SHEPHERD MONTESSORI CENTER MILAN V ANN ARBOR CHARTER TWP
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STATE OF MICHIGAN
COURT OF APPEALS
SHEPHERD MONTESSORI CENTER MILAN,
FOR PUBLICATION
November 6, 2003
9:05 a.m.
Plaintiff-Appellant,
v
No. 233484
234300
Washtenaw Circuit Court
LC No. 00-001072-AS
ANN ARBOR CHARTER TOWNSHIP, ANN
ARBOR CHARTER TOWNSHIP ZONING
OFFICIAL, and ANN ARBOR CHARTER
TOWNSHIP ZONING BOARD OF APPEALS,
Defendants-Appellees.
Updated Copy
January 16, 2004
Before: Murphy, P.J., and Owens and Schuette, JJ.
SCHUETTE, J.
Plaintiff appeals as of right an order granting defendants' motion for summary
disposition, denying plaintiff 's motion for summary disposition, and denying plaintiff 's request
for a preliminary injunction. We affirm in part, reverse in part, and remand to the trial court for
further proceedings consistent with this opinion.
I. ISSUE SUMMARY
This case involves the protections provided by the Religious Land Use and
Institutionalized Persons Act of 2000 (RLUIPA), 42 USC 2000cc, and the fundamental
guarantee of equal protection as provided by the United States Constitution. The heart of the
issue concerns plaintiff 's desire to operate a religious primary school for children, kindergarten
through third grade, in an area zoned as an office park and defendants' refusal to permit this type
of use. Plaintiff filed suit after township officials determined that plaintiff 's intended use of the
premises—the operation of a faith-based primary school—was prohibited by the local zoning
ordinance.
RLUIPA prohibits a governmental entity from imposing on a person, or on a religious
institution or assembly, a land use regulation that substantially burdens the free exercise of
religion. RLUIPA also provides protection to individuals in prisons or mental hospitals in their
free exercise of religion, which is not at issue in this case.
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Under RLUIPA, plaintiff must fulfill two separate tests to receive the protections offered
by this statute. First, plaintiff must establish one of three jurisdictional requirements specified in
RLUIPA. The trial court held that plaintiff failed to meet any of the jurisdictional requirements
and, therefore, the first test of RLUIPA was not met. We disagree. When the Ann Arbor Charter
Township Zoning Board of Appeals examined and subsequently denied plaintiff 's petition for a
variance, an individualized assessment pursuant to 42 USC 2000cc(a)(2)(C) occurred.
Therefore, plaintiff did meet one of the three jurisdictional requirements specified by Congress
under RLUIPA.
Second, after meeting the jurisdictional requirements, plaintiff must also satisfy the
substantial burden on religious exercise test set forth in RLUIPA. In other words, plaintiff must
establish a prima facie case to invoke the statutory protections contained in RLUIPA. Plaintiff
and defendants each filed motions for summary disposition on plaintiff 's RLUIPA claim. We
hold that there are genuine issues of material fact regarding whether plaintiff has established a
prima facie case pursuant to RLUIPA. Therefore, while the trial court's denial of plaintiff 's
motion was correct, the trial court's granting of defendants' motion was premature and in error.
The trial court also granted defendants' motion for summary disposition on plaintiff 's
claim that defendants' application of the zoning ordinance violated the equal protection guarantee
of the United States Constitution. Again, the trial court erred. Genuine issues of material fact
remain with respect to this issue, particularly with regard to whether plaintiff and Rainbow
Rascals are similarly situated entities. The trial court ruled that plaintiff failed to establish an
equal protection claim and, as a result, the burden shifting analysis (i.e., strict scrutiny analysis)
required in an equal protection analysis did not occur.
II. FACTS
This case originated from a zoning dispute in Ann Arbor Charter Township. Plaintiff had
a leasehold interest in the Domino's Farms Office Park and operated a Catholic Montessori day
care program. In April 2000, plaintiff notified the township of its intention to lease additional
property immediately adjacent to its day care facility and to operate a Catholic Montessori school
for children grades K-3. Plaintiff anticipated that twenty-five students would be attending this
school. Plaintiff hoped to utilize space that had been occupied by the "Rainbow Rascals," (a
non-religious, pre-school day care program), which previously had received approval from the
defendants to accommodate up to one hundred students.
The property at issue is zoned "OP" (office park district) pursuant to the township zoning
ordinance. The township zoning ordinance expressly permitted the operation of day care centers
within the OP district, but only for children of office park employees. Plaintiff requested in
writing a zoning determination from the township regarding whether plaintiff 's proposed use of
the property would be allowed under the township's ordinance. In a letter dated May 1, 2000, the
zoning official for the township informed plaintiff that the zoning ordinance classified its
proposed use as "primary school." The letter informed plaintiff that primary schools were not
listed as permitted uses in OP districts and denied plaintiff 's proposed use of the property.
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On May 30, 2000, plaintiff filed a petition with the Ann Arbor Charter Township Zoning
Board of Appeals (ZBA) appealing the zoning official's decision. Plaintiff sought the following:
(1) a reversal of the zoning official's determination so as to allow the proposed use; (2) a use
variance; and (3) a determination that plaintiff 's proposed use as a primary school be considered
a "substituted use" of the Rainbow Rascals day care program. With respect to plaintiff 's second
request in the May 30 petition, plaintiff noted that defendants had granted a use variance to
Rainbow Rascals on December 3, 1991, which permitted an expanded use of the premises to
allow children of non-office park employees to attend the Rainbow Rascals day care program.
