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

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1274

EAGLE COVE CAMP & CONFERENCE

CENTER, INC., et al.,

Plaintiffs-Appellants,

v.

TOWN OF WOODBORO, WISCONSIN,

ONEIDA COUNTY, WISCONSIN, and

ONEIDA COUNTY BOARD OF ADJUST-

MENT,

Defendants-Appellees.

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:10-cv-00118-wmc — William M. Conley, Chief Judge.

ARGUED SEPTEMBER 10, 2013 — DECIDED OCTOBER 30, 2013

Before KANNE, WILLIAMS, and TINDER, Circuit Judges.

KANNE, Circuit Judge. Eagle Cove Camp & Conference

Center, Inc. (“Eagle Cove”) appeals from the district court’s

entry of summary judgment in favor of the Town of

2 No. 13-1274

Woodboro, (“Woodboro”) Oneida County and the Oneida

County Board of Adjusters (collectively “the County”). Eagle

Cove alleged that Woodboro and the County’s land use

regulations, which prohibit them from running a year-round

Bible camp on residentially zoned property, violated the

Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), the First and Fourteenth Amendments of the

United States Constitution, and the Wisconsin Constitution.

Eagle Cove also sought state certiorari review under Wisconsin

Statute § 59.694(10). For the reasons set forth below, we affirm

the decision of the district court.

I. BACKGROUND

A. The Town of Woodboro and Oneida County

Woodboro comprises approximately 750 residents and

about 21,857 acres of land. Oneida County has 708,751 acres of

land. Squash Lake is partially located in Woodboro. Pursuant

to Wisconsin Statute § 60.62(1), Woodboro adopted a Land Use

Plan in 1998, which seeks to “encourage low density single

family residential development for its lake- and river-front

properties.” (R. 63–20 at 9.) The plan incorporated a survey

Woodboro took that found the majority of the residents desired

to maintain the town’s rural and rustic character. In 2009,

Woodboro adopted a Comprehensive Plan in accordance with

Wisconsin Statute § 66.1001 that incorporates the aforemen-

tioned language.

The zoning around Squash Lake reflects the goals set forth

in the plans and the survey. There are one hundred seventy-

seven parcels of real estate on Squash Lake, and all but seven

are zoned for single-family uses. The seven parcels that are not

No. 13-1274 3

zoned for single-family use are zoned for business and were

grandfathered into the zoning plan as pre-existing uses during

the initial zoning in 1976.

On May 8, 2001, Woodboro voluntarily subjected itself to

the Oneida County Zoning and Shoreland Protection Ordi-

nance (“OCZSPO”), which establishes zoning districts throu-

ghout the County. Towns must elect to be subordinate to the

OCZSPO’s provisions. In doing so, they relinquish zoning

authority to the County.

According to the OCZSPO, religious land uses are permit-

ted throughout the County and Woodboro. Year-round

recreational and seasonal camps are permitted on thirty-six

and seventy-two percent of the County, respectively. In

addition, churches and religious schools are allowed on sixty

percent of the land in the County. Churches and schools are

permitted on nearly forty-three percent of the land in Woodbo-

ro and campgrounds (religious or secular) on approximately

fifty-seven percent.

B. The Proposed Bible Camp

Eagle Cove sought to construct a Bible camp on thirty-four

acres of property that they own on Squash Lake in Woodboro.

Eagle Cove believes that their religion mandates that the Bible

camp must be on the subject property. Eagle Cove also believes

that they must operate the Bible camp on a year-round basis.

Neither of these beliefs is in dispute.

The subject property’s eastern parcels are zoned Single

Family Residential and the western parcels are zoned Residen-

tial and Farming. As the OCZSPO states, “The purpose of the

4 No. 13-1274

Single Family Residential District is to provide an area of quiet

seclusion for families. This is the County’s most restrictive

residential zoning classification. Motor vehicle traffic should be

infrequent and people few.” (R. 63–1 at 12.) The land was not

specifically purchased for the construction of the proposed

camp and has been owned by the same family since 1942.

