Livingston Christian Schools v. Genoa Charter Township

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 17a0117p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LIVINGSTON CHRISTIAN SCHOOLS, ┐

Plaintiff-Appellant, │

│

> No. 16-2060

v. │

│

│

GENOA CHARTER TOWNSHIP, │

Defendant-Appellee. │

┘

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:15-cv-12793—George C. Steeh, District Judge.

Argued: April 26, 2017

Decided and Filed: June 2, 2017

Before: MERRITT, GILMAN, and DONALD, Circuit Judges.

_________________

COUNSEL

ARGUED: Robert K. Kelner, COVINGTON & BURLING, LLP, Washington, D.C., for

Appellant. T. Joseph Seward, SEWARD PECK & HENDERSON, Royal Oak, Michigan, for

Appellee. ON BRIEF: Robert K. Kelner, COVINGTON & BURLING, LLP, Washington,

D.C., Hiram S. Sasser III, Stephanie N. Taub, FIRST LIBERTY INSTITUTE, Plano, Texas, for

Appellant. T. Joseph Seward, Lindsey A. Peck, SEWARD PECK & HENDERSON, Royal Oak,

Michigan, Carol A. Rosati, Anne McClorey McLaughlin, JOHNSON ROSATI SCHULTZ

& JOPPICH, Farmington Hills, Michigan, for Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Livingston Christian Schools (LCS) is a

private, nondenominational Christian school with a mission of providing a religiously oriented

No. 16-2060 Livingston Christian Sch. v. Genoa Charter Twp. Page 2

education to students in Livingston County, Michigan. After operating for several years in the

town of Pinckney, LCS sought to relocate. LCS entered into a lease agreement with Brighton

Nazarene Church (the Church), located in Genoa Charter Township (the Township), so that LCS

could operate its school on the Church’s property. Shortly thereafter, the Township informed

LCS that an amended special-use permit would be required before the Church property could be

used for the school. The Church then applied for such a permit (hereinafter referred to as the

“special-use permit”) on LSC’s behalf. In a four-to-three vote, the Township Board denied the

application.

The Board’s action prompted LCS to file a complaint against the Township in the United

States District Court for the Eastern District of Michigan. LCS alleged that the denial of the

application for a special-use permit violated the Religious Land Use and Institutionalized

Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. The Township moved for summary

judgment in its favor, which the district court granted. For the reasons set forth below, we

AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

1. LCS’s attempt to relocate its operations to the Church

LCS describes its mission as providing a Christian education “for the Livingston County

Community.” From 2006 to 2015, LCS carried out this mission at a building in Pinckney (the

Pinckney property). Pinckney is located in the southernmost portion of Livingston County,

which is outside of the Township.

A declaration by LCS’s treasurer, Scott Panning, notes that Pinckney is “without easy

access to the interstate or major commuter roads,” that the Pinckney area is less populated than

the central area of Livingston County, and that Pinckney’s population is declining. In addition,

Panning explained that the building on the Pinckney property needed extensive, costly

maintenance.

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LCS asserts that these problems have led to financial difficulties. At a meeting in

November 2012, the LCS Board decided that remaining at the Pinckney property on a long-term

basis “will end in the dissolution of the school due to lack of enrollment and income.” So LCS

resolved to search for another location. LCS wanted to relocate to either “the Brighton or

Howell area,” both of which are within Livingston County. There are both cities and townships

by the names of Brighton and Howell; LCS did not specify whether the “area” that it had in mind

refers to the city, the township, or both. See Municipalities, Livingston County, Michigan,

https://www.livgov.com/Pages/Municipalities.aspx (last visited May 31, 2017). Several options

within these areas were explored, but LCS asserts that only the Church property was suitable.

LCS then entered into an agreement to lease the Church’s building for use as a school.

According to Panning, LCS was unaware when signing the lease agreement that the Church

would need to amend its special-use permit to allow LCS to so operate. After entering into the

lease agreement, LCS prepaid the Church $70,000 in rent and began advertising its new location

to prospective students.

The Township eventually heard about LCS’s plans to operate at the Church and informed

the Church that the existing special-use permit would have to be amended in order for LCS to

use the Church’s building as a school. In March 2015, the Church applied for the permit. Two

public hearings were held, where several neighbors of the Church expressed concerns about the

application. The primary complaints were that (1) LCS’s operations would worsen already

heavy traffic, and (2) the Church had a history of failing to comply with its previous special-use

permits by using its property in ways that neighboring residents found disruptive.

After the second meeting, the Township’s Planning Commission reviewed the application

and a traffic study submitted by the Church. The Planning Commission then recommended that

the Township Board approve the Church’s application with several conditions attached.

Despite the Planning Commission’s recommendation, the Township Board voted to deny

the special-use permit in a four-to-three decision at the July 2015 Board meeting. The July

meeting minutes did not explain the reasons for the denial, but the August 3, 2015 meeting

minutes did. These reasons included traffic concerns, inconsistency with the single-family

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residential zoning of the surrounding area, the failure of the Planning Commission’s proposed

conditional approval to mitigate these problems, and the Church’s history of noncompliance with

the zoning ordinance and with the conditions on the Church’s prior special-use permits.

2. LCS’s use of other properties

After the denial of the special-use permit, LCS entered into a short-term lease with the

Whitmore Lake School District in August 2015, which allowed LCS to use the District’s former

public middle-school building located in neighboring Washtenaw County for LCS’s school.

