Opposition Brief — Livingston Christian Schools, Petitioner v. Genoa Charter Township

NO. 17-914

In the Supreme Court of the United States

LIVINGSTON CHRISTIAN SCHOOLS,

Petitioner,

v.

GENOA CHARTER TOWNSHIP,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF IN OPPOSITION

Carol A. Rosati

Anne McClorey McLaughlin

JOHNSON ROSATI SCHULTZ

& JOPPICH, P.C.

27555 Executive Drive

Suite 250

Farmington Hills, MI 48331

(248) 489-4100

T. Joseph Seward

Counsel of Record

SEWARD HENDERSON PLLC

210 East 3rd Street

Suite 212

Royal Oak, MI 48067

(248) 733-3580

jseward@sewardhenderson.com

Counsel for Respondent

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

I. Should the Court grant certiorari to consider

whether evidence of religious discrimination is

relevant to a “substantial burden” claim under the

Religious Land Use and Institutionalized Persons

Act where (i) the petitioner failed to preserve the

issue, (ii) the petitioner failed to present any

evidence of religious discrimination, and (iii) the

petitioner failed to identify a split among the

circuits that should be resolved by this Court?

II. Should the Court grant certiorari to consider

whether evidence of exclusion from a jurisdiction is

relevant to a “substantial burden” claim under the

Religious Land Use and Institutionalized Persons

Act where (i) the petitioner failed to present

evidence that the respondent excluded the

petitioner or other religious institutions from the

jurisdiction, (ii) the petitioner failed to show that

the Sixth Circuit’s decision creates a conflict among

the circuits, and (iii) the petitioner failed to show

that the Sixth Circuit decided an important federal

question in a way that conflicts with relevant

decisions of this Court?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . iii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 1

I. FACTUAL BACKGROUND . . . . . . . . . . . . . . . . 4

II. PROCEDURAL HISTORY . . . . . . . . . . . . . . . . 21

REASONS FOR DENYING THE PETITION . . . . 22

I. D I S C R I M I N A T I O N

OR

UNEQUAL

TREATMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 26

A. Waiver of Issue . . . . . . . . . . . . . . . . . . . . . . . 27

B. Lack of Evidence . . . . . . . . . . . . . . . . . . . . . . 29

C. Purported Conflict Among Circuits . . . . . . . 31

II. EXCLUSION FROM JURISDICTION . . . . . . . 36

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

iii

TABLE OF CITED AUTHORITIES

Cases

Andon, L.L.C. v. City of Newport News,

813 F.3d 510 (4th Cir. 2016) . . . . . . . . . . . . . . . 39

Beck v. Prupis,

529 U.S. 494 (2000) . . . . . . . . . . . . . . . . . . . . . . 32

Ben’s Bar, Inc. v. Village of Somerset,

316 F.3d 702 (7th Cir. 2003) . . . . . . . . . . . . . . . 40

Chabad Lubavitch of Litchfield Cnty., Inc. v.

Litchfield Historic Dist.,

768 F.3d 183 (2d Cir. 2014) . . . . . . . . . . . . . 35

Civil Liberties for Urban Believers (CLUB) v. City of

Chicago,

342 F.3d 752 (7th Cir. 2003) . . . . . . . . . . . . . . . 39

Cutter v. Wilkinson,

544 U.S. 709 (2005) . . . . . . . . . . . . . . . . . . . . . . 22

Eagle Cove Camp & Conference Ctr., Inc. v. Town of

Woodboro,

734 F.3d 673 (7th Cir. 2013) . . . . . . . . . . . . . . . 34

Fortress Bible Church v. Feiner,

694 F.3d 208 (2d Cir. 2012) . . . . . . . . . . . . . . . . 32

Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66 (2013) . . . . . . . . . . . . . . . . . . . . . . . 29

Guru Nanak Sikh Society of Yuba City v. County of

Sutter,

456 F.3d 978 (9th Cir. 2006) . . . . . . . . . . . . 32, 35

Hamilton v. Morgan,

474 F.3d 854 (6th Cir. 2007) . . . . . . . . . . . . . . . 28

iv

Henricks v. Pickaway Corr. Inst.,

782 F.3d 744 (6th Cir. 2015) . . . . . . . . . . . . 28, 29

Islamic Center of Mississippi, Inc. v. City of

Starkville,

840 F.2d 293 (5th Cir. 1988) . . . . . . . . . . . . 37, 38

Joseph v. United States,

135 S. Ct. 705 (2014) . . . . . . . . . . . . . . . . . . . . . 29

Kingdomware Tech., Inc. v. United States,

136 S. Ct. 1969 (2016) . . . . . . . . . . . . . . . . . . . . 29

Livingston Christian Sch. v. Genoa Charter Twp.,

858 F.3d 996 (6th Cir. 2017) . . . . . . . . . . . . . . . 22

Livingston Christian Sch. v. Genoa Charter Twp.,

No. 15-12793, 2015 WL 5439942 (E.D. Mich.

Sept. 15, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Livingston Christian Sch. v. Genoa Charter Twp.,

No. 15-12793, 2016 WL 3549357 (E.D. Mich.

June 30, 2016) . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214 (11th Cir. 2004) . . . . . . . . . . . . . 33

