Living Water Church of God v. Charter Township of Meridian

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0832n.06
Filed: December 10, 2007

Case No. 05-2309

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LIVING WATER CHURCH OF GOD, d/b/a )
Okemos Christian Center, a Michigan )
Ecclesiastical Non-Profit Organization, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
v. ) DISTRICT OF MICHIGAN
)
CHARTER TOWNSHIP OF MERIDIAN; )
SUSAN MCGILLICUDDY; MARY )
HELMBRECHT; BRUCE D. HUNTING; )
JULIE BRIXIE; STEVE STIER; )
ANDREW J. SUCH; ANNE M. WOIWODE, )
in their official Capacities as members of the )
Meridian Township Board, )
)
Defendants-Appellants. )
)
_______________________________________ )

BEFORE: BATCHELDER and MOORE, Circuit Judges; HOOD*, District Judge.

ALICE M. BATCHELDER, Circuit Judge. The Charter Township of Meridian

(“Township”) appeals the district court’s order, following a bench trial, granting a declaratory

judgment that the Township’s denial of a special use permit sought by Living Water Church of God

(“Living Water”) violated the Religious Land Use and Institutionalized Persons Act (“RLUIPA”),

42 U.S.C. § 2000cc et seq., and permanently enjoining the Township from preventing Living Water

from proceeding with the construction of a school and church building on its property in conformity

*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting
by designation.
with the special use permit. Because we conclude that the Township’s denial of the permit did not

constitute a substantial burden on Living Water’s religious exercise, and therefore did not violate

RLUIPA, we reverse the judgment of the district court.

I. BACKGROUND1

Living Water is a small but growing Christian congregation with educational and daycare

ministries in Meridian Charter Township, Michigan. Living Water owns a six-acre parcel in the

Township. The parcel is zoned RA, single family residential, medium density. The Township’s

zoning ordinance permits a religious or educational institution in a residential zone only if the

institution obtains a Special Use Permit (“SUP”). The ordinance requires a separate and additional

SUP to construct a building larger than 25,000 square feet. Therefore, Living Water, like any person

or institution wanting to construct facilities larger than 25,000 square feet, would have to apply for

an SUP permitting such construction.

In 1994, Living Water applied for an SUP to build a single-story 10,925 square-foot building

to use as a sanctuary and daycare for 40 children; in 1995, the Township granted the application and

Living Water constructed and now occupies that building. At the time that it obtained the SUP,

Living Water discussed with the Township its future plans for the property and explained that the

sanctuary was only the first phase of a multi-phase building plan for the property. In 2000, Living

Water requested and received an SUP to increase its daycare enrollment to 72 children and build a

28,500 square-foot elementary school for kindergarten through 8th grade. Though Living Water

initially sought approval for enrollment of 360 students in its proposed school, the church

1
The Township has not challenged the district court’s factual findings, and this recitation, therefore, draws
extensively from them. See Living Water Church of God v. Charter Twp. of Meridian, 384 F. Supp. 2d 1123, 1125-
29 (W.D. Mich. 2005).

2
voluntarily limited enrollment to 280 students at the Township’s request. Additionally, Living

Water agreed to delay its school day start time so as not to interfere with traffic to nearby schools,

to go without athletic fields, and to pay for construction of a decelaration lane to lessen the impact

on traffic in the neighborhood. Upon receiving the SUP, Living Water began promoting the school

and raising money for its construction. On March 7, 2001, the Township informed Living Water

that the SUP would expire on May 19, 2001, unless Living Water obtained an extension on its SUP

or began substantial construction on the project.

Prior to May of 2001, the Township had a policy of granting extensions on SUPs, and

because Living Water had not yet begun construction, it timely requested an extension. But by this

time, the Township had obtained new legal counsel who, on April 27, 2001, issued a legal opinion

that denied an extension to another applicant. By letter dated May 9, 2001, the Township denied

Living Water’s request, stating that “because the Code of Ordinances does not specifically provide

for an extension to be granted for special use permits, the Planning Commission can no longer

consider requests for extensions.” Then, on May 15, 2001, the Township passed a resolution stating

that because the zoning ordinance had no provision for extending an SUP, any request for an SUP

extension must be treated as an application for a new permit and would be subject to all of the

requirements of a new SUP. Because the Township’s new policy did not permit an extension of the

2000 SUP, Living Water lost its initial investment of $35,000 or $40,000 in planning documents.

Before submitting a new SUP proposal, Living Water officials met with the Township’s

planning staff to determine the best way to address the Township’s concerns with Living Water’s

project. In addition to renewing the conditions attached to the 2000 SUP, Living Water agreed to

further reduce the number of students who could be enrolled in its school from 280 to 125. On May

21, 2003, Living Water applied for an amendment to its SUP to build a Christian Education Building

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totaling 34,989 square feet. This proposal exceeded by approximately 6,489 square feet the proposal

approved in 2000, but because it included a larger basement, the actual footprint of the building was

1,500 square feet smaller than the earlier plan.

