Petition for Writ of Certiorari — Township of Ann Arbor, Michigan v. DiLaura (No. 07-346)

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.. 07-34 6SEP 10 2007

nol 1 _ OFFICE OF THE CLERK

Sn the

Supreme Court of the Anited States

TOWNSHIP OF ANN ARBOR; ANN ARBOR TOWNSHIP

ZONING OFFICIAL; ANN ARBOR TOWNSHIP ZONING

BOARD OF APPEALS,

Petitioners,

Vv.

TIM DiLAURA; DF LAND DEVELOPMENT L.L.C;

APOSTOLATE FOR THE EUCHARISTIC LIFE,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

JAMES J. WALSH

Counsel of Record

G. CHRISTOPHER BERNARD

BopMaAN LLP

201 Soutu Division

Suite 400

ANN Arsor, MI 48104

(734) 761-3780

Counsel for Petitioners

September 10, 2007

Becker Gallagher - Cincinnati, OH + Washington, D.C. - 800.890.5001

QUESTIONS PRESENTED

1. Three Circuit Courts of Appeals have ruled that a

judgment does not confer prevailing party status if it does not

award some type of enforceable relief. The Sixth Circuit in

this case has ruled otherwise. Does a judgment that does not

award plaintiffs money damages, injunctive relief, or

declaratory relief qualify plaintiffs as prevailing parties

entitled to an award of attorney fees under 42 U.S.C. § 1988?

2. May an appellate court base its decision regarding

prevailing party status on comments by the district court,

instead of the unambiguous terms of the judgment at issue?

TABLE OF CONTENTS

CUBSTIOING PRAEINE ED occ nce cere wewe en i

pp es ba er ere ee ea li

pf at Ps sc). re pare iV

PPT Wikis Wa ON se CN 4 Oe CER RO SER Vil

CPT PE Niches a ee Se pee oe’ ]

STATEMENT OF JURISDICTION ............. N

STATUTES INVOLVED IN THE CASE.......... 1

SEA RRS OE BU AO © 3s See Se ee lebaes ]