As mentioned, the original zoning ordinance allowed the operation of a day care facility in an
area zoned OP only for use by children of office park employees. With respect to plaintiff 's
third request in its May 30 petition, plaintiff argued that its primary school should be considered
a substitution of the day care program. Plaintiff noted that the proposed use of the property
would be low impact and would involve less density than the currently approved use. Plaintiff
emphasized that its proposed use would be for twenty-five students.
A hearing on plaintiff 's petition was held on June 26, 2000. The ZBA rejected plaintiff 's
appeal. The ZBA held that plaintiff 's proposed use of the property for a primary school could
not be considered a substitution of a non-conforming use. The ZBA determined that because
Rainbow Rascals had received a variance, its use of the premises became a conforming and
permitted use in the OP district. Therefore, plaintiff 's use would be non-conforming and a
substitution was not permitted. The ZBA then determined that a primary school was not a
permitted use in an area zoned OP. Finally, the ZBA denied plaintiff 's request for a use variance
because plaintiff failed to make the requisite showing that without the variance, there could be no
viable economic use of the property.
On September 22, 2000, plaintiff filed the instant lawsuit. The complaint alleged:
violations of RLUIPA; violations of substantive due process, procedural due process, and equal
protection; that the township's zoning ordinance was void for vagueness; that plaintiff was
entitled to an order of superintending control; a statutory appeal as of right from the decision of
the ZBA; and that defendants' actions and zoning ordinance were unreasonable. Subsequently,
both parties filed motions for summary disposition. Plaintiff also filed a motion requesting a
preliminary injunction.
On January 16, 2001, the trial court granted defendants' motion for summary disposition,
denied plaintiff 's motions for summary disposition, and denied plaintiff 's request for a
preliminary injunction. The trial court ruled that plaintiff had not met any of the jurisdictional
elements required to invoke the protections of RLUIPA. The court also determined that plaintiff
failed to establish a prima facie case under RLUIPA because plaintiff failed to establish that the
application of the zoning regulation substantially burdened plaintiff 's right of free exercise of
religion as required under RLUIPA. The court affirmed the ZBA's decision and determined that
no genuine issue of material fact existed with regard to plaintiff 's substantive due process, equal
protection, procedural due process, and void for vagueness claims. It also denied plaintiff 's
petition for superintending control and motion for preliminary injunction. Plaintiff appeals as of
right.
III. STANDARD OF REVIEW
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On appeal, a trial court's grant or denial of summary disposition will be reviewed de
novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion
for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a
claim. Spiek, supra at 337. The purpose of summary disposition is to avoid extensive discovery
and an evidentiary hearing when a case can be quickly resolved on an issue of law. American
Community Mutual Ins Co v Comm'r of Ins, 195 Mich App 351, 362; 491 NW2d 597 (1992).
When deciding a motion for summary disposition, a court must consider the pleadings,
affidavits, depositions, admissions, and other documentary evidence submitted in the light most
favorable to the nonmoving party. Ritchie-Gamester v City of Berkley, 461 Mich 73, 76; 597
NW2d 517 (1999). A motion for summary disposition based on the lack of a material factual
dispute must be supported by documentary evidence. MCR 2.116(G)(3)(b); Meyer v City of
Center Line, 242 Mich App 560, 574; 619 NW2d 182 (2000). When the burden of proof at trial
would rest on the nonmoving party, the nonmovant may not rest upon mere allegations or denials
in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is
a genuine issue for trial. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314
(1996). All reasonable inferences are to be drawn in favor of the nonmovant. Hall v McRea
Corp, 238 Mich App 361, 369-370; 605 NW2d 354 (1999).
IV. RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT OF 2000
(RLUIPA)
A. Origins of RLUIPA: City of Boerne v Flores1 and RFRA
The roots of RLUIPA can be traced to the Religious Freedom Restoration Act (RFRA), a
federal law enacted in 1993, and to the United States Supreme Court decision in City of Boerne v
Flores, 521 US 507; 117 S Ct 2157; 138 L Ed 2d 624 (1997). In Flores, the United States
Supreme Court ruled that certain provisions of RFRA violated the United States Constitution.
Congress responded to the Supreme Court's decision in Flores by enacting RLUIPA, which
addressed both the admonitions and constitutional concerns expressed by the Supreme Court in
the Flores decision.2
The stated purpose in RLUIPA is to "remedy the well documented discriminatory and
abusive treatment suffered by religious individuals and organizations in the land use context."
146 Cong Rec E 1234, 1235 (July 14, 2000). RLUIPA attained this goal by imposing the strict
scrutiny standard of review on the government if a claimant demonstrates that the government
substantially burdened the claimant's free exercise of religion. 146 Cong Rec S 7774 (July 27,
2000).
1
City of Boerne v Flores, 521 US 507; 117 S Ct 2157; 138 L Ed 2d 624 (1997).
2
Defendants do not challenge the constitutionality of RLUIPA, and we do not address its
constitutionality. However, we note that in the recent case of Elsinore Christian Center v City of
Lake Elsinore, 270 F Supp 2d 1163 (CD Cal, 2003), the court ruled that RLUIPA was
unconstitutional. This decision is not binding on this Court.
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In the land use context, Congress made several findings that shed some light on the
present matter. Senators Hatch and Kennedy co-sponsored RLUIPA; they stated:
This Act does not provide religious institutions with immunity from land
use regulation, nor does it relieve religious institutions from applying for
variances, special permits or exceptions, hardship approval, or other relief
provisions in land use regulations, where available without discrimination and
unfair delay.