While the Township’s Board had the final say on the size of a proposed building, the

Township’s Planning Commission had authority to approve the use of a property for a school and

to provide a recommendation to the Board concerning the size of the proposed building.

Accordingly, the Planning Commission conducted two public hearings on Living Water’s 2003 SUP

proposal and ultimately approved the SUP for a school on the church’s property and recommended

that the Township Board approve the SUP for a new building that — combined with the existing

building — would exceed the 25,000 square-foot limit.

The Planning Commission provided a packet of documents for the Township Board to

review, which included a table entitled “Land Area to Building Ratios.” This table listed for each

of the public and private schools in the Township the size of the building and the area of the parcel

of land on which it stood. The ratios were developed for the purpose of reviewing Living Water’s

application; they have not been applied to any other applicants since their creation.2

Neither the Township’s zoning ordinance nor its Comprehensive Development Plan provides

any sort of standard for determining the appropriate land-to-building ratio for a school. While the

Comprehensive Development Plan provides criteria established by the National Education

Association, i.e., 10 acres for an elementary school, 20 acres for a middle school, and 40 acres for

a high school, these criteria address total acreage, not land-to-building ratios. Moreover, though the

2
The ratios did not reflect the presence or absence of athletic fields, or the enrollment of the schools. It is
unclear whether the ratios included such spaces as bus garages or basements. The bulk of the data came from public
schools even though public schools are regulated by the state and not subject to municipal land use regulations.

4
Comprehensive Development Plan states that all schools in the Township comply with these criteria,

that is not the case. For instance, the Plan does not include an elementary school and high school,

which together sit on a 13-acre parcel rather than on the prescribed 50 acres; nor does the Plan

include a Montessori school which sits on a 6-acre parcel, rather than the prescribed 10-acre parcel.

Although the Township applies a 5:1 ratio for commercial developments and a 3:2:1 ratio for office

use, “[t]here are no ratios . . . for non-residential uses permitted by SUP in a residential district such

as churches, private schools, nursing homes, day care centers, and fraternity or sorority houses.”

Living Water Church of God v. Charter Twp. of Meridian, 384 F. Supp. 2d 1123, 1128 (W.D. Mich.

2005).

On October 21, 2003, the Board affirmed the Planning Commission’s recommendation that

the SUP allow “the non-residential use of an appropriately sized school in a residential district”

subject to conditions, including a maximum enrollment of 125 students. On the same day, however,

the Board denied the SUP for “construction of an addition that results in a building or combination

of buildings with a gross floor area of 25,000 square feet or greater.” The Board explained that “the

size of the proposed church and school facility in relationship to the size of the subject site is out of

proportion to similarly situated schools and combined church and school facilities within the

Township and inconsistent with those review criteria and standards for the granting of a special use

permit . . . .”

The school which Living Water wants to house in the proposed Christian Education Building

has been in operation since 2001, when Living Water opened its Dominion Leadership Academy,

a junior high and high school for boys, at a church building 25 miles away from the Meridian

Township church. Because of the difficulties of transporting students this distance, the school, in

2002, moved to a house that was approximately 2.5 miles from Living Water’s church in the

5
Township. This site, however, was too small and the church moved the school to a nearby office

building, where, because the property is zoned professional/office, the school is not an allowed use.

Here, Living Water had to rent gym facilities, and, because the school is off-site and operated by

the same staff that runs the church, also encountered difficulties in coordinating the staff.

Because Living Water’s overall church enrollment has in recent years grown from 65 to 120,

the existing facility does not meet the needs of current members, and lacks space for added services

and programs, and seating for new members. The sanctuary in the current facility is a multi-purpose

room that the church also uses for daycare and teen activities; because of the challenges of sharing

this space, the church has closed the daycare center. The church staff has outgrown current office

space, necessitating the rental of additional offices in an off-site facility. Due to the frustration and

confusion arising from the space constraints, Living Water has lost current and potential members

and its ability to recruit students for its school has been limited.

Following the denial of the 2003 SUP, Living Water brought suit against the Township,

seeking a declaratory judgment that the Township violated RLUIPA, among other federal and state

laws, and an injunction restraining the Township from enforcing its denial of the 2003 SUP. Living

Water also sought damages from the Township, alleging, inter alia, violations of the United States

Constitution and Michigan Constitution. The Township removed the action to federal court, and,

after the district court entered judgment in favor of Living Water on the RLUIPA claim, the

Township timely appealed.

II. ANALYSIS

The district court held that the Township’s denial of the SUP imposed a substantial burden

on Living Water’s religious exercise, that the denial did not further a compelling governmental

interest, and that it was not the least restrictive means of furthering a compelling governmental

6
interest. Accordingly, the court permanently enjoined the Township from preventing Living Water

from proceeding with the construction of a school and church building on its property in

conformance with the 2003 application for the SUP. We review for abuse of discretion the scope

of the injunctive relief granted by the district court; we review de novo its conclusions of law and

its findings of fact for clear error. See S. Cent. Power Co. v. Int’l Bhd. of Elec. Workers, Local

Union 2359, 186 F.3d. 733, 737 (6th Cir. 1999).