1. Destrect Court OreeGicHiOM. . 6. he eee cee 1

A. FE NS oS ek RN RS ERS 2

REASONS FOR GRANTING THE WRIT ......... 8

1. The Sixth Circuit's Analysis Significantly Departs

from this Court's Standard for Prevailing Party

RS kv ow 4 oo ks ee ee ee ee eee 8

2. The Circuits are Divided on this Important

NE. a er Be a ee ee ee eee 12

ill

3. If Repeated, the Sixth Circuit’s Reliance upon

Statements Made on the Record and Not

Incorporated in a Judgment Will Erode the

Certainty of Judgments and this Court’s Prevailing

PL i oe Ce nae cet eee bus: 17

SE I ia lao e's 56 5s FO ae eee 20

TABLE OF AUTHORITIES

Cases

Bell v. Thompson,

545 U.S. 794; 125 S. Ct. 2825; 162 L. Ed. 2d 693

PE OSes STS OER RE 17

Buckhannon Bd. & Care Home v. W. Va. Dep’t of Health

& Human Res.,

532 U.S. 598; 121 S. Ct. 1835; 149 L. Ed. 2d 855

CN rh ee ale Sa ek ee passim

Farrar v. Hobby,

506 U.S. 103; 113 S. Ct. 566; 121 L. Ed. 2d 494

PE ee OR CES OM ESOS 9, 10, 14

Gautreaux v. Chi. Hous. Auth.,

491 F.3d 649; 2007 U.S. App. LEXIS 15158 (7th

Re CE I PEE ose bess aoe oe ee 11

Hewitt v. Helms,

482 U.S. 755; 107 S. Ct. 2672; 96 L. Ed. 2d 654

“SERIE SES Pe ep ree ney ao aerate 9, 15, 16, 18

Hill v United States ex rel. Wampler,

298 U.S. 460; 56 S. Ct. 760; 80 L. Ed. 1283

SO a so ued Wisk ek es KORA EEO 17

Key Tronic Corp. v. United States,

511 U.S. 809; 114 S. Ct. 1960; 128 L. Ed. 2d 797

SG A ke eee 5 Wk ad RRR 8

Murdaugh Volkswagen, Inc. v. First National Bank of

South Carolina,

Pan Fae O82" Coe. 1908)... wn cee kes 17, 18

Petersen v. Gibson,

Sra Pam eretr Cr, 2008) .. we oc ee 13, 14, 16

Ramdass v. Angelone,

530 U.S. 156; 120 S. Ct. 2113; 147 L. Ed. 2d 125

ETE GE a's 6 wg ese eae to Oo ee 19

Rhodes v. Stewart,

488 U.S. 1; 109 S. Ct. 202; 102 L. Ed. 2d 1

NE a th ee a ce oe 9,15

Riverside v. Rivera,

477 U.S. 561; 106 S. Ct. 2686; 91 L. Ed. 2d 466

SSA aR eae Ga anes pay mr On ea 9

Sterra Club v. City of Little Rock,

351 F.3d 840 (8th Cir. 2003) ......... 12, 13, 16

Sole v. Wyner,

S51 U.S. _; 127 S. Ct. 2188; 167 L. Ed. 2d 1069

SP et eet a acer oan med Negara 9,10, 11

Texas State Teachers Ass’n v. Garland Independent

School Dist.,

489 U.S. 782; 109 S. Ct. 1486; 103 L. Ed. 2d 866

Se er alk oe Seas oS ase ed 9, 15

Thomas v. National Science Foundation,

330 F.3d 486 (D.C. Cir. 2003) ........ 14, 15, 16

Statutes

Sis SP EMULEA, cles pdiaseeseepeataeens oa ]

oo gi FR | | SP a ee eee ice Iam |

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De aes FE ae die Winn da wen Ree passim

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Equal Access to Justice Act,

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Religious Freedom Restoration Act,

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Religious Land Use and Institutionalized Persons Aci (RLUIPA),

fie ee el eer rie ae ae ee

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APPENDIX

Appendix A: Sixth Circuit Order denying rehearing

and amending the Court’s Opinion (June 12, 2007)... . la

Appendix B: Sixth Circuit Opinion (Dec. 27, 2006) ... 4a

Appendix C: District Court Opinion and Order

ame Facement Sent. 25, 2005) . ok ec ee ees 17a

Appendix D: District Court Transcript on Cross-

Motions for Summary Judgment (April 9, 2003) .... 22a

Appendix E: District Court Order (Apr. 11, 2003) ... S5la

Appendix F: District Court Judgment (Apr. 15, 2003) 53a

Appendix G: Charter Township of Ann Arbor Board

of Trustees Resolution of Approval of Conditional Use

ee I Ee 55a

Appendix H:

eS a PE og Wik 6 oe has ee eS 60a

We St ee SO 6 6 ds Wee ae eneese 6la

]

OPINIONS BELOW

The opinion of the Court of Appeals for the Sixth Circuit

is reported at 471 F.3d 666 (6th Cir. 2006), and is reprinted

in the Appendix to the Petition (“Pet. App.”) at 4a. The Court

of Appeals’ order denying rehearing and rehearing en banc is

not reported, but is available at 2007 U.S. App. LEXIS 15263

(6th Cir. June 12, 2007) and is reprinted at Pet. App.la. The

District Court’s order and judgment are not reported, but are

reprinted at Pet. App. 17a.

STATEMENT OF JURISDICTION

The Sixth Circuit issued its opinion on December 27,

2006. The Sixth Circuit entered its order denying rehearing

and rehearing en banc on June 12, 2007. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTES INVOLVED IN THE CASE

This case involves 42 U.S.C. § 1988 and the Religious

Land Use and Institutionalized Persons Act (RLUIPA), 42

U.S.C. § 2000cc ef seq. The pertinent provisions are

reproduced at Pct. App. 60a.

STATEMENT OF THE CASE

l. District Court Jurisdiction.

The court of first instance, the United States District Court

for the Eastern District of Michigan, had jurisdiction over this

matter under 28 U.S.C. § 1331.

2. Factual Background.

Plaintiffs Tim DiLaura, DF Land Development LLC and

Apostolate for the Eucharist Life proposed to use a house on

Dixboro Road in Ann Arbor Township (the “Dixboro Road

Property”) as a retreat house. After defendant Ann Arbor

Township Zoning Board of Appeals denied plaintiff's request

for a zoning variance, plaintiffs filed suit against defendants

Ann Arbor Township, Ann Arbor Township Zoning Official

and Ann Arbor Township Zoning Board of Appeals

(collectively, “the Township”) in the Circuit Court for the

County of Washtenaw, Michigan. Plaintiffs asserted various

claims under the Constitution and the Religious Freedom

Restoration Act, 42 U.S.C. § 2000bb (the “RFRA”), alleging

that the Township interfered with their exercise of religion by

denying the request for a variance to use the Dixboro Road

Property as a retreat house.

