Eagle Cove Camp & Conference C v. Town of Woodboro, Wisconsin

In the

United States Court of Appeals
For the Seventh Circuit
No. 13-1274

EAGLE COVE CAMP & CONFERENCE
CENTER, INC., et al.,
Plaintiffs-Appellants,

v.

TOWN OF WOODBORO, WISCONSIN,
ONEIDA COUNTY, WISCONSIN, and
ONEIDA COUNTY BOARD OF ADJUST-
MENT,
Defendants-Appellees.

Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:10-cv-00118-wmc — William M. Conley, Chief Judge.

ARGUED SEPTEMBER 10, 2013 — DECIDED OCTOBER 30, 2013

Before KANNE, WILLIAMS, and TINDER, Circuit Judges.

KANNE, Circuit Judge. Eagle Cove Camp & Conference
Center, Inc. (“Eagle Cove”) appeals from the district court’s
entry of summary judgment in favor of the Town of
2 No. 13-1274

Woodboro, (“Woodboro”) Oneida County and the Oneida
County Board of Adjusters (collectively “the County”). Eagle
Cove alleged that Woodboro and the County’s land use
regulations, which prohibit them from running a year-round
Bible camp on residentially zoned property, violated the
Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), the First and Fourteenth Amendments of the
United States Constitution, and the Wisconsin Constitution.
Eagle Cove also sought state certiorari review under Wisconsin
Statute § 59.694(10). For the reasons set forth below, we affirm
the decision of the district court.
I. BACKGROUND
A. The Town of Woodboro and Oneida County
Woodboro comprises approximately 750 residents and
about 21,857 acres of land. Oneida County has 708,751 acres of
land. Squash Lake is partially located in Woodboro. Pursuant
to Wisconsin Statute § 60.62(1), Woodboro adopted a Land Use
Plan in 1998, which seeks to “encourage low density single
family residential development for its lake- and river-front
properties.” (R. 63–20 at 9.) The plan incorporated a survey
Woodboro took that found the majority of the residents desired
to maintain the town’s rural and rustic character. In 2009,
Woodboro adopted a Comprehensive Plan in accordance with
Wisconsin Statute § 66.1001 that incorporates the aforemen-
tioned language.
The zoning around Squash Lake reflects the goals set forth
in the plans and the survey. There are one hundred seventy-
seven parcels of real estate on Squash Lake, and all but seven
are zoned for single-family uses. The seven parcels that are not
No. 13-1274 3

zoned for single-family use are zoned for business and were
grandfathered into the zoning plan as pre-existing uses during
the initial zoning in 1976.
On May 8, 2001, Woodboro voluntarily subjected itself to
the Oneida County Zoning and Shoreland Protection Ordi-
nance (“OCZSPO”), which establishes zoning districts throu-
ghout the County. Towns must elect to be subordinate to the
OCZSPO’s provisions. In doing so, they relinquish zoning
authority to the County.
According to the OCZSPO, religious land uses are permit-
ted throughout the County and Woodboro. Year-round
recreational and seasonal camps are permitted on thirty-six
and seventy-two percent of the County, respectively. In
addition, churches and religious schools are allowed on sixty
percent of the land in the County. Churches and schools are
permitted on nearly forty-three percent of the land in Woodbo-
ro and campgrounds (religious or secular) on approximately
fifty-seven percent.
B. The Proposed Bible Camp
Eagle Cove sought to construct a Bible camp on thirty-four
acres of property that they own on Squash Lake in Woodboro.
Eagle Cove believes that their religion mandates that the Bible
camp must be on the subject property. Eagle Cove also believes
that they must operate the Bible camp on a year-round basis.
Neither of these beliefs is in dispute.
The subject property’s eastern parcels are zoned Single
Family Residential and the western parcels are zoned Residen-
tial and Farming. As the OCZSPO states, “The purpose of the
4 No. 13-1274