* * *
. . . In many cases, real property is used by religious institutions for
purposes that are comparable to those carried out by other institutions. While
recognizing these facilities may be owned, sponsored or operated by a religious
institution, or may permit a religious institution to obtain additional funds to
further its religious activities, this alone does not automatically bring these
activities or facilities within the bill's definition or [sic] religious exercise. [146
Cong Rec S 7774, 7776 (July 27, 2000).]
The legislative history of RLUIPA states that it "is only the use, building, or conversion for
religious purposes that is protected, and not other uses or portions of the same property." 146
Cong Rec E 1563, 1564 (September 22, 2000). For example:
[I]f a commercial enterprise builds a chapel in one wing of the building,
the chapel is protected if the owner is sincere about its religious purposes, but the
commercial enterprise is not protected. Similarly, if religious services are
conducted once a week in a building otherwise devoted to secular commerce, the
religious services may be protected but the secular commerce is not. [Id.]
B. RLUIPA's Jurisdictional Elements
Plaintiff argues that the trial court erred in granting defendants' motion for summary
disposition and dismissing plaintiff 's claim under RLUIPA. In order to establish a claim under
RLUIPA, a party must establish that at least one of these three jurisdictional elements exists:
(A) the substantial burden is imposed in a program or activity that receives
Federal financial assistance, even if the burden results from a rule of general
applicability;
(B) the substantial burden affects, or removal of that substantial burden
would affect, commerce with foreign nations, among the several States, or with
Indian tribes, even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in 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
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government to make, individualized assessments of the proposed uses for the
property involved. [42 USC 2000cc(a)(2).]
Plaintiff asserts that it has met two of the three jurisdictional requirements: interstate
commerce pursuant to 42 USC 2000cc(a)(2)(B) and an individualized assessment of plaintiff 's
proposed use of the property pursuant to 42 USC 2000cc(a)(2)(C). We agree that defendants
made an individualized assessment of plaintiff 's proposed use of the property.
Defendants' conduct constituted an individualized assessment when the ZBA: (1)
affirmed the zoning administrator's decision that a primary school was not a permitted use in the
OP district; (2) denied plaintiff 's application for a use variance; and (3) denied plaintiff 's request
for a substituted, nonconforming use.
Here, the language of the zoning ordinance invites individualized assessments of the
subject property and the use of such property, and contains mechanisms for individualized
exceptions:
The Board of Appeals shall have the power and duty to authorize in
specific cases a relaxation of the provisions of this Ordinance through a variance
as will not be contrary to public interest where, owing to special conditions, a
literal enforcement of the provisions of this Ordinance would result in
unnecessary hardship or practical difficulty. [Section 130.2411(A).]
The plain language of this ordinance allows for a "relaxation" of the provisions in certain
cases. For example, a relaxation of the ordinance was granted to the previous tenant of the land
in question, Rainbow Rascals. Although the provisions of the zoning ordinance allow for day
care centers in an area zoned OP, those day care centers are specifically required by the
ordinance to be designated for use only by the employees of the office park. Rainbow Rascals
applied for, and received, a variance allowing children of non-office park employees to attend
the non-religious day care program. Yet, the defendants refused to "relax" the ordinance for
plaintiff 's intended use as a religious school for young children. Defendants' conduct constituted
an individualized assessment of the use of property by plaintiff contrary to RLUIPA. 42 USC
2000cc(a)(2)(C). Accordingly, the trial court erred in ruling that plaintiff failed to establish this
jurisdictional element. In light of our ruling, we need not address the other two jurisdictional
subsections of RLUIPA, 42 USC 2000cc(a)(2)(A), (B).3
C. Substantial Burden on Religious Exercise Test
3
Judge Schuette, in his individual capacity, contends that the second jurisdictional element of
RLUIPA, 42 USC 2000cc(a)(2)(B), was indeed met and that the trial court misapplied the ruling
in United States v Lopez, 514 US 549; 115 S Ct 1624; 131 L Ed 2D 626 (1995). However, given
the unanimity of opinion concerning the individualized assessment made by defendants pursuant
to 42 USC 2000cc(a)(2)(C), the Court does not need to address the applicability of 42 USC
2000cc(a)(2)(B) to this case.
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Once the jurisdictional requirements of RLUIPA have been satisfied, plaintiff must
establish a "substantial burden on religious exercise." As a general rule, RLUIPA provides:
No 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 USC
2000cc(a)(1).]
Challenges of zoning ordinances under RLUIPA are expressly contemplated. 42 USC
2000cc-5(5). The use of the land does not have to be a "core religious practice." Rather, "[t]he
term 'religious exercise' includes any exercise of religion, whether or not compelled by, or
central to, a system of religious belief." 42 USC 2000cc-5(7)(A). Further, RLUIPA explicitly
states that "[t]he 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 USC 2000cc-5(7)(B). Here, we believe that plaintiff has
sufficiently shown that the contemplated use for the subject property—a faith-based primary
school—falls within this broad definition of a religious exercise.
The more difficult question is whether plaintiff introduced sufficient evidence to allow
reasonable minds to differ with respect to whether defendants imposed a "substantial burden" on
this religious exercise. The substantial burden must be based on a "sincerely held" religious
belief. Werner v McCotter, 49 F3d 1476, 1479 n 1 (CA 10, 1995) (citing Wisconsin v Yoder, 406
US 205, 215-219; 92 S Ct 1526; 32 L Ed 2d 15 [1972]). In Lyng v Northwest Indian Cemetery
Protective Ass'n, 485 US 439, 450-451; 108 S Ct 1319; 99 L Ed 2d 534 (1988), the Supreme
Court indicated that for a governmental regulation to substantially burden religious activity, it
must have a tendency to coerce individuals into acting contrary to their religious beliefs. Id. at
450-451. Conversely, a government regulation does not substantially burden religious activity
when it only has an incidental effect that makes it more difficult to practice the religion. Id.;
Thiry v Carlson, 78 F3d 1491, 1495 (CA 10, 1996). Thus, for a burden on religion to be
substantial, the government regulation must compel action or inaction with respect to the
sincerely held belief; mere inconvenience to the religious institution or adherent is insufficient.