The Township argues that its denial of Living Water’s 2003 SUP proposal did not violate

RLUIPA’s substantial burden provision. In pertinent part, RLUIPA provides that

[n]o government shall impose or implement a land use regulation in a manner that
imposes a substantial burden on the religious exercise of a person, including a
religious assembly or institution, unless the government demonstrates that imposition
of the burden on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000cc(a)(1) (emphasis added). This provision applies in any of three circumstances

set out in the statute, only one of which is pertinent here, namely, when “the implementation of a

land use regulation or system of land use regulations, under which a government makes, or has in

place formal or informal procedures or practices that permit the government to make, individualized

assessments of the proposed uses for the property involved.” 42 U.S.C. § 2000cc(a)(2)(C).

The Township does not challenge the district court’s conclusion that the Township’s denial

of the SUP sought by Living Water was the implementation of a land use regulation that permitted

the Township to make an “individualized assessment[] of the proposed uses for the property

involved.” Id. Nor does the Township challenge the district court’s conclusion that Living Water’s

efforts to develop and use its own property for a religious school, daycare ministry, and other

7
ministries fall within Congress’s definition of “religious exercise.”3 42 U.S.C. § 2000cc-5(7).

The first question before us today, then, is whether the district court correctly concluded that

Living Water has demonstrated that the Township’s denial of the 2003 SUP proposal imposes a

substantial burden on Living Water’s religious exercise. See 42 U.S.C. § 2000cc-2(b) (“. . . the

plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or

government practice that is challenged by the claim substantially burdens the plaintiff’s exercise of

religion.”).

The U.S. Supreme Court has not yet defined “substantial burden” as it applies to RLUIPA.

Neither does the statute itself contain any definition of the term. The statute’s legislative history,

however, indicates that the “term ‘substantial burden’ as used in this Act is not intended to be given

any broader interpretation than the Supreme Court’s articulation of the concept of substantial burden

or religious exercise.” 146 CONG . REC. S7774-01, 7776 (daily ed. July 27, 2000) (joint statement

of Sens. Hatch and Kennedy).

In the “Free Exercise” context, the Supreme Court has made clear that the “substantial

burden” hurdle is high and that determining its existence is fact intensive. So, for example, while

the Court has held that government action that forces an individual to “choose between following

the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the

precepts of her religion in order to accept work, on the other hand” imposes a substantial burden on

3
Congress defined religious exercise as follows,

(A) In general. The term “religious exercise” includes any exercise of religion, whether or not
compelled by, or central to, a system of religious belief.

(B) Rule. The use, building, or conversion of real property for the purpose of religious exercise
shall be considered to be religious exercise of the person or entity that uses or intends to use the
property for that purpose.

42 U.S.C. § 2000cc-5(7).

8
that individual’s free exercise of religion, Sherbert v. Verner, 374 U.S. 398, 404 (1963)4, the Court

has also held that the government’s action in constructing a road and permitting timbering through

a portion of a National Forest traditionally used by Native American tribes for religious purposes

did not impose a substantial burden because the government’s action did not coerce individuals into

“violating their religious beliefs; nor would . . . governmental action penalize religious activity by

denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.”

Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988). Similarly, the Court has

held that “[w]here the state conditions receipt of an important benefit upon conduct proscribed by

a religious faith, or where it denies such a benefit because of conduct mandated by religious belief,

thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs,

a burden upon religion exists. While the compulsion may be indirect, the infringement upon free

exercise is nonetheless substantial.” Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S.

707, 717-18 (1981). But the Court found that a state law proscribing the Sunday retail sale of certain

commodities did not impose a burden on the free exercise of religion by members of the Orthodox

Jewish faith simply because it operated to make the practice of their religious beliefs more

expensive. Braunfeld v. Brown, 366 U.S. 599, 605-06 (1961).

In short, while the Supreme Court generally has found that a government’s action constituted

a substantial burden on an individual’s free exercise of religion when that action forced an individual

4
According to Living W ater, Sherbert “held that the relevant inquiry for substantial burden was whether the
government action had a ‘tendency to inhibit constitutionally protected activity.’” Appellee’s Br. 29 (quoting
Sherbert, 374 U.S. at 404 n.6.). But Sherbert’s holding does not reflect, nor did the Court adopt, a “tendency to
inhibit” test. Rather, the Sherbert Court focused on whether the state action in question forced the plaintiff to
“choose between following the precepts of her religion and forfeiting benefits.” Sherbert, 374 U.S. at 404. See also
Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. City of W. Linn, 111 P.3d 1123,
1129 n.7 (Or. 2005) (addressing the same “tendency to inhibit test” that Living W ater urges before us and finding
that “the [U.S. Supreme] Court did not adopt a ‘tendency to inhibit’ test in Sherbert or use that test to decide
Sherbert or any other case.”).