OBB Personenverkehr AG v. Sachs,

136 S. Ct. 390 (2015) . . . . . . . . . . . . . . . . . . . . . 29

Petra Presbyterian Church v. Village of Northbrook,

489 F.3d 846 (7th Cir. 2007) . . . . . . . . . 32, 33, 34

Roman Catholic Bishop of Springfield v. City of

Springfield,

724 F.3d 78 (1st Cir. 2013) . . . . . . . . . . 32, 35, 39

v

Saints Constantine & Helen Greek Orthodox

Church, Inc. v. City of New Berlin,

396 F.3d 895 (7th Cir. 2005) . . . . . . . . . . . passim

Schad v. Borough of Mount Ephraim,

452 U.S. 61 (1981) . . . . . . . . . . . . . . . . . . . . 39, 40

Sossamon v. Texas,

131 S. Ct. 1651 (2011) . . . . . . . . . . . . . . . . . . . . 22

Star Satellite, Inc. v. City of Biloxi,

779 F.2d 1074 (5th Cir. 1986) . . . . . . . . . . . . . . 40

United States ex rel. Marlar v. BWXT Y-12, L.L.C.,

525 F.3d 439 (6th Cir. 2008) . . . . . . . . . . . . . . . 28

United States v. Galletti,

541 U.S. 114 (2004) . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Huntington Nat’l Bank,

574 F.3d 329 (6th Cir. 2009) . . . . . . . . . . . . . . . 28

Vision Church v. Village of Long Grove,

468 F.3d 975 (7th Cir. 2006) . . . . . . . . . . . . . . . 40

Westchester Day School v. Village of Mamaroneck,

504 F.3d 338 (2d Cir. 2007) . . . . . . . . . . . . . . . . 32

Statutes

42 U.S.C. § 2000bb, et seq. . . . . . . . . . . . . . . . . . . . 22

42 U.S.C. § 2000cc . . . . . . . . . . . . . . . . . . . . . . . 22, 25

42 U.S.C. § 2000cc(a) . . . . . . . . . . . . . . . . . . . . . 26, 31

42 U.S.C. § 2000cc(b) . . . . . . . . . . . . . . . . . . 26, 31, 33

42 U.S.C. § 2000cc(b)(1) . . . . . . . . . . . . . . . . . . 26, 33

42 U.S.C. § 2000cc(b)(2) . . . . . . . . . . . . . . . . . . 26, 33

vi

42 U.S.C. § 2000cc(b)(3) . . . . . . . . . . . . . . . . . . . . . 26

42 U.S.C. § 2000cc-5(5) . . . . . . . . . . . . . . . . . . . . . . 23

42 U.S.C. § 2000cc-5(7)(A)-(B) . . . . . . . . . . . . . . . . 23

MICH.COMP.LAWS § 388.851b . . . . . . . . . . . . . . . . . 12

Other Authorities

146 Cong. Rec. S7774, S7776 (daily ed. July 27,

2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Rules

S. Ct. Rule 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

S. Ct. Rule 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

S. Ct. Rule 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

1

STATEMENT OF THE CASE

Livingston Christian Schools (“the School”)

instituted this litigation in August 2015, claiming that

Genoa Charter Township (“the Township”) violated the

Religious Land Use and Institutionalized Persons Act

(“RLUIPA”) by denying a special use permit for which

the Brighton Church of the Nazarene (“the Church”)

applied. The School has since applied for and obtained

a special use permit from the Township, which allows

the School to operate in the Church’s facility for the

upcoming academic year. But the School still wants

damages, costs, and attorney fees, and so this litigation

continues.

For nine years preceding this litigation, the School

operated in a 26,247 square foot facility situated on 1.6

acres in Pinckney. Earlier in this litigation, the School

gave inconsistent reasons for its desire to relocate to

the Church’s facility, none of which involved the

financial difficulties discussed at length in its petition.

The School’s reasons depended on its audience.

In its original complaint, the School asserted that

the “size constraints” of the Pinckney facility

necessitated relocation to a larger facility. R. 1, Pg ID

4. In its motion for temporary restraining order and

preliminary injunction, supported by a sworn

declaration, the School represented that its “growing

enrollment” required moving to a larger facility. R. 4,

Pg ID 101, 112; R. 4, Ex. 1, Pg ID 139. The School also

told the District Court that its ability to maintain even

its current enrollment is “entirely dependent” on

relocation to a larger facility. R. 4, Ex. 1. Pg ID 140.

2

Statements by both the Church and the School

belied this claim of “growing enrollment” requiring the

School to relocate from Pinckney. When the Church

applied for an amendment to its special use permit, it

informed the Township Planning Commission that the

School “wants” or “hope[s]” to grow. R. 11, Ex. 11, Pg

ID 442, 444. The School informed students and parents

that it decided to relocate due to “decreasing

enrollment.” R. 11, Ex. 24, Pg ID 539.

Enrollment statistics further undermined the

School’s claim that its “growing enrollment” demanded

relocation to a larger facility. According to the School’s

treasurer, the School enrolled 139 students for the

2014-2015 academic year. R. 4, Ex. 1. Pg ID 140. Data

collected by the Center for Educational Performance

and Information (“CEPI”), a division of the Michigan

Department of Education, reflects enrollment figures of

160, 166, 189, 158, 154 and 138 students in each school

year from 2009-2010 through 2014-2015, respectively.

R. 35, Pg ID 950-951. CEPI’s data is similar to that

collected by the National Center for Education

Statistics (“NCES”) in the United States Department

of Education. NCES’s available data indicates that the

School enrolled 160, 193 and 158 students,

respectively, in academic years 2009-2010, 2011-2012

and 2013-2014. R. 35, Pg ID 951. The School’s own data

also reveals a steadily declining enrollment from the

2010-2011 academic year to the 2015-2016 academic

year. R. 35, Ex. 34, Pg ID 1138.

3

In addition to these enrollment statistics, the

evidence reflects that the School leased the Pinckney

facility to another academic institution, which planned

to move in with 200 students. After the meeting at

which the Township Board voted to deny a special use

permit, the School acknowledged that it had the ability

to return to the Pinckney facility. Indeed, the School’s

own administrator stated: “The [S]chool is going to

open. I can definitively tell you that. It will open on

time. . . . We still have the Pinckney building available

because we own it.” R. 11, Ex. 28, Pg ID 546.

Confronted with its enrollment statistics and

contradictory statements, the School backpedaled and

reversed course. The School acknowledged “enrollment

decreases, including double digit enrollment

[decreases]” between the 2013-2014 academic year and

the 2014-2015 academic year, and came up with yet

another reason why it needed to relocate to the

Church’s facility. R. 16, Ex. 16, Pg ID 577. This time,

the School hung its hat on the perceived appeal of the

“centralized” and “populous” location of the Church’s

facility.1 R. 16, Pg ID 561. Shortly thereafter, the

1

The Church’s facility (7669 Brighton Road in Brighton, Michigan)

is no more centralized than the Pinckney school (550 East

Hamburg Street in Pinckney, Michigan); central Livingston

County is no more accessible from the Church than from the

Pinckney location. Perhaps the most centralized location in

Livingston County is Howell City Hall (611 East Grand River

Avenue in Howell). Livingston County, Municipalities,

https://www.livgov.com/pages/municipalities.aspx (last accessed

February 19, 2018). According to Google Maps, the Church is

roughly 10 miles from Howell City Hall (an 18-minute drive) and

the School’s former building is about a 17-minute drive to City Hall

11 miles away or so.

4

School filed an amended complaint from which it

removed its previous allegation that the “size

constraints” of the Pinckney facility necessitated

relocation to a larger site. The School newly alleged

that its inability to relocate to the Church’s facility

frustrated its mission to serve the “Livingston County

community.” R. 23, Pg ID 668. Yet the School’s official

website indicates that the School serves communities

all over southeast Michigan—including in Washtenaw,

Oakland, Ingham, and Jackson Counties. See

http://www.livingstonchristianschools.org/ (last

accessed March 20, 2018). Some of those communities

are quite a distance from Brighton. Jackson, for

example, is about 54 miles from Brighton, travel time

53 minutes, while it takes about 44 minutes to travel

the 43 miles from Manchester to Brighton.

Unfortunately, the pattern of deception continues.

The School’s petition is rife with misstated facts and

unsupported contentions. As but one example, the

School contends that the denial of a special use permit

forced it to find a site outside of Livingston County at

which to exercise its religious mission. Petition at 11.

But as noted above, the School’s own administrator

admitted that the School could have returned to the

Pinckney facility, which is in Livingston County. R. 11,

Ex. 28, Pg ID 546.

I. FACTUAL BACKGROUND

Over two decades ago, the Church purchased

property in the Township’s suburban residential zoning

district. In 1991, the Church obtained a special use

permit to conduct its worship services and ministries

on the property. Thereafter, the Church constructed a

27,620 square foot facility in various phases.

