42 2000cc[a][1]). tute a substantial burden USC

Hubbard, Fox, Thomas, & (by White Bengston, EC. Mark T. Koerner), for the plaintiff.

Julius A. Giglio, City Attorney, Susan G. Murphy, Deputy City Attorney, and Secrest (by Wardle Gerald A. Fisher, Schultz, Thomas R. and Shannon Ozga) K. for the defendants.

Amici Curiae:

David S. Parkhurst League National of Cities and International Municipal Lawyers Association.

Miller, Canfield, Stone, Paddock and (by P.L.C. Will- iam J. and Bree Popp Woodruff), Michigan Danhof Municipal League Legal Defense Fund. v Jackson to consider granted appeal leave to

MARKMAN, J. We Institutionalized Use and Religious the Land whether 2000cc et seq., (RLUIPA), 42 USC of 2000 Persons Act from rezoning property to the of its entitles plaintiff residential to multiple-family to residential single-family The lower complex. apartment to build an plaintiff allow the entitle to that RLUIPA does courts held to that a refusal conclude rezoning property. of its We an “individualized assess- rezone not constitute does Further, thus, is ment,” and, inapplicable. that RLUIPA an building apartment applicable, if even RLUIPA exercise,” and a “religious does not constitute complex exercise,” city “religious if constitute a even it does did not plaintiffs property to rezone Jackson’s refusal exercise, and substantially plaintiffs burden substantially if it did burden even in furtherance of of that burden is exercise, imposition constitutes the interest and compelling governmental that interest. There- furthering least means of restrictive it has not fore, assuming applicable, that RLUIPA is even reasons, the judgment we reverse been violated. For these case to the trial and remand this Appeals of defendants. of a in favor entry judgment court for the I. FACTS PROCEDURAL HISTORY AND complex across apartment Plaintiff wants build owns property from its church street eight lots city property of Jackson. The consists single-family zoned totaling property 1.13 acres. The (R-l). single- of the lots contains residential One are residence, lots vacant. family remaining and the on each side of the single-family There are residences change petitioned Plaintiff property. residential zoning multiple-family (R-3) complex. it could construct an so that 478 Mich

The Region Planning Commission recommended denying a plaintiffs rezoning petition. public After hearing, city planning commission also voted to city recommend that deny plaintiffs council rezon- ing petition. recommendations, Pursuant to these following public another council hearing, city voted deny plaintiffs rezoning petition. to

Plaintiff a complaint against defendants, then filed containing directly two counts: count one challenged city’s zoning decision and count alleged two violation of The granted RLUIPA. trial court defen- summary dants’ for regard motion with to disposition one, which count decision not appealed. was With regard two, to count the trial court denied defendants’ summary disposition motion for and granted plaintiffs for summary disposition part. motion in Specifically, the trial court ruled that RLUIPA did apply because the city’s zoning decision constituted an “individualized assessment,” and the refusal to rezone plaintiffs prop- erty imposed “substantial burden” on the religion. trial The court then ordered trial on the issue whether had a compelling interest its refusal trial, rezone. After bench the trial court ruled that defendants had failed to demonstrate such an Therefore, interest. determined had defendants plaintiff violated RLUIPA and that was entitled to the requested rezoning of its property. The trial court enjoined defendant from interfering any manner with an apartment efforts construct com- plex property. issued, its After the final order was plaintiff attorney filed a motion for costs, fees and trial $30,000 court awarded over in attor- ney fees and costs.

The Court of Appeals affirmed the trial court all (2005). 268 Mich respects. App 708 NW2d 756 v Jackson Opinion the Court application held Appeals Court of also rezoning did compel requested RLUIPA to defen- granted We unconstitutional. render the statute 474 Mich appeal. for leave dants’ application (2006).

II. OF REVIEW STANDARD summary on a ruling disposition A trial court’s de law this reviews question motion is a 29, 34; Neshewat, 477 Mich 729 NW2d novo. v Haynes (2007). are statutory interpretation Questions 488 novo. this Court reviews de of law that questions also Id.

III. OF RLUIPA ORIGINS States Consti- Amendment of United The First make “Congress shall pertinent part, provides, tution religion, establishment respecting no law Const, free thereof....” US prohibiting this is com- I. clause of amendment Am The second The protec- the Free Exercise Clause. monly known as Amendment, by including provided tions First Clause, “incorporated” have been Free Exercise and to their subdivisions political extended to the states Connecticut, v Amendment. Cantwell by the Fourteenth (1940); 1213 303; 900; 60 84 L Ed 296, US S Ct 310 Doe, Dist v 530 US School Independent Santa Fe (2000). 2266; L 2d 301; 120 147 Ed S Ct 1790; 10 L Verner, 398; US 83 S Ct v Sherbert (1963), a member of the plaintiff, 2d Ed her discharged by Church was Seventh-day Adventist Saturday, on not work employer she would because her was unable to obtain Day of faith. She Sabbath not on she would work other because employment 478 Mich Saturdays. The South Carolina Unemployment Compen- Act, Code, § et seq., provided sation SC Tit 68-1 ineligible claimant was for benefits if the had claimant failed good accept “without cause” to available suitable Employment The Security work. Commission determined the plaintiffs religious against belief on working Saturdays did not “good constitute cause.” United Supreme States Court held that denying unemployment compensation solely benefits because employment her refusal accept in which would have she work Saturdays on to her contrary religious belief imposed substantial burden her exercise of her religion justified was not a compelling state interest, thus, and, violated the Free Exercise Clause. Div, In Employment Dep’t Human Resources Oregon Smith, 1595; 494 US 110 S Ct L108 Ed 2d (1990), Supreme the United States Court held that Oregon’s prohibition of use of peyote ceremonies, and the of unemployment denial benefits persons discharged use, for such does not the Free violate Exercise Clause of the First Amendment. The Court explained that generally applicable, religion-neutral laws that have the effect burdening particular practice justified, need under the Free Exercise Clause, by governmental a compelling interest.1 Smith,