The Township removed the case to the Eastern District of

Michigan and moved to dismiss plaintiffs’ complaint for lack

of subject matter jurisdiction.

On April 3, 2000, the district court granted the

Township’s motion and dismissed the case, holding that

plaintiffs lacked standing. Plaintiffs’ motion for

reconsideration was denied. Plaintiffs appealed and the Sixth

Circuit reversed in part and remanded the case. DiLaura v.

Ann Arbor Charter Township, 30 Fed. Appx. 501; 2002 U.S.

App. LEXIS 3135 (6th Cir. February 25, 2002). The Sixth

Circuit affirmed the dismissal of plaintiffs’ free exercise

claims. The court held, however, that plaintiffs on remand

could assert a claim under the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc

et seq., which was enacted while the appeal was pending.

On remand, plaintiffs filed an amended complaint

asserting an RLUIPA claim. Subsequently, the Township’s

board, as the district court suggested at a scheduling

conference, adopted a resolution approving the issuance of a

conditional use permit for DiLaura to house overnight guests

at the Dixboro Road Property. [Resolution (Dkt. 41,

Response Brief, Ex. 6), Pet. App. pg. 55a}. The resolution

found that DiLaura’s proposed use qualified as a bed and

breakfast under the Township zoning ordinance because the

Dixboro Road Property would be used “for housing of no

more than 6 transient overnight guests with sufficient off

street parking, bathing facilities, and simple food service

provided from the residential kitchen.” [/d. pg. 56a].

Accordingly, DiLaura was free to operate the retreat house in

every respect that he first proposed to the Township.

Unsatisfied with the conditional use permit, plaintiffs

moved for summary judgment of their RLUIPA claim. The

Township responded to plaintiffs’ motion and filed a cross-

motion for summary judgment. On April 9, 2003, the district

court heard arguments on the parties’ motions. [Transcript,

Pet. App. pg. 22a].

The court stated during the hearing that it did not believe

the Township had substantially burdened plaintiff's exercise

of religion, but also that the label “bed and breakfast” did not

properly characterize plaintiffs’ proposed property use. “But

I don’t think there’s a substantial burden, but I don’t think the

bed and breakfast is a fair characterization for what

happened.” [/d. pg. 44a].

Although the Township informed the court that there was

no requirement that overnight guests at the retreat house make

any payment to plaintiffs, the court ruled that the Township

substantially burdened plaintiffs’ religious exercise “[b}y

labeling [the retreat] as a bed and breakfast and the fact that

you have to have payment in return.” [/d. pg. 46a]. The court

then acknowledged that granting summary judgment in

plaintiffs’ favor was purely technical: “As I say I’m not sure

I’m doing them a favor because if I grant their motion for

summary judgment, it doesn’t put them anywhere anyhow.”

{ Id. pg. 45a].

The district court rejected plaintiffs’ request for injunctive

relief:

I’m not going to give you any kind of injunction.

All I’m going to do at this point—I guess they can

continue to do it until the Township comes up with

another ordinance.

I’m not—the reason I’m not going to issue an

injunction because the relief that you’re asking for in

effect is them not enforcing their ordinance. I’m going

to grant that. That’s your motion for summary

judgment.

[/d. pgs. 46a-47a].

The district court’s order granting summary judgment was

a single page order as follows:

On April 9, 2003, the plaintiffs’ and the

defendants’ motions for summary judgment came

before the Court. A hearing was held and oral

arguments were heard. For the reasons stated on the

record, and in accordance with the terms stated on the

record,

IT IS ORDERED that the plaintiffs’ motion for

summary judgment is granted.

IT IS FURTHER ORDERED that the defendants’

motion for summary judgment is denied.

{Order, Pet. App. pg. Slalj.

The district court’s judgment did not grant plaintiffs relief:

The court has issued an order granting the

plaintiffs’ motion for summary judgment.

Accordingly,

IT IS ORDERED AND ADJUDGED that

judgment be and is hereby granted for plaintiffs and

against defendants. Costs to be permitted in

accordance with law.

(Judgment, Pet. App. pg. 53a].

Plaintiffs filed a motion for attorney fees under 42 U.S.C.

§ 1988, asserting that they were “prevailing parties” on their

RLUIPA claim. The Township then timely appealed the

district court’s judgment, and as a result, plaintiffs’ motion

for attorney fees was stayed.