Single Family Residential District is to provide an area of quiet
seclusion for families. This is the County’s most restrictive
residential zoning classification. Motor vehicle traffic should be
infrequent and people few.” (R. 63–1 at 12.) The land was not
specifically purchased for the construction of the proposed
camp and has been owned by the same family since 1942.
C. Petition for Rezoning and Conditional Use Permit
On December 13, 2005, Eagle Cove filed a petition with
Oneida County to rezone the subject property to a Recreational
zoning district. The general reason provided for the rezoning
was to permit construction of a Bible camp. The OCZSPO does
not permit year-round recreational camps in Single Family
Residential zoning districts. The County sent a copy of the
rezone petition to Woodboro for its consideration on the
matter. Beginning in February 2006, Woodboro held a series of
meetings on the rezoning petition. After much discussion,
Woodboro recommended that the County deny the petition. It
found that the recreational camp was not consistent with the
goals of maintaining the rural and rustic character of Woodbo-
ro and would conflict with the existing single-family develop-
ment surrounding Squash Lake.
Following this recommendation, the County held several
meetings and hearings regarding the zoning petition. The
County denied the rezoning petition on the grounds that it
would conflict with the majority single-family usage on Squash
Lake and land use regulations set forth in the Woodboro Land
Use Plan.
In doing so, the County considered the implications of
RLUIPA and whether a denial would hinder Eagle Cove’s right
No. 13-1274 5

to exercise their religion on the subject property. It found that
a religious school or church could be constructed under
existing zoning, that Eagle Cove could achieve its goals
without rezoning by applying for a conditional use permit, and
that the proposed Bible camp directly conflicted with the
Single Family Residential zoning around Squash Lake. By
resolution adopted on August 15, 2006, the County accepted
the recommendation of the County Zoning Committee and
denied the rezone petition.
In 2008, Eagle Cove sought to obtain a conditional use
permit (“CUP”) to construct its proposed Bible camp on the
subject property. If permitted, the CUP would allow Eagle
Cove to construct its Bible camp without requiring rezoning of
the subject property. Eagle Cove attached an “Overall Site
Plan” with the application, which included plans for a lodge in
excess of 106,000 square feet. The proposed Bible camp would
have a maximum capacity of 348 campers and also accommo-
date 60 people in outdoor camping sites.
Woodboro recommended that the County deny the CUP
application. The Zoning Committee issued a staff report
detailing its reasons for denying the application. Once again,
the report found that the proposed Bible camp did not conform
to the zoning goals in the district. It also stated that the
proposed use was incompatible with the single-family residen-
tial use of adjacent land to the subject property, the purposes
and nature of the Single Family Residential district, and
Woodboro’s 2009 Comprehensive Plan. The County Zoning
Committee agreed with the report and denied the CUP
application. Finally, Eagle Cove appealed to the Oneida
6 No. 13-1274

County Board of Adjusters, which also found that the pro-
posed use was impermissible.
D. District Court Proceedings
On March 10, 2010, Eagle Cove filed an action in the United
States District Court for the Western District of Wisconsin.
They filed an amended complaint on April 27, 2010, and
asserted that the land use regulations by Woodboro and
Oneida County deprived Eagle Cove of rights set forth under
various provisions in RLUIPA, the First and Fourteenth
Amendments of the United States Constitution, the Americans
with Disabilities Act, the Rehabilitation Act, and the Wisconsin
Constitution. They also petitioned for a writ of certiorari to the
Wisconsin Supreme Court. All parties moved for summary
judgment.
The district court granted summary judgment for the
County and Woodboro on all counts.1
The district court found that the RLUIPA total exclusion
claim lacked merit as neither the County nor the Town
prohibited religious assemblies in their jurisdictions. It found
that Eagle Cove could use their land for religious assembly,
albeit not in the form of a year-round Bible camp. Citing our
opinion in Vision Church v. Village of Long Grove, the district
court held that the total exclusion provision of RLUIPA
requires the complete and total exclusion of activity protected
by the First Amendment, not just prohibition of a certain type
of religious activity. 468 F.3d 975, 989-90 (7th Cir. 2007). The