5

Around August 2000, the Church applied for a

special use permit to add a 6,960 square foot pavilionlike building for use as a skate park. The Church

viewed the skate park as a means to keep things under

control and regulate the hours during which youth

utilized the Church’s facility. The Church advised that

youth would be permitted to use the skate park for

skateboarding and in-line skating, perhaps volleyball

games and picnics in the future, at no charge. The

Church denied any other planned activities for the

skate park. The Township Planning Commission

recommended a special use permit subject to

conditions. The Township Board approved a special use

permit with the recommended conditions.

Around April 2003, the Church applied for another

special use permit to add a 17,600 square foot building

for use as a sanctuary. The Church advised that it

planned to convert the existing sanctuary into Sunday

school classrooms. The Township Planning Commission

recommended a special use permit subject to conditions

regarding the skate park. The recommended conditions

required the Church to improve and maintain the

landscape near the east property line, set forth rules

for the skate park in the liability waiver form, turn off

the outdoor lighting at 11:00 p.m., erect at least two

signs to inform youth that outdoor skating is

prohibited, cease commercial activity, and provide a

security guard to patrol the parking lot during the

evening. The Township Board approved a special use

permit with the recommended conditions.

6

In July 2013, Church applied for a special use

permit to add a 16,120 square foot building for use as

classrooms and a gymnasium. The Church advised of

its intent to use the classrooms for Sunday school.

When asked by the Township Planning Commission,

the Church expressly disclaimed any intent to use the

classrooms for a private school. The Township Planning

Commission stressed the need for the Church to

mitigate “annoyances to the neighbors,” who frequently

voiced complaints about the disruptive nature of the

Church’s activities. The Planning Commission directed

the Church to submit a revised site plan that addressed

the landscape issues, as well as a revised

environmental impact assessment that reflected

resolution of the problems regarding noise and misuse

of the property in the evening. The Planning

Commission later recommended a special use permit

subject to the conditions of the special use permit

issued in 2003, among others. The Township Board

approved a special use permit with the recommended

conditions. Thereafter, the Church “totally reworked”

the site plan without notifying—let alone obtaining

approval from—the Township. The Church delayed

completion of the landscape plan because it “wanted to

get [its] building done first.”

Around November 2013, the School met with the

Church to discuss the prospect of creating a

partnership. According to the School, the Church

expressed a willingness to lease portions of the

Church’s facility to the School.

7

In May 2014, the School met to discuss financing for

the purchase of the Pinckney facility from the Roman

Catholic Diocese of Lansing (“the Diocese”). A few

months later, the School met to discuss the anticipated

relocation to the Church’s facility. The School agreed

that it could not disclose the relocation to the Church’s

facility until it completed the process of attempting to

purchase the Pinckney facility.

In November 2014, the School held a meeting to

inform students and parents of the anticipated

relocation to the Church’s facility. The School advised

that it decided to relocate due to “three consecutive

years of decreasing enrollment . . . .” The School noted

that even if the relocation to the Church’s facility did

not immediately increase enrollment, the School

“would still be in a better financial position . . . .” The

School assured students and parents that the School

would remain “totally independent of [C]hurch

governance.”

8

Several weeks later, the Church and the School

entered into a lease agreement. The Church agreed to

lease a portion of its facility to the School for a five-year

period to commence in June 2015. The School pre-paid

the Church $70,000.00 in rent, announced and

advertised relocation to the Church’s facility, and

opened enrollment for students despite the absence of

a special use permit. In late 2014, four months before

the Church even applied for a special use permit, the

School posted the following photograph on its social

media page:

9

A month later, the School posted on its social media

page another picture, “its” classrooms being

constructed for which the Church had still not applied

for a special use permit:

10

Two months before the Church applied for a special use

permit, the School posted yet again on its social media

page about its new location, this time including an

enrollment brochure:

11

The Township learned about the School’s

anticipated relocation to the Church’s facility “through

the grapevine.” The Township then advised the Church

of the need to apply for a special use permit.

In January 2015, the School offered the Diocese

$300,000.00 for the Pinckney facility. The Diocese

characterized the School’s offer as “disingenuous,” as

the Diocese had learned of the School’s plans to vacate

the Pinckney location after the 2014-2015 academic

year and relocate to the Church’s facility before the

2015-2016 academic year. The Diocese asked the School

to advise of its intentions regarding vacation of the

Pinckney property and satisfaction of the debt to the

Diocese. The School characterized the plan to relocate

to the Church’s facility as a “back-up plan” even though

the School had already entered into a lease agreement

with the Church, pre-paid the Church $70,000.00 in

rent, announced and advertised relocation to the

Church’s facility, and opened enrollment for students.

The School advised the Diocese of its commitment to its

$300,000.00 offer. The Diocese ultimately accepted that

offer, and executed a purchase agreement with the

School for the Pinckney facility in March 2015.

Almost simultaneously in March 2015, the Church

applied for an amendment to the special use permit

issued in 2013. The Church proposed that its special

use permit be amended to allow the School’s use of

designated parts of its facility for the School’s

educational institution. The site plan approved in 2013

accompanied the Church’s application.

Initial review of the Church’s submittal raised

concerns. The Brighton Area Fire Authority advised

that the Church’s site plan failed to meet the

12

Township’s fire prevention code for site and building

accessibility. LSL Planning, the Township’s planning

and zoning consultant, also detailed several concerns

with the Church’s application. Further, the Church

submitted the site plan to the Livingston County

Building Department for review. However, the

Michigan Department of Licensing and Regulatory

Affairs is generally responsible for such review under

the Construction of School Buildings Act. See

MICH.COMP.LAWS § 388.851b.

The first public hearing regarding the Church’s

application to amend its special use permit took place

in April 2015. The Church acknowledged that it had

failed to fully implement its landscape plan and

advised that it expected to complete that plan within

ninety days. The Township Planning Commission

expressed concerns regarding traffic. The Church

acknowledged that it is a “traffic generator.” Although

Brighton Road “is a major artery,” the Church

indicated that “there would be no busses.” Neighbors

and residents also raised the following issues regarding

traffic:

• Traffic on Brighton Road is “horrid.” The

intersection is “crazy” and “very dangerous.” The

traffic signal at the intersection is “difficult.” On

top of that, the intersection lacks a pedestrian

signal.

• They fear for the safety of their children. The

area had already been the scene of several

accidents involving pedestrians and bicyclists.

• Three schools in the area—Hornung Elementary

School with 400 students, Maltby Middle School

13

with 900 students, and Brighton High School

with 1200 students—use Brighton Road. A new

school may open at the church next door, and

another new school may open in a nearby

facility. The new schools will also use Brighton

Road. Many of the schools do not use busses to

transport students. When Brighton Road is

busy, traffic diverts onto residential streets.

There will never be a dead zone during which

they will be able to get out of their

neighborhood. As it stands, they have to turn

right in order to turn left.

• The likelihood of traffic jams and the impact of

emissions on the environment are causes for

concern. The wear and tear on Brighton Road is

also a cause for concern.

Neighbors expressed further concerns regarding the

history of problems with the Church:

• They experienced problems “every day” for over

a decade. As the Church grew, so did their

problems.

• The Church’s failure to satisfy conditions

intended to address the problems had become “a

pattern.”

• The Church failed to maintain and improve the

landscape.

• The Church failed to implement measures to

ensure their privacy and safety.

14

• The Church failed to control the noise and youth

activity in the parking lot, which woke them up

at night.

• The Church allowed illegal uses of the property.

• The activity on the Church’s property, which

“sometimes [persisted for] 24 hours a day,”

became “too much.”

• They experienced difficulty selling their homes,

as people “do not want to live near this activity.”

• The Church offered “endless lies” and

“contradictions” instead of concrete solutions.

The Township Planning Commission tabled the

Church’s application for an amendment to its special

use permit and directed the Church to submit a traffic

study, along with a site circulation plan. The Church

retained Boss Engineering (“Boss”) to perform a traffic

study and develop a site circulation plan.

After the first public hearing, the Church submitted

Boss’s traffic study and site circulation plan. At the

recommendation of Township consulting engineers,

Tetra Tech, the Planning Commission requested a

more detailed traffic study and site circulation plan

that accounted for the School’s projected growth to 250

students and 35 staff members.

The second public hearing regarding the Church’s

application to amend its special use permit took place

in May 2015. Neighbors again addressed problems with

the Church. One neighbor pointed out that the Church

had yet to resolve the landscape issues or the noise

issues. Another neighbor stated that the Church had

15

“not been honoring [its] promises and guarantees to

[its] neighbors since 2000.” Neighbors also raised traffic

concerns. The Church admitted that it had failed to

submit the additional traffic study and site circulation

plan requested by the Planning Commission. The

Commission again tabled the Church’s application for

an amendment to its special use permit.

After the second public hearing, the Church

submitted Boss’s revised traffic study and site

circulation plan. Tetra Tech commented that the

revised traffic study and site circulation plan contained

improper analysis, reflected inconsistency, and

otherwise remained deficient in several material

respects. The Planning Commission instructed the

Church to submit a revised traffic study and site

circulation plan that addressed Tetra Tech’s comments

and concerns.

During this process, in May 2015, the School met to

discuss a proposal from Light of the World Academy

(“the Academy”), a formerly faith-based educational

institution that decided to secularize and operate a

publicly-funded charter school. The Academy proposed

to lease or buy the Pinckney property from the School.

The third public hearing on the Church’s

application to amend its special use permit took place

in June 2015. A neighbor expressed concern “with the

increased traffic on Brighton Road and possible cutthrough traffic in his subdivision.” He noted that if

people are unable to turn left out of the Church parking

lot, they will turn around at the entrance to his

subdivision and cause congestion in the left turn lane.

Another neighbor expressed disbelief that the proposed

amendment to the Church’s special use permit made it

16

“this far because the traffic in this area is so bad.” The

Planning Commission tabled the Church’s application

for an amendment to its special use permit.

After the third public hearing, the Church

submitted Boss’s second revised traffic study and site

circulation plan. Boss concluded that if the School held

classes from 8:00 a.m. to 3:00 p.m. to avoid overlapping

peaks with the nearby high school (which held classes

from 7:25 a.m. to 2:25 p.m.) and the nearby middle

school (which held classes from 8:30 a.m. to 3:30 p.m.),

it would minimally impact traffic on Brighton Road.

Boss concluded that the School would significantly

impact traffic in the Church parking lot, which

provided a single driveway for access to and from

Brighton Road. Boss recommended that the Church

(1) develop traffic control and pedestrian safety

guidelines to which students and parents must

“strictly” adhere; and (2) implement traffic control

directors.

A memorandum from Fleis & VandenBrink

Engineering (“F & V”) accompanied the second revised

traffic study and site circulation plan. F & V advised

that “[w]ithout proper on-site facilities, off-site traffic

operations may be interrupted.” F & V recommended

that the Church (1) create a one-way, counter-clockwise

circulation with 325 feet of sidewalk for a student

loading zone; (2) physically separate the student

loading zone from the parking lot; (3) add signage and

pavement markings to designate the student loading

zone; (4) allocate staff to direct traffic into the student

loading zone and to restrict access to the parking lot;

(5) require students to enter their parents’ vehicles on

the passenger side; (6) hold an informational meeting

17

and distribute a pamphlet to notify parents and staff

members of the student loading zone, the circulation

pattern, and the proposed traffic operation plan; and

(7) instruct parents and staff members that students

must be accompanied by an adult between the parking

lot and the building used for the School’s educational

institution.

Tetra Tech reviewed the second revised traffic study

and site circulation plan. Tetra Tech commented on the

need for additional traffic management provisions and

temporary measures to separate students awaiting

pick-up from parking lot traffic. Tetra Tech also

stressed the importance of providing traffic control

directors with proper instructions.

LSL Planning, the Township’s planning and zoning

consultant, reviewed the Church’s application for an

amendment to its special use permit. LSL Planning

concluded that because the proposed amendment is a

“major amendment,” a new application for a special use

permit would be required.

Before the fourth and final public hearing regarding

the Church’s application to amend its special use

permit, the Township Planning Commission received a

number of letters from neighbors. They expressed

concerns regarding traffic and public safety, adverse

impacts on Brighton Road, landscape, noise, loitering

and littering, illegal activity around their

neighborhood, lack of privacy, and negative impacts on

property values due to increased traffic and use of the

Church’s facility. They opposed the School’s use of the

Church’s facility.

18

The fourth public hearing regarding the Church’s

application took place in July 2015. The Planning

Commission recommended that the Township Board

approve a special use permit to include the School as

an accessory use, subject to conditions. At the

Township Board’s next meeting, however, a motion to

approve a special use permit failed by a 4-3 vote. The

School met and decided that it would keep its

educational institution open, even if doing so meant

that it would need to return to the Pinckney facility.

Because the motion to approve had failed, the

Township Board formally denied a special use permit

in a 4-3 vote at its meeting of August 3, 2015. The

Board identified the following grounds for its denial:

1) The expanded use of the [C]hurch to include [the

School] will exacerbate the existing and

historical negative impacts of the [C]hurch on

the adjacent neighborhood. The need for active

traffic management and restricted egress from

the facility provides that the site cannot

accommodate the use properly and it increases

the potential for negative off-site traffic impacts.

2) The proposed use is not consistent with the

following goals of the Master Plan:

a) “Achieve well-planned, safe, balanced, and

pleasant residential neighborhoods.”

b) “Promote harmonious and organized

development consistent with adjacent land

uses.”

3) The [proposed use] is contrary to the statement

of purpose for the Single Family Residential

19

Zoning in regard to [Sections] 3.01.02(e) and (g)

and (i) as follows:

a) 3.01.02(e) – “Discourage any use of land

which may overburden public infrastructure

and services and the areas natural

resources.”

b) 3.01.02(g) – “Discourage land use which

would generate excessive traffic on

residential streets.”

c) 3.01.02(i) – “Prohibit any land use that would

substantially interfere with the development,

utilization or continuation of single family

dwellings in the District.”

5) The proposed use significantly alters the

existing or intended character of the general

vicinity.

6) The need for traffic management personnel and

the potential off-site impacts created by forced

right-turn only exiting will be detrimental to the

natural environment, public health, safety or

welfare by reason of excessive production of

traffic. The proposed “D” condition on exit from

Church grounds during pick-up and drop-off

provides a detriment to the existing walking

path, other neighborhoods/buildings for turnaround, in addition to an impact on

neighborhood travel including traffic from

Worden Lake, Pine Creek, and travelers from

the west towards Brighton. In addition, current

conditions of this area also include the primary

hub for the Brighton Area Schools, [including

Hornung Elementary School, Maltby

20

Intermediate School, Scranton Middle School,

and Brighton High School]. While not all

students attending Scranton will flow through

Brighton Road, Scranton was not taken into

consideration. It is reasonable to suggest parents

with students at both schools drop off at the

High School and then proceed to Scranton which

starts school at 7:50 a.m.

7) The potential negative impacts to be created by

the use will not be sufficiently mitigated by the

conditions of the proposal.

8) The . . . Church has a history of non-compliance

with past site plan and ordinance requirements

resulting in a negative impact on surrounding

neighborhoods, notably found in Planning

Commission minutes from August 28, 2000, May

12, 2003, July 22, 2013 and April 2015 through

current. Historical and consistent behavior

suggests further non-compliance from [the

Church]. Specific issues include the following:

a) The [Church] has not yet fully implemented

the project approved by the Township in

2013. Of particular note are the installation

of additional landscaping and parking lot

islands;

b) The [Church] has continued to allow a

driver’s testing operation, despite being

informed that it is an illegal nonconforming

use of the property; and

c) The [Church] has demonstrated disregard for

existing approvals by making significant

changes to [its] building design contrary to

21

the approved 2013 plans and without

necessary permits or approvals to do so.

Following the Township Board’s formal denial of a

special use permit, the Church sent the School an

apology. The Church acknowledged that it made a lot

of mistakes in an effort to move things along in a quick

fashion, “which probably caused [it] to get sloppy.” As

to the lease agreement, the Church offered to refund

the School’s money because the Church did not want to

take advantage of the situation.

More than two weeks after the Township Board

denied a special use permit, the School entered into an

agreement to lease the Pinckney facility to the

Academy. At that time, the School decided to relocate

to Whitmore Lake Middle School.

II. PROCEDURAL HISTORY

The School filed a complaint against the Township

on August 8, 2015, raising a RLUIPA claim. R. 1. On

August 12. 2015, the School filed a motion for

preliminary injunction. R. 4. The District Court denied

the motion for preliminary injunction on September 15,

2015. Livingston Christian Sch. v. Genoa Charter Twp.,

No. 15-12793, 2015 WL 5439942 (E.D. Mich. Sept. 15,

2015). R. 22. The same day, the School filed an

amended complaint against the Township, revising the

RLUIPA claim and adding claims under the First and

Fourteenth Amendments. R. 23.

On March 7, 2016, the Township filed a motion for

summary judgment. R. 35. The District Court granted

the Township’s motion for summary judgment on June

30, 2016. Pet. App. B; see also Livingston Christian

22

Sch. v. Genoa Charter Twp., No. 15-12793, 2016 WL

3549357 (E.D. Mich. June 30, 2016).

As to the District Court’s grant of summary

judgment of the RLUIPA claim, the School filed a

notice of appeal on July 21, 2016. The Sixth Circuit

affirmed the District Court’s grant of summary

judgment on June 2, 2017. Pet. App. A; see also

Livingston Christian Sch. v. Genoa Charter Twp., 858

F.3d 996 (6th Cir. 2017).

The School filed a petition for rehearing en banc on

June 16, 2017, which the Sixth Circuit denied on July

26, 2017. Pet. App. C. The Sixth Circuit issued its

mandate on August 3, 2017.

REASONS FOR DENYING THE PETITION

Congress enacted RLUIPA, which is codified at 42

U.S.C. § 2000cc, after this Court invalidated the

Religious Freedom Restoration Act (RFRA), 42 U.S.C.

§ 2000bb, et seq., as applied to state and local

government. Cutter v. Wilkinson, 544 U.S. 709, 715

(2005). RLUIPA borrows elements from RFRA, but the

former is “less sweeping in scope” than the latter.

Sossamon v. Texas, 131 S. Ct. 1651, 1656 (2011).

RLUIPA targets two areas, one of which is the

regulation of land use. Cutter, 544 U.S. at 715;

Sossamon, 131 S. Ct. at 1656. The regulations

regarding land use provide:

23

(a)

Substantial burdens

(1)

General rule

No government shall impose or

implement a land use regulation2 in a

manner that imposes a substantial

burden3 on the religious exercise4 of a

person, including a religious assembly or

institution, unless the government

demonstrates that imposition of the

burden on that person, assembly, or

institution—

2

The term “land use regulation” is defined as “a zoning or

landmarking law, or the application of such a law, that limits or

restricts a claimant’s use or development of land (including a

structure affixed to land), if the claimant has an ownership,

leasehold, easement, servitude, or other property interest in the

regulated land or a contract or option to acquire such an interest.”

42 U.S.C. § 2000cc-5(5).

3

RLUIPA does not define “substantial burden.” Congress has

directed courts to interpret RLUIPA’s substantial burden

requirement in accordance with this Court’s jurisprudence

regarding the Free Exercise Clause of the First Amendment. See

146 Cong. Rec. S7774, S7776 (daily ed. July 27, 2000) (joint

statement of Sens. Hatch and Kennedy) (“The term ‘substantial

burden’ . . . is not intended to be given any broader interpretation

than the Supreme Court’s articulation of the concept of substantial

burden on religious exercise”).

4

The term “religious exercise” encompasses “any exercise of

religion” and includes the use or intended use of real property “for

the purpose of religious exercise . . . .” 42 U.S.C. § 2000cc-5(7)(A)(B).

24

(2)

(A)

is in furtherance of a compelling

governmental interest; and

(B)

is the least restrictive means of

furthering that compelling

governmental interest.

Scope of application

This subsection applies in any case in

which—

(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

government

to

make,

individualized assessments of the

25

proposed uses for the property

involved.

(b)

Discrimination and exclusion

(1)

Equal terms

No government shall impose or

implement a land use regulation in a

manner that treats a religious assembly

or institution on less than equal terms

with a nonreligious assembly or

institution.

(2)

Nondiscrimination

No government shall impose or

implement a land use regulation that

discriminates against any assembly or

institution on the basis of religion or

religious denomination.

(3)

Exclusions and limits

No government shall impose or

implement a land use regulation that—

(A)

totally excludes religious assemblies

from a jurisdiction; or

(B)

unreasonably

limits

religious

assemblies, institutions, or structures

within a jurisdiction.

42 U.S.C. § 2000cc.

The School urges the Court to grant certiorari to

address two issues: that the School was the victim of

unequal treatment or discrimination by the Township,

26

and that the Township excluded the School from its

jurisdiction. But the School did not assert a claim for

unequal treatment under § 2000cc(b)(1), or for

discrimination under § 2000cc(b)(2). The School also

failed to raise a claim under § 2000cc(b)(3), which

addresses exclusion from a jurisdiction. The School

asserted a claim only under § 2000cc(a), which

addresses substantial burdens on religious exercise.

The School has waived any claim under § 2000cc(b),

but now wants the Court to address whether evidence

of discrimination or unequal treatment and exclusion

from a jurisdiction can support a claim under

§ 2000cc(a). Specifically, the School petitions the Court

to address (i) whether discrimination or unequal

treatment is relevant to the substantial burden

inquiry; and (ii) whether exclusion from a jurisdiction

is relevant to the substantial burden inquiry.

I. D I S C R I M I N A T I O N

TREATMENT

OR

UNEQUAL

The School argues that the Township discriminated

against the School by allowing a driver training program

but disallowing a special use permit. The School glosses

over the relevant facts, simply stating that the Township

denied a special use permit “while allowing an

unapproved secular activity to continue on the very

same property.” Petition at 13. Thus, an overview of the

relevant (and undisputed) facts is necessary.

The Church allowed AK Services to use its parking

lot as a testing site for various licenses (driver licenses,

commercial licenses, and motorcycle licenses) without

approval from the Township—a topic of discussion at

several of the Planning Commission’s meetings. R. 11,

27

Ex. 7, Pg ID 423-24, Ex. 8 Pg ID 427-28. In April 2015,

the Church requested that the Township deem the

driver certification program a permissible use. R. 45,

Ex. 1. The Church noted that while it does not profit

from allowing AK Services to use its parking lot as a

testing site, it does receive “generous” donations from

AK Services for several of its programs. Id. Kelly

VanMarter, the Assistant Township Manager and

Community Development Director, testified that she

and other Township representatives met with AK

Services to discuss the driver certification program.

R. 43, Ex. F, Pg ID 1310. VanMarter testified that

during the meeting, she and other Township

representatives contemplated whether to amend the

zoning ordinance to identify the driver certification

program as a special use. Id. The Township ultimately

honored the Church’s request and allowed the driver’s

certification program to continue. Id.

A. Waiver of Issue

The School contends that it suffered discrimination

at the hands of the Township, and further contends

that such discrimination is relevant to the “substantial

burden” inquiry of the RLUIPA claim. In a footnote, the

School asserts that it preserved this argument by

raising it in its appellate brief and during its oral

argument. Not so.

In the District Court, the School argued that the

alleged discrimination violated the First Amendment,

not RLUIPA. In fact, the School made no mention of

the alleged discrimination in the context of the

RLUIPA claim. In the appeal to the Sixth Circuit, the

School abandoned the First Amendment claim. See Pet.

App. at 6a. Although the School referred to the alleged

28

discrimination in the analysis of the “compelling

government interest” component of the RLUIPA claim,

the School did not discuss the alleged discrimination in

the analysis of the “substantial burden” component of

the RLUIPA claim. The School’s claim that it raised the

argument in its appellate brief is false. Indeed, the

Sixth Circuit called the School out for failing to raise

and preserve the argument. See Pet. App. at 16a,

observing that the School had “not argued that it faced

a substantial burden as a result of any discriminatory

decisionmaking by the Township”. The School’s

apparent belief that it preserved the argument by

raising it during oral argument is misplaced. The Sixth

Circuit has stated, in no uncertain terms:

Generally speaking: (1) a party does not

preserve an argument by saying in its opening

brief (whether through a footnote or not) that it

may raise the issue later, for example, in a reply

brief or at oral argument; (2) a party does not

preserve an argument by raising it for the first

time at oral argument; and (3) a party does not

preserve an argument by raising it for the first

time in a motion for reconsideration or

rehearing.

United States v. Huntington Nat’l Bank, 574 F.3d 329,

331 (6th Cir. 2009) (internal citations omitted). That

rule is well settled in the Sixth Circuit. See, e.g.,

United States ex rel. Marlar v. BWXT Y-12, L.L.C., 525

F.3d 439, 450 n. 6 (6th Cir. 2008) (issue raised during

party’s oral argument, but not in party’s opening brief,

deemed waived); Hamilton v. Morgan, 474 F.3d 854,

861 n. 5 (6th Cir. 2007) (issue “not raised prior to oral

argument” deemed waived); Henricks v. Pickaway Corr.

29

Inst., 782 F.3d 744, 751 n. 3 (6th Cir. 2015) (argument

raised “for the first time at oral argument” deemed

“forfeited on appeal”). And “that rule (which all the

federal courts of appeals employ) makes excellent

sense: It ensures that opposing parties will have notice

of every issue in an appeal, and that neither they nor

reviewing courts will incur needless costs from

eleventh-hour changes of course.” Joseph v. United

States, 135 S. Ct. 705 (2014) (Kagan, J., concurring).

When an argument is not properly raised below,

this Court deems it forfeited and typically declines to

consider it. Kingdomware Tech., Inc. v. United States,

136 S. Ct. 1969, 1978 (2016) (citing OBB

Personenverkehr AG v. Sachs, 136 S. Ct. 390, 397-98

(2015)); see also United States v. Galletti, 541 U.S. 114,

120 n. 2 (2004). Certiorari can and should be denied on

this ground alone, as the School has not drawn the

Court’s attention to any exceptional or “unusual

circumstances” that warrant deviation from this wellsettled rule. Sachs, 136 S. Ct. at 398. Quite the

opposite, the School makes only a passing reference to

and tries to deflect attention from the waiver issue.

The purported existence of a circuit split on the

issue does not compel a different conclusion. This Court

will not resolve a split among the circuits on an issue

that is not properly before the Court, which includes an

issue that has been waived. Genesis Healthcare Corp.

v. Symczyk, 569 U.S. 66, 72-73 (2013).

B. Lack of Evidence

If the Court is inclined to take up the question

raised by the School, it should wait for a case in which

there is actually evidence of religious discrimination.

30

This is not such a case. There is not even a scintilla of

evidence from which to infer religious discrimination.

At oral argument in the Sixth Circuit, the School

seemingly conceded that there is not strong evidence of

religious animus but submitted that there is at least a

“whiff” of such animus. Court Audio Recording of Oral

Argument, available at: https://tinyurl.com/y84cew6j

(27:23-27:36) (last accessed February 7, 2018). There is

not.

The fact that the Township considered whether to

amend the zoning ordinance to allow the driver

certification program at the request of a religious

organization (viz., the Church)—a fact conveniently

omitted from the School’s petition—cuts against the

School’s argument that the prospective amendment

represents religious hostility. So, too, does the fact that

the primary uses of the Church’s facility, all of which

have been approved by the Township at one point or

another, are religious uses.

Further, the School’s claim of religious hostility is

based on an “apples to oranges” comparison. The

Township’s unwillingness to approve the School’s

regular and constant use of the Church’s facility cannot

be regarded as religious hostility simply because the

Township permitted the driver certification program’s

occasional and infrequent use of the Church’s parking

lot—a use that neither adds hundreds of individuals

nor presents traffic concerns. Suffice it to say that the

School and the driver certification program are not

similarly situated or otherwise amenable to

comparison. There is no evidence from which to infer

that if the School had been a secular organization or if

31

the intended use had been a secular use, the Township

would have approved a special use permit.

C. Purported Conflict Among Circuits

At the outset, the Court should note that to the

extent the Sixth Circuit created a conflict among the

circuits, it did so only in dictum:

[W]e note one often-cited factor: whether there

is evidence that the municipality’s

decisionmaking process was arbitrary,

capricious, or discriminatory. . . . We deem this

factor irrelevant in the present case because [the

School] has not argued that it faced a

substantial burden as a result of any

discriminatory decisionmaking by the Township.

...

Pet. App. at 16a (emphasis added).

The Sixth Circuit opined that evidence of

discriminatory decision-making is more appropriately

considered when evaluating whether a government

action is narrowly tailored to serve a compelling state

interest—an inquiry that should only be undertaken

after finding that a substantial burden exists. Pet. App.

at 16a. The Sixth Circuit also stated that if evidence of

discrimination could make out a claim under the

“substantial burden” provision of RLUIPA, then the

“equal terms” and “nondiscrimination” provisions of

RLUIPA would be rendered meaningless or

superfluous. Pet. App. 16a-17a; compare 42 U.S.C.

§ 2000cc(a) with 42 U.S.C. § 2000cc(b). In so doing, the

Sixth Circuit took note of the “longstanding canon of

statutory construction” that “terms in a statute should

not be construed so as to render any provision of that

32

statute meaningless or superfluous.” Beck v. Prupis,

529 U.S. 494, 506 (2000).

The School cites the Seventh Circuit’s decisions in

Saints Constantine & Helen Greek Orthodox Church,

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

and Petra Presbyterian Church v. Village of

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

Circuit’s decision in Roman Catholic Bishop of

Springfield v. City of Springfield, 724 F.3d 78 (1st Cir.

2013), the Second Circuit’s decisions in Fortress Bible

Church v. Feiner, 694 F.3d 208 (2d Cir. 2012) and

Westchester Day School v. Village of Mamaroneck, 504

F.3d 338 (2d Cir. 2007), and the Ninth Circuit’s

decision in Guru Nanak Sikh Society of Yuba City v.

County of Sutter, 456 F.3d 978 (9th Cir. 2006). The

School submits that in all of these decisions, the courts

held that evidence of discrimination is relevant to the

“substantial burden” analysis. From that premise, the

School contends that the Sixth Circuit’s reasoning

conflicts with authoritative decisions from other

circuits.

The decisions all draw upon the Seventh Circuit’s

decision in Saints Constantine & Helen. See Petra

Presbyterian Church, 489 F.3d at 851; Roman Catholic

Bishop, 724 F.3d at 97; Fortress Bible Church, 694 F.3d

at 219; Westchester Day Sch., 504 F.3d at 351; and

Guru Nanak Sikh Soc’y, 456 F.3d at 992 n. 20. In that

case, the Seventh Circuit—like the Sixth Circuit in this

case—observed that the “equal terms” provision of

RLUIPA, rather than the “substantial burden”

provision of RLUIPA, is designed to combat unequal

treatment:

33

[T]he City, flaunting as it were its own

incompetence, suggests that the Church can’t

complain about being treated badly so long as it

is treated no worse than other applicants for

zoning variances. But that is a misreading of

RLUIPA. A separate provision of the Act forbids

government to “impose or implement a land use

regulation in a manner that treats a religious

assembly or institution on less than equal terms

with a nonreligious assembly or institution.” 42

U.S.C. § 2000cc(b)(1); see also id., § 2000cc(b)(2).

The “substantial burden” provision under which

this suit was brought must thus mean

something different from “greater burden than

imposed on secular institutions.”

Saints Constantine & Helen, 396 F.3d at 900 (emphasis

in original).5 The School contends that the following

excerpt from Saints Constantine & Helen compels a

different conclusion:

If a land-use decision . . . imposes a substantial

burden on religious exercise . . . , and the

decision maker cannot justify it, the inference

5

In Petra Presbyterian Church, the Seventh Circuit again observed

that the “equal terms” provision, rather than the “substantial

burden” provision, is designed to combat unequal treatment.

Specifically, the Seventh Circuit stated that the “equal terms”

provision codifies the Free Exercise Clause of the First

Amendment, which prohibits “arbitrarily treat[ing] religious

membership organizations worse than other membership

organizations.” Petra Presbyterian Church, 489 F.3d at 849 (citing

Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1232

(11th Cir. 2004)).

34

arises that hostility to religion, or more likely to

a particular sect, influenced the decision.

Saints Constantine & Helen, 396 F.3d at 900. The

above-cited excerpt simply does not stand for the

proposition that if a religious institution can show

discrimination, then the religious institution can

likewise satisfy the “substantial burden” element. The

excerpt stands for the proposition that if the religious

institution can satisfy the “substantial burden” element

and the government cannot satisfy the “compelling

interest” element, then an inference of discrimination

arises. The Seventh Circuit found a substantial burden

not because the government discriminated against the

religious institution, but because the alternative

courses of action proposed by the government would

have resulted in “delay, uncertainty, and expense.” Id.

at 901. As the Seventh Circuit acknowledged in

subsequent decisions, the government’s inability to put

forth a compelling interest is why the inference of

discrimination arose. See Petra Presbyterian Church,

489 F.3d at 851 (noting that in Saints Constantine &

Helen, “the denial was so utterly groundless as to

create an inference of religious discrimination”); Eagle

Cove Camp & Conference Ctr., Inc. v. Town of

Woodboro, 734 F.3d 673, 681 (7th Cir. 2013) (noting

that in Saints Constantine & Helen, “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”). To that end, the Sixth Circuit’s decision in

this case can be reconciled with the Seventh Circuit’s

decision. As noted above, the Sixth Circuit reasoned

that evidence of discriminatory decision-making is

more appropriately considered when evaluating

35

whether a government action is narrowly tailored to

serve a compelling state interest. Pet. App. at 16a.

Moreover, the type of discrimination to which

Saints Constantine & Helen referred is not the type of

discrimination alleged by the School. In Saints

Constantine & Helen, the Seventh Circuit stated that

the substantial burden provision combats “subtle forms

of discrimination when . . . a state delegates essentially

standardless discretion to nonprofessionals operating

without procedural safeguards.” Saints Constantine &

Helen, 396 F.3d at 900 (emphasis added). Such subtle

forms of discrimination may occur when “local

governments . . . use broad and discretionary land use

rationales as leverage to select the precise parcel of

land where a religious group can worship.” Guru

Nanak, 456 F.3d at 992 n. 20. Such subtle forms of

discrimination may also occur when “local regulators

disregard objective criteria and instead act adversely to

a religious organization based on the objections of a

‘small but influential’ group in the community” or when

“local regulators base their decisions on

misunderstandings of legal principles.” Roman Catholic

Bishop, 724 F.3d at 97.

The nondiscrimination and equal terms provisions,

by contrast, regulate “overtly discriminatory acts that

are often characterized by arbitrary or unequal

treatment of religious institutions.” Chabad Lubavitch

of Litchfield Cnty., Inc. v. Litchfield Historic Dist., 768

F.3d 183, 193, 195 (2d Cir. 2014) (emphasis added).

That is the type of discrimination alleged by the School,

which says that the Township treated its proposed

religious use of the Church’s facility less favorably than

36

the driver certification program’s secular use of the

Church’s parking lot.

To be sure, there were no allegations of overt

discrimination or unequal treatment in Saints

Constantine & Helen. The inference of religious

hostility arose because of “repeated legal errors” by city

officials, which “cast[ ] doubt on their good faith.”

Saints Constantine & Helen, 396 F.3d at 899.

II. EXCLUSION FROM JURISDICTION

The School argues that according to the Sixth

Circuit’s decision, a local government may exclude a

religious institution from its jurisdiction. But that

generalization really cannot be implied from the Sixth

Circuit’s decision. The Sixth Circuit stated:

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. [Citation

omitted]. The Township is located between

Brighton and Howell—two “areas” that [the

School] has stated would suffice for its school,

but that are located at least in part outside of

Genoa Township. [Citation omitted]. 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

37

institutions a free pass from zoning laws.

[Citations omitted]. 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 [the

School’s] students. Nor does the record

demonstrate that [the School’s] religious beliefs

required it to locate within Genoa Township

specifically. [The School] instead seeks to serve

Livingston County as a whole. Under these

circumstances, we hold as a matter of law that

[the School] was not substantially burdened

simply because it could not relocate within

Genoa Township.

Pet. App. at 29a-30a.

In its petition for rehearing en banc, the School

argued that the Sixth Circuit’s reasoning conflicted

“with settled law in other circuits.” Whether the School

advances the same argument here is not entirely clear,

as the School directs the Court’s attention to only one

decision from one other circuit—the Fifth Circuit’s

decision in Islamic Center of Mississippi, Inc. v. City of

Starkville, 840 F.2d 293 (5th Cir. 1988).

38

In Islamic Center, a group of students attempted to

establish a Muslim mosque near their university. The

local zoning ordinance prohibited the use of buildings

as churches in all areas within city limits unless the

city board granted an exception. The students

repeatedly requested, and the city board repeatedly

denied, exceptions for a number of alternative sites.

The record reflected that the city board had never

denied an exception to any other religious group and

that a number of Christian churches—25 to be

precise—had been located near the campus. The Fifth

Circuit 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.

The School cannot legitimately argue that the Sixth

Circuit’s decision conflicts with Islamic Center “on the

same important matter.” S. Ct. Rule 10(a). Islamic

Center involved a claim under the First Amendment’s

Free Exercise Clause, not a claim under RLUIPA.

Moreover, the ordinance in Islamic Center left “no

practical alternatives for establishing a mosque in the

city limits.” Islamic Center, 840 F.2d at 302. In this

case, the Township did no such thing. Just because the

Township denied a special use permit that would have

allowed the School to relocate to the Church’s facility

does not mean that the Township effectively barred the

School from operating within the Township’s borders.

And just because the obvious alternatives happen to be

outside of the Township’s borders does not mean that

the Township effectively barred the School from

operating within the Township’s borders. The School

did not try to relocate to any other location within the

39

Township’s borders, and the Township thus did not

consider any other location within its borders.

The Sixth Circuit’s decision is actually consistent

with decisions from other circuits, which establish that

RLUIPA does not give the School special status or

otherwise allow the School to relocate to wherever it

pleases. In Andon, L.L.C. v. City of Newport News, 813

F.3d 510 (4th Cir. 2016), for example, the Fourth

Circuit stated that the inability to locate “within a

geographic area will not by itself support a substantial

burden claim under RLUIPA.” Id. at 516 (citing Civil

Liberties for Urban Believers (CLUB) v. City of Chicago,

342 F.3d 752, 762 (7th Cir. 2003)); see also Roman

Catholic Bishop, 724 F.3d at 96. Indeed, “the

unavailability of land within a particular jurisdiction

can result from the reality of competitive real estate

markets, not the municipality’s actions.” Pet. App. at

29a (citing CLUB, 342 F.3d at 762).

The School also cites the Court’s decision in Schad

v. Borough of Mount Ephraim, 452 U.S. 61 (1981) for

the proposition that “[one] is not to have the exercise of

his liberty of expression in appropriate places abridged

on the plea that it may be exercised in some other

place.” Id. at 76-77. Schad involved an adult bookstore

where a customer could sit in a booth, insert a coin,

and watch an adult film. The bookstore later

introduced another coin-operated mechanism where a

customer could watch a live dancer, usually nude,

perform behind a glass panel. The borough determined

that such activity violated its zoning ordinance, which

provided that live entertainment—including nude

dancing—was “not a permitted use in any

establishment” in the borough. Id. at 65. The bookstore

40

challenged the imposition of criminal penalties under

the ordinance, claiming that the prohibition on live

entertainment violated, inter alia, the First

Amendment’s guarantee of free expression. This Court

agreed and held that the ordinance, as applied to the

bookstore, was constitutionally infirm.

The School fails to show that the Sixth Circuit

decided an important federal question in a way that

conflicts with Schad. S. Ct. Rule 10(c). The ordinance

in Schad “totally exclude[d] all live entertainment,

including nonobscene nude dancing that is otherwise

protected by the First Amendment.” Schad, 452 U.S. at

76 (emphasis added). “Schad applies only to the

complete and total exclusion of activity or expression

protected by the First Amendment.” Vision Church v.

Village of Long Grove, 468 F.3d 975, 989 (7th Cir. 2006)

(emphasis added); see also Ben’s Bar, Inc. v. Village of

Somerset, 316 F.3d 702, 716 n. 21 (7th Cir. 2003)

(Schad addressed an “ordinance [that] completely

prohibit[ed] the expressive conduct at issue”); Star

Satellite, Inc. v. City of Biloxi, 779 F.2d 1074, 1079 (5th

Cir. 1986) (the ordinance in Schad “provide[d] for the

total exclusion of some kinds of speech”). As the Sixth

Circuit recognized in this case, the Township has not

completely banned religiously-oriented schools from its

borders. Pet. App. at 26a.

CONCLUSION

The Court should not devote its limited resources to

this case. The School has waived the issues presented

in the petition. If the Court is inclined to consider the

issues, it should wait for a case in which there is

evidence to support the claims. There is no evidence

here that the School was the target of religious hostility

41

or that the School was effectively excluded from the

Township’s borders. Finally, “[r]eview on a writ of

certiorari is not a matter of right, but of judicial

discretion.” S. Ct. Rule 10. The School has not given

this Court a reason to exercise such discretion. For

these reasons, the Township respectfully requests that

this Honorable Court deny the School’s petition for a

writ of certiorari.

Respectfully submitted,

T. Joseph Seward

Counsel of Record

SEWARD HENDERSON PLLC

210 East 3rd Street, Suite 212

Royal Oak, Michigan 48067

(248) 733-3580

jseward@sewardhenderson.com

Carol A. Rosati

Anne McClorey McLaughlin

JOHNSON ROSATI SCHULTZ

& JOPPICH, P.C.

27555 Executive Drive, Suite 250

Farmington Hills, Michigan 48331

(248) 489-4100

Counsel for Respondent