C. Petition for Rezoning and Conditional Use Permit

On December 13, 2005, Eagle Cove filed a petition with

Oneida County to rezone the subject property to a Recreational

zoning district. The general reason provided for the rezoning

was to permit construction of a Bible camp. The OCZSPO does

not permit year-round recreational camps in Single Family

Residential zoning districts. The County sent a copy of the

rezone petition to Woodboro for its consideration on the

matter. Beginning in February 2006, Woodboro held a series of

meetings on the rezoning petition. After much discussion,

Woodboro recommended that the County deny the petition. It

found that the recreational camp was not consistent with the

goals of maintaining the rural and rustic character of Woodbo-

ro and would conflict with the existing single-family develop-

ment surrounding Squash Lake.

Following this recommendation, the County held several

meetings and hearings regarding the zoning petition. The

County denied the rezoning petition on the grounds that it

would conflict with the majority single-family usage on Squash

Lake and land use regulations set forth in the Woodboro Land

Use Plan.

In doing so, the County considered the implications of

RLUIPA and whether a denial would hinder Eagle Cove’s right

No. 13-1274 5

to exercise their religion on the subject property. It found that

a religious school or church could be constructed under

existing zoning, that Eagle Cove could achieve its goals

without rezoning by applying for a conditional use permit, and

that the proposed Bible camp directly conflicted with the

Single Family Residential zoning around Squash Lake. By

resolution adopted on August 15, 2006, the County accepted

the recommendation of the County Zoning Committee and

denied the rezone petition.

In 2008, Eagle Cove sought to obtain a conditional use

permit (“CUP”) to construct its proposed Bible camp on the

subject property. If permitted, the CUP would allow Eagle

Cove to construct its Bible camp without requiring rezoning of

the subject property. Eagle Cove attached an “Overall Site

Plan” with the application, which included plans for a lodge in

excess of 106,000 square feet. The proposed Bible camp would

have a maximum capacity of 348 campers and also accommo-

date 60 people in outdoor camping sites.

Woodboro recommended that the County deny the CUP

application. The Zoning Committee issued a staff report

detailing its reasons for denying the application. Once again,

the report found that the proposed Bible camp did not conform

to the zoning goals in the district. It also stated that the

proposed use was incompatible with the single-family residen-

tial use of adjacent land to the subject property, the purposes

and nature of the Single Family Residential district, and

Woodboro’s 2009 Comprehensive Plan. The County Zoning

Committee agreed with the report and denied the CUP

application. Finally, Eagle Cove appealed to the Oneida

6 No. 13-1274

County Board of Adjusters, which also found that the pro-

posed use was impermissible.

D. District Court Proceedings

On March 10, 2010, Eagle Cove filed an action in the United

States District Court for the Western District of Wisconsin.

They filed an amended complaint on April 27, 2010, and

asserted that the land use regulations by Woodboro and

Oneida County deprived Eagle Cove of rights set forth under

various provisions in RLUIPA, the First and Fourteenth

Amendments of the United States Constitution, the Americans

with Disabilities Act, the Rehabilitation Act, and the Wisconsin

Constitution. They also petitioned for a writ of certiorari to the

Wisconsin Supreme Court. All parties moved for summary

judgment.

The district court granted summary judgment for the

County and Woodboro on all counts.1

The district court found that the RLUIPA total exclusion

claim lacked merit as neither the County nor the Town

prohibited religious assemblies in their jurisdictions. It found

that Eagle Cove could use their land for religious assembly,

albeit not in the form of a year-round Bible camp. Citing our

opinion in Vision Church v. Village of Long Grove, the district

court held that the total exclusion provision of RLUIPA

requires the complete and total exclusion of activity protected

by the First Amendment, not just prohibition of a certain type

of religious activity. 468 F.3d 975, 989-90 (7th Cir. 2007). The

1

We need not address the Rehabilitation Act or the Americans with

Disabilities Act claims as they were not appealed by Eagle Cove.

No. 13-1274 7

district court went on to disagree with Eagle Cove’s contention

that Woodboro itself exercises jurisdiction over the land use

regulations within its borders, finding that Woodboro has only

an advisory role in the overall process and that it is the County

that exercises jurisdiction over the land use regulations on the

subject property.