Counsel for LCS explained at oral argument that LCS is currently using the Whitmore Lake

property under what is essentially a year-to-year lease. But the Whitmore Lake School District

has informed LCS that the School District might reoccupy the school building at some point in

the future. LCS asserts that the Whitmore Lake property is therefore not a viable long-term

option for its school. According to LCS, the Whitmore Lake property is also inadequate for

several additional reasons. One is that the property is inconveniently located for LCS’s students.

The conditions of the lease, moreover, inhibit LCS’s efforts to recruit prospective students, to

effectively run sports programs, to keep the property secure, and to serve lunch to its students.

In addition to leasing the Whitmore Lake property, LCS is the owner of the Pinckney

property from which it sought to relocate in 2015. Even though LCS owns the Pinckney

property, it decided not to continue its operations there when the special-use permit for the

Church property was denied. LCS has instead leased the Pinckney property to the Light of the

World Academy (LOTWA), a publicly funded charter school, for a term of seven years. The

lease was executed on August 20, 2015, after the Township officially denied the Church’s

application for a special-use permit on August 3, 2015 and after LCS filed its original complaint

on August 7, 2015.

B. Procedural background

In its original complaint, LCS alleged that the Township’s denial of the special-use

permit violated RLUIPA’s substantial-burden provision, 42 U.S.C. § 2000cc(a)(1). LCS later

amended its complaint to add alleged violations of the First and Fourteenth Amendments. But

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neither of these constitutional claims are before us on appeal because LCS has not raised these

issues in its brief.

LCS filed an emergency motion for a temporary restraining order and a preliminary

injunction, which the district court denied. The Township then moved for summary judgment.

LCS did not file a cross-motion for summary judgment but, in its response to the Township’s

motion, LCS informally asked the district court to grant summary judgment in its favor pursuant

to Rule 56(f)(1) of the Federal Rules of Civil Procedure. Rule 56(f)(1) allows the district court

to grant summary judgment in favor of a nonmoving party “[a]fter giving notice and a reasonable

time to respond.”

The district court did not act on LCS’s request. It instead granted summary judgment in

favor of the Township, concluding that the Township’s denial of the application did not impose a

substantial burden on LCS because LCS had both the Pinckney and Whitmore Lake properties as

adequate alternatives to the Church property. Noting that the parties made essentially the same

arguments in the summary-judgment proceedings as in the emergency-motion proceedings, the

court “incorporate[d] by reference” its ruling denying LCS’s motion for a temporary restraining

order and a preliminary injunction.

II. ANALYSIS

A. Standard of review

We review de novo the district court’s grant of summary judgment. Williams v. AT&T

Mobility Servs., 847 F.3d 384, 391 (6th Cir. 2017). Summary judgment is proper when there is

no genuine dispute of material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). “We must view all evidence in the light most favorable to the

nonmoving party in making this determination.” Williams, 847 F.3d at 391.

As for the substantial-burden inquiry, the ultimate decision on whether the Township’s

actions imposed a substantial burden on LCS under RLUIPA is a question of law for us to

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decide. See Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 93 (1st

Cir. 2013) (explaining that the existence of a substantial burden is a question of law because “the

corollary question of whether the government’s interest is compelling is generally treated as a

question of law,” and because of the importance of appellate courts conducting de novo reviews

of the legal aspects of First Amendment claims, which are “corollaries” of RLUIPA claims). But

see World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531, 539 (7th Cir. 2009)

(assuming with little reasoning that the substantial-burden inquiry is a factual question, and

noting that no other court at that point in time had specified whether this was a question of law or

of fact).

B. LCS’s leasehold interest is protected under RLUIPA.

RLUIPA explicitly protects “leasehold” interests in property. See 42 U.S.C. § 2000cc-

5(5). “Leasehold” and “ownership” interests are listed in the same provision and are therefore

presumably entitled to the same level of protection. LCS clearly possessed a leasehold interest in

the Church property by way of the lease agreement. The Township does not dispute that LCS

had such an interest. Rather, the Township argues that the district court correctly concluded that

the denial of the special-use permit did not violate RLUIPA because the denial did not

effectively bar all religious exercise on the Church’s property.

But the religious institution at issue here is LCS, not the Church, and the land interest at

issue is LCS’s leasehold interest, not the Church’s ownership interest. In addition, LCS

persuasively argues that taking into account the Church’s ability to use the property for its own

purposes as a factor against LCS’s RLUIPA claim would result in treating LCS differently from

a religious institution that leased property from a secular landlord. We will therefore consider

only LCS’s ability to exercise its religious mission (and not the Church’s) in evaluating whether

there was a substantial burden on LCS.

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C. The test for whether a substantial burden exists

RLUIPA does not define the term “substantial burden.” Its only reference to the term is

contained in the following provision:

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 the

imposition of the burden . . . (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. Nor has the Supreme Court had occasion to focus on the substantial-burden

inquiry under RLUIPA in the land-use context, although it has done so in the institutionalized-

persons context. See Holt v. Hobbs, 135 S. Ct. 853, 862 (2015) (holding that a prison’s policy

forbidding a prisoner to grow a beard of a certain length, which the prisoner sincerely believed

was required by his religion, substantially burdened the prisoner even though the prison

permitted him to engage in other religious practices, such as following a specified diet and

keeping a prayer rug in his cell). Even in Holt, the Supreme Court did not articulate a definition

of “substantial burden,” but rather explained that the ability to engage in other religious practices

did not prevent a prisoner from making a substantial-burden claim as to the rule against growing

a half-inch beard. We will therefore turn to caselaw from this court and other circuits regarding

the substantial-burden inquiry.