1
We need not address the Rehabilitation Act or the Americans with
Disabilities Act claims as they were not appealed by Eagle Cove.
No. 13-1274 7

district court went on to disagree with Eagle Cove’s contention
that Woodboro itself exercises jurisdiction over the land use
regulations within its borders, finding that Woodboro has only
an advisory role in the overall process and that it is the County
that exercises jurisdiction over the land use regulations on the
subject property.
In considering Eagle Cove’s unreasonable limitation claim
under RLUIPA, the district court found that Eagle Cove’s
proposed use of implementing a year-round Bible camp would
be permitted in thirty-six percent of Oneida County and that
seasonal recreational camps would be permitted on seventy-
two percent of the County. Additionally, Woodboro’s planning
scheme allows for seasonal recreational camps on roughly
fifty-seven percent of its land. The County and Woodboro did
not unreasonably limit religious assemblies in their respective
jurisdictions, but rather, Eagle Cove’s insistence on locating the
year-round camp on the subject property impeded the exercise
of their religious beliefs.
The district court next addressed Eagle Cove’s RLUIPA
substantial burden claim. Despite the fact that Eagle Cove has
spent considerable amounts of time and resources on the
various permits described above, the district court found that
this did not entitle them to relief under the substantial burden
provision of RLUIPA. It held that simply having a religious
purpose does not prevent the County from placing reasonable
constraints on the proposed camp. Citing Civil Liberties for
Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.
2003) (hereinafter “CLUB”), the district court emphasized that,
to qualify under this provision, the burden placed on religion
must indeed be substantial. To find otherwise would allow
8 No. 13-1274

even the slightest of obstacles to trigger RLUIPA’s substantial
burden provision. Eagle Cove specifically rejected alternative
sites and methods for exercising their religion. As the district
court observed, the scope of Eagle Cove’s vision, not the
OCZSPO, hindered their religious exercise.
The district court, using the same reasoning as in its
substantial burden analysis, found that the free exercise claim
under the First Amendment and the claim under the Wisconsin
Constitution Article 1, § 18 also failed.
Eagle Cove filed this timely appeal.
II. ANALYSIS
We review the district court’s grant of summary judgment
de novo. See Hottenroth v. Village of Slinger, 388 F.3d 1015, 1027
(7th Cir. 2006). To determine whether summary judgment is
appropriate, all conflicting evidence and reasonable inferences
drawn from it are construed in favor of Eagle Cove.
Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785,
794 (7th Cir. 2013). Summary judgment is proper if, in consid-
ering all evidence in favor of the non-moving party, we find
that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986).
A. Total Exclusion Claim
Eagle Cove argues that Woodboro has violated RLUIPA’s
total exclusion provision, which prohibits governmental land
use regulations from totally excluding religious assemblies
from a jurisdiction. 42 U.S.C. § 2000cc(b)(3)(A). Eagle Cove’s
No. 13-1274 9

total exclusion argument is predicated, and in fact depends, on
the assumption that Woodboro has jurisdiction to implement
land use regulations on the subject property. This stems from
the fact that year-round recreational camps are permitted
throughout the County (rendering Eagle Cove’s total exclusion
claim obsolete), but not allowed within Woodboro’s borders.
“Jurisdiction generally describes any authority over a
certain area or certain persons … Smaller geographic areas,
such as counties or cities, are separate jurisdictions to the
extent that they have powers independent of the federal and
state governments.”(Appellant’s Br. at 22–23), citing West’s
Encyclopedia of American Law (2011). Black’s Law Dictionary
defines jurisdiction as: “A geographic area within which
political or judicial authority may be exercised.” 867 (9th ed.
2009). Neither of these definitions yields any support for Eagle
Cove’s contention that Woodboro retains jurisdiction over land
use regulations within the town.
Jurisdiction requires that a municipality is able to exercise
control or authority over a designated area. Indeed, Woodboro
does retain jurisdiction on numerous matters of local gover-
nance that are within its control. The town board can, for
example, regulate bowling centers, dance halls, and roadhous-
es maintained in commercial facilities. Wisconsin Statute
§ 60.23(10). It can dispose of dead animals or contract with a
private disposal facility to do the same. Wisconsin Statute
§ 60.23(20). Town meetings may be called to regulate the
appropriation of money. Wisconsin Statute § 60.10(1)(3).
In this case, Woodboro was able to exercise its jurisdiction
in approving the OCZSPO. “A county ordinance enacted
10 No. 13-1274