In considering Eagle Cove’s unreasonable limitation claim

under RLUIPA, the district court found that Eagle Cove’s

proposed use of implementing a year-round Bible camp would

be permitted in thirty-six percent of Oneida County and that

seasonal recreational camps would be permitted on seventy-

two percent of the County. Additionally, Woodboro’s planning

scheme allows for seasonal recreational camps on roughly

fifty-seven percent of its land. The County and Woodboro did

not unreasonably limit religious assemblies in their respective

jurisdictions, but rather, Eagle Cove’s insistence on locating the

year-round camp on the subject property impeded the exercise

of their religious beliefs.

The district court next addressed Eagle Cove’s RLUIPA

substantial burden claim. Despite the fact that Eagle Cove has

spent considerable amounts of time and resources on the

various permits described above, the district court found that

this did not entitle them to relief under the substantial burden

provision of RLUIPA. It held that simply having a religious

purpose does not prevent the County from placing reasonable

constraints on the proposed camp. Citing Civil Liberties for

Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.

2003) (hereinafter “CLUB”), the district court emphasized that,

to qualify under this provision, the burden placed on religion

must indeed be substantial. To find otherwise would allow

8 No. 13-1274

even the slightest of obstacles to trigger RLUIPA’s substantial

burden provision. Eagle Cove specifically rejected alternative

sites and methods for exercising their religion. As the district

court observed, the scope of Eagle Cove’s vision, not the

OCZSPO, hindered their religious exercise.

The district court, using the same reasoning as in its

substantial burden analysis, found that the free exercise claim

under the First Amendment and the claim under the Wisconsin

Constitution Article 1, § 18 also failed.

Eagle Cove filed this timely appeal.

II. ANALYSIS

We review the district court’s grant of summary judgment

de novo. See Hottenroth v. Village of Slinger, 388 F.3d 1015, 1027

(7th Cir. 2006). To determine whether summary judgment is

appropriate, all conflicting evidence and reasonable inferences

drawn from it are construed in favor of Eagle Cove.

Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785,

794 (7th Cir. 2013). Summary judgment is proper if, in consid-

ering all evidence in favor of the non-moving party, we find

that “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23

(1986).

A. Total Exclusion Claim

Eagle Cove argues that Woodboro has violated RLUIPA’s

total exclusion provision, which prohibits governmental land

use regulations from totally excluding religious assemblies

from a jurisdiction. 42 U.S.C. § 2000cc(b)(3)(A). Eagle Cove’s

No. 13-1274 9

total exclusion argument is predicated, and in fact depends, on

the assumption that Woodboro has jurisdiction to implement

land use regulations on the subject property. This stems from

the fact that year-round recreational camps are permitted

throughout the County (rendering Eagle Cove’s total exclusion

claim obsolete), but not allowed within Woodboro’s borders.

“Jurisdiction generally describes any authority over a

certain area or certain persons … Smaller geographic areas,

such as counties or cities, are separate jurisdictions to the

extent that they have powers independent of the federal and

state governments.”(Appellant’s Br. at 22–23), citing West’s

Encyclopedia of American Law (2011). Black’s Law Dictionary

defines jurisdiction as: “A geographic area within which

political or judicial authority may be exercised.” 867 (9th ed.

2009). Neither of these definitions yields any support for Eagle

Cove’s contention that Woodboro retains jurisdiction over land

use regulations within the town.

Jurisdiction requires that a municipality is able to exercise

control or authority over a designated area. Indeed, Woodboro

does retain jurisdiction on numerous matters of local gover-

nance that are within its control. The town board can, for

example, regulate bowling centers, dance halls, and roadhous-

es maintained in commercial facilities. Wisconsin Statute

§ 60.23(10). It can dispose of dead animals or contract with a

private disposal facility to do the same. Wisconsin Statute

§ 60.23(20). Town meetings may be called to regulate the

appropriation of money. Wisconsin Statute § 60.10(1)(3).