1. Sixth Circuit cases

There are only two cases in this circuit, both of which are unpublished, that address the

question of whether a land-use regulation imposed a substantial burden under RLUIPA. The

first is DiLaura v. Township of Ann Arbor, 112 F. App’x 445 (6th Cir. 2004), where this court

affirmed the district court’s conclusion that a substantial burden existed based on a zoning

ordinance that required the plaintiffs, who wanted to establish an overnight religious retreat, to

operate as a bed-and-breakfast establishment. Id. at 446. In DiLaura, the court noted that

restrictions on such establishments prevented the plaintiffs from serving Communion wine and

meals other than breakfast. The plaintiffs would also have been required to charge their guests a

fee for lodging. Because the plaintiffs’ plan was to operate a prayer retreat that would provide

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free lodging, and to serve lunch, dinner, and Communion wine, the court found that the plaintiffs

would be “effectively barred . . . from using the property in the exercise of their religion” if their

property were designated as a bed and breakfast. Id. The court did not provide any other

explanation for its holding or articulate a test for whether a substantial burden existed.

The other Sixth Circuit case is Living Water Church of God v. Charter Township of

Meridian, 258 F. App’x 729 (6th Cir. 2007), where this court reversed the district court’s

conclusion that a substantial burden existed. 258 F. App’x at 742. In Living Water, the plaintiff

was a church that wanted to construct an additional building on its property for use both as a

religious school and as extra space for the church. Id. at 731. A special-use permit that was

needed for the building was granted insofar as it allowed a school on the residentially zoned

property. Id. at 732. But the permit restricted the church to a total of 25,000 square feet of floor

space amongst all of its buildings, thwarting the church’s efforts to construct a single building of

almost 35,000 square feet. Id. at 731–32.

The court in Living Water explicitly “decline[d] to set a bright line test” to determine

whether a substantial burden exists, but announced “a framework to apply to the facts before us.”

Id. at 737. That framework asks: “[D]oes 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?” Id. The court also stated that a land-use

regulation “may make religious exercise more expensive or difficult” without necessarily

imposing a substantial burden. Id. Applying this framework, the court concluded that the church

had not been substantially burdened because the church remained free to construct a school

building. Id. at 738–39. The court concluded that there was no evidence in the record that a new

building of the permitted size would be so inadequate as to constitute a substantial burden. Id. at

739. Although the court acknowledged testimony that the church would be burdened by

incurring additional expenses to develop plans for a smaller building, and by not having space

for a gymnasium, the court concluded that these were “mere inconvenience[s].” Id.

In a concurring opinion, Judge Moore cautioned that Living Water’s framework was

“inadvisable” because the effective-bar prong was “so broad as to swallow the substantial-burden

inquiry.” Id. at 742 (Moore, J., concurring). We agree. The language of the effective-bar prong

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would mean that, any time that a land-use regulation completely barred the religious use of a

property, a substantial burden would automatically exist. See, e.g., Andon, LLC v. City of

Newport News, 813 F.3d 510, 516 (4th Cir. 2016) (explaining that any framework that would

essentially create an “automatic exemption” from land-use regulations for religious plaintiffs

would contravene RLUIPA’s intent).

Moreover, the effective-bar prong of Living Water fails to take into account

circumstances that other circuits have considered in the substantial-burden inquiry, such as

whether a religious institution has ready alternatives to carry out its mission, or whether the

religious institution’s inability to use available land was self-imposed. See Part II.C.3. below.

Judge Moore also noted that no other circuit had adopted the effective-bar language. Living

Water, 258 F. App’x at 742 (Moore, J., concurring). Nor are we aware of any other circuit that

has done so since Living Water was decided.

Finally, the court in Living Water was apparently trying to avoid creating a precedent,

specifically crafting “a framework to apply to the facts before us.” 258 F. App’x at 737. The

factual context in the present case is materially different from that in Living Water. We therefore

decline to follow the Living Water framework and will instead focus directly on RLUIPA’s test

of whether the “land-use regulation . . . imposes a substantial burden on the religious exercise of

[the] institution.” 42 U.S.C. § 2000cc.

2. The meaning of “substantial burden” under RLUIPA

One principle that clearly emerges from both Living Water and our sister circuits’

decisions is that not just any imposition on religious exercise will constitute a violation of

RLUIPA. Instead, a burden must have some degree of severity to be considered “substantial.”

See, e.g., Int’l Church of the Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1067

(9th Cir. 2011) (explaining that a substantial burden “must impose a significantly great

restriction or onus upon [religious] exercise” (quoting San Jose Christian Coll. v. City of Morgan

Hill, 360 F.3d 1024, 1034 (9th Cir. 2004))); Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214, 1227 (11th Cir. 2004) (concluding that a substantial burden is “more than an

inconvenience”). As this court recognized in Living Water, taking seriously the requirement that

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a burden be “substantial” is necessary in order to avoid an interpretation of RLUIPA that would

exempt religious institutions from all land-use regulations. 258 F. App’x at 729, 736 (“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.”).

