Check out this post ("Did the Sixth Circuit Unintentionally Adopt an RLUIPA Equal Terms Test?") from RLUIPA gurus Evan Seeman, Karla Chaffee, and Dwight Merriam on their RLUIPA Defense blog, analyzing the Sixth Circuit's recent opinion in Tree of Life Christian Schools v. City of Upper Arlington, No. 14-3469 (May 18, 2016).
We won't go into the details because our colleagues cover them pretty well, but wanted to point this one thing out. The issue in the case was whether the city could be held liable under RLUIPA's "equal terms" provision (which requires local governments to impose land use regulations on religious and nonreligious users on an equal basis), after it refused to allow a religious school to rezone property in an economic development zone to allow the school.
The school didn't conform to the area master plan, which allowed only uses which would increase the government's tax revenue (that's some plan, no?). We want commercial uses and offices, not your school.
RLUIPA suit followed. District court granted the city summary judgment. The Sixth Circuit reversed, setting out a test (sort of) for determining when a municipality is applying its purportedly neutral land use regulations in an unequal manner.
So far, so good. We like clarity in the law; more so when it adds to a circuit split.
But here's what caught our eye, this bit of legal advice from the court of appeals about how the city could avoid all that RLUIPA mess:
Finally, we observe that the government could ensure commercial use of the property at issue without violating the federal statute. Using eminent domain, Upper Arlington could force TOL Christian Schools to sell the land to the government, and sell the land to a buyer that the government thinks offers superior economic benefits.
Slip op. at 11 (footnote omitted) (citing Kelo v. City of New London, 545 U.S. 469 (2005); Christopher Serkin & Nelson Tebbe, Condemning Religion: RLUIPA and the Politics of Eminent Domain, 85 Notre Dame L. Rev. 1, 53 (2009)).
The only reason that plan didn't work here?
[T]he city has not committed government funds to the theory that a traditional commercial office tenant—as yet unidentified—both could be attracted to use the land and also, if attracted, would increase tax revenues. Instead, they have placed the cost on TOL Christian Schools—perhaps to save the upfront cost of compensating an exercise of eminent domain, perhaps because there is no market for office space in Upper Arlington, and perhaps to exclude an unfamiliar or disfavored religious assembly.
But why should a lack of commitment of funds, an identified new owner, or the lack of a market stop the city? Under Kelo, that stuff is just analytical dross. And indeed, having those elements in your hip pocket, city, would seem to cut against public use and in favor of a pretext claim.