In this case, Woodboro was able to exercise its jurisdiction

in approving the OCZSPO. “A county ordinance enacted

10 No. 13-1274

under this section shall not be effective in any town until it has

been approved by the town board … The ordinance shall

supersede any prior town ordinance in conflict therewith or

which is concerned with zoning[.]” Wisconsin Statute

§ 56.69(5)(c). Woodboro chose to be subordinate to Oneida’s

zoning ordinance, and thereby relinquished its jurisdiction

over land use regulations to the County.

Eagle Cove argues that Woodboro’s implementation of its

Land Use and Comprehensive Plans is proof that the town

maintains sufficient control over the zoning regulations. The

record suggests otherwise. Though Woodboro created the

aforementioned plans, these were not binding on the County’s

ultimate zoning decisions. Whether or not the town approves

of a change in zoning is merely one of the factors considered by

the County in making its determination. Woodboro serves a

limited, consultative role in determining the town’s zoning

regulations. The weight given to Woodboro’s recommendation

is at the discretion of the County. The town board itself

acknowledged its advisory role in reviewing Eagle Cove’s CUP

application: “[T]he Town of Woodboro … hereby provides an

advisory recommendation to the Oneida County Planning and

Zoning Department that the [CUP] Application for Eagle Cove

… be denied.” (R. 62–48 at 2.) (emphasis added). Thus, it is

clear that the County, not Woodboro, exercises jurisdiction.

For this reason, Eagle Cove’s total exclusion claim must fail.

There is ample evidence in the record to suggest that operating

a year-round Bible camp would be possible in many parts of

Oneida County. See supra Part I.A. In Vision Church, we held

that the total exclusion provision of RLUIPA prohibits only

“the complete and total exclusion of activity or expression

No. 13-1274 11

protected by the First Amendment.” 468 F.3d at 989. It is

undisputed that Eagle Cove could construct a year-round Bible

camp on thirty-six percent of the land in Oneida County. It is

further undisputed that Eagle Cove could construct a religious

church or school on the subject property. This is hardly a

complete and total exclusion.

B. Substantial Burden and Free Exercise Claims

Eagle Cove also seeks relief under the substantial burden

provision of RLUIPA, which requires land use restrictions on

religious assemblies be in furtherance of a compelling govern-

mental interest and use the least restrictive means possible to

achieve that interest. 42 U.S.C. § 2000cc(a). Eagle Cove must

demonstrate that the zoning in Oneida County imposes a

substantial burden on the exercise of religious rights and that

the County did not have a compelling reason in creating the

burden.

A substantial burden under RLUIPA “is one that necessar-

ily bears direct, primary, and fundamental responsibility for

rendering religious exercise … effectively impracticable.”

CLUB, 342 F.3d at 761. The burden must be truly substantial,

to hold otherwise would permit religious organizations to

supplant even facially-neutral zoning restrictions under the

auspices of religious freedom. See Petra Presbyterian Church v.

Village of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007) (“Unless

the requirement of substantial burden is taken seriously, the

difficulty of proving a compelling governmental interest will

free religious organizations from zoning restrictions of any

kind.”)

12 No. 13-1274

There are numerous locations within Oneida County for

Eagle Cove to place its Bible camp. See supra Part I.A. Eagle

Cove concedes that there are four tracts of land, out of the ten

put forth by the County, which would be suitable for their

proposed camp. (Appellant’s Br. at 33.) Despite this admission,

Eagle Cove has insisted from the onset of this litigation that the

camp must be built on the subject property. In fact, they have

never even looked into operating the Bible camp on any other

land in Oneida County, though several properties in the

County that could have supported a year-round camp have

been sold since 2006. It is not the land use regulations that

create a substantial burden, but rather Eagle Cove’s insistence

that the expansive, year-round Bible camp be placed on the

subject property. See Petra, 489 F.3d at 851 (“When there is

plenty of land on which religious organizations can build

churches … in a community, the fact that they are not permit-

ted to build everywhere does not create a substantial bur-

den.”).