Other circuits have persuasively explained that land-use regulations do not typically

compel plaintiffs to “violate their beliefs” in the way that, for example, prison rules might

require an inmate to engage in conduct that goes against his or her religious tenets. See, e.g.,

Bethel World Outreach Ministries v. Montgomery Cty. Council, 706 F.3d 548, 555–57 (4th Cir.

2013) (explaining that the government does not have “absolute control” over religious

institutions in the land-use context in the same way that a prison has control over inmates, so that

land-use decisions will “rarely” force a religious institution to violate its beliefs). But land-use

regulations can prohibit a plaintiff from engaging in desired religious behaviors, causing some

courts to define a substantial burden as something that places significant pressure on an

institutional plaintiff to modify its behavior. See id. at 555.

3. Several factors from our sister circuits’ caselaw are helpful in determining

whether LCS was substantially burdened by the Township’s action.

Our sister circuits have identified several factors that are helpful in determining whether a

land-use regulation has imposed a substantial burden on a religious institution. One factor,

which the district court properly considered here, is whether the religious institution has a

feasible alternative location from which it can carry on its mission. See Westchester Day Sch. v.

Vill. of Mamaroneck, 504 F.3d 338, 352 (2d Cir. 2007). Whether the religious institution will

suffer “substantial ‘delay, uncertainty, and expense’” due to the imposition of the regulation is

another factor. Id. at 349 (quoting Saints Constantine & Helen Greek Orthodox Church, Inc. v.

City of New Berlin, 396 F.3d 895, 901 (7th Cir. 2005).

The plaintiff’s own actions have also been found relevant in determining whether a

burden is considered substantial. Several circuits have held that, when a plaintiff has imposed a

burden upon itself, the government cannot be liable for a RLUIPA substantial-burden violation.

For example, when an institutional plaintiff has obtained an interest in land without a reasonable

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expectation of being able to use that land for religious purposes, the hardship that it suffered

when the land-use regulations were enforced against it has been deemed an insubstantial burden.

See, e.g., Andon, 813 F.3d at 515 (concluding that a burden was not substantial because it was

self-imposed when the plaintiff entered into a contingent lease agreement for a property despite

knowing that the property failed to meet applicable setback requirements and having been

informed that the application for a zoning variance would be denied); Petra Presbyterian Church

v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007) (concluding that the plaintiff was not

substantially burdened when it had imposed the burden upon itself by purchasing property in an

industrial zone for use as a church after having been informed that its special-use application

would be denied because the relevant zoning ordinance banned churches in that zone).

Whether LCS had a feasible alternative location, whether LCS faced substantial delay,

uncertainty, and expense, and whether LCS’s burden was self-imposed are helpful factors for us

to consider in determining whether the Township’s action placed a substantial burden on LCS in

this case. We therefore discuss in Part III.D. below how these factors apply to the case before us.

As a final matter to consider, we note one often-cited factor: whether there is evidence

that the municipality’s decisionmaking process was arbitrary, capricious, or discriminatory. See,

e.g., Westchester, 504 F.3d at 350–51; Guru Nanak Sikh Soc’y v. Cty. of Sutter, 456 F.3d 978,

989–91 (9th Cir. 2006); Saints Constantine, 396 F.3d at 900–01. We deem this factor irrelevant

in the present case because LCS has not argued that it faced a substantial burden as a result of

any discriminatory decisionmaking by the Township. LCS instead alleges that the Township’s

decision was discriminatory only with regard to the Township’s purported lack of a compelling

interest for denying the special-use permit application.

In any event, although several other circuits have taken evidence of alleged

discrimination into account in considering whether there was a substantial burden on religious

exercise, we decline to adopt this approach. Evidence of improper decisionmaking is more

appropriately considered when evaluating whether a governmental action was narrowly tailored

to serve a compelling state interest—an inquiry that the court should undertake only after finding

that a substantial burden exists. See Living Water Church of God v. Charter Twp. of Meridian,

258 F. App’x 729, 741 (6th Cir. 2007) (declining to consider evidence of arbitrary

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decisionmaking by the municipality where the church had failed to first show that a substantial

burden existed, noting that proof of the municipality’s motive is not relevant to the substantial-

burden inquiry).

RLUIPA, moreover, contains a separate prohibition on discrimination in the

implementation of land-use regulations, which does not require that the regulation impose a

substantial burden. See 42 U.S.C. § 2000cc(b)(1)–(2) (prohibiting governmental entities from

“impos[ing] or implement[ing] a land use regulation in a manner that” either “treats a religious

assembly or institution on less than equal terms with a nonreligious assembly or institution” or

“discriminates against any assembly or institution on the basis of religion or religious

denomination”). Finding a substantial burden due to evidence of discrimination would obviate

the need for § 2000cc(b)(1)–(2). See Bethel World Outreach Ministries, 706 F.3d at 557

(concluding that requiring proof of religious discrimination in order to make out a substantial-

burden claim “would render the nondiscrimination provision superfluous”).

D. The district court’s grant of summary judgment to the Township was proper

because, as a matter of law, LCS failed to put forth sufficient evidence to establish

that the Pinckney property was an inadequate location for its religious mission.

LCS argues that the district court erred in granting summary judgment to the Township

on the basis that the Pinckney and Whitmore Lake properties were “ready alternatives” for LCS.