Werner, supra at 1480.
The difference between a "substantial burden" on religious exercise and an
"inconvenience" on religious exercise has been discussed in federal court cases dealing with
RLUIPA. The district courts have concluded that the regulations must have a "chilling effect" on
the exercise of religion or substantially burden religious exercise in order to be consistent with
the Supreme Court's substantial burden test. For example, in Cottonwood Christian Ctr v
Cypress Redevelopment Agency, 218 F Supp 2d 1203, 1226-1227 (CD Cal, 2002), the federal
district court held that the denial of an application to build a church on its property constituted a
substantial burden because "[p]reventing a church from building a worship site fundamentally
inhibits its ability to practice its religion." Id. at 1226.
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On appeal, plaintiff contends that it did, in fact, establish a prima facie case because it
satisfied at least one of the jurisdictional elements and it presented facts demonstrating that
defendant had placed a substantial burden on its religious exercise. Prima facie evidence is
defined in Black's Law Dictionary (7th ed) as "evidence that will establish a fact or sustain a
judgment unless contradictory evidence is produced." RLUIPA indicates that a plaintiff will
always have the burden of persuasion to prove a substantial burden on religious activity, and,
once proven, the government must prove a compelling state interest using the least restrictive
means. 42 USC 2000cc-2(b). In Grace United Methodist Church v City of Cheyenne, 235 F
Supp 2d 1186, 1196 (D Wy, 2002), the federal district court, in a case involving an RLUIPA
claim where the plaintiff church was not allowed to operate a religious day care facility,
concluded that summary judgment was inappropriate because a genuine issue of material fact
existed regarding whether Cheyenne's land use regulations substantially burdened Grace United's
exercise of religion. The court stated that genuine issues of material fact existed regarding all the
elements of the plaintiff 's prima facie case under RLUIPA. Id.
In the present case, in order to determine whether plaintiff has, in fact, established a
prima facie case, we must look at the documentary evidence presented to the trial court at the
summary disposition hearing to determine (a) whether plaintiff submitted sufficient, admissible,
and uncontradicted evidence that established, as a matter of law, that there was a substantial
burden on religious exercise such that plaintiff was entitled to summary disposition, and (b)
whether defendants submitted sufficient, admissible, and uncontradicted evidence that
established, as a matter of law, that there was not a substantial burden on religious exercise such
that defendants were entitled to summary disposition. That being said, it is necessary to first
address the parameters of what is relevant and constitutes a substantial burden on religious
activity.
Viewing the evidence that was submitted in a light favorable to plaintiff, we first note
that there is no claim by plaintiff that the location at issue has some religious significance such
that plaintiff 's faith requires a school at that particular site. But plaintiff asserted that it would
not be feasible to operate a Montessori school at another location because of the burdens of
having duplicate administration. In addition, it can be inferred from the record that moving both
the day care center and the school to a different location would not be convenient to those
parents who work in the adjacent office park. Thus, even if there is another location within the
township that could house the proposed school, it is not clear that the school would necessarily
be successful at this other location. Additionally, of course, if the school were not successful,
then those parents desiring a religious education in the Montessori tradition for their children
would, instead, be forced to send their children elsewhere for schooling.
We believe that the determination whether plaintiff has suffered a substantial burden on
religious exercise requires us to focus on numerous factors and considerations that were not
addressed by the parties. Those factors include: whether there are alternative locations in the
area that would allow the school consistent with the zoning laws; the actual availability of
alternative property, either by sale or lease, in the area; the availability of property that would be
suitable for a K-3 school; the proximity of the homes of parents who would send their children to
the school; and the economic burdens of alternative locations. These types of factors must be
taken into consideration in determining whether there has been a substantial burden on religious
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activity. None of the parties submitted documentary evidence on these factors, and without
evidence of these factors we were unable to conclusively determine that plaintiff has established
a prima facie case. We conclude that the trial court erred in ruling that there was no material
question of fact on the "substantial burden" issue.4 Consequently, granting summary disposition
for defendants was premature.5
V. EQUAL PROTECTION
Plaintiff next argues that the trial court erred in granting defendants' motion for summary
disposition on plaintiff 's equal protection claim. We agree.
Equal protection of the law is guaranteed by both the federal and state constitutions. US
Const, Am XIV, § 1; Const 1963, art 1, § 2; Neal v Oakwood Hosp Corp, 226 Mich App 701,
716; 575 NW2d 68 (1997). These constitutional provisions are coextensive. Id. The doctrine
mandates that persons in similar circumstances be treated similarly; furthermore, "[a] regulation
neutral on its face may, in its application, nonetheless offend the constitutional requirement for
governmental neutrality if it unduly burdens the free exercise of religion." Yoder, supra at 220.
The United States Supreme Court has established the following standards for determining
the validity of state legislation such as zoning ordinances under the Equal Protection Clause:
"Unless a classification trammels fundamental personal rights or is drawn upon inherently
suspect classifications such as race, religion, or alienage, our decisions presume the
constitutionality of the statutory discriminations and require only that the classifications
challenged be rationally related to a legitimate state interest." City of New Orleans v Dukes, 427
US 297, 303; 96 S Ct 2513; 49 L Ed 2d 511 (1976).