9
to choose between “following the precepts of her religion and forfeiting benefits” or when the action

in question placed “substantial pressure on an adherent to modify his behavior and to violate his

beliefs,” Sherbert, 374 U.S. at 404; Thomas, 450 U.S. at 717-18, it has found no substantial burden

when, although the action encumbered the practice of religion, it did not pressure the individual to

violate his or her religious beliefs. See Lyng, 485 U.S. at 449; Braunfeld, 366 U.S. at 605-06; see

also Episcopal Student Found. v. City of Ann Arbor, 341 F. Supp. 2d 691, 702 (E.D. Mich. 2004)

(“[C]ourts have been far more reluctant to find a violation where compliance with the challenged

regulation makes the practice of one’s religion more difficult or expensive, but the regulation is not

inherently inconsistent with the litigant’s beliefs.”).

Because this circuit has not yet spoken on this issue, the parties direct us to several opinions

of our sister circuits, which have defined “substantial burden” in a variety of ways.5 For example,

in Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003), the Seventh

Circuit found that “a land-use regulation that imposes a substantial burden on religious exercise is

one that necessarily bears direct, primary, and fundamental responsibility for rendering religious

exercise — including the use of real property for the purpose thereof within the regulated

jurisdiction generally — effectively impracticable.” 342 F.3d at 761 (addressing a challenge to the

Chicago Zoning Ordinance requiring a religious institution to obtain a special use permit to operate

in the city’s business, commercial, or manufacturing districts). Several years later, the Seventh

Circuit relaxed its definition of substantial burden, finding that where the city’s denial of a rezoning

permit would require the church to search for other parcels of land or file more applications with the

5
Living W ater argues that courts apply a different meaning of “substantial burden” when the plaintiff
challenges the ordinance itself (facial attack) rather than the city’s implementation of an ordinance, e.g., denying a
rezoning application (as-applied attack). W hile the cases certainly deal with both kinds of challenge, we do not see
that other courts draw such a distinction in determining whether a substantial burden exists. W e decline to do so
here.

10
city, the resulting “delay, uncertainty, and expense” constituted a substantial burden. See Sts.

Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 901 (7th

Cir. 2005) (addressing a challenge to city’s denial of permit to rezone existing tract of land so that

plaintiff could build a church). More recently, however, the Seventh Circuit once again returned

to Civil Liberties for Urban Believers’ definition of substantial burden. In Vision Church v. Village

of Long Grove, 468 F.3d 975, 997-1000 (7th Cir. 2006), the church sought a special use permit to

construct a church complex. Noting that under the village’s ordinance, the church would be

permitted to build a smaller facility — in fact, only slightly smaller than the size that the church had

earlier proposed — the court held that the village’s conditions on the approval of the permit limiting

the size of the buildings, the number of services, the use of surrounding outdoor areas, and the

number of major activities to be conducted in the course of the week did not impose a substantial

burden on the church’s religious exercise.

In a similar vein, the Eleventh Circuit, addressing a challenge to a city zoning ordinance that

required the plaintiffs to relocate their synagogues to another part of the city, concluded that a

substantial burden

must place more than an inconvenience on religious exercise; a “substantial burden”
is akin to significant pressure which directly coerces the religious adherent to
conform his or her behavior accordingly. Thus, a substantial burden can result from
pressure that tends to force adherents to forego religious precepts or from pressure
that mandates religious conduct.

Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). In San Jose

Christian College v. City of Morgan Hill, 360 F.3d 1024 (9th Cir. 2004), the Ninth Circuit held that

a “‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or onus

upon such exercise.” 360 F.3d at 1034 (challenging the city’s denial of the college’s rezoning

application). The Fourth Circuit has announced that it “likewise follow[s] the Supreme Court’s

11
guidance in the Free Exercise Clause context and conclude[s] that, for RLUIPA purposes, a

substantial burden on religious exercise occurs when a state or local government, through act or

omission, ‘put[s] substantial pressure on an adherent to modify his behavior and to violate his

beliefs.’” Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (quoting Thomas, 450 U.S. at 718, and

discussing several of the preceding circuit court cases) (inmate’s RLUIPA action); see also

Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007) (“For the purposes of RLUIPA, a substantial

burden exists where: 1) a follower is forced to choose between following the precepts of his religion

and forfeiting benefits otherwise generally available to other inmates versus abandoning one of the

precepts of his religion in order to receive a benefit; OR 2) the government puts substantial pressure

on an adherent to substantially modify his behavior and to violate his beliefs.”) (inmate’s RLUIPA

action).