Several of our sister circuits have addressed the issue of when the availability of other properties

defeats a substantial-burden claim. Where plaintiffs have had access to other properties close to

the property affected by the challenged land-use regulation, the courts have generally found that

no substantial burden exists. See World Outreach Conference Ctr. v. City of Chicago, 591 F.3d

531, 539 (7th Cir. 2009) (concluding that there was no substantial burden when the plaintiff was

denied permission to demolish a historic building on its property and construct a new building,

given that the plaintiff owned other empty space on its campus where it could construct the

building); Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 100 F. App’x 70, 73, 77

(3d Cir. 2004) (concluding that the plaintiff had not demonstrated a likelihood of success on a

substantial-burden claim when the plaintiff was denied a variance for property that it had

purchased, reasoning that the plaintiff was able to fully operate at a rented location just across

the street from the property at issue); see also Midrash Sephardi, Inc. v. Town of Surfside,

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366 F.3d 1214, 1227–28 (11th Cir. 2004) (concluding that walking a few additional blocks was

not a substantial burden where the zoning ordinance required the plaintiff, an Orthodox Jewish

synagogue whose members’ beliefs forbade them from using motorized vehicles on the Sabbath,

to be located a few blocks away from its desired location).

On the other hand, RLUIPA plaintiffs have survived a motion for summary judgment

where they have raised a genuine dispute as to whether their current location was adequate for

their religious mission. See, e.g., Bethel World Outreach Ministries, 706 F.3d at 558 (holding

that the plaintiff church had put forth sufficient evidence to survive summary judgment where

the already-existing facilities were so overcrowded that the church had to hold four services each

Sunday, to shorten each one, to change its Communion and “Altar Call” practices, and to turn

people away); Int’l Church of the Foursquare Gospel v. City of San Leandro, 673 F.3d 1059,

1068–69 (9th Cir. 2011) (holding that the plaintiff church had demonstrated that its current

facility was inadequate because the church’s “core beliefs” required it to assemble in one

worship service, yet it had to hold three Sunday services in its existing facility); Westchester Day

Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 352 (2d Cir. 2007) (holding that there was a

substantial burden on the plaintiff school, in part because the school had demonstrated that it was

expanding and that its existing buildings did not have sufficient space).

In each of the cases ruling in the plaintiffs’ favor, the plaintiffs had demonstrated that

they were unable to carry out some core function of their religious activities due to the

inadequacy of their current facilities. The school in Westchester Day School, for example,

presented evidence from architects and other experts that existing buildings did not have enough

space to incorporate planned expansions for new classrooms, labs, art and music rooms, and

other facilities, all of which would be used for educational purposes that integrated religious

teachings. 504 F.3d at 346, 352. In Bethel, the church likewise put forth evidence that

Communion and Altar Call practices had to be modified, and that worshippers had to be turned

away, due to the fact that the services were overcrowded. 706 F.3d at 558. The church in

Foursquare also demonstrated that its current facilities did not provide sufficient space for the

congregation to worship in one service, preventing the unity of worship that was central to its

beliefs. 673 F.3d at 1069. When such central religious beliefs are in question, courts must be

No. 16-2060 Livingston Christian Sch. v. Genoa Charter Twp. Page 14

especially deferential to testimony from the religious institution about the truth of that belief. Id.

(explaining that the plaintiff had clearly alleged that its “core beliefs” were at stake, and that the

Supreme Court has cautioned that “while a court can arbiter the sincerity of an individual’s

religious beliefs, courts should not inquire into the truth or falsity of stated religious beliefs”).

Unlike the plaintiffs in the aforementioned cases, LCS put forth only conclusory evidence

that the Pinckney property is inadequate, and LCS did not allege that any of its core religious

functions cannot be carried out at Pinckney. LCS submitted declarations from its principal and

its treasurer as evidence of dwindling enrollment. These declarations state that “the fulfillment

of [LCS’s] religious mission of operating a Christian school to serve the entire Livingston

County community necessitated a move from the Pinckney Property . . . to a facility more

centrally located in Livingston County”; that LCS’s enrollment increased due to the anticipated

move to the Church and decreased upon denial of the permit; that the Pinckney property is

“without easy access to the interstate or major commuter roads,” making attracting students

difficult; that Pinckney is “much less populated than the central area of Livingston County”; that

Pinckney’s population has recently declined; that the Pinckney property “required extensive

maintenance and was in need of expensive repairs”; and that the Church was a superior

alternative to the Pinckney property because LCS would be able to attract families affiliated with

the Church.

LCS also submitted its Board’s meeting minutes stating the Board’s fear that remaining

at the Pinckney property would eventually cause LCS to go out of business. In addition, LCS

argues that the Pinckney property is inadequate because LOTWA had to switch its model from

being a private religious school to being a publicly funded charter school in order to operate

there. Excerpts of a deposition of LOTWA’s president, Laura Burwell, are offered in support of

this claim.

Although the above evidence provides a modicum of support for the proposition that the

Pinckney property’s location is inadequate, it is not sufficient to meet LCS’s burden of surviving

the Township’s motion for summary judgment. The meeting minutes and other statements

fearing that LCS will eventually be forced to close are little more than speculation because they

are not substantiated by facts in the record. See Alexander v. CareSource, 576 F.3d 551, 560

No. 16-2060 Livingston Christian Sch. v. Genoa Charter Twp. Page 15

(6th Cir. 2009) (“Conclusory statements unadorned with supporting facts are insufficient to

establish a factual dispute that will defeat summary judgment.”). As this court stated in Living

Water, whether a substantial burden exists must be evaluated at the present moment, not based

on speculation about whether such a burden might arise in the future. Living Water Church of

God v. Charter Twp. of Meridian, 258 F. App’x 729, 738 (6th Cir. 2007).

