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Phoenix, Arizona Wins Religious Land Use Suit

By Evan Seeman & Karla Chaffee on July 30, 2015
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Original Photography by Ms. Phoenix (Some Rights Reserved)
Original Photography by Ms. Phoenix (Some Rights Reserved)

A Phoenix federal court recently issued a decision that may be of interest to local governments for two reasons.  First, the case, Salman v. City of Phoenix (D. AZ 2015), is notable for its finding that RLUIPA claims cannot be brought to challenge building or safety codes, since RLUIPA applies only to zoning or landmarking laws.  Second, for local governments considering criminally prosecuting landowners for violating local land use regulations, the case is noteworthy for its ruling that a federal habeas corpus action is the only mechanism available to challenge the validity of a state criminal conviction.

In 2006, Michael Salman, an ordained minister, and his wife began holding bible study meetings from their Phoenix home.  The following year, neighbors complained about the bible studies, prompting the City to send the Salmans several letters notifying them that, under the City’s building code, they could not use their home as a church.  In 2009, the Salmans built a 2,000 square foot game room in their back yard and began holding bible studies there.  The new game room increased bible study attendance from 15 to 35 people.  After the Salmans refused to comply with the building code, the City prosecuted Mr. Salman in state court.  He was jailed for 60 days, fined $12,000, and put on three years’ probation.

In 2011, the Salmans sued the City and sought to enjoin the City “from implementing and enforcing the Codes and Ordinances against Plaintiffs to prohibit private worship, bible studies, and placement of a reader board with religious messages at their residence and from prosecuting, sentencing, arresting, or incarcerating Plaintiffs.”  On July 15, 2015, after a long procedural history, including a decision by the Ninth Circuit, the federal court dismissed the plaintiffs’ constitutional claims because “[j]ust as a plaintiff is not permitted to attack the validity of his conviction by raising a § 1983 claim that would require him to negate an element of his crime … neither is he allowed to attack his conviction by raising a claim that would require him to prove an affirmative defense to his crime.  Under either scenario, the § 1983 plaintiff is requesting that the court make a finding that would necessarily imply the invalidity of his conviction.”

The court also dismissed the Salmans’ RLUIPA claim, reasoning that RLUIPA applies only to a “land use regulation,” defined as “a zoning or landmarking law, or the application of such law, that limits or restricts a claimant’s use or development of land.”  From the face of the Salmans’ complaint, it was not clear whether the code sections at issue could be deemed “land use regulations” because the amended complaint failed to specify which code sections were actually at issue. Though the court stated that “the few portions of the Amended Complaint that give some small clue as to the nature of the ordinances at issue indicate that they are building and safety codes, not zoning or landmarking laws.”  Because it was “impossible to surmise from the face of the Amended Complaint whether the complained-of sections of the code” are land use regulations, the RLUIPA claim was dismissed.

Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

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Photo of Karla Chaffee Karla Chaffee

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six…

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants,” (with Dwight Merriam) published in Albany Government Law Review (Spring 2009). Karla has continued to write and speak on RLUIPA and has represented clients in several federal proceedings, including RLUIPA, First Amendment, and Equal Protection claims. In addition to her RLUIPA practice, Karla has litigated complex environmental matters, defending claims under Massachusetts Chapter 21E. Karla’s transactional experience includes pre-acquisition and pre-financing due diligence, environmental risk assessment and risk mitigation. She also represents clients seeking local zoning approvals and counsels them on the impact of proposed or recently enacted land use legislation, as well as on land use trends across the country.

Karla is also a proud member of Robinson+Cole’s Pro Bono Committee and is dedicated to maintaining pro bono work as part of her practice. Her pro bono clients include individuals and families seeking asylum in the United States. She has also represented nonprofit organizations in obtaining tax-exempt status and has served as legal counsel in a zoning appeal for a nonprofit association created to support and protect a national park.

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  • Posted in:
    Real Estate & Construction
  • Blog:
    RLUIPA Defense Blog
  • Organization:
    Robinson & Cole LLP
  • Article: View Original Source

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