Though this circuit has not expressly defined “substantial burden,” we have found that a

city’s action constituted a substantial burden in violation of RLUIPA. In DiLaura v. Township of

Ann Arbor, 112 F. App’x 445 (6th Cir. 2004) (DiLaura II), the plaintiffs sought to use a large house

as a religious retreat where guests would come to enjoy prayer and fellowship — without having to

pay for their stay. See DiLaura v. Ann Arbor Charter Twp., 30 F. App’x 501, 503 (6th Cir. 2002)

(DiLaura I). The city designated the plaintiffs’ home a bed-and-breakfast and issued a permit for

the plaintiffs to operate it, but the district court found that this designation substantially burdened

plaintiffs’ religious exercise because it required that the plaintiffs require payment by their guests,

barred the plaintiffs from serving alcohol (thereby restricting their ability to provide communion

wine), and prevented the plaintiffs from serving lunch and dinner to their overnight guests. DiLaura

II, 112 F. App’x at 446. While not defining “substantial burden,” we concluded that “designation

as a bed and breakfast would have effectively barred the plaintiffs from using the property in the

12
exercise of their religion and, hence, the defendants’ refusal to allow a variance constituted a

substantial burden on that exercise.” Id. (emphasis added).

The parties in this case do not challenge the constitutionality of this provision of RLUIPA,

and we do not address that issue. We note however, that this statute requires the federal courts to

walk a thin line. On one hand, RLUIPA’s definition of religious exercise covers most any activity

that is tied to a religious group’s mission, and “RLUIPA bars inquiry into whether a particular belief

or practice is ‘central’ to [an individual’s] religion.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.13

(2005) (inmate’s RLUIPA action). On the other hand, and in tension with this broader definition

of religious exercise, Congress has cautioned that we are to interpret “substantial burden” in line

with the Supreme Court’s “Free Exercise” jurisprudence, which suggests that a “substantial burden”

is a difficult threshold to cross. If the term “substantial burden” is not to be read out of the statute,

RLUIPA cannot stand for the proposition that a construction plan is immune from a town’s zoning

ordinance simply because the institution undertaking the construction pursues a religious mission.

See Westchester Day Sch. v. Vill. of Mamaroneck, 417 F. Supp. 2d 477, 544 (S.D.N.Y. 2006), aff’d,

— F.3d —, 2007 U.S. App. LEXIS 24267 (2d Cir. 2007) (“[C]ourts must ensure that the facts

warrant protection under RLUIPA, rather than simply granting blanket immunity from zoning

laws.”). Although RLUIPA assuredly protects religious institutions in their religious exercise, the

statute’s language indicates that it is not intended to operate as “an outright exemption from land-use

regulations.” Civil Liberties for Urban Believers, 342 F.3d at 762 (“[N]o such free pass for religious

land uses masquerades among the legitimate protections RLUIPA affords to religious exercise.”).

Here, we must determine what actual burden the Township has imposed on Living Water’s

religious exercise. Living Water frames the issue as “a size issue.” That is, while the Township

granted Living Water’s request to build a religious school on its grounds, the Township did not

13
agree to the square footage that the church sought. Living Water argues, essentially, that anything

less than the addition of a 34,989 square-foot building on its property prevents it from fulfilling its

ministries and missions.

Living Water asks us, in essence, to quantify “substantial burden” in order to determine if

the Township’s denial of this particular square footage constitutes a violation of RLUIPA. We

decline to set a bright line test by which to “measure” a substantial burden and, instead, look for a

framework to apply to the facts before us. To that end, we find the following consideration helpful:

though the government action may make religious exercise more expensive or difficult, does the

government action place substantial pressure on a religious institution to violate its religious beliefs

or effectively bar a religious institution from using its property in the exercise of its religion? With

that framework in mind, we now turn to the facts before us.

The district court found that:

Plaintiff is unable to practice its religious beliefs in its current location because the
facilities are too small for the needs of the congregation and staff. Lack of adequate
space has already forced Plaintiff to choose between its daycare ministry and its
Christian Education ministry. Plaintiff is severely limited in its ability to recruit for
the school because of the uncertainty about the future space and the current lack of
programming.

Adding a 14,000 square feet addition for a total of 25,000 square feet of building
space would not resolve the space problems. Plaintiff’s congregation has grown
beyond its current space. Although Plaintiff intends for the church and the school
to share the use of the buildings, a total of 25,000 square feet will not accommodate
Plaintiff’s need for classrooms, a gymnasium, a sanctuary, day care rooms, offices
and meeting rooms. Having the church and the school in two separate locations is
also not feasible. Plaintiff’s attempts to operate the church and the school in two
separate locations in the past has been hampered by issues associated with
transportation, cost and shared employees. There is also no guarantee that the school
and church could build anywhere else in the Township.

Living Water Church of God, 384 F. Supp. 2d at 1133. The court went on to hold that:

If Plaintiff reduces the size of the proposed building the building plans will have to

14
 be redone and resubmitted. Although there may be larger lots of residential zoned
land available in the Township, the Township no longer renews SUPs, so Plaintiff
would have to resubmit an application for use of the property for a school. Because
private schools are not a permitted use anywhere in the Township, there is no
guarantee that Plaintiff will receive permission to build a school, regardless of size,
at this location or anywhere else within the Township. Plaintiff is a small church
with limited funds. The burden imposed by the denial of the SUP is not merely an
inconvenience. See Midrash Sephardi, 366 F.3d at 1227. Plaintiff will incur delay,
expense and uncertainty if it is required to reapply or search for another site. See Sts.
Constantine and Helen, 396 F.3d at 901. Denial of the SUP is directly responsible
for rendering Plaintiff’s ability to use its real property for its religious purposes
effectively impracticable. See Civil Liberties, 342 F.3d at 761. The Court concludes
that the denial of the SUP to construct a building in excess of 25,000 square feet on
Plaintiff’s parcel imposes a substantial burden on religious exercise under RLUIPA.