When faced with the burden of producing sufficient evidence to demonstrate that a

genuine dispute of material fact existed, LCS had the obligation to provide evidence to

substantiate its claims. LCS conceded at oral argument that it failed to provide its financial

records to document the extent of its present loss of funds. Likewise, LCS acknowledged that it

had not provided enrollment statistics to demonstrate the alleged drop in student enrollment that

prompted LCS to relocate. The declarations provided by LCS did establish that 139 students

were enrolled during LCS’s last year at Pinckney, that 59 new students had enrolled after the

announcement of LCS’s move to the Church, and that 18 new students and 15 returning students

unenrolled after the special-use permit was denied. But the declarations provide no historical

enrollment data to indicate how LCS performed before its last year at Pinckney.

Moreover, LCS failed to produce evidence that would be admissible at trial about why the

alleged drop in enrollment occurred. To make out a substantial-burden claim under RLUIPA,

LCS must demonstrate that the land-use regulation implemented by the Township—the denial of

the Church’s special-use permit application—imposed a substantial burden on LCS. See

42 U.S.C. § 2000cc. LCS cannot prevail if the burden of declining enrollment was caused by

something other than its inability to relocate to the Church. See Andon, LLC v. City of Newport

News, 813 F.3d 510, 515 (4th Cir. 2016) (explaining that burdens are not substantial if they are

self-imposed).

Although LCS could have introduced evidence regarding the reasons for its drop in

enrollment by providing declarations or depositions from the families of students who unenrolled

after the Church’s special-use permit was denied, LCS did not do so. Panning’s declaration

states that Pinckney’s remote location was the reason for the declining enrollment. But this

explanation of the students’ alleged reasons for unenrolling is based on hearsay. The statement

would therefore be inadmissible at trial if offered to prove that the actual cause of the declining

No. 16-2060 Livingston Christian Sch. v. Genoa Charter Twp. Page 16

enrollment was Pinckney’s remote location. See Fed. R. Civ. P. 56(c) (providing that an

affidavit or declaration may be used as evidence at the summary-judgment stage only if it is

“made on personal knowledge” and “set[s] out facts that would be admissible in evidence”);

Alpert v. United States, 481 F.3d 404, 408–09 (6th Cir. 2007) (explaining that statements in an

affidavit that amounted to hearsay cannot be considered at the summary-judgment stage).

Similarly, the evidence about LOTWA’s decision to become a publicly funded charter

school instead of remaining a religious school is insufficient because it does not explain the

reason for LCS’s financial difficulties. Even the testimony of LOTWA’s president Burwell, on

which LCS heavily relies for its argument that the Pinckney property is unsuitable, indicates that

LOTWA’s experience cannot be compared to LCS’s. Burwell stated in her deposition that

LOTWA became a charter school because it was “having a difficult time keeping our enrollment

numbers up at a tuition-based school” after relocating to Pinckney. When asked whether she

knew why the Pinckney property did not fit LCS’s needs, however, Burwell stated that “I don’t

know if Livingston Christian had the same experience.” The record contains only five

nonconsecutive pages of Burwell’s deposition and provides no other context about LOTWA’s

finances, enrollment statistics, or student demographics that might allow for a persuasive

comparison of LOTWA to LCS.

And even if we were to assume that LCS’s characterization of Pinckney as a remote,

inaccessible area is supported by record evidence that would be admissible at trial, we conclude

as a matter of law that remaining at the Pinckney property would not have imposed a substantial

burden on LCS. The Pinckney property, located at 550 E. Hamburg St., Pinckney, Michigan, is

a 12.1-mile drive from the Church, located at 7669 Brighton Road, Brighton, Michigan. See

maps.google.com. Because LCS insists that the Church would have been a more convenient

location for many students, the Pinckney property’s distance from the Church is relevant. In

addition, the Pinckney property is 11.1 miles from what the Township pinpoints as the

geographic center of Livingston County, whereas the Church is 9.9 miles from that geographic

center. We may take judicial notice of maps showing the distances between these locations. See

Carpenter v. Norfolk & W. Ry. Co., 145 F.3d 1330 (Table), 1998 WL 199723, at *4 (6th Cir.

1998) (explaining that the trial court can “take judicial notice of general time/distance

No. 16-2060 Livingston Christian Sch. v. Genoa Charter Twp. Page 17

calculations”); Fed. R. Evid. 201, Advisory Comm. Notes (f) (noting that judicial notice “may be

taken at any stage of the proceedings, whether in the trial court or on appeal”). Treating the

center of Livingston County as the area from which LCS hopes to attract more students, locating

its school at the Pinckney property instead of the Church property would increase travel distance

by a mere 1.2 miles.