under this section shall not be effective in any town until it has
been approved by the town board … The ordinance shall
supersede any prior town ordinance in conflict therewith or
which is concerned with zoning[.]” Wisconsin Statute
§ 56.69(5)(c). Woodboro chose to be subordinate to Oneida’s
zoning ordinance, and thereby relinquished its jurisdiction
over land use regulations to the County.
Eagle Cove argues that Woodboro’s implementation of its
Land Use and Comprehensive Plans is proof that the town
maintains sufficient control over the zoning regulations. The
record suggests otherwise. Though Woodboro created the
aforementioned plans, these were not binding on the County’s
ultimate zoning decisions. Whether or not the town approves
of a change in zoning is merely one of the factors considered by
the County in making its determination. Woodboro serves a
limited, consultative role in determining the town’s zoning
regulations. The weight given to Woodboro’s recommendation
is at the discretion of the County. The town board itself
acknowledged its advisory role in reviewing Eagle Cove’s CUP
application: “[T]he Town of Woodboro … hereby provides an
advisory recommendation to the Oneida County Planning and
Zoning Department that the [CUP] Application for Eagle Cove
… be denied.” (R. 62–48 at 2.) (emphasis added). Thus, it is
clear that the County, not Woodboro, exercises jurisdiction.
For this reason, Eagle Cove’s total exclusion claim must fail.
There is ample evidence in the record to suggest that operating
a year-round Bible camp would be possible in many parts of
Oneida County. See supra Part I.A. In Vision Church, we held
that the total exclusion provision of RLUIPA prohibits only
“the complete and total exclusion of activity or expression
No. 13-1274 11

protected by the First Amendment.” 468 F.3d at 989. It is
undisputed that Eagle Cove could construct a year-round Bible
camp on thirty-six percent of the land in Oneida County. It is
further undisputed that Eagle Cove could construct a religious
church or school on the subject property. This is hardly a
complete and total exclusion.
B. Substantial Burden and Free Exercise Claims
Eagle Cove also seeks relief under the substantial burden
provision of RLUIPA, which requires land use restrictions on
religious assemblies be in furtherance of a compelling govern-
mental interest and use the least restrictive means possible to
achieve that interest. 42 U.S.C. § 2000cc(a). Eagle Cove must
demonstrate that the zoning in Oneida County imposes a
substantial burden on the exercise of religious rights and that
the County did not have a compelling reason in creating the
burden.
A substantial burden under RLUIPA “is one that necessar-
ily bears direct, primary, and fundamental responsibility for
rendering religious exercise … effectively impracticable.”
CLUB, 342 F.3d at 761. The burden must be truly substantial,
to hold otherwise would permit religious organizations to
supplant even facially-neutral zoning restrictions under the
auspices of religious freedom. See Petra Presbyterian Church v.
Village of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007) (“Unless
the requirement of substantial burden is taken seriously, the
difficulty of proving a compelling governmental interest will
free religious organizations from zoning restrictions of any
kind.”)
12 No. 13-1274

There are numerous locations within Oneida County for
Eagle Cove to place its Bible camp. See supra Part I.A. Eagle
Cove concedes that there are four tracts of land, out of the ten
put forth by the County, which would be suitable for their
proposed camp. (Appellant’s Br. at 33.) Despite this admission,
Eagle Cove has insisted from the onset of this litigation that the
camp must be built on the subject property. In fact, they have
never even looked into operating the Bible camp on any other
land in Oneida County, though several properties in the
County that could have supported a year-round camp have
been sold since 2006. It is not the land use regulations that
create a substantial burden, but rather Eagle Cove’s insistence
that the expansive, year-round Bible camp be placed on the
subject property. See Petra, 489 F.3d at 851 (“When there is
plenty of land on which religious organizations can build
churches … in a community, the fact that they are not permit-
ted to build everywhere does not create a substantial bur-
den.”).
The OCZSPO itself applies a neutral land use regulation by
zoning the area around Squash Lake, including the subject
property, as a Single Family Residential district. The zoning
occurred before Eagle Cove expressed any interest in con-
structing a Bible camp. Eagle Cove was given the opportunity
to seek rezoning and a CUP application, both of which were
denied. They also had the opportunity to seek out other
properties on which to build their camp, but chose not to do so.
Rather, Eagle Cove brought this suit. Though they claim to
seek the protections of RLUIPA, in reality Eagle Cove seeks
nothing more than an exception from the OCZSPO on the basis
of their religious beliefs. RLUIPA is meant to protect religious
No. 13-1274 13

freedoms from impermissible land use regulations, it is not
meant to allow religious exercise to circumvent facially-neutral
zoning regulations. Eagle Cove is not requesting relief from an
unjust law or ordinance implemented by the County that
inhibits their religious activity; rather, they seek special
treatment on the basis of their religious purpose. See CLUB, 342
F. 3d at 762 (“[N]o such free pass for religious land uses
masquerades among the legitimate protections RLUIPA
affords to religious exercise”).
Eagle Cove also maintains that Oneida County and the
Town of Woodboro caused considerable delay, uncertainty,
and expense in the execution of the rezoning application they
submitted by leading them to believe that their permits would
be granted. They rely on our holding in Sts. Constantine and
Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d
895, 901 (7th Cir. 2005), which found a substantial burden
under RLUIPA where there was considerable “delay, uncer-
tainty and expense.” We held that “[i]f a land-use decision …
imposes a substantial burden on religious exercise … and the
decision maker cannot justify it, the inference arises that
hostility to religion, or more likely to a particular sect, influ-
enced the decision.” Id. at 900. In New Berlin, however, there
were indicia of bad faith by the City that led the Court to find
no compelling governmental interest that the City could put
forth to justify its substantial burden on the Church. Id. at 899
(“The repeated legal errors by the City’s officials casts doubt on
their good faith”). That is not the case here.
First, the fact that Eagle Cove has spent considerable time
and money on various applications for rezoning does not
constitute, prima facie, a substantial burden. See, e.g., CLUB, 342
14 No. 13-1274

F.3d at 761 (“That [Appellants] expended considerable time
and money … does not entitle them to relief under RLUIPA’s
substantial burden provision”). Further, it is clear from the
record that the Town and County maintained their position
throughout the rezoning application process that, while
religious exercise would be allowed in the form of a church or
school on the subject property, they would not permit the
construction of a year-round recreational camp. The County
had a compelling interest in preserving the rural and rustic
character of the Town as well as the single-family development
around Squash Lake. To do this, it zoned the area around
Squash Lake for single family purposes four years before Eagle
Cove first sought to build the camp. The zoning regulations do
not seek to inhibit Eagle Cove’s religious activity; they merely
encourage an area of quiet seclusion for families around
Squash Lake.
Eagle Cove’s Free Exercise claim must fail for the same
reasons. We have previously noted that “both the Free Exercise
Clause and RLUIPA provide that, if a facially-neutral law or
land use regulation imposes a substantial burden on religion,
it is subject to strict scrutiny.” Vision Church, 468 F.3d at 996. As
in Vision Church, we apply our substantial burden analysis to
deny Eagle Cove’s Free Exercise claim. Id. (“Given the similari-
ties between RLUIPA § 2(a)(1) and First Amendment jurispru-
dence, we collapse [appellant’s] claims for the purpose of this
analysis; this approach seems most consistent with post-
RLUIPA case law”).
No. 13-1274 15