The OCZSPO itself applies a neutral land use regulation by

zoning the area around Squash Lake, including the subject

property, as a Single Family Residential district. The zoning

occurred before Eagle Cove expressed any interest in con-

structing a Bible camp. Eagle Cove was given the opportunity

to seek rezoning and a CUP application, both of which were

denied. They also had the opportunity to seek out other

properties on which to build their camp, but chose not to do so.

Rather, Eagle Cove brought this suit. Though they claim to

seek the protections of RLUIPA, in reality Eagle Cove seeks

nothing more than an exception from the OCZSPO on the basis

of their religious beliefs. RLUIPA is meant to protect religious

No. 13-1274 13

freedoms from impermissible land use regulations, it is not

meant to allow religious exercise to circumvent facially-neutral

zoning regulations. Eagle Cove is not requesting relief from an

unjust law or ordinance implemented by the County that

inhibits their religious activity; rather, they seek special

treatment on the basis of their religious purpose. See CLUB, 342

F. 3d at 762 (“[N]o such free pass for religious land uses

masquerades among the legitimate protections RLUIPA

affords to religious exercise”).

Eagle Cove also maintains that Oneida County and the

Town of Woodboro caused considerable delay, uncertainty,

and expense in the execution of the rezoning application they

submitted by leading them to believe that their permits would

be granted. They rely on our holding in Sts. Constantine and

Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d

895, 901 (7th Cir. 2005), which found a substantial burden

under RLUIPA where there was considerable “delay, uncer-

tainty and expense.” We held that “[i]f a land-use decision …

imposes a substantial burden on religious exercise … and the

decision maker cannot justify it, the inference arises that

hostility to religion, or more likely to a particular sect, influ-

enced the decision.” Id. at 900. In New Berlin, however, there

were indicia of bad faith by the City that led the Court to find

no compelling governmental interest that the City could put

forth to justify its substantial burden on the Church. Id. at 899

(“The repeated legal errors by the City’s officials casts doubt on

their good faith”). That is not the case here.

First, the fact that Eagle Cove has spent considerable time

and money on various applications for rezoning does not

constitute, prima facie, a substantial burden. See, e.g., CLUB, 342

14 No. 13-1274

F.3d at 761 (“That [Appellants] expended considerable time

and money … does not entitle them to relief under RLUIPA’s

substantial burden provision”). Further, it is clear from the

record that the Town and County maintained their position

throughout the rezoning application process that, while

religious exercise would be allowed in the form of a church or

school on the subject property, they would not permit the

construction of a year-round recreational camp. The County

had a compelling interest in preserving the rural and rustic

character of the Town as well as the single-family development

around Squash Lake. To do this, it zoned the area around

Squash Lake for single family purposes four years before Eagle

Cove first sought to build the camp. The zoning regulations do

not seek to inhibit Eagle Cove’s religious activity; they merely

encourage an area of quiet seclusion for families around

Squash Lake.

Eagle Cove’s Free Exercise claim must fail for the same

reasons. We have previously noted that “both the Free Exercise

Clause and RLUIPA provide that, if a facially-neutral law or

land use regulation imposes a substantial burden on religion,

it is subject to strict scrutiny.” Vision Church, 468 F.3d at 996. As

in Vision Church, we apply our substantial burden analysis to

deny Eagle Cove’s Free Exercise claim. Id. (“Given the similari-

ties between RLUIPA § 2(a)(1) and First Amendment jurispru-

dence, we collapse [appellant’s] claims for the purpose of this

analysis; this approach seems most consistent with post-

RLUIPA case law”).

No. 13-1274 15

C. Unreasonable Limitations Claim

Eagle Cove also contends that there is at least a genuine

issue of material fact as to whether reasonable opportunities

exist to build the proposed Bible camp within the County.

Reasonableness is determined “in light of all the facts, includ-

ing the actual availability of land and the economics of

religious organizations.” Vision Church, 468 F.3d at 990; see also

Bethel World Outreach Ministries v. Montgomery County Council,

706 F.3d 548, 560 (4th Cir. 2013) (“RLUIPA’s unreasonable

limitation provision prevents government from adopting

policies that make it difficult for religious institutions to locate

anywhere within the jurisdiction”). It cannot be said that the

land use regulations in Oneida County “unreasonably limit[]

religious assemblies, institutions, or structures[.]” 42 U.S.C.