And even if the proper distance to consider is the distance between the Church and the

Pinckney property, the additional travel distance is only 12.1 miles. Requiring students to travel

an additional 12.1 miles is somewhat of a burden, but we conclude as a matter of law that this is

not so significant as to “impose[] a substantial burden on the religious exercise of [LCS].” See

RLUIPA, 42 U.S.C. § 2000cc. As discussed above, the Eleventh Circuit has held that walking

an additional several blocks would not impose a substantial burden on religious adherents whose

beliefs bar motor-vehicle travel on the Sabbath. Midrash Sephardi, Inc. v. Town of Surfside, 366

F.3d 1214, 1227–28 (11th Cir. 2004). The Midrash Sephardi court even took into account the

mobility difficulties that some members of the synagogue might have and the fact that walking in

the Florida summer heat might pose additional problems—but not enough to impose a

substantial burden. Id.

Likewise, families with especially tight budgets or busy schedules might find

burdensome the additional expenses and time constraints of approximately 12.1 more miles of

car travel each way, but this does not mean that such additional expense and time is so great as to

constitute a substantial burden on LCS’s religious mission. This is more analogous to a “mere

inconvenience” that would not be deemed a substantial burden under Living Water. See 258 F.

App’x 729, 739 (6th Cir. 2007).

We also note that LCS has not alleged that any functions of its religious school were

unable to be carried out on the Pinckney property. LCS focuses on increasing enrollment and

raising revenue, but has not identified any religious activity—or even any traditionally secular

one—that could not be performed at the Pinckney property. The present case is therefore

distinguishable from Bethel and Westchester Day School, both of which are discussed in more

detail above. Even though the expansion in Westchester was designed to serve an existing

school population that, like LCS, was not growing, the school in Westchester established that the

No. 16-2060 Livingston Christian Sch. v. Genoa Charter Twp. Page 18

renovations would serve a religious-education mission that could not be performed using its

existing space. See Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.2d 338, 345–46 (2d Cir.

2007) (explaining how the school’s philosophy tied Orthodox Jewish teachings into each and

every aspect of the school curriculum, and how the expansion would further this mission). There

is no such evidence in the present case.

Finally, we note that no credence should be given to any argument that LCS faces a

substantial burden because LOTWA now occupies the Pinckney property, thus preventing LCS

from returning there. Any such argument would have no merit because LCS leased the Pinckney

property to LOTWA only after the special-use permit application by the Church was denied and

after this litigation commenced. The fact that LCS cannot now use the Pinckney property due to

the seven-year lease is therefore due to LCS’s own actions. As discussed above, a burden is not

substantial when the plaintiff imposes that burden upon itself. See, e.g., Andon, LLC v. City of

Newport News, 813 F.3d 510, 515 (4th Cir. 2016); Petra Presbyterian Church v. Vill. of

Northbrook, 489 F.3d 846, 851 (7th Cir. 2007).

E. As a matter of law, LCS was not substantially burdened even if we assume that LCS

could establish that no alternative properties were available within Genoa

Township.

LCS alternatively argues that it is substantially burdened because there are allegedly no

alternative facilities within Genoa Township where LCS can operate its school. If LCS were

correct that a substantial burden results whenever a religious institution cannot find a suitable

location within a particular local jurisdiction, then LCS’s present inability to use the Pinckney

property and its concern about the long-term use of the Whitmore Lake property would be

irrelevant because both of those properties are located outside the Township.

We will assume, solely for the purpose of resolving this issue, that there are no

alternative facilities available to LCS within the Township’s borders. Nevertheless, we conclude

as a matter of law that LCS is not substantially burdened by the absence of such other properties

because LCS has the Pinckney property as an adequate alternative.

LCS cites Islamic Center of Mississippi, Inc. v. City of Starkville, 840 F.2d 293, 300 (5th

Cir. 1988), for its argument that being unable to locate anywhere within the Township is itself a

No. 16-2060 Livingston Christian Sch. v. Genoa Charter Twp. Page 19

substantial burden. But that case involved a free-exercise challenge to a zoning ordinance that

prohibited all churches within the city limits unless an exception was obtained. Under the zoning

ordinance, the city had allowed exceptions to 25 Christian churches, but denied an exception to

an Islamic Center. The court stated that “the availability of other sites outside city limits does

not permit a city to forbid the exercise of a constitutionally protected right within its limits.” Id.

at 300 (citing Schad v. Borough of Mount Ephraim, 452 U.S. 61, 76–77 (1981) (holding that a

local government could not constitutionally ban all live entertainment from its borders by relying

on the argument that live entertainment was available in neighboring jurisdictions)). In so ruling,

the court focused on the extensive evidence of religious discrimination against the Islamic Center

and the fact that the city’s denial of the exception was not narrowly tailored to an important

governmental interest. Id. at 300–03.

The language that LCS relies on in Islamic Center and Schad is from a different context

than the present case—a First Amendment challenge to laws that categorically prohibited

religious assemblies or certain types of speech within a jurisdiction’s borders. In the present

case, unlike in Islamic Center, there is no evidence that the Township’s zoning ordinance has

completely banned religiously oriented schools from its borders (or banned them unless they can

obtain zoning exceptions).

And even if the Township’s denial of the special-use permit has effectively barred LCS

from the Township’s borders, such a consequence does not automatically establish a RLUIPA

violation. Our research has revealed only a few circuit cases that address this issue in the

RLUIPA context. And most such cases involve challenges to land-use regulations that prohibit

plaintiffs from using land in a certain area of a jurisdiction, not in the entire jurisdiction.