On October 6, 2004, the Sixth Circuit in an unpublished

opinion affirmed the district court’s judgment. See DiLaura

v. Ann Arbor Charter Township, 112 Fed. Appx. 445; 2004

U.S. App. LEXIS 21159 (6th Cir. October 6, 2004).

Plaintiffs then renewed their motion for attorneys’ fees,

which was referred to a magistrate judge. On March 24,

2005, the magistrate judge issued a Report and

Recommendation recommending that the district court award

plaintiffs over $178,000 in fees, the full amount requested.

[Opinion and Order, Pet. App. pg. 18a]. The Township

objected to that recommendation.

On September 28, 2005, the district court entered its

Opinion and Order Accepting in Part and Rejecting in Part

Magistrate Judge’s Report and Recommendation Regarding

Plaintiff's Motion for Costs and Attorney Fees. [/d, pg. 17a].

On the same date, the district court entered a Judgment

awarding plaintiffs costs and attorney fees in the amount of

$72,214.24. [Judgment, Pet. App. pg. 21a]. Although the

district court “agree[d] with the magistrate judge’s conclusion

that plaintiffs are prevailing parties within the meaning of 42

U.S.C. § 1988(b),” the court also “disagree[d] with the

magistrate judge’s conclusions that plaintiffs in this lawsuit

‘received exactly what they sought’. . ..” [Opinion and Order,

Pet. App. pg. 18a]. The district court noted that “While

plaintiffs did succeed in obtaining a ruling that defendants

violated their rights under [RLUIPA], they did not prevail on

any of their other claims and they did not obtain any other

relief.” [/d., pg. 18a (emphasis in original)].

The district court explained that “In the present case,

plaintiffs’ success was ‘partial or limited’ indeed. None of the

claims initially pled succeeded and none of the relief initially

sought was obtained.” [/d., pg. 20a]. Plaintiffs obtained

summary judgment for their RLUIPA count only, but “no

declaratory or injunctive relief was awarded.” [/d., pg. 20a].

Plaintiffs appealed the district court’s reduction of the

amount of fees the magistrate judge had recommended. The

Township cross-appealed the district court’s determination

that plaintiffs were prevailing parties under 42 U.S.C. § 1988.

In a published opinion, the Sixth Circuit affirmed the

district court’s ruling that plaintiffs were prevailing parties

under Section 1988. DiLaura v. Ann Arbor Charter Township,

471 F.3d 666 (6th Cir. 2006), reh. denied, 2007 U.S. App.

LEXIS 15263 (6th Cir. June 12, 2007). The court based its

decision not on the terms of the district court’s judgment, but

rather on statements the district court made at the summary

judgment hearing:

While acknowledging that the defendants were not

going to enforce the bed and breakfast provisions at

the present time, the district court stated that it had “to

look at what [the.bed and breakfast ordinance] says

and take it [as] exactly what [the defendants] could

do.” Joint Appendix (“J.A.”) at 838 (Mot. Hr’g on

Cross-Mot. for Summ. J. (“Hr’g”) at 27). The district

court did not formally grant an injunction, but, rather,

stated on the record that the defendants could never

enforce the bed and breakfast provisions against the

plaintiffs.

471 F.3d at 669 (emphasis added) [Pet. App. pg. 7a].

The Sixth Circuit premised its entire prevailing party

analysis, and subjected the Township to attorney fee liability,

solely on the district court’s remarks in the transcript:

Here, the district court granted the plaintiffs’ motion

for summary judgment, and stated on the record that

the defendants could not enforce their ordinance

against the plaintiffs’ proposed use of the property.

The district court explained that it was not granting an

injunction because “the relief [the plaintiffs were]

asking for in effect is [the defendants] not enforcing

their ordinance. I’m going to grant that. That’s your

motion for summary judgment.” J.A. at 836 (Hr’g at

25). While the district court declined to label the relief

“injunctive, ” the effect of its order granting summary

judgment materially affected the legal relationship

between the parties in that after the district court’s

judgment was rendered, the threat of enforcement no

longer existed. The plaintiffs’ victory was not merely

technical or symbolic, and the district court’s

determination that the plaintiffs were prevailing parties

was not clearly erroneous.

Id. at 671 (emphasis added) [Pet. App. pgs. 1 1a-12a].

The Sixth Circuit also reversed the district court’s

reduction of the fee recommended by the mag*‘trate judge,

after finding that plaintiffs obtained “complete” relief. Jd at

671 [Pet. App. pg. 12a].