§ 2000cc(b)(3)(B). The evidence clearly suggests otherwise.

The OCZSPO has a neutral purpose that incorporates

Woodboro’s Comprehensive and Land Use Plans. It seeks to

uphold the rural and rustic nature of the town and the area

surrounding Squash Lake. Nonetheless, it allows for religious

assemblies throughout Oneida County and on the subject

property. Eagle Cove has had reasonable opportunity not only

to seek rezoning and a conditional use permit, but also to look

for other land in Oneida County that would serve its purpose.

It chose not to do so. While it may be said that Eagle Cove’s

insistence on a year-round Bible camp on the subject property

without seeking alternatives is unreasonable, Oneida County’s

zoning regulations that seek to preserve the character of the

area around Squash Lake are not.

16 No. 13-1274

D. Equal Terms Claim

Eagle Cove also argues that the OCZSPO violated the equal

terms provision of RLUIPA, which prevents governmental

land use regulations that treat religious institutions on less

than equal terms with similarly situated institutions that do not

have a religious affiliation. 42 U.S.C. § 2000cc(b)(1). “The equal-

terms section is violated whenever religious land uses are

treated worse than comparable nonreligious ones, whether or

not the discrimination imposes a substantial burden on

religious uses.” Digrugilliers v. Consol. City of Indianapolis, 506

F.3d 616, 616 (7th Cir. 2007). In determining whether a claim

exists under the equal terms provision, we look to the zoning

criteria rather than the purpose behind the land use regulation.

River of Life Kingdom Ministries v. Village of Hazel Crest, Ill., 611

F.3d 367, 371 (7th Cir. 2010). And “if religious and secular land

uses that are treated the same from the standpoint of an

accepted zoning criterion, … that is enough to rebut an equal-

terms claim[.]” Id. at 373.

The Single Family Residential zoning district, wherein the

subject property lies, is the most restrictive district in the

county and ensures quiet seclusion for families living in the

area. While this zoning district permits certain religious and

secular assemblies, recreational camps are prohibited outright,

regardless of religious affiliation. It is clear that the OCZSPO

does not treat religious land uses, in particular year-round

Bible camps, less favorably than their secular counterparts. The

County established the land use regulations to ensure that the

single-family environment around Squash Lake remains intact.

To achieve this goal, the OCZSPO forbids year-round

recreational camps outright. Unfortunately for Eagle Cove, this

No. 13-1274 17

means that they will have to place their Bible camp elsewhere.

E. Wisconsin Constitutional Claim

Eagle Cove believes that the protection offered under

Article 1, § 18 of the Wisconsin Constitution is greater than that

offered under federal law. Wisconsin applies a compelling

state interest/least restrictive alternative test when a claim is

brought challenging a state law that violates an organization or

individual’s freedom of conscience. Coulee Catholic Schools. v.

Labor and Industry Review Comm’n, 768 N.W.2d 868, 886 (Wis.

2009). The test requires that the organization prove it has a

sincere religious belief and that such belief is burdened by the

state law at issue. The burden is then shifted to the state to

rebut the claim by showing a compelling state interest that

cannot be served by a less restrictive alternative. Id.

Even accepting that Eagle Cove has a sincere belief and that

it is burdened by the OCZSPO, the County has demonstrated

that it has a compelling state interest in preserving the rural

nature around Squash Lake achieved by the least restrictive

means possible (a neutral zoning ordinance). Like any entity,

religious organizations are subject to general laws for taxes,

licensing, social security, and the like that are “normally

acceptable.” Id. at 887. The zoning ordinance at issue here is

generally applicable to all residents within Oneida County and

thus would qualify as “normally acceptable” under Article I,

§ 18 of the Wisconsin Constitution.

III. CONCLUSION

Considering all facts in favor of Eagle Cove, we find that all

claims under RLUIPA as well as the federal and Wisconsin

18 No. 13-1274

constitutions lack merit. Consequently, we AFFIRM the district

court’s order granting Woodboro and the County’s motion for

summary judgment.