The most analogous case is Andon, LLC v. City of Newport News, 813 F.3d 510, 515–16

(4th Cir. 2016), in which the Fourth Circuit concluded that there was no substantial burden even

though the plaintiff could not find another suitable location within the particular jurisdiction in

question. Andon’s holding relied primarily on the fact that the plaintiff’s burden was self-

imposed, as discussed above. But the Fourth Circuit also stated that the unavailability of other

land in the particular jurisdiction “will not by itself support a substantial burden claim.” Id. at

516.

No. 16-2060 Livingston Christian Sch. v. Genoa Charter Twp. Page 20

Similarly, the Seventh Circuit has held that a land-use regulation does not impose a

substantial burden simply because of a “lack of affordable land” in Chicago or for other reasons

“incidental to any high-density urban land use.” Civil Liberties for Urban Believers (CLUB) v.

City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003). CLUB, however, involved a substantial-

burden challenge to a zoning ordinance on its face, not a challenge to a specific land-use

decision. Id. at 755–56, 763. And the court noted that the plaintiffs had in fact been able to

locate in other parts of Chicago. Id. at 761.

Because RLUIPA has been held to allow the courts to consider the reasonableness of a

plaintiff’s expectations in being able to use the land in question for religious purposes, the courts

should also be allowed to consider other factors relevant to the substantial-burden inquiry—such

as whether the plaintiff had easy access to properties in a neighboring jurisdiction (as LCS had at

the Pinckney property). Allowing a plaintiff to make out a substantial-burden claim where the

plaintiff has burdened itself or in fact has easy access to suitable property in a neighboring

jurisdiction is beyond the protection of RLUIPA. And as the Seventh Circuit has explained, the

unavailability of land within a particular jurisdiction can result from the reality of competitive

real-estate markets, not the municipality’s actions. See CLUB, 342 F.3d at 762.

The circumstances of the present case indicate that LCS was not substantially burdened

within the meaning of RLUIPA despite the alleged unavailability of other land within Genoa

Township. LCS had the Pinckney property as a ready alternative, to which LCS could have

returned with little or no expense if it had not leased that property to LOTWA after this litigation

commenced. And LCS’s stated mission is to serve Livingston County as a whole, not Genoa

Township in particular.

Genoa Township is relatively small—it has a total area of 36.3 square miles out of

Livingston County’s total 565.25 square miles. See Genoa Township Profile, Genoa Township,

https://genoa.org/community/profile (last visited May 31, 2017); QuickFacts, Livingston County,

Michigan, U.S. Census Bureau, https://www.census.gov/quickfacts/table/PST045216/26093 (last

visited May 31, 2017). The Township is located between Brighton and Howell—two “areas”

that LCS has stated would suffice for its school, but that are located at least in part outside of

Genoa Township. See Municipalities, Livingston County, Michigan,

No. 16-2060 Livingston Christian Sch. v. Genoa Charter Twp. Page 21

https://www.livgov.com/Pages/Municipalities.aspx (last visited May 31, 2017). We take judicial

notice of the geographic map of Livingston County and the corresponding square-mileage

calculations.

Moreover, the boundaries of jurisdictions on the local-government level are often

arbitrary in practice. Holding that a religious institution is substantially burdened any time that it

cannot locate within such a small area—even if it could locate just across the border of the town

limits—would be tantamount to giving religious institutions a free pass from zoning laws. See

Living Water Church of God v. Charter Twp. of Meridian, 258 F. App’x at 729, 736–37 (6th Cir.

2007) (explaining that RLUIPA cannot be construed so as to give religious institutions immunity

from zoning laws); see also, e.g., Roman Catholic Bishop of Springfield v. City of Springfield,

724 F.3d 78, 96 (1st Cir. 2013) (noting that RLUIPA “does not provide religious institutions with

immunity from land use regulation”) (quoting 146 Cong. Rec. S7776 (daily ed. July 27, 2000)

(joint statement of Sens. Hatch and Kennedy)). In sum, RLUIPA does not automatically require

every minor municipality to have at least one religious school within its borders.

We therefore conclude that the proper inquiry should be more functional and factually

driven. When a religious institution has an available alternative outside of a desired jurisdiction,

and where the distance from the desired location to the alternative property is reasonably close,

the artificial boundaries of a particular jurisdiction become less important. The record here does

not indicate that traveling the roughly dozen miles to Pinckney would be unduly burdensome to

LCS’s students. Nor does the record demonstrate that LCS’s religious beliefs required it to

locate within Genoa Township specifically. LCS instead seeks to serve Livingston County as a

whole. Under these circumstances, we hold as a matter of law that LCS was not substantially

burdened simply because it could not relocate within Genoa Township.

Our decision should not be taken to mean that a religious institution can never establish a

RLUIPA claim based on the inability to locate within a particular jurisdiction. We simply hold

that the determination of whether a substantial burden exists due to geographical limitations is

factual in nature. A religious institution, for example, might have a mission of catering

specifically to lower-income individuals located in an urban center, which might be thwarted by

relocating to a suburb that lacked public transportation. See Islamic Center of Miss., Inc. v. City

No. 16-2060 Livingston Christian Sch. v. Genoa Charter Twp. Page 22

of Starkville, 840 F.2d 293, 299 (5th Cir. 1988) (noting that members of a mosque, many of

whom were students living in an urban area located near a university campus, would be

substantially burdened if they had to travel to the mosque using an automobile). But the

circumstances in the present case simply do not constitute a substantial burden on LCS.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.