If the legislative classification negatively affects such a suspect class, then courts may
uphold the classification only if it is precisely tailored to serve a compelling governmental
interest. Plyler v Doe, 457 US 202, 216 n 14; 102 S Ct 2382; 72 L Ed 2d 786 (1982). Absent an
invidious or gender-based classification, "[t]he general rule is that legislation is presumed to be
valid and will be sustained if the classification drawn by the statute is rationally related to a
legitimate state interest." City of Cleburne, Texas v Cleburne Living Center, Inc, 473 US 432,
440; 105 S Ct 3249; 87 L Ed 2d 313 (1985). However, courts apply a strict scrutiny test in
evaluating equal protection issues where a statute encroaches on a fundamental right, such as the
4
Judge Schuette, in his individual capacity, is particularly troubled by what he believes to be
defendants' selective application of the zoning ordinance. He notes that the actions of the ZBA
have effectively shut the schoolhouse door on plaintiff 's desire to provide religious instruction to
young children. He points out that the zoning board opened the door for Rainbow Rascals, a
nonreligious entity, by granting a variance, yet denied plaintiff 's request for a variance. In his
view, the selective application of the ordinance has had a chilling effect on the free exercise and
expression of plaintiff 's faith.
5
Having concluded that plaintiff 's evidence was sufficient to render summary disposition
premature, we reject plaintiff 's contention that the trial court erred in denying its motion for
summary disposition.
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right to free exercise of religion, as in the present case. Sherbert v Verner, 374 US 398, 407; 83
S Ct 1790; 10 L Ed 2d 965 (1963).
Under the strict scrutiny standard, the state must show that the statutory scheme in
question was necessary to promote "a compelling state interest." Shapiro v Thompson, 394 US
618, 638; 89 S Ct 1322; 22 L Ed 2d 600 (1969) (emphasis in original). In addition, if the
legislation affects fundamental rights, the Court has required the state to have chosen the least
restrictive means of achieving the governmental objective. Dunn v Blumstein, 405 US 330, 343;
92 S Ct 995; 31 L Ed 2d 274 (1972).
In Mount Elliott Cemetery Ass'n v City of Troy, 171 F3d 398, 407 (CA 6, 1999), a zoning
case involving an equal protection issue, the court upheld a grant of summary disposition for the
defendant municipality because the plaintiff could not show that it was treated differently than
others who were similarly situated and that the selective treatment was based on the
impermissible consideration of the plaintiff 's religion.
On the other hand, in Vineyard Christian Fellowship of Evanston, Inc v City of Evanston,
250 F Supp 2d 961, 976 (ND IL, 2003), the court determined that the city of Evanston's claim
that it had zoned purely for land use purposes, and not based on religion, was not supported by
the facts. The court noted that it was persuaded to this viewpoint by the plaintiff 's argument that
the zoning ordinance would permit Vineyard's congregants to put on a production of the musical
play "Fiddler on the Roof," which includes a scene depicting a traditional Jewish wedding at the
property in question, but would not permit an actual religious wedding on that same property.
Id. at 976. Similarly, in this case, Rainbow Rascals, a secular day care provider, received a
variance that allowed it to accommodate children of non-office park employees. Nevertheless,
defendants denied plaintiff 's request to use the same property to accommodate the faith-based
education of young children.
Here, the trial court required plaintiff to show that the selective treatment was based on
an impermissible consideration such as religion. The trial court ruled that plaintiff failed to show
evidence that the variance request was denied as a result of intentional discrimination and the
trial court granted summary disposition to defendants. Plaintiff introduced evidence that during
the hearing the ZBA focused on plaintiff 's religious affiliation:
Laporte [a ZBA member] asked if the petitioner believed that she has
some additional right to the relief that she would not have as a non-sectarian
private school without a religious affiliation based on the Constitution.
Davis [an attorney for plaintiff] responded that he believes that the
petitioner has rights afforded under the Constitution which do favor as a use
education and religion. [June 28, 2000 ZBA meeting minutes.]
The trial court also noted that plaintiff failed to allege or prove that it was treated
differently than a similarly situated person or entity. However, plaintiff did argue that it was
treated differently from the Rainbow Rascals day care center in that plaintiff wanted to use the
property to educate only twenty-five children, whereas Rainbow Rascals was permitted to use
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the premises for up to one hundred children. Although plaintiff wishes to operate a primary
school, which is not listed under permitted uses or permitted accessory uses in the ordinance, the
zoning ordinance also provides under § 130.2411(A):
The Board of Appeals shall have the power and duty to authorize in
specific cases a relaxation of the provisions of this Ordinance through a variance
as will not be contrary to the public interest where, owing to special conditions, a
literal enforcement of the provisions of this Ordinance would result in
unnecessary hardship or practical difficulty.
Although a primary school for children up to the third grade (for use by employees of the
office park) is not exactly the same as a day care facility, it is similar. The zoning ordinance
does allow for a variance. Plaintiff also notes that Rainbow Rascals was granted a variance to
allow children of non-office park employees to attend. Therefore, plaintiff and Rainbow Rascals
could be considered similarly situated in that they both wish to operate facilities for young
children, and both seek (or sought) variances (Rainbow Rascals from the requirement that the
children's parents work in the office park and plaintiff on the age of the children being educated
in the property).
At the very least, we are not persuaded that plaintiff 's request for a variance required any
more of a deviation from the zoning ordinance than the variance granted to Rainbow Rascals.
Given that Rainbow Rascals was a secular day care center, whereas plaintiff 's proposed use
involved religious education, reasonable minds could differ with regard to whether plaintiff and
Rainbow Rascals were similarly situated. Therefore, the trial court erred in granting defendants'
motion for summary disposition on plaintiff 's equal protection claim because genuine issues of
material fact remain.