REASONS FOR GRANTING THE WRIT

1. The Sixth Circuit’s Analysis Significantly Departs from

this Court’s Standard for Prevailing Party Status.

This Court has strictly construed statutory fee-shifting

exceptions to the American rule that requires parties to pay

their own legal fees. See Buckhannon Bd. & Care Home v.

W. Va. Dep't of Health & Human Res., 532 U.S. 598, 602;

121 S. Ct. 1835; 149 L. Ed. 2d 855 (2001) (“Under this

‘American Rule,’ we follow ‘a general practice of not

awarding fees to a prevailing party absent explicit statutory

authority.’” quoting Key Tronic Corp. v. United States, 511

U.S. 809, 819; 114 S. Ct. 1960; 128 L. Ed. 2d 797 (1994)).

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Although 42 U.S.C. § 1988 allows fee awards to prevailing

parties, “Section 1988 is not ‘a relief Act for lawyers.’

Instead, it is a tool that ensures the vindication of important

rights, even when large sums of money are not at stake, by

making attorney’s fees available under a private attorney

general theory.” Farrar v. Hobby, 506 U.S. 103, 122; 113 S.

Ct. 566; 121 L. Ed. 2d 494 (1992) (O’Connor, J.,

concurring) quoting Riverside v. Rivera, 477 U.S. 561, 588:

106 S. Ct. 2686; 91 L. Ed. 2d 466 (1986) (Rehnquist, J.,

dissenting).

This Court has addressed the prevailing party issue several

times in the last 20 years, describing the type of relief a party

must obtain in order to recover fees under Section 1988 and

similar fee shifting statutes. See, e.g., Hewitt v. Helms, 482

U.S. 755; 107 S. Ct. 2672; 96 L. Ed. 2d 654 (1987); Rhodes

v. Stewart, 488 U.S. 1; 109 S. Ct. 202; 102 L. Ed. 2d 1

(1988); Texas State Teachers Ass’n v. Garland Independent

School Dist., 489 U.S. 782, 792; 109 S. Ct. 1486; 103 L. Ed.

2d 866 (1989); Farrar, supra; Buckhannon, supra; Sole v.

Wyner, 551 U.S. __; 127 S. Ct. 2188; 167 L. Ed. 2d 1069

(2007). Through these cases, the Court has established the

threshold requirements for prevailing party status. The Sixth

Circuit decision contradicts this Court’s prevailing party

limitations.

The formulation in Farrar, supra, made clear that only an

enforceable judgment, consent decree, or settlement confers

prevailing party status:

To be sure, a judicial pronouncement that the

defendant has violated the Constitution,

unaccompanied by an enforceable judgment on the

merits, does not render the plaintiff a prevailing party.

Of itself, “the moral satisfaction [that] results from

any favorable statement of law” cannot bestow

prevailing party status. No material alteration of the

legal relationship between the parties occurs until the

plaintiff becomes entitled to enforce a judgment,

consent decree, or settlement against the defendant.

Farrar, 506 U.S. at 112-113.

Buckhannon confirmed the rule in Farrar that only

“enforceable judgments on the merits and court-ordered

consent decrees create the ‘material alteration of the legal

relationship of the parties’ necessary to permit an award of

attorney’s fees.” Buckhannon, 532 U.S. at 604. Buckhannon

rejected the “catalyst theory” that had recognized an

opponent’s voluniary conduct as the basis of a prevailing

party determination. After Buckhannon, in order for a party

to be a “prevailing party,” there must be a “judicially

sanctioned change in the relationship of the parties.” Jd. at

605.

It is insufficient that plaintiffs have achieved the land use

they sought. Under Buckhannon and Farrar, a plaintiff's

failure to obtain an injunction or other enforceable relief

contained in the terms of a judgment precludes prevailing

party status. Recently, this Court in Wyner, supra, ruled that

a plaintiff who obtained a preliminary injunction but was not

granted permanent injunctive relief was not a prevailing party.

Plaintiffs’ situation here is not unlike that of plaintiff in

Wyner: plaintiffs arguably achieved the goal of the litigation,

but were not granted permanent injunctive relief. Wyner ruled

that such a result did noi entitle a plaintiff to fees under 42

U.S.C. § 1988:

Wyner, on the other hand, urges that despite the

denial of a permanent injunction, she got precisely

what she wanted when she commenced this litigation:

permission to create the nude peace symbol without

state inference. That fleeting success, however, did

not establish that she had prevailed on the gravaman

of her plea for injunctive relief, i.e., her charge that

the state officials had denied her and other participants

in the peace symbol display “the right to engage in

constitutionally protective expressive activities.”