In response to Congress the Religious enacted Freedom Restoration Act of (RFRA),2 prohibiting 1 Smith, supra distinguishable at that held was Sherbert because governmental assessment”; is, Sherbert involved “individualized that “good government the cause” standard in at issue Sherbert allowed the to plaintiffs “particular pp consider the circumstances.” See 387-388 of this opinion. is, “compelling governmental Smith That held that while the may applicable allowing interest” test to laws for an “individualized governmental assessment,” applicable generally applicable it is not governmental that do laws not allow an “individualized assessment.” provides, pertinent part: RFBA in v Jackson Opinion the Court of person’s substantially burdening from government apph- generally means of a even rebgion, of exercise could law, unless the cable, rehgion-neutral a compel- furthers imposed that burden demonstrate the least it constitutes governmental interest ling interest. furthering of such means restrictive Flores, 507; 117 521 US City However, of Boerne United (1997), L Ed States 2157; 138 2d S Ct RFRA, enacting Congress, held that Supreme § Fourteenth under 5 of the powers had its exceeded Free enforcing the legislation Amendment to enact Amendment because RFRA of the First Exercise Clause Amendment the First state conduct proscribes explained: The Court proscribe.3 itself does not 5, however, only § extends Congress’ power under “enforcing” provisions of the Fourteenth Amendment. as The power The described this “remedial....” Court has design § 5 are the Amendment and the text of inconsis- Congress suggestion power has the tent with Amendment’s decree the substance of Fourteenth Legislation which alters the restrictions on States. (a) substantially general. shall not burden Government person’s religion if the burden results from a rule even (b). general applicability, except provided as in subsection (b) may substantially per- Exception. Government burden a religion application only if it demonstrates that son’s exercise person— the burden to the

(1) governmental interest; compelling is in furtherance of a (2) furthering compelling least means of is the restrictive [42 2000bb-1.] interest. USC Amendment, Fourteenth the Enforcement Clause Section provides: enforce, by appropriate Congress power to shall have Const, XIV,

legislation, [US § 5.] provisions article. Am of this 382 MICH 478 373

Opinion meaning Free of the Exercise Clause cannot be said to be enforcing Congress the Clause. does not enforce a consti- right changing right tutional what the is. It has been enforce,” given power power “to not the to determine so, what constitutes constitutional violation. Were it not Congress enforcing longer be, would be what would no in any sense, meaningful “provisions [the Fourteenth Amendment].” remedy

While the line between measures pre- vent unconstitutional actions and measures that amake change governing easy substantive in the law not to discern, Congress and have must wide latitude in deter- mining lies, it where distinction exists and must be congruence There must proportionality observed. be a injury to prevented between the or remedied and the adopted connection, means Lacking that end. such legislation may operation become substantive and effect. [Id. 519-520.] at Supreme

The Court then concluded that the substantial through costs RFRA exacted “compelling gov- its ernmental interest” “far any pattern test exceed practice unconstitutional conduct under the Free Exercise as Clause interpreted Smith.” Id. at 534. Thus, “the Court invalidated RFRA applied as to the states, it an finding unconstitutional exercise of Con- gress’ Enforcement powers Clause because Congress had not pattern shown discrimination meriting far-reaching such a remedy Galvan, ....” Be- yond worship: Religious Land Use and Institution- Act alized Persons religious institutions’ (2006).4 auxiliary uses, 24 Yale L Policy & R 4 Although. longer applies states, applies RFRA no to the still to the government. Espirita federal See O Gonzales v Centro Uniao Beneficente (2006) Vegetal, 1211; (holding Do L US S Ct 163 Ed 2d 1017 that, RFRA, Act, seq., under the Controlled Substances USC 801 et prohibit receiving by drinking cannot sect from communion hoasca, hallucinogen). a tea that contains a Jackson Boerne, enacted Congress City response RFRA, attempt Unlike RLUIPA does RLUIPA. religious burden exercise. substantially that all laws bar regulations5 use Instead, it focuses on land and provides,in pertinent part:

(a) Substantial burdens.

(1) or government[6] impose rule. No shall General that regulation[7] in a manner implement a land use of a religious on the imposes a substantial burden assembly institution, un including a or person, of the government imposition demonstrates less assembly, person, or institution— on that burden (A) compelling governmental of a furtherance interest; and pertaining regulations also focuses to institutionalized applicable portion is not here.

persons, but that of RLUIPA is defined as: “Government” (i) entity State, county, municipality, other or State; authority under the of a

created (n) branch, any agency,instrumentality, department, or official (i); entity listed in and of an clause

(in) law; any person acting and other under color of State 2000cc-2(b) 4(b) (B) purposes and 5 [42 for the of sections USC States, 2000cc-3], branch, department, United includes the States, any agency,instrumentality, ofthe United other or official 2000cc-5(4).] acting [42 person under law. color of Federal USC regulation” as a “Land use is defined law, law, application zoning landmarking of such a or or development use or of land that limits or restricts a claimant’s land), (including if claimant has a structure affixed easement, leasehold, servitude, property ownership, other or acquire regulated option a contract interest in the land or or 2000cc-5(5).] [42 such an interest. USC property petition here city’s to rezone its denial of That regulation” use is uncontested. a “land constitutes 478 MICH (B) furthering is the least restrictive means compelling governmental interest.

(2) Scope any application. applies This subsection case in which—

(C) imposed implemen the substantial burden is in the regulation system tation of a land use or of land use regulations, government makes, under which has in or place formal procedures practices or informal or permit make, individualized assess proposed of the ments uses for the [42 involved. 123****[8] 2000cc(a).]* USC “Religious exercise” defined as “any exercise of religion, whether not compelled by, to, central system 2000cc-5(7)(A). belief.” 42 USC RLUIPA specifically provides use, building, “[t]he conversion of real property for the purpose religious exercise shall be religious considered to be exercise of the provides: RLUIPA further

(b) Discrimination and exclusion. (1) Equal government impose implement terms. No shall or regulation religious land assembly use in a manner that treats or equal nonreligious assembly institution on less than terms awith or institution. (2) government impose imple- No Nondiscrimination. shall or regulation against ment a land use any assembly that discriminates religion religious or institution the basis of or denomination. (3) government impose Exclusions and limits. No shall implement regulation a land use that—

(A) totally jurisdiction; excludes assemblies from a (B) unreasonably religious assemblies, institutions, limits 2000cc(b).] jurisdiction. [42 structures within a USC 2000cc(b) argue Plaintiff does not USC was violated. v Jackson to use the or intends entity that uses person or 2000cc-5(7)(B). A plaintiff 42 USC purpose.” for that of present- has the burden a RLUIPA violation asserting 42 USC the assertion. support facie evidence to ing prima 2000cc-2(b).9 is, has the burden plaintiff That govern- and that applicable that RLUIPA prove regulation a land use implemented ment has religion. the exercise of burden on a substantial imposes this, the burden shifts proven has plaintiff Id. Once the of such imposition that the prove to the a compelling is in furtherance of burden restrictive means and constitutes least interest the United States Su- furthering that interest. Id. As congres- explained, [a] has “RLUIPA preme Court heightened to accord effort[] sional burdens, consis- from protection government-imposed Wilkinson, precedents.” this Court’s Cutter tent with L 709, 714; 2113; 161 Ed 2d 1020 125 S Ct 544 US (2005). Therefore, to examine clearly appropriate it is precedents when Supreme the United States Court’s RLUIPA. analyzing

IV ANALYSIS A. ASSESSMENT INDIVIDUALIZED appli- is whether RLUIPA is question threshold dispute. prove to this The burden is on cable pertinent part: provides, in support plaintiff produces prima If facie evidence to a claim alleging or a a violation of the Free Exercise Clause violation 2000cc], government 2 shall bear the burden [42 section USC claim, except persuasion any that the element of the (including persuasion burden of on whether law shall hear the government practice challenged regulation) or that religion. substantially [42 exercise of burdens the claim 2000cc-2(b).] USC 386 478 Mich 373 2000cc-2(b). applicable. RLUIPA is USC RLUIPA if “applies only jurisdictional one of three tests is first met____” side, Midrash Inc v Town Sephardi, of Surf (CA see also Prater v City of 1214, 11, 2004); F3d (CA 2002) (“[T]he Burnside, F3d Church may rely upon unless it first demonstrates that the present facts of the case trigger one of the bases jurisdiction in Shepherd Mon provided statute”); tessori Ctr Milan v Ann Arbor Twp, Charter 259 Mich (2003) (“In App 315, 326-327; 627 NW2d 271 order to RLUIPA, establish a claim under a party must establish that at one jurisdictional least of these three elements [.]”). exists RLUIPA states that it in “applies any case which”

(C) the imposed substantial burden is in the implemen- tation of regulation system a land use of land use regulations, government makes, under which a or has in place procedures formal or practices informal permit government make, individualized assess- proposed ments of the uses for the [42 involved. 2000cc(a)(2) added).][10] (emphasis USC Therefore, the issue is whether a substantial burden has imposed been in the implementation of a land use regulation under which a permitted “applies any RLUIPA also case in which” (A) imposed program activity substantial burden is in a assistance, receives Federal financial even if the burden general applicability;

results from a rule of (B) affects, the substantial burden or removal of that substan- affect, foreign tial nations, among burden would commerce with States, tribes, the several or with Indian if even the burden results general 2000cc(a)(2).] applicability from rule of [42 .... USC However, it is applicable uncontested that A and B are not to the instant case. v Jackson Opinion Court proposed assessment of the uses make an individualized for the involved. phrase not the first time that the “individu-

This is has been United employed. alized assessment” its decision in Supreme distinguished Court States 693; 2147; L Ed 2d 735 Bowen v 476 US 106 S Ct Roy, (1986), decisions in Sherbert and Thomas from its Div, Bd Indiana Employment Security Review (1981), 1425; L Ed 2d 624 on the US 101 S Ct decisions, Bowen, involved basis that the latter unlike “The condi- statutory “individualized assessments.”11 in that a provided [Sherbert Thomas] tions at issue person eligible unemployment compensa- was not for if, cause,’ he had good quit tion benefits ‘without work ‘good or refused available work. The cause’ standard exemptions.” created a mechanism for individualized Bowen, Thomas, at 708. In Sherbert and supra government held that when the individu- applies Court alized but refuses to extend an exemptions, exemption genuine “religious hardship,” to an instance compelling must demonstrate a reason denying the Id. requested exemption. Smith, Supreme

In at the United States supra again emphasized gov- Court the distinction between action and not individu- requiring requiring ernmental alized assessments. Sherbert, above, Supreme In as discussed the United States unemployment compensation Carolina’s ben

held that South denial of Seventh-day efits to a member of the Adventist Church who could working prevented find because her convictions her from work Saturdays abridged right religion. her her to the free exercise of Thomas, Supreme the United States Court held that Indiana’s denial of unemployment compensation benefits to a Jehovah’s Witness who ter employment prevented beliefs him from minated his because his abridged right participating production weapons in the his to the free religion. exercise of his 478 Mich 373 op

Opinion the Court test, recalled, developed The Sherbert it must was a context that lent itself to individualized assessment of the reasons for the relevant conduct.... [A] unemployment compensation pro- distinctive feature of grams eligibility is that their criteria invite consideration particular applicant’s of the circumstances behind an un- employment. unemployment [0]ur .. . decisions proposition cases stand for the that where the State has in system place may exemptions, of individual not refuse system “religious to extend that hardship” to cases [Id., Bowen, compelling quoting supra without reason. at 708.] In Church the Lukumi Babalu Inc v Aye, City

Hialeah, 520, 527; 2217; 508 US 124 L 113 S Ct Ed 2d (1993), the United Supreme Court, States against backdrop of a practice ritualistic of animal sacrifice by practitioners of the faith, Santerian held a city prohibits ordinance that a person from “unnecessar- ily... killing] ... an animal” violates Free Exer- cise Clause of the First Amendment. The Court ex- plained: requires

[B]ecause it an particular evaluation justification killing, represents for the this ordinance system of “individualized assessment of the reasons for the relevant conduct....” As we noted in Smith, in exemp- circumstances in which individualized general available, tions from a requirement govern- are “may system ment not refuse to extend that to cases of ‘religious hardship’ compelling [Id. without reason.” at 537 (citations omitted).] “Individualize” is defined as “to.. . consider indi- vidually; specify; particularize.” Random House Web- (1991). Therefore, ster’s College Dictionary an “indi- vidualized assessment” anis assessment based on one’s particular Accordingly, circumstances. applies when the government makes an assessment based on particular or specific one’s circumstances or has in Jackson v that would allow the procedures practices or place on one’s to make an assessment based government circumstances. As the Ninth Cir- particular specific or held, “RLUIPA Appeals recently applies cuit Court of may par- take into account when use of land applicant’s proposed ticular details of Nanak deciding permit deny use.” Guru when Co, 978, City Yuba v Sutter 456 F3d Society Sikh (CA 2006). case, city zoning In the ordi- adopted instant community, just to the entire not applied nance 392 Mich plaintiff. City Portage, See West (1974) (“ ‘[Z]oning ordinances... are NW2d 303 which to the general policy apply classified as decisions omitted). ”) (citation community.’ Concomitantly, entire if to rezone the granted plaintiffs request had have to the property, rezoning applied such would also A community, just plaintiff.12 entire decision whether to rezone does not involve consider- only only ation of user or particular specific rather, particular specific project; it involves the general enactment of a new rule of a new applicability, governs persons projects. rule that all and all See Beach, Sherrill v Town Wrightsville App NC (1986) (“[I]t duty zoning 344 SE2d 357 is the of the authority community to consider the needs of the entire the voting rezoning, just when on a and not needs of the Thus, if the petitioner.”). city granted individual had plaintiffs request single- to rezone the from property residential, residential to family multiple-family plain- “ 12 Although request particular piece property ‘may to rezone a narrowly differentiated on the basis that such a determination con ” (citation West, particular piece property,’ supra at 469 fined to a omitted), is, applies community.” the “entire it still to the “entire That city’s community” would be bound decision to rezone or not rezone property. MICH373 tiff could then have property any party sold third and that third could have party property any sold party any other third of these could parties have built an complex any conforming other building Therefore, on that property. city’s decision whether to rezone the property would not have been predicated on plaintiffs particular circumstances or plaintiffs particular if project.13 city Even had affirmatively wanted to build an apartment complex on its property, could not have granted the requested zoning change unless it prepared was also accommodate all projects falling within the scope rezoning. Plaintiffs particular circumstances were sim- ply not city’s determinative of the decision whether to rezone, and, thus, 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 property rezone constitutes an assessment,” “individualized and we have found none. planning Plaintiffs counsel told the trial court that “even at the level, they being built”; “they commission don’t care what’s don’t plan”; plan consider a site “the site itself is irrelevant when it comes to requesting rezoning Appellant’s appendix 238a, from R-1 to R-3.” at 523a. 14Possibly, plaintiff requested city if had a variance and the had refused request, might this constitute an “individualized assessment.” See Shepherd, supra (holding at 320 “[w]hen the Ann Arbor Charter Township Zoning Appeals subsequently Board of examined and denied plaintiffs petition variance, pursuant for a an individualized assessment 2000ce(a)(2)(C) occurred”). request to 42 USC A for a variance is significantly request requests different from a to rezone. When one variance, requesting permission property one is specific to use the for a contrast, By requests rezoning, use. asking city when one one is for permission any permitted to use the for use that would be under Therefore, city the new request classification. when the considers a for a variance, specific plan proposed by it does consider the site the land But, request rezoning, owner. when the considers it considers permitted the numerous different uses that would be under the new classification, specific plan. and it does not consider a site v Jackson

Opinion Court Moreover, presented has no evidence to plaintiff suggest city place procedures prac- that the has or permit city tices that would to make “individualized determining assessments” when whether to rezone property. city’s

Because the refusal to rezone the did property assessment,” not an “individualized and be- constitute there no that in place cause evidence has make procedures practices permit or would it to determining “individualized assessments” when grant whether to to rezone RLUIPA requests property, here. applicable

B. RELIGIOUS EXERCISE here, Assuming applicable RLUIPA is the next question is whether the of an building apartment com- plex a “religious constitutes exercise.” The burden is on prove of an building complex constitutes “religious exercise.” USC 2000cc-2(b). RLUIPA provides pertinent part:

No impose implement shall or a land use regulation in imposes a manner that a substantial burden religious on the person, including exercise of a religious 2000cc(a)(1) assembly institution, [42 unless .... USC added).] (emphasis “Religious exercise” is “any defined as religion, compelled to, whether or not by, central 2000cc-5(7)(A). system of religious belief.” USC specifically provides use, building, “[t]he or conversion real property for the purpose reli- gious exercise shall be considered to be exer- cise of the person entity that uses or intends to use 2000cc-5(7)(B). for that purpose.” USC A “religious specific exercise” consists of a type of exercise, an religion, exercise of and this is not the 478 Mich 373 Opinion equivalent any exercise — exercise — “The term reference body. ‘religion’ has to one’s views of Creator, obligations they his relations to his and to the character, impose being of reverence for his and of Beason, obedience to his will.” Davis v 333, 342; 133 US 299; (1890), L S Ct Ed 637 overruled on other Evans, in Romer v grounds 620, 634; 517 US 116 S Ct (1996). L134 Ed 2d 855 The United Supreme States “ explained has that “exercise of religion” ‘[t]he only often involves not belief and profession but the performance physical of... acts with assembling [such as] others for a worship participating [or] service in sacra ” wine____’ Cutter, 720, mental supra use bread and at Smith, supra quoting at Supreme 877.15The Court has further held that “[although inquiry bars into particular whether a belief or practice is ‘central’ to a prisoner’s religion, 2000cc-5(7)(A), § see 42 U.S.C. preclude Act does not into the inquiry sincerity of a prisoner’s professed religiosity. Cf. Gillette v. United States, 437, 457, 91 S. 168, U.S. Ct. 28 L. Ed. 2d (1971) (‘ “The ‘truth’ of a open belief is not to ques tion”; rather, question objector’s is whether ’ (quoting United States v. “truly beliefs are held.” Seeger, 163, 185, 850, 13 380 U.S. 85 S. Ct. L. Ed. 2d 733 (1965))).” Cutter, supra Nor, at 725 n obviously, 13. does RLUIPA bar into inquiry particular whether a belief or practice aspect, otherwise, constitutes an central or of a person’s religion. question

The that we plain- must answer is whether tiff seeking to use its for the property purpose of 15 Cutter, supra Supreme In at the United States Court held that institutionalized-persons provision, Act, § “RLUIPA’s 3 of the is consis tent with the Establishment Clause of the First Amendment.” The Court regulation [the also made clear that “Section 2 of RLUIPA land use provision] express is not at issue here. We therefore no on the view validity part of that of the Act.” Id. at 716 n 3. v Jackson Bible that a Obviously, everything exercise.16 exer- “religious constitutes a institution does establishing its Plaintiff bears the burden cise.” “religious use of the constitutes property proposed 2000cc-2(b). case, the instant USC exercise.” to establish presented has evidence only of the constitutes proposed its use signed by bishop an affidavit exercise” is “religious affidavit states Way Temple. of the Greater forth in its letterhead as mission is set follows: truth, Way Temple stands for

The Greater Bible through promotion Gospel of Jesus Christ Doctrine, exceptional level of service Apostolic and an community. housing, con- employment, This includes fulfilling sulting supports appropriate determined as Mission. our “wishes further states to

The affidavit by teachings providing the of Jesus Christ further to citizens of Jack- housing living and assistance the son.”17 16 by Notwithstanding inquiry required the RLUIPA into what consti exercise,” extremely cognizant “religious is of this Court the tutes judicial body’s evaluating practices inherent the difficulties particular religious assessing “centrality” particular faiths or the (“It accord, Smith, supra may fairly religious precepts. In at be said process place leaving political at a the will relative accommodation to in; religious widely engaged disadvantage practices that are but those not government pre consequence must be of democratic that unavoidable judgeO impor system weights] ... the social ferred to a which each beliefs.”); against centrality religious Lemon of all tance of all laws the (1971) 2105;

Kurtzman, L Ed 2d 745 403 US 91 S Ct “ entangle fostering (expressing an concern about ‘excessive ”) (citation omitted). religion’ ment with bishop’s proceeds to state that “there is a substantial affidavit housing, especially City of for clean and affordable need in the Jackson However, elderly no evidence that and because there is for the disabled.” housing elderly complex proposed limited would either be to Mich Opinion the Court

No evidence has been that the presented establish proposed apartment would for reli- complex be used gious worship or for other In- any religious activity. stead, appears only that the connection between the proposed apartment complex “religious exercise” is apartment complex the fact that the by would be owned a religious Generally, building institution. of an apartment complex be would considered a commercial exercise, not a religious exercise. The fact that complex would be owned institution does not transform an building apart- complex ment into a “religious exercise,” unless the deprived term practical meaning. is to of all Some- thing “religious does become a just be- exercise” performed cause it is by a institution. Because plaintiff has not shown that the building apart- complex ment an religion, constitutes exercise in city’s decision not to the property rezone cannot be said exercise,” have burdened “religious and, thus, RLUIPA has not been violated.

C. SUBSTANTIAL BURDEN Assuming, however, building apart- ment does complex “religious exercise,” constitute question next city’s whether the refusal to rezone the property to allow the apartment complex constitutes a “substantial burden” “religious on that exercise.” The burden on plaintiff prove city’s that the refusal to rezone constitutes a “substantial burden” 2000cc-2(b). on religion. exercise of 42 USC in provides pertinent part: persons designed elderly disabled or be to accommodate and disabled persons any particular extent, unnecessary it is to address whether the building complex “religious of such a would constitute a exercise.” v Jackson impose implement a use or land shall No burden imposes a substantial regulation in a manner including religious person, of a religious exercise on the 2000cc(a)(1) institution, assembly [42 .... USC unless added).] (emphassis bur- “substantial phrase not define the

RLUIPA does phrase time that the However, the first den.” this has been used. “substantial burden” Smith, Supreme the United States deciding Before on one’s reli- held a “substantial burden” Court by a justified compelling was not gious exercise that Exercise interest the Free violated governmental Bd Equaliza- Swaggart Ministries Jimmy Clause. 688; 384-385; tion 378, US 110 S Ct California, Hernandez v Comm’r (1990), L quoting 107 Ed 2d 796 Revenue, 2136; Internal S Ct US (“Our (1989) L Ed cases have established 2d 766 govern- asks whether inquiry ‘the free exercise on the observa- placed ment has a substantial burden and, so, if practice tion of a central belief justifies interest compelling whether ”). Court’s Supreme The United States the burden.’ in its free exercise definition of “substantial burden” Congress what un- determining cases is instructive burden” to mean RLUIPA. derstood “substantial Sherbert, supra Supreme In at the United States held burden” exists when Court “substantial following ... individual is to choose between “force[d] benefits, forfeiting religion of her precepts her one of the hand, abandoning precepts the one religion ... on the other hand.” Thomas, 717-718, Supreme supra at explained: receipt important of an conditions Where the state faith, proscribed upon

benefit conduct 396 478 MICH 373 Opinion Court such a because of

where denies benefit conduct mandated by belief, thereby religious pressure putting substantial on modify an adherent to behavior violate his and to his beliefs, upon compulsion religion a burden exists. While the may indirect, upon infringement free exercise is nonetheless substantial. v Northwest Indian Lyng Cemetery Protective

Ass’n, 439, 450; 485 US S Ct L Ed 108 99 2d 534 (1988), Supreme the United States explained “incidental effects of programs, may which make it more difficult practice religions certain but which no tendency have to coerce individuals into acting contrary to religious their beliefs” do consti- tute “substantial burdens.”18 federal

Several circuit of appeal courts have also defined term “substantial burden.” Although we are decisions, not bound these Abela v Gen Motors Corp, 603, 606; 469 Mich (2004), NW2d we find them persuasive. In Civil Liberties Urban Believers v Chicago, for (CA

F3d 2003), Seventh Circuit Court Appeals Chicago held that a zoning ordinance that allows churches as a of right matter in residential zones, requires but them to obtain use special permits zones, in other does not violate RLUIPA. That court explained:

Application of provision the substantial burden to a regulation inhibiting constraining any exercise, religious including use of for religious purposes, would meaningless “substantial,” render the word because the slightest religious obstacle to exercise incidental to the Lyng, Relying Appeals our Court of held that “for a burden on religion substantial, government regulation compel to be must action respect sincerely belief; or inaction with to the held mere inconvenience Shepherd, supra to the institution or adherent insufficient.” at 330. v Jackson Opinion the Court minor the burden it were

regulation of land use—however a burden sufficient then constitute impose —could regulation advance requirement that the trigger RLUIPA’s by the least restrictive interest compelling governmental that, in context of RLUIPA’s hold therefore means. We exercise, regulation land-use definition of broad religious exercise burden on imposes a substantial direct, necessarily primary, and fundamen- bears one religious exercise— rendering responsibility tal thereof purpose property of real for including the use im- jurisdiction generally effectively regulated within the — practicable.[19] ordinary may ordinance] contribute to [the While (by any or person with location associated difficulties city, does] nonreligious) large [it in a entity, religious or in of real impracticable the use not render exercise, discourage much less Chicago for in Chi- locating attempting to locate from churches Evanston, See, City 896 F.2d e.g., Church v. cago. Love 1990) (“Whatever (7th 1082, specific difficul- Cir. encountered, they church] claims to have [plaintiff ties users]. The harsh [land that face all are the same ones dictates that cer- reality marketplace sometimes who desire are not available those tain facilities them”). Otherwise, RLUIPA would compliance with ... merely to treat reli- governments not require municipal nonreligious footing equal with gious land uses on of an uses, in the form rather to favor them land but regulations. Unfortu- land-use outright exemption from religious land pass free for nately Appellants, no such for among legitimate protections masquerades uses [Id. at 761-762 religious exercise. RLUIPA affords to original).] (emphasis in the Hill, City Morgan v College Christian In San Jose (CA Court of 2004), Circuit the Ninth F3d 1024 Branch, Long City Evangelism Lighthouse Inc Institute In for (CA adopted Appeals 3,2004), Appx the Third Circuit Court 100 Fed “substantial burden.” definition of this same 478 Mich 373 Opinion op the Court Appeals held there was no RLUIPA where violation denied the plaintiffs rezoning application.20 explained: That court A “something oppressive.” “burden” is that is BLACK’S (7th ed.1999). “Substantial,” LAW DICTIONARY 190

turn, quantity” “signifi- is defined as “considerable cantly great.” MERRIAM-WEBSTER’S COLLEGIATE (10th ed.2002). Thus, DICTIONARY 1170 a land use regulation impose burden,” a “substantial it must be “oppressive” “significantly great” is, to a extent. That “religious “substantial burden” on impose exercise” must significantly great upon restriction onus such exercise. may

[W]hile the PUD College ordinance have rendered provide unable worship Prop- education at and/or erty, demonstrating there no evidence in record College precluded using was from other within sites city. any there City Nor is evidence would not impose any entity requirements the same seeking other something hospital[21] to build other Property. than on the [Id. at 1035.] Sephardi, Midrash the Eleventh Circuit Court of Appeals held that an ordinance that prohibits churches in the synagogues town’s business district does not impose a “substantial burden” on the exercise of reli- gion. explained: That court

[A] place “substantial burden” must than more exercise; religious inconvenience on a “substantial burden” significant pressure directly is akin to which coerces the religious adherent to his or her conform accord- behavior 20 prehminary question We the note that court did not address the applicable whether rezoning RLUIPA was even to the denial of the application. 21 city city urgently hospital A force task concluded needed a particular piece only and this was the location in suitable hospital. for a Temple y 399 Jackson pressure from Thus, can result

ingly. a substantial burden forego religious precepts or to force adherents tends religious [Midrash pressure conduct. from that mandates Sephardi, supra 1227.] at (CA 5, 2004), the F3d Kaspar,

In Adkins requiring held that Appeals Fifth Circuit Court at prison a outside volunteer qualified presence a burden” on did not “substantial congregations impose explained: court religion. exercise of That a regulation or creates “substan- [A] action truly pressures if religious exercise it tial burden” on modify religious his behavior and significantly adherent religious effect of a significantly [T]he beliefs. violates his regulation significant when it government action or (1) way act in either influences the adherent to (2) beliefs, religious the adherent to his forces violates hand, between, enjoying generally on the some choose one hand, benefit, and, available, the other non-trivial on opposite On end of the following his beliefs. however, regulation does spectrum, government action burden the level of a substantial rise to merely from either prevents if it adherent generally is not otherwise enjoying some benefit generally acting way that is not otherwise available 570.] at [Id. allowed. Corrections, 482 Dep’t v Rhode Island Spratt (CA 33, 1, 2007), a blanket ban

F3d which involved inmates, against preaching prison all activities asserted: Appeals First Circuit Court that a burden” is court decided “substantial district pressure on an adherent “put[s] one that substantial beliefs,” citing modify to violate his his behavior and Employment Security Board Indiana Thomas v. Review 1425, 718, Division, 101 S. 67 L. Ed. 2d 450 U.S. Ct. (4th Lee, (1981); F.3d also Lovelace v. see 2006) in a (applying Thomas standard Cir. case). arguendo applies,... Spratt Assuming that Thomas 400 Mich 373 Opinion of Court showing

has made a facie prima that his exercise substantially has been burdened. In Grace v City Chey- United Methodist Church (CA

enne, 10, 2006), F3d the Tenth Circuit of Appeals held that denial city’s request church’s for a variance from an ordi- prohibiting nance any entity from a operating commer- day cial care center a residential zone did not violate explained: RLUIPA. That court [T]he incidental effects of otherwise lawful programs may “which it practice make more difficult to religions tendency certain but which have no to coerce contrary acting individuals into to their beliefs” not do constitute substantial burdens on the (citation omitted).][22] religion. [Id. at 662 reviewing After decisions, the above it we believe that clear that a “substantial burden” on one’s “religious exercise” where exists there is action that coerces one into acting contrary to one’s religious 22 Murphy (CA Dep’t Corrections, v Missouri 372 F3d 2004), Eighth Appeals that, Circuit Court of held to constitute burden, government policy substantial or actions “significantly must expression inhibit constrain conduct or [person’s] manifests some tenet central of a individual [religious] beliefs; meaningfully [person’s] must curtail abil- ity express faith; deny adherence his or her must [person] opportunities engage reasonable in those activities [person’s] religion.” are [Citation fundamental to a omit- ted.] Although Appeals applied Sixth Circuit Court of has test same RFRA, applying Miller-Bey Schultz, when App v 1996 US LEXIS (CA 6, 1996), yet meaning not has addressed the of “substantial Murphy under burden” RLUIPA. The definition of “substantial burden” specifically seems inconsistent with RLUIPA because RLUIPA defines “religious “any religion, exercise” compelled as exercise of whether by, to, 2000cc-5(7)(A). system religious or central belief.” 42 USC Jackson Opinion the Court religion one’s something that doing way of beliefs something that one’s doing refraining from or prohibits exists is, burden” That a “substantial requires. religion (or a law violating to choose between is forced one when benefit) violating one’s and important an forfeiting irritation A mere inconvenience tenets. Similarly, a “substantial burden.” constitute does not in some makes it more difficult simply that something constitute a does not religion one’s practice respect is Rather, a burden” “substantial “substantial burden.” acting into con individuals “coerce[s] that something at Lyng, supra . . . .” religious beliefs trary to their 450.23 city’s case, argues plaintiff the instant

In an it to build to allow property to rezone its refusal burden” constitutes a “substantial complex apartment assuming that Even “religious exercise.” on its a “reli- constitutes apartment complex an building of property rezone the exercise,” refusal to city’s gious not complex does apartment an can build plaintiff so The exercise. a “substantial burden” constitute an building apart- from forbidding plaintiff city is apart- where simply regulating it is complex; ment If to build plaintiff can built. wants ment complex it on to build so; just it can do it has complex, apartment If complexes. zoned for then it housing, for the property wants to use plaintiff burden” that a “substantial recognize courts have held that some We See, example, expense.” “delay, uncertainty, for where there exists Berlin, City New Church v Helen Greek Orthodox & Sts Constantine (CA Living 7, 2005), Church God v 895, Water 396 F3d 2005). (WD Mich, Supp Twp, F 2d Meridian Charter it However, reject burden” both because of “substantial this definition we Supreme of the Court’s definition the United States with is inconsistent understanding of the common phrase it is inconsistent with and because phrase burden.” “substantial 478 Mich 373 can build single-family the property. residences on other words, in the realm building apartments, plaintiff everyone has to follow the law like else.24 zoning

“While may [the contribute ordinance] to the ordinary difficulties associated location (by any with person entity, religious nonreligious) in a large city,” Believers, Civil Liberties Urban at supra plaintiff does not prohibit from providing housing. “ specific ‘Whatever [plaintiff difficulties church] claims encountered, they have are the same ones that face ” all Id., Church, [land quoting users].’ Love supra at 1086. not done has to coerce anything contrary into acting beliefs, to its religious and, thus, it has not substantially burdened plaintiffs exercise of religion. at Lyng, 450.25 supra

D. COMPELLING GOVERNMENTALINTEREST Assuming city’s that the refusal to rezone prop- erty constitutes a “substantial burden” on plaintiffs exercise,” “religious the next question is whether it is “in furtherance a compelling of interest.” The burden is on defendants to prove the imposi- tion of the burden on is in furtherance of a 2000cc-2(b). compelling governmental 42 USC interest. RLUIPA provides pertinent in part: 24 purchased property Plaintiff was when it aware that it was zoned single-family Thus, plaintiffs city’s residential. claim that refusal to property money rezone the will cause it to lose the that it invested in the property is meritless. 25 interpretation We note that the lower courts’ of the “substantial provision burden” of RLUIPA would seem to render the “discrimina tion provision effectively meaningless exclusion” of RLUIPA always because prove it will almost be easier to a “substantial burden” “religious exercise,” on one’s as those terms defined are the lower courts, prove than it will he to discrimination or exclusion. See n 8 of opinion. this Way Temple v 403 Jackson impose implement a land use government

No shall a substantial burden imposes in a manner that regulation including of a person, on the institution, assembly government demon- unless person, of the burden on that imposition strates that assembly, or institution—

(A) compelling governmental in of furtherance 2000cc(a)(1) added).] (emphasis [42 interest.... USC issue, the trial court held After a bench trial this zoning [does not] mere estab- “this concern over respectfully compelling State interest.” We lish[] gov- that “local long recognized It has been disagree. protecting have a interest in compelling ernments through their safety health and communities v zoning regulations.” Murphy enforcement the local F Town 148 Milford, Supp Comm the New Zoning “ (D 2001). ‘All 173, Conn, 2d held subject regulate of the its right so that it shall not police power use in the exercise of the or so that it rights community injurious ” health, morals, safety and welfare.’ may its promote Older, (1938), Mich 278 NW 727 Austin v Hillman, 92, 105; A v quoting State 110 Conn (1929). Therefore, body “clearly has a municipal enforcing fair and enacting interest compelling Church regulations.” First zoning Baptist reasonable (Fla Co, 2d v Miami-Dade So Perrine 2000). zoning “A is in- App, interest government’s Co, Supp 302 F 2d Orange deed Konikov compelling.” (MD 2004); 1328, Fla, Sephardi see also Midrash 1343 (SD 22629, LEXIS *51 2000 US Dist ofSurfside, Town 2000) Fla, zoning that “the interests Surf- (holding compelling”). characterized as may properly side be and, hence, the munici- interest compelling “The state of land use is by zoning regulation pal concern served health, safety, general welfare.” morals promotion 478 Mich (Mo Co v Bldg City, Home Kansas 168, 609 SW2d 1980). ordinance App, compelling “[T]he serves state interest; City[’s]... the to police power regulate the Lauderdale, Lyons v Fort use of land.” private the 1988). (SD Fla, city US Dist LEXIS *5-6 “The has cognizable compelling interest to enforce zoning its areas for laws____Reserving activity commercial both protects residential from areas commercial intrusion and Hts v stability economic Chicago growth.” fosters and Living Word Outreach Full Gospel Church and Minis Inc, tries, 564, 572; 302 Ill 3d App (1998); 707 NE2d 53 see Mission, Daytona Daytona Rescue Inc v City of also (MD Beach, 1995) F Fla, Supp (holding “the City’s in regulating interest homeless shelters interest”). and food banks is a compelling case, the instant has interest compelling in regulating apartment where complexes can built city. within As the United Supreme States Court has explained: zoning

The matter of has received much attention at hands of experts, commissions and and results of their investigations been comprehensive have set forth in re- ports. reports, every These which bear pains- evidence of taking consideration, concur in the segrega- view residential, business, tion of buildings industrial will it provide make easier apparatus fire suitable for the intensity section; character and development in each it safety security life; that will increase of home greatly accidents, tend prevent street especially to children, by reducing resulting traffic and confusion sections; residential decrease noise and other conditions produce intensify disorders; which preserve nervous more favorable children, environment in which rear etc. particular With apartment houses, reference to pointed out development that the of detached sec- house greatly coming tions retarded houses, which has sometimes resulted in destroying the v Jackson Opinion the of purposes; that in such private for house section entire a mere very apartment the house is often sections advantage of the in order take parasite, constructed by the surroundings created spaces and attractive open Moreover, com- of district. character residential others, by inter- ing of one house followed by height free fering and bulk with the circulation their rays which monopolizing and of sun of air homes, bring- upon and fall the smaller otherwise would necessary disturbing accompaniments, the ing, their as business, and the incident to increased traffic and noises automobiles, by moving parked occupation, means of and streets, detracting from larger portions of the thus of safety depriving privilege children of their enjoyed in more open spaces play, those quiet until, finally, the residential charac- favored localities— desirability neighborhood place and its as a ter of utterly destroyed. Under these are detached residences houses, circumstances, apartment in a different which only entirely unobjectionable be not environment would desirable, very being highly come near to nuisances. but Co, [Village Realty Euclid v Ambler 272 US (1926).] 394-395; L Ed 303 47 S Ct Hts, 139, 159-160; Mich See also Kropf Sterling (1974) analysis the above in (adopting 215 NW2d 179 reason- addressing “why zoning local board could area”). dwellings in a residential ably multiple restrict defer and will zoning That a court will authorities ordinance other uses only zoning excluding overturn single-family arbitrary area if it is from a residential of the the munici- capricious magnitude evidence zoning Id. at 161 palities’ interest such ordinances. guess is not for this Court second (holding “[i]t showing in the of a governing the local bodies absence arbitrary or in its exclu- body capricious that that was residential single-family of other uses from sion district”). 478 MICH 373 case,

In this much was testimony presented regard- ing city’s preserving single-family neigh- interest Reisdorf, borhoods. Charles the Executive Director Regional Commission, Planning testified: you large [I]n an single- area where have number family residences, people purchases have made with the expectation stability that will neigh- there be some in the us, borhood. most of the purchase For of a home is the major expense you of our life .... you And so when —when something incompatible interjected have that’s into a area, neighborhood problems it creates and often results in blighting a situation.... Diffenderfer, planner

Dennis a who has been with city’s Department Community Development nearly 20 years, testified:

[A]ny you time duplex even add a or a three- four-unit or a of buildings rental, number that convert to it does have negative a adjoining neighbors. effect I speak can only a housing professional, as experiences. but from Aymond, Charles who has served as the chairman the Jackson Planning Commission for ten years, over testified: City

[T]he has experienced great blight deal of destabilization as the result enterprises of commercial ... or different coming residential uses into is generally what a higher referred to as residential use. own architect,

Plaintiffs James Pappas, testified if were rezoned multiple-family resi- dential, as the plaintiff desires, a 45-foot complex would be permitted and this “inap- would be propriate neighborhood.” with that

Given city’s general zoning, interest and the city’s specific interest in maintaining the character single-family this neighborhood, residential we con- Way Temple v Jackson in main- has a interest compelling elude zoning and in not re- single-family residential taining city. this area of the zoning LEAST MEANS RESTRICTIVE E. on plaintiff the burden imposition that the

Given interest, compelling governmental is in furtherance of governmental question particular the final is whether means of fur “least restrictive” constitutes the action 2000cc(a)(1)(B). The interest. USC thering that an action consti prove is on defendants burden furthering the least restrictive means tutes 2000cc-2(b). interest. USC compelling pertinent part: provides land impose implement use government shall No burden imposes in a a substantial regulation manner including a person, of a on the institution, assembly demon- unless person, on that imposition of the burden strates that assembly, or institution—

(A) compelling governmental of is in furtherance a interest; and (B) furthering of the means that is least restrictive 2000cc(a)(1) governmental [42 USC

compelling interest. added).] (emphasis city to rezone case, plaintiff asked the In the instant to single-family multiple- residential the from have city could done response, residential. family it granted or could two could have things one of —it property. rezone the plaintiffs request to have denied rezone the deny request to plaintiffs decided to city maintain the is, That decided to property. appear There not to zoning. do residential single-family maintaining single- means of any less restrictive zoning. family residential 478 Mich 373 reasons, any For that these we conclude burden religion of placed on is in further- compelling governmental ance of a interest and consti- tutes the least restrictive of furthering means that compelling governmental Therefore, interest.26 even assuming case, RLUIPA is in the instant applicable it has not been violated.27

V CONCLUSION applies RLUIPA to burdens imposed by governmen- “religious tal in bodies exercises” of course 1988(b) provides, any proceeding 42 USC “In action or to enforce a provision Religious . . of. Land Use Institutionalized Persons Act court, discretion, may prevailing 2000 .. party, . the in its allow the States, attorney’s part other than the United a reasonable fee as of the herein, plaintiff “prevailing costs ...For reasons discussed anot party,” and, therefore, attorney is not entitled fees. above, City Boerne, As in Supreme discussed the United States Congress, enacting RFRA, Court held power had exceeded its § legislation enforcing under 5 Fourteenth Amendment to enact proscribes the Free Exercise Clause because RFRA state conduct that the Smith, Supreme First Amendment itself does not. In the United States generally applicable, religion-neutral Court held that laws that have the burdening particular practice justified effect a need not be by governmental compelling under the Free a Exercise Clause interest. However, place system exemp “where the State has in a of individual tions, may system it ‘religious refuse extend that cases hardship’ compelling Smith, supra Proponents without reason.” at 884. argue Congress authority of RLUIPA has the to enact RLUIPA merely However, because it Smith. codifies the lower in the courts instant that, RLUIPA, religious held by case under institution need not abide generally applicable, religion-neutral zoning justi ordinance unless compelling fied interest. This seems inconsistent with interpreted Smith, the Free Exercise as Clause held which generally applicable, religion-neutral justified by law does not have to be possible, such interest. Whenever courts should construe statutes in a People Bricker, manner that renders them constitutional. 389Mich (1973). interpretation 208 NW2d 172 Because lower courts’ unconstitutional, reject render RLUIPA would we their inter pretation adopt interpretation instead opinion. set forth in this Temple y Jackson “indi- under which regulations land use implementing the proposed made of may be assessments” vidualized is an An “individualized assessment” for the land. uses circum- particular specific one’s based assessment to rezone concerning request A decision stances. assess- an “individualized not involve does here. Therefore, not applicable RLUIPA is ment.” “any exercise constitutes exercise” “religious A to, a or central by, not compelled religion, whether 2000cc-5(7)(A). 42 USC religious belief.” system “religious exer- However, does not become something by religious insti- carried out just it is cise” because religion only connection between Because the tution. complex in this apartment of the and the construction apartment complex would fact that case is the institution, of the religious building by a owned “religious constitute a does not complex exercise.” exercise” “religious on one’s

A “substantial burden” action that coerces governmental where there is exists way beliefs acting contrary religious into to one’s one doing religion prohibits that one’s something religion one’s refraining doing something from not or irritation does A mere inconvenience requires. burden”; similarly, something constitute a “substantial respect more difficult in some simply makes it one’s does not constitute “substan- religion practice city anything has not done tial burden.” Because its contrary religious acting coerce into beliefs, substantially plain- burdened city has tiffs exercise. substantially burden

Even if the did exercise, of that here is burden imposition interest, a compelling furtherance ordinances, namely, zoning enforcement local 478 MICH373 Concurring Opinions by Cavanagh Kelly, JJ. and constitutes least restrictive of furthering means Therefore, that compelling governmental interest. even assuming applicable, that RLUIPA is RLUIPA was not reasons, violated. For we judgment these reverse the of of Appeals Court remand this to the trial case court for entry judgment of in favor of defendants. Corrigan

Taylor, C.J.,and JJ., Young, concurred Markman, with J. IV(B) J. I (concurring). agree part with of

CAVANAGH, I majority opinion. write I separately because be- it unnecessary lieve to determine whether defendants made an individualized assessment in this case or statutory whether the of scrutiny test strict met, was because failed to show that petition its rezoning was related to plaintiffs religion. Thus, I would reverse the of Appeals judgment that basis and remand to the trial court for dismissal plaintiffs claim. J., concurred with J.

WEAVER, CAVANAGH, I J. (concurring). agree with the order in KELLY, which the majority opinion interprets the relevant provisions the Religious Land Use and Institutional- Act, ized Persons 42 USC 2000cc et I seq. concur in the majority’s holding there no was individualized assessment in this case and therefore that RLUIPA is not applicable.

I write separately I because believe is unnecessary (1) to discuss building whether (2) complex a religious exercise, was whether the re- fusal to rezone property substantially bur- (3) alleged religious dened the exercise, and whether the alleged burden inwas furtherance of a compelling v Jackson Opinion Concurring Kelly, J. restric- the least and constituted interest majority’s furthering interest. The means tive dicta. is mere of these issues discussion judgment Appeals be- the Court reverse I would inapplicable case. instant cause

Case Details

Case Name: Greater Bible Way Temple of Jackson v. City of Jackson

Court Name: Michigan Supreme Court

Date Published: Jun 27, 2007

Citation: 478 Mich. 373

Docket Number: Docket 130194, 130196

Court Abbreviation: Mich.