VI. APPEAL FROM THE ZBA DECISION
Plaintiff next argues that the trial court improperly considered defendants' motion for
summary disposition as it related to plaintiff 's claim of appeal from the ZBA decision. We
disagree. However, plaintiff goes on to argue that even if the trial court were permitted to rule
on this appeal, this court should reverse the decision because the ZBA acted contrary to law by
violating RLUIPA. On the basis of our analysis of plaintiff 's RLUIPA claim, we agree that
summary disposition on this claim was premature.
With regard to plaintiff 's appeal of the ZBA's decision, the trial court stated in a footnote
of its opinion and order:
It should be noted that a claim of appeal from a ZBA decision is not
properly decided using the standards for a motion for summary disposition. See
Carleton Sportsman's Club v Exeter Twp, 217 Mich App 195, 201-02 [550 NW2d
867] (1996) (the trial court erred when it decided the case on the parties' motions
for summary disposition, using the standards for summary disposition under MCR
2.116(C)(8) and 2.116 (C)(10), rather than deciding whether the decision was
supported by competent, material and substantive evidence on the record and
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authorized by law.) The parties here, however, have addressed the correct
standard for deciding an appeal, and the Court therefore has construed their
arguments as arguments on appeal rather than on summary disposition.
The court concluded:
In conclusion, this Court affirms the decision of the ZBA and finds that it
was legally correct and based on competent, material, substantial evidence on the
record.
Plaintiff correctly argues that summary disposition is not an appropriate remedy when a
trial court acts as an appellate court. However, here, the trial court clearly stated that it construed
the arguments on this issue as arguments on appeal rather than on summary disposition. Plaintiff
argues that the language of this footnote is disingenuous, yet there is nothing in the record to
suggest that this assertion has merit. The trial court used the proper standard when reviewing
plaintiff 's appeal of the ZBA's decision.
Plaintiff next argues that, if the trial court did have the authority to rule on this appeal, the
decision should be reversed. In Reenders v Parker, 217 Mich App 373, 378; 551 NW2d 474
(1996), this Court stated:
The decision of a zoning board should be affirmed by the courts unless it
is (1) contrary to law, (2) based on improper procedure, (3) not supported by
competent, material, and substantial evidence on the record, or (4) an abuse of
discretion. [Id. at 378.]
The trial court erred in granting defendants' motion for summary disposition with regard
to plaintiff 's RLUIPA and equal protection claims. As a result, the trial court's decision of the
appeal from the ZBA decision was premature. Depending upon the ultimate resolution of the
other claims, it is possible that the ZBA's decision is contrary to law and should be reversed.
Therefore, we remand this issue for a resolution consistent with the ultimate determination of the
other issues.
VII. SUBSTANTIVE DUE PROCESS
Plaintiff next argues that the trial court erred when it determined that plaintiff had failed
to state a claim of violation substantive due process. We disagree.
Both the state and federal constitutions prohibit the taking of private property for public
use without just compensation. US Const, Am V; Const 1963, art 10, § 2; Adams Outdoor
Advertising v East Lansing (After Remand), 463 Mich 17, 23; 614 NW2d 634 (2000). A land use
regulation may effectuate a taking when the regulation (1) does not substantially advance a
legitimate state interest or (2) denies an owner economically viable use of his land. K & K
Construction, Inc v Dep't of Natural Resources, 456 Mich 570, 576; 575 NW2d 531 (1998). To
establish that a regulation does not substantially advance a legitimate state interest, and thus
violates a landowner's substantive due process rights, the landowner must prove "(1) that there is
no reasonable governmental interest being advanced by the present zoning classification or (2)
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that an ordinance is unreasonable because of the purely arbitrary, capricious and unfounded
exclusion of other types of legitimate land use from the area in question." Frericks v Highland
Twp, 228 Mich App 575, 594; 579 NW2d 441 (1998).
Three rules of judicial review apply: "'(1) the ordinance is presumed valid; (2) the
challenger has the burden of proving that the ordinance is an arbitrary and unreasonable
restriction upon the owner's use of the property; that the provision in question is an arbitrary fiat,
a whimsical ipse dixit; and that there is not room for a legitimate difference of opinion
concerning its reasonableness; and (3) the reviewing court gives considerable weight to the
findings of the trial judge.'" Id., quoting A & B Enterprises v Madison Twp, 197 Mich App 160,
162; 494 NW2d 761 (1992).
Plaintiff does not use the above-mentioned framework in its analysis of its substantive
due process argument. Instead, plaintiff asserts that the zoning ordinance at hand is invalid
because it does not bear a real and substantial relationship to public health, safety, and welfare.
Plaintiff further argues that the Michigan Constitution states that education and religion are to be
favored and promoted,6 and that by preventing plaintiff 's proposed use of this space, defendants
are interfering with this mandate and are acting contrary to law.
Although not articulated clearly, it appears that plaintiff is arguing that the township's
ordinance is unlawful because it does not allow schools in OP districts. We find that the
exclusion of schools from OP districts under the Ann Arbor Charter Township Zoning Ordinance
is reasonable and serves a legitimate governmental interest connected to the public's health,
safety, and welfare. Presuming the ordinance to be valid, plaintiff has failed to satisfy its burden
to prove otherwise. The trial court did not err in summarily dismissing plaintiff 's substantive
due process claim.