Id. at 1134.

Living Water asserts that the Township’s refusal to grant the additional square footage (1)

effectively caused the church to shut down its daycare ministry because there was not enough room

to juggle the logistics of operating both the daycare and other church ministries; (2) denied the

church’s religious school a permanent home, and the resulting uncertainty has limited the church’s

ability to recruit students to its school (thereby denying the school the opportunity to minister to

students); (3) caused the church to lose members because there is insufficient space and seating to

add new services and accommodate new members; (4) forced the church to cut back on activities,

including a midweek worship service, adult education and outreach activities, and children’s

ministry; and (5) denied the church’s staff onsite office space to run the church’s ministries,

including the school.

The question before us here is whether the Township’s denial substantially burdens Living

Water’s religious exercise now — not five, ten or twenty years from now — based on the facts in

the record. The Township’s denial does not preclude the church from moving its school to the

church property; it does not require the church to forgo providing religious education; it does not

15
preclude the church from enrolling students in its school; it does not prevent church members from

entering the property and conducting worship or prayer services; it does not preclude the church

from running religious programs and meetings in the evenings and on weekends; it does not

preclude the church from accepting new members into its congregation. Moreover, the Township’s

decision does not prevent the church from building a 14,075 square-foot facility to house the school

(taking it up to the 25,000 square-foot ceiling). Cf. Mintz v. Roman Catholic Bishop, 424 F. Supp.

2d 309, 321 (D. Mass. 2006) (“[A]s applied here, the bylaw would preclude any additional

construction on property owned by a religious institution.”) (emphasis added).

Living Water argued before the district court that it “is being coerced into violating its beliefs

and abandoning its religious practices because it must choose between two or more of its ministries.”

In particular, Living Water asserted that it must have an onsite gymnasium both for the school and

for other church activities. Living Water’s pastor testified that the additional 14,000 square feet

which the church can construct without exceeding the 25,000 square-foot limitation of the zoning

ordinance is simply not enough space to accommodate a gymnasium and classrooms, let alone

showering facilities, changing rooms, and offices. We recognize that the Township’s decision

burdens Living Water in several ways. First, Living Water cannot build out to the 34,989 square

feet that it sought in its proposal. Second, if Living Water seeks to change any of the conditions tied

to the Township’s approval of the SUP to construct a religious school on its grounds, Living Water

must submit another SUP. Finally, although Living Water would not need to go back to the

Township Board to construct a school that complies with the 2003 SUP, Living Water would have

to expend money and time to draw up new plans for a 14,075 square-foot facility.

On the other hand, so long as the square footage of the school does not bring the combined

buildings’ square footage above the 25,000 square feet permitted by the Township zoning ordinance,

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and so long as Living Water complies with the 2003 SUP, Living Water may construct its school

without additional Township action. The fact that Living Water’s current facility is too small does

not give the church free reign to construct on its lot a building of whatever size it chooses, regardless

of limitations imposed by the zoning ordinances. And while we understand the church’s reason for

wanting a gymnasium — and we concede that it would be more convenient to have that facility

onsite — we are hard-pressed to conclude that Living Water will be unable to carry out its church

missions and ministries without it, nor do we believe that mere inconvenience equates to a

substantial burden. See Midrash Sephardi, 366 F.3d at 1227 (“[A] ‘substantial burden’ must place

more than an inconvenience on religious exercise.”).

Even if Living Water’s current needs are not the proper measuring stick, we do not find a

substantial burden. Living Water has a building in which to worship. It may conduct its ministries

and programs. It has permission to construct a school on its property, and it can build an additional

14,000 square-foot building without obtaining an SUP. While Living Water has outgrown its

current facility, the record does not contain the kind of facts that would permit a finding that the

building which the church can construct without an additional SUP would be so inadequate as to

substantially burden Living Water’s religious exercise in the future. RLUIPA does not protect the

church from all land use regulation, but only from those regulations that substantially burden its

religious exercise.

We return to the issue as we framed it earlier in this analysis: although the government

action may make Living Water’s religious exercise more expensive or difficult, does that

government action place substantial pressure on Living Water to violate its religious beliefs or

effectively bar the church from using its property in the exercise of its religion? We conclude that

the Township’s denial does neither. Ideally, no doubt, Living Water would have an unlimited and

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ever-expanding place of worship with open doors to all who are interested — the same would surely

apply to its school. The Township’s action here, and the zoning ordinance in general, burdens this

hope and objective. And although the Township’s action may make Living Water’s religious

exercise more expensive or difficult, we cannot say that it places substantial pressure on this

religious institution to violate its religious beliefs or that it effectively bars the institution from using

its property in the exercise of its religion.