C. Unreasonable Limitations Claim
Eagle Cove also contends that there is at least a genuine
issue of material fact as to whether reasonable opportunities
exist to build the proposed Bible camp within the County.
Reasonableness is determined “in light of all the facts, includ-
ing the actual availability of land and the economics of
religious organizations.” Vision Church, 468 F.3d at 990; see also
Bethel World Outreach Ministries v. Montgomery County Council,
706 F.3d 548, 560 (4th Cir. 2013) (“RLUIPA’s unreasonable
limitation provision prevents government from adopting
policies that make it difficult for religious institutions to locate
anywhere within the jurisdiction”). It cannot be said that the
land use regulations in Oneida County “unreasonably limit[]
religious assemblies, institutions, or structures[.]” 42 U.S.C.
§ 2000cc(b)(3)(B). The evidence clearly suggests otherwise.
The OCZSPO has a neutral purpose that incorporates
Woodboro’s Comprehensive and Land Use Plans. It seeks to
uphold the rural and rustic nature of the town and the area
surrounding Squash Lake. Nonetheless, it allows for religious
assemblies throughout Oneida County and on the subject
property. Eagle Cove has had reasonable opportunity not only
to seek rezoning and a conditional use permit, but also to look
for other land in Oneida County that would serve its purpose.
It chose not to do so. While it may be said that Eagle Cove’s
insistence on a year-round Bible camp on the subject property
without seeking alternatives is unreasonable, Oneida County’s
zoning regulations that seek to preserve the character of the
area around Squash Lake are not.
16 No. 13-1274

D. Equal Terms Claim
Eagle Cove also argues that the OCZSPO violated the equal
terms provision of RLUIPA, which prevents governmental
land use regulations that treat religious institutions on less
than equal terms with similarly situated institutions that do not
have a religious affiliation. 42 U.S.C. § 2000cc(b)(1). “The equal-
terms section is violated whenever religious land uses are
treated worse than comparable nonreligious ones, whether or
not the discrimination imposes a substantial burden on
religious uses.” Digrugilliers v. Consol. City of Indianapolis, 506
F.3d 616, 616 (7th Cir. 2007). In determining whether a claim
exists under the equal terms provision, we look to the zoning
criteria rather than the purpose behind the land use regulation.
River of Life Kingdom Ministries v. Village of Hazel Crest, Ill., 611
F.3d 367, 371 (7th Cir. 2010). And “if religious and secular land
uses that are treated the same from the standpoint of an
accepted zoning criterion, … that is enough to rebut an equal-
terms claim[.]” Id. at 373.
The Single Family Residential zoning district, wherein the
subject property lies, is the most restrictive district in the
county and ensures quiet seclusion for families living in the
area. While this zoning district permits certain religious and
secular assemblies, recreational camps are prohibited outright,
regardless of religious affiliation. It is clear that the OCZSPO
does not treat religious land uses, in particular year-round
Bible camps, less favorably than their secular counterparts. The
County established the land use regulations to ensure that the
single-family environment around Squash Lake remains intact.
To achieve this goal, the OCZSPO forbids year-round
recreational camps outright. Unfortunately for Eagle Cove, this
No. 13-1274 17

means that they will have to place their Bible camp elsewhere.
E. Wisconsin Constitutional Claim
Eagle Cove believes that the protection offered under
Article 1, § 18 of the Wisconsin Constitution is greater than that
offered under federal law. Wisconsin applies a compelling
state interest/least restrictive alternative test when a claim is
brought challenging a state law that violates an organization or
individual’s freedom of conscience. Coulee Catholic Schools. v.
Labor and Industry Review Comm’n, 768 N.W.2d 868, 886 (Wis.
2009). The test requires that the organization prove it has a
sincere religious belief and that such belief is burdened by the
state law at issue. The burden is then shifted to the state to
rebut the claim by showing a compelling state interest that
cannot be served by a less restrictive alternative. Id.
Even accepting that Eagle Cove has a sincere belief and that
it is burdened by the OCZSPO, the County has demonstrated
that it has a compelling state interest in preserving the rural
nature around Squash Lake achieved by the least restrictive
means possible (a neutral zoning ordinance). Like any entity,
religious organizations are subject to general laws for taxes,
licensing, social security, and the like that are “normally
acceptable.” Id. at 887. The zoning ordinance at issue here is
generally applicable to all residents within Oneida County and
thus would qualify as “normally acceptable” under Article I,
§ 18 of the Wisconsin Constitution.
III. CONCLUSION
Considering all facts in favor of Eagle Cove, we find that all
claims under RLUIPA as well as the federal and Wisconsin
18 No. 13-1274

constitutions lack merit. Consequently, we AFFIRM the district
court’s order granting Woodboro and the County’s motion for
summary judgment.