VIII. VAGUENESS
Plaintiff argues that defendants' ordinance is void for vagueness because it allows for
arbitrary enforcement. We disagree. All statutes and ordinances are given a strong presumption
of constitutionality. Taylor Commons v City of Taylor, 249 Mich App 619, 625; 644 NW2d 773
(2002). Accordingly, "'courts have a duty to construe a statute as constitutional unless
unconstitutionality is clearly apparent.'" Wysocki v Felt, 248 Mich App 346, 355; 639 NW2d
572 (2001), quoting Mahaffey v Attorney General, 222 Mich App 325, 344; 564 NW2d 104
(1997). As this Court held in Wysocki, supra at 356, "'[t]he court will not go out of its way to
test the operation of a law under every conceivable set of circumstances. The court can only
determine the validity of an act in the light of the facts before it. Constitutional questions are not
to be dealt with in the abstract.'" Id., quoting General Motors Corp v Attorney General, 294
6
"Michigan has an equally deep rooted commitment to education." People v DeJonge (After
Remand), 442 Mich 266, 288; 501 NW2d 127 (1993). "'Religion, morality and knowledge being
necessary to good government and the happiness of mankind, schools and the means of
education shall be forever encouraged.'" Id. at 288-289, quoting Const 1963, art 8, § 1 (noting
that Article 8, § 1 of our constitution parallels the language of the Northwest Ordinance of 1787).
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Mich 558, 568; 293 NW 751 (1940). These same rules govern the review of the constitutionality
of an ordinance, Plymouth Twp v Hancock, 236 Mich App 197, 199; 600 NW2d 380 (1999), and
it is the burden of the party challenging the validity of the ordinance (here plaintiff) to establish
that the ordinance is clearly unconstitutional. Gora v City of Ferndale, 456 Mich 704, 711-712;
576 NW2d 141 (1998).
In Dep't of State v Michigan Ed Ass'n—NEA, 251 Mich App 110, 116; 650 NW2d 120
(2002), this Court set forth the three ways in which to challenge an ordinance on the basis that it
is unconstitutionally vague:
"A statute may qualify as void for vagueness if (1) it is overbroad and
impinges on First Amendment freedoms, (2) it does not provide fair notice of the
conduct it regulates, or (3) it gives the trier of fact unstructured and unlimited
discretion in determining whether the statute has been violated." [Id., quoting
Proctor v White Lake Twp Police Dep't, 248 Mich App 457, 467; 639 NW2d 332
(2001).]
This Court also pointed out that in determining "whether a statute is void for vagueness, a
court should examine the entire text of the statute and give the words of the statute their ordinary
meanings." People v Piper, 223 Mich App 642, 646; 567 NW2d 483 (1997); see also In re
Forfeiture of 791 N Main, 175 Mich App 107, 111; 437 NW2d 332 (1989). In line with this
principle, it is critical for courts to remember that, when considering whether an ordinance is
void for vagueness, we do "not set aside common sense, nor is the [township board] required to
define every concept in minute detail. Rather, the statutory language need only be reasonably
precise." Dep't of State, supra at 120.
In the present case, plaintiff has failed to set forth facts to support that this ordinance is
(1) overbroad and impinges on First Amendment freedoms, (2) does not provide fair notice of
the conduct it regulates, or (3) gives the trier of fact unstructured and unlimited discretion in
determining whether the statute has been violated. Instead, plaintiff 's argument on this issue is
minimal. Plaintiff asserts that the township's ordinance is void because it allows arbitrary
enforcement. The basis for plaintiff 's arbitrariness argument is that plaintiff seeks to use the
premises in a less intensive manner than that allowed for day care centers, i.e., twenty-five
children in a primary school as opposed to approval for up to one hundred children in a day care
center. According to plaintiff, this inconsistency evidences the arbitrariness in which the
township's ordinance is being enforced.
Plaintiff fails to reference any particular ordinance language, nor does plaintiff explain or
cite law with respect to the particular deprivation under due process and the tie-in with the voidfor-vagueness doctrine. We assume that plaintiff is asserting that it is being deprived of a
"property" interest by an ordinance that permits unfettered discretion. We note that typically, a
void-for-vagueness argument is raised in a challenge to a penal statute or ordinance that
proscribes certain behavior for which there is a penalty such as jail time or fines. See Grayned v
City of Rockford, 408 US 104; 92 S Ct 2294; 33 L Ed 2d 222 (1972); People v Morey, 230 Mich
App 152; 583 NW2d 907 (1998) (the only two cases cited by plaintiff); see also People v Lynn,
229 Mich App 116; 580 NW2d 472 (1998). This is not to say that deprivation of a property
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interest cannot form the basis of a void-for-vagueness argument, but plaintiff simply fails to
elaborate or explain its theory in any meaningful manner. As our Supreme Court stated in
Mudge v Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998), quoting Mitcham v Detroit,
355 Mich 182, 203; 94 NW2d 388 (1959):
"It is not enough for an appellant in his brief simply to announce a
position or assert an error and then leave it up to this Court to discover and
rationalize the basis for his claims, or unravel and elaborate for him his
arguments, and then search for authority either to sustain or reject his position.
The appellant himself must first adequately prime the pump; only then does the
appellate well begin to flow."
Additionally, even if we look at plaintiff 's argument substantively, the argument lacks
merit. In regard to OP districts, the Ann Arbor Charter Township Zoning Ordinance clearly and
unambiguously indicates that day care facilities are a permitted accessory use; there is nothing
vague about the language. Further, § 130.1006 makes absolutely no reference to a school of any
kind being a permitted use. Therefore, assuming that plaintiff has a property interest in using the
premises as a school, that interest was not deprived through the implementation of a vague
ordinance providing unfettered and arbitrary discretion. Rather, the ordinance is not vague and
provides clear guidelines on permitted uses.
Plaintiff 's argument stems more from the variance request seeking to expand day care
operations beyond the children of people who worked in the office park, and the township's
approval of the variance, which allowed for up to one hundred children at the day care facility.
A review of ordinance § 130.2411 with respect to variances fails to reveal any language that
would give the ZBA unfettered and arbitrary discretion in granting variances. Indeed, the
standards for approval of a variance request are well-defined in § 130.2411. Plaintiff 's argument
is not a complaint that the ordinance is vague, but, rather, reflects a disagreement with the
exclusion under § 130.1006 of schools from an OP district, and a disagreement with how the
township exercised its discretion when granting the variance expanding the use of the day care
facility. This is simply not a basis to find the ordinance void for vagueness, and the trial court
did not err in dismissing the claim.
IX. PROCEDURAL DUE PROCESS
Plaintiff next argues that defendant township's ordinance violates the Due Process Clause
of the Fourteenth Amendment. We disagree. The full extent of plaintiff 's procedural due
process argument is that the township's zoning ordinance is void for vagueness, thereby violating
the Due Process Clause of the Fourteenth Amendment. We rejected plaintiff 's void-forvagueness argument above; therefore, it is similarly rejected here, and there is no basis to address
the issue any differently in the context of a procedural due process argument. Moreover, we note
that the void-for-vagueness doctrine, although arising out of the Due Process Clause, does not
relate specifically to procedural due process, but rather relates to substantive due process. In
Dep't of State, supra at 116, this Court stated:
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To determine whether a statute is void for vagueness, a court should
examine the entire text of the statute and give words of the statute their ordinary
meanings. Substantive due process requires standards in a statute to be
"reasonably precise" in order to ensure that individuals are not held responsible by
the state for conduct that they could not reasonably understand to be proscribed.
[Citations omitted.]
Plaintiff 's procedural due process argument, therefore, fails on multiple levels, and the
trial court's ruling dismissing the claim is affirmed.
X. SUPERINTENDING CONTROL
Plaintiff next argues that the trial court erred in denying the petition for superintending
control. We disagree. The grant or denial of a petition for superintending control is within the
sound discretion of the court; absent an abuse of discretion, the Court of Appeals will not disturb
the denial of such a request. MCR 3.302.
The writ of superintending control supersedes the writs of certiorari, mandamus, and
prohibition, and provides one simplified procedure for reviewing or supervising a lower court or
tribunal's actions. MCR 3.302(C). The filing of a complaint for superintending control is not an
appeal, but, rather, is an original civil action designed to order a lower court to perform a legal
duty. Barham v Workers' Compensation Appeal Bd, 184 Mich App 121, 127; 457 NW2d 349
(1990). Superintending control is an extraordinary power that the court may invoke only when
the plaintiff has no legal remedy and demonstrates that the court has failed to perform a clear
legal duty. In re Recorder's Court Bar Ass'n v Wayne Circuit Court, 443 Mich 110, 134; 503
NW2d 885 (1993); Czuprynski v Bay Circuit Judge, 166 Mich App 118, 121-122; 420 NW2d
141 (1988). Therefore, if a plaintiff has a legal remedy by way of appeal, the court may not
exercise superintending control and must dismiss the complaint. Barham, supra at 127; MCR
3.302(D).
Here, the trial court did not abuse its discretion in denying the petition because plaintiff
did not establish grounds for issuing the order. See In re Rupert, 205 Mich App 474, 478; 517
NW2d 794 (1994). The trial court properly declined to issue an order of superintending control
because plaintiff had an adequate legal remedy. Barham, supra at 127; MCR 3.302(D).
XI. PRELIMINARY INJUNCTION
Plaintiff argues that the trial court erred in denying plaintiff 's motion for a preliminary
injunction. The trial court's opinion and order merely noted, at the end of the opinion, that the
motion for a preliminary injunction was denied. The trial court, having extensively reviewed and
analyzed plaintiff 's statutory and constitutional arguments, had no need to substantively address
the injunction issue because all alleged causes of action were dismissed. There is no substantive
decision or analysis by the trial court for us to review on the matter of plaintiff 's request for a
preliminary injunction. We, therefore, choose not to address this issue on appeal. Because
plaintiff 's claims under RLUIPA and equal protection were improperly dismissed and now
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survive, plaintiff is free to renew its motion for a preliminary injunction for the trial court to
consider anew under the legal principles governing preliminary injunctions.
XII. CONCLUSION
We reverse the trial court's grant of defendants' motion of summary disposition of
plaintiff 's claim under RLUIPA and rule that plaintiff did establish a jurisdictional requirement
of RLUIPA, namely an individualized assessment 42 USC 2000cc(a)(2)(C). Further, we
determine that there remain genuine issues of material fact on the issue of substantial burden on
religious exercise and remand this case for further proceedings consistent with this opinion of
this issue.
We reverse the trial court's grant of defendants' motion for summary disposition of
plaintiff 's equal protection claim and remand for further proceedings consistent with this
opinion.
We remand to the trial court the issue of the appeal from the ZBA for a resolution
consistent with this opinion and consistent with the ultimate decision on the other issues
presented in this case.
We affirm the trial court's grant of defendants' motion for summary disposition on
plaintiff 's claims of substantive due process, vagueness, procedural due process, and
superintending control.
In light of our ruling, plaintiff is free to renew its motion for preliminary injunction on
remand should it desire to do so.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction. No taxable costs pursuant to MCR 7.219, neither
party having prevailed in full.
Owens, J., concurred.
/s/ Bill Schuette
/s/ Donald S. Owens
Murphy, P.J., I concur in the result only.
/s/ William B. Murphy
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