The district court also concluded that, even if the actual denial of the SUP for a building of

the total size requested by Living Water did not, in itself, constitute a substantial burden on the

church’s religious exercise, the court could not view the 2003 SUP proposal in a vacuum; instead,

the court concluded that it must consider the course of dealings, as it were, between the Township

and Living Water. Specifically, the district court stated:

The Township would like this Court to view the 2003 SUP application in isolation.
If this Court were to do so, this Court might conceivably agree with the Township
that the denial of an SUP for a certain sized building on a specific lot would not
qualify as a substantial burden on religious exercise. However, the Court cannot
view the 2003 SUP application in isolation. Plaintiff has had a long history with the
Township. The 2003 SUP application must be viewed in the context of this history.
The Township was aware of Plaintiff’s plans to expand since Plaintiff made its first
application for an SUP in 1995. The Township granted Plaintiff’s application for
construction of a 28,500 square foot addition in 2000, and then, after inviting
Plaintiff to apply for an extension of the SUP, and on the eve of the expiration of the
SUP, suddenly abandoned its long practice of allowing extensions of SUPs. Plaintiff
worked diligently and in good faith with the Township to address its concerns before
submitting a revised 2003 proposal. Plaintiff also expended significant energy and
funds in creating the 2003 proposal. The 2003 proposal went farther than the
previously approved 2000 plan in addressing the Township’s concerns about
enrollment, and its footprint was smaller than the 2000 plan. The Township then
denied the 2003 proposal on arbitrary grounds that were not contained in the
ordinance.

Living Water Church of God, 384 F. Supp. 2d at 1134.

We do not quarrel with the district court’s considering context, but we think that this context

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must include the course of dealings in its entirety — not simply from Living Water’s point of view.

First, while the Township — shortly before Living Water’s 2000 SUP expired — did abandon its

prior practice of granting SUP extensions, there is no evidence that the Township did so because of

some animus directed towards Living Water specifically or religious institutions generally. The

record reflects that the Township’s new legal counsel had issued an opinion explaining that SUPs

could not be extended, and that, contemporaneously with the denial of an extension of Living

Water’s expiring SUP, the Township had denied an extension of another entity’s SUP. Moreover,

Mark Kieselbach, the Township’s Director of Community Planning and Development, testified

before the district court that the Township has continued consistently to follow that practice.

Second, while we certainly recognize Living Water’s cooperative efforts to work with the

Township to address concerns regarding enrollment, hours, and logistics of the school, and we

acknowledge that the Township knew Living Water wanted to expand its facilities in several phases,

we are not persuaded of the relevance of those facts here. It would be anomalous at best to conclude

that because the Township approved Living Water’s first SUP, knowing that the church hoped to

expand that facility, the Township was required to approve subsequent SUP proposals, regardless

of their scope. Living Water did seek to build well beyond the 25,000 square-foot maximum, and

in fact, in 2000 obtained an SUP for a building larger than 25,000 square feet. The proposal

submitted in 2003, however, was significantly larger than that approved in 2000. Though the 2003

footprint of the building is actually smaller than the 2000 proposal, the ordinance pertains to overall

square footage, not the building’s footprint. Indeed, Kieselbach testified that the zoning ordinance

considers gross square feet, not the perimeter size of the building(s) in question.

Finally, that the Township, in denying the proposal, considered matters not contained in the

ordinance does not establish that the Township’s denial of the SUP substantially burdened the

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church’s religious exercise. Even if the Township’s consideration of the land-to-building ratios

could be said to be arbitrary, it is the church’s burden under RLUIPA to demonstrate that “the

government practice that is challenged by the claim substantially burdens the plaintiff’s exercise of

religion.” 42 U.S.C. § 2000cc-2(b). Where the church has not demonstrated that the Township’s

denial of the SUP imposes a substantial burden on the church’s religious exercise, we cannot

conclude that by considering this information in reaching the decision to deny the SUP, the

Township has imposed such a burden.

III. CONCLUSION

Our decision today will certainly result in additional expense and delay for Living Water,

and it means that — at least on its current site — Living Water cannot construct its ideal building.

But while we might well prefer to reach the result reached by the district court, we cannot conclude

that RLUIPA guarantees Living Water the 34,989 square-foot facility it sought in 2003. The right

RLUIPA protects is the right not to have land use regulations implemented in a manner that imposes

a substantial burden on an institution’s religious exercise. It bears repeating that while the statute

does not define that term, the legislative history directs us to the Supreme Court’s “Free Exercise”

jurisprudence to determine the term’s scope.6 The action of the Township in this case will require

Living Water to incur increased expense to accomplish its goal of building a significantly larger

church and school, and to endure increased inconvenience if it is not able to build a facility of the

desired size. But nothing the Township has done requires Living Water to violate or modify or

forego its religious beliefs or precepts, or to choose between those beliefs and a benefit to which the

6
W e are reluctant to interpret the “substantial burden” of this provision of RLUIPA as including lesser
burdens than those encompassed by the Supreme Court’s “Free Exercise” jurisprudence, inasmuch as the statute
would then effectively exempt religious institutions from a great many land use regulations to which non-religious
institutions are subject, arguably rendering the provision vulnerable to attack under the Court’s “Establishment
Clause” jurisprudence.

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church is entitled. See, e.g., Thomas, 450 U.S. at 717-18; Sherbert, 374 U.S. at 404.

While we do not hesitate to say that the Township’s denial of the SUP burdens Living Water

to some degree, we cannot conclude that the denial imposes a substantial burden on the church’s

religious exercise. And while the size of Living Water’s current facility and its ability to build out

14,075 square feet without Township interference is certainly a consideration in our analysis, it does

not drive our decision today. We find no substantial burden because Living Water has failed to

demonstrate that, without the SUP that the Township has refused to approve, it cannot carry out its

church missions and ministries. Instead, Living Water has demonstrated only that it cannot operate

its church on the scale it desires.

Our decision today is, as it must be, grounded in the facts before us. If the facts were

different, i.e., if Living Water proffered evidence showing that it cannot carry out its church

missions and ministries due to the Township’s denial, we might have a different outcome. See, e.g.,

Westchester Day Sch. v. Vill. of Mamaroneck, — F.3d —, 2007 U.S. App. LEXIS 24267 (2d Cir.

2007) (finding that the zoning board’s absolute denial of a Jewish day school’s special construction

application violated RLUIPA where the “existing facilities are deficient,” the school’s “effectiveness

in providing the education Orthodox Judaism mandates has been significantly hindered as a

consequence” of the board’s actions, the school had no “ready alternative” to the plan for which the

zoning board denied a construction application, and the “school’s enrollment has declined since

2001.”). But we cannot and will not speculate as to what may happen in the future. The facts before

us do not support a conclusion that the Township’s denial of Living Water’s SUP application

substantially burdens its religious exercise.

Because we find no substantial burden, we do not reach the district court’s conclusions with

regard to whether the Township’s action was in furtherance of a compelling governmental interest

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or was the least restrictive means of furthering that interest.

Accordingly, we REVERSE the judgment of the district court, and REMAND this matter

to the district court for further proceedings not inconsistent with this opinion.

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 KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. I concur in

the judgment of the majority opinion and write separately because I disagree with some of the

analysis therein. The majority opinion surveys the multiple ways in which the circuits have defined

“substantial burden” for the purposes of the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), 42 U.S.C. § 2000cc(a)(1). Although the majority opinion does not purport to commit

to any one particular definition, the opinion does suggest a specific formulation of the substantial-

burden standard by posing the question: “although the government action may make [a religious

institution’s] religious exercise more expensive or difficult, does that government action place

substantial pressure on [the religious institution] to violate its religious beliefs or effectively bar the

church from using its property in the exercise of its religion?” Majority Op. at 18. No other circuit

has advanced this precise standard, and I think this formulation is inadvisable. The latter part of this

formulation, concerning a hypothetical bar on the use of a religious institution’s property, is so broad

as to swallow the substantial-burden inquiry. Were a religious institution to bring an RLUIPA claim

in the case that a land-use regulation bars the use of its property, the question we must then decide

is whether that bar constitutes a substantial burden.

I would adopt the substantial-burden standard established by the Seventh Circuit in Civil

Liberties for Urban Believers (CLUB) v. City of Chicago, 342 F.3d 752 (7th Cir. 2003). The

Seventh Circuit held that “a land-use regulation that imposes a substantial burden on religious

exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering

religious exercise—including the use of real property for the purpose thereof within the regulated

jurisdiction generally—effectively impracticable.” Id. at 761. As the majority opinion explains, the

Seventh Circuit initially backed away from the high threshold CLUB set for plaintiffs to prove

substantial burden, but has recently returned to this standard. See Vision Church v. Vill. of Long

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Grove, 468 F.3d 975, 999-1000 (7th Cir. 2006). Several other circuits have adopted the CLUB

standard. See San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1035 (9th Cir. 2004)

(finding that “[a]s in the [CLUB] case, the City’s regulations in this case do not render religious

exercise effectively impracticable”); Grace United Methodist Church v. City of Cheyenne, 451 F.3d

643, 661 (10th Cir. 2006) (citing CLUB, 342 F.3d at 760-61, for authority regarding the definition

of “substantial burden” under RLUIPA); see also The Lighthouse Inst. for Evangelism, Inc. v. City

of Long Branch, 100 F. App’x 70, 77 (3d Cir. 2004) (unpublished opinion) (same).

Applying the substantial-burden analysis I have outlined above, I concur in the majority’s

judgment that the township did not violate RLUIPA.

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