Wyner, 127 S. Ct. at 2195.

To be sure, Wyner addressed whether the fleeting success

of a preliminary injunction later vacated by a ruling on the

merits provided sufficient grounds to confer prevailing party

status. This case is analogous to Wyner, however, in that

plaintiff here relies on comments by the district court during

oral argument that the Township could not enforce its zoning

ordinance, but the resulting judgment did not grant permanent

injunctive or other relief.

Obvious examples of enforceable relief are money

judgment, injunction, declaratory judgment, and consent

judgment. The Seventh Circuit has also ruled that under

Buckhannon, scttlements incorporated in orders of dismissal

will also suffice to confer prevailing party status. See, e.g.

Gautreaux v. Chi. Hous. Auth., 491 F.3d 649, _; 2007 U.S.

App. LEXIS 15158 at *14 (7th Cir. June 26, 2007)

(“Following this logic, we have held that cases in which ‘the

terms of the settlement were incorporated into the dismissal

order and the order was signed by the court rather than the

parties, or the order provided that the court would retain

jurisdiction to enforce the terms of the settlement,’ have a

sufficient judicial imprimatur to entitle the plaintiff to

prevailing-party status.”). None of these examples, however,

matches the judgment entered in this case. The Sixth Circuit’s

decision, therefore, is contrary to this Court’s prevailing party

jurisprudence.

2. The Circuits are Divided on this Important Issue.

Unlike the Sixth Circuit, the Eighth Circuit ruled that an

order granting summary judgment but no enforceable relief

did not confer prevailing party status. In Sierra Club v. City

of Little Rock, 351 F.3d 840 (8th Cir. 2003), the Sierra Club

sued the City of Little Rock and the Little Rock Sanitary

Sewer Committee under the Clean Water Act. After the Sierra

Club settled with the Sewer Committee, it moved for

summary judgment. The district court found that the City of

Little Rock was in violation of its National Pollutant

Discharge Elimination System (NPDES) permit, but refused

to enter an injunction or order any other remedy against the

city. The Sierra Club moved for an award of attorney fees,

contending that it was a “prevailing or substantially prevailing

party” entitled to fees under the Clean Water Act. The district

court awarded the Sierra Club over $50,000 in attorney fees.

The Court of Appeals reversed because the district court had

not granted any enforceable relief. The Eighth Circuit

explained:

Although the district court granted summary judgment

in Sierra Club’s favor, all Sierra Club received was a

declaration that the City had violated its permit. The

court declined to grant any of the relief that Sierra

Club sought, not even a requested order enjoining the

City from future violations of its permit. . . . Sierra

Club can point to no effect that the judicial declaration

had on the City’s behavior toward Sierra Club.

Further, without any relief to enforce, Sierra Club did

not receive an “enforceable judgment” and was not a

prevailing party.

Id. at 845 (parentheticals omitted) (emphasis added).

The Court of Appeals in Sierra Club pointed out that

without an injunction in place, “the court could not have held

the City in contempt under its retained jurisdiction because the

City would not have been in violation of any court order.” Id.

at 846. In the Eighth Circuit, unlike the Sixth Circuit, the

grant of summary judgment without injunctive or other

enforceable relief does not confer prevailing party status.

The Seventh Circuit in Petersen v. Gibson, 372 F.3d 872

(7th Cir. 2004), also ruled that a judgment that did not

provide monetary, declaratory, or injunctive relief was

insufficient to confer prevailing party status. Plaintiff in

Petersen obtained a jury verdict against defendant police

officer under 42 U.S.C. § 1983 and was awarded $1 in

nominal damages. Plaintiff then moved for a new trial arguing

that the trial court erred in giving the jury a nominal damages

instruction resulting in the $1 award. The trial court granted

the motion, vacated the damages award, and set the matter for

a trial on the issue of damages only. The parties subsequently

settled. After the settlement, plaintiff moved for attorney fees

under 42 U.S.C. § 1988. The court in Petersen was faced

with the issue of whether a judgment that confirmed a

violation of plaintiff's civil rights, but was devoid of any

damage award or other relief, was sufficient to make plaintiff

a prevailing party. The Seventh Circuit ruled that the

judgment did not:

Therefