Judge Learned Hand
Justice Holmes
Jordan Lorence serves as senior counsel with Alliance Defending Freedom where he plays a key role with the Advocacy Research and Innovation Team. His work encompasses a broad range of litigation, with a primary focus on religious liberty, freedom of speech, student privacy, conscience rights of creative professionals, and the First Amendment freedoms of public university students and professors.
Lorence argued before the U.S. Supreme Court in the precedent-setting Southworth v. Board of Regents of the University of Wisconsin System case in 1999, challenging the university’s requirement that forced unwilling students to contribute to campus activist groups. He led the challenge to New York City’s ban on private worship services after hours in vacant public school buildings in the long-running Bronx Household of Faith v. Board of Education of the City of New York case.
The pier at Sandbridge Beach (photo by Becca Duncan)
The Wall Street Journal reports that Hugh Hefner sold the iconic Playboy Mansion for $200 million, but retained a life estate.
The sale comes with one unusual condition: Mr. Hefner, 90 years old, will be able to remain in the home as long as he lives. After Mr. Hefner’s tenancy ends, Mr. Metropoulos intends to connect the two estates into a combined 7.3-acre compound, a representative for him said.Hefner’s wife and other heirs will take nothing. When he dies, the purchaser will receive the house in fee simple.
Justice Department Closes Investigation After Zoning Change Allows Church to Move Into New Facility
On February 13, the Justice Department closed its RLUIPA investigation of the City of Norfolk, Nebraska, after the city amended its zoning code to treat places of worship equally with various nonreligious uses. The Department had opened the investigation after the city denied Our Savior Lutheran Church permission to move into a building it had purchased in an industrial zone.
In the fall of 2015, Our Savior Lutheran contracted to purchase a 60,000-square-foot former warehouse in an industrial zone in Norfolk. The church had outgrown facilities it had occupied in Norfolk since the 1960s. The city told the church, however, that it could not move into the site because it was a church, and churches are not permitted in the industrial zone. However, the city permits various nonreligious assemblies operate as of right in the industrial zone, including business and civic associations, labor unions, daycare centers, athletic clubs, dance halls, and movie theaters.
In October 2016, the Department of Justice opened an investigation of the City of Norfolk under RLUIPA. Section 2(b)(1) of RLUIPA states that “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.”
On December 20, the City Council passed an ordinance that made several changes to the City’s zoning laws. Among other things, the ordinance amended the land use matrix so that religious assemblies are now permitted as of right in the I-1 zoning district. In light of these changes, Our Savior Lutheran Church is moving ahead with its plans to renovate the distribution warehouse and, after reviewing the changes, the Department closed its investigation.
Justice Department and City Resolve RLUIPA Suit Over Mosque Denial
On March 10, a federal court in Michigan approved a settlement of the United States’ suit against the City of Sterling Heights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which alleged that the city illegally denied a mosque approval to build in the city.
The United States had filed suit on December 15 alleging that the city discriminated against the American Islamic Community Center (AICC) on the basis of religion when it denied AICC zoning approval for a mosque. The suit also alleged that the denial imposed a “substantial burden” on AICC’s religious exercise in violation of RLUIPA. The AICC, currently located in Madison Heights, Michigan, sought the Sterling Heights location because it is more centrally located for its members and its current space has become too small to accommodate its worship, educational and social needs.
On the day the settlement was announced, Acting Assistant Attorney General Tom Wheeler noted that “Federal law protects the right of faith communities to build places of worship without discrimination or unreasonable burdens on their religious exercise. We commend the city of Sterling Heights for agreeing to approve the AICC’s mosque, so that it can serve its members and contribute to the surrounding community.”
RLUIPA provides a number of protections for places of worship, religious schools, and other religious uses of land from discriminatory or unreasonable zoning restrictions. Further information about RLUIPA, including reports on its enforcement and Questions and Answers about its various provisions, may be found at the Civil Rights Division Housing and Civil Enforcement Section’s RLUIPA page.
Four siblings who own a vacation cabin by Lake St. Croix in Wisconsin will have their takings case heard by the U.S. Supreme Court.The court agreed to hear the case earlier this month, the Milwaukee Journal Sentinel reports. The siblings are represented by the Pacific Legal Foundation.The cabin and lot were purchased by the siblings’ parents in the name of the family business in 1960, according to the cert petition (PDF). The couple bought an adjacent land parcel in their own names in 1963 that, at the time, was sufficient for development. Zoning changes enacted in 1975 barred development on the adjacent parcel because of its size, but a grandfather clause created an exception for parcels that have separate ownership from adjoining land.Because the siblings own both parcels, the second parcel is not eligible for development under the grandfather clause. The ordinance also prevents the siblings from selling the adjacent lot unless it is combined with the cabin lot.The siblings claim the adjacent lot is the only relevant parcel for takings purposes, while the government says the combined lots are the relevant parcel.PLF principal attorney John Groen commented on the case in a press release.“We’re challenging a practice that is all too common among land use regulators, where they tell a landowner she can’t use her property, based on the excuse that she also happens to own a neighboring parcel,” Groen said. “By accepting this case, the Supreme Court has an opportunity to make it clear that government can’t cut off landowners’ constitutional rights based on how much land they own.”
Suit Challenges Zoning Refusal For Christian School
On Tuesday, a Christian school in Upper Arlington, Ohio filed suit in federal court claiming violations of RLUIPA, of the 1st and 14th Amendments and of Ohio's constitution. The case stems from the city's rejection of the school's attempt to apply for zoning approval of a new site on which the school planned to consolidate its four separate campuses. The complaint (full text) in Tree of Life Christian Schools v. City of Upper Arlington, Ohio, (SD OH, filed 1/4/2011), argues that other similar or identical uses-- such as child day care centers and hotels-- are allowed by the city's zoning rules. In its press release announcing the filing of the lawsuit, Alliance Defense Fund said: "A city’s zoning code cannot give preferential treatment to non-religious institutions that function similarly to a Christian school...."
Two New Hampshire Churches File RLUIPA Challenges To Zoning Denials
Today's Nashua (NH) Telegraph reports on two separate RLUIPA zoning lawsuits filed in federal district court in New Hampshire. In Merrimack Congregation of Jehovah's Witnesses v. Town of Merrimack, (D NH, filed 12/16/2010) (full text of complaint), plaintiffs allege violations of RLUIPA and the state and federal equal protection clauses. They claim that their application for a special exception to locate in a residential area is the only application by a church to have been denied in 15 years. In Goffstown Harvest Christian Church v. Town of Goffstown, (D NH, filed 12/16/2010) (full text of complaint), plaintiffs claim that the town's amendment of its zoning ordinance to prohibit religious, but not non-religious, assemblies in areas zoned industrial violates RLUIPA, and the free exercise clauses and the equal protection clauses of the state and federal constitutions. New personnel on the Zoning Board of Adjustment refused to extend the church's site plan approval because they felt that the zoning changes were intended to encourage taxable industrial uses.
Michigan City Settles RLUIPA Suit, Lets Church Move Into Commercial Area
The Oakland County (MI) Daily Tribune reports that a Michigan federal district court last Friday signed a consent order under which the city of Hazel Park, Michigan settled a RLUIPA zoning lawsuit filed against it by the Salvation Temple that wanted to move into a building, but was denied a permit under an ordinance passed in 2005 that bars religious institutions in areas zoned commercial or industrial. (See prior posting.) Under the agreement, the church will be permitted to move into a building that was used as a banquet hall but has been vacant since 2002. The church will bring the building up to code and will pay back taxes before the property becomes tax exempt. The building, on a triangular parcel of land near two interstates, was unlikely to find a commercial buyer. City officials say there was no economic benefit in their fighting the lawsuit. The settlement did not rule on the validity of the zoning ordinance which apparently effectively keeps churches out of Hazel Park because there is no residentially zoned property large enough to accommodate a church and required parking.
Holding: The Fifth Amendment requires the government to pay just compensation when it takes personal property, just as when it takes real property. In this case, any net proceeds the raisin growers receive from the sale of the reserve raisins goes to the amount of compensation they have received for that taking; it does not mean the raisins have not been appropriated for government use. Nor can the government make raisin growers relinquish their property without just compensation as a condition of selling their raisins in interstate commerce.
Detroit in Ruins
Not the most cheerful way to ring in the new year, but the Guardian just published a series of provocative photographs of decaying cultural landmarks in Detroit. A bitter reminder that Detroit's problems started long before the current economic troubles. You can find the photos here.
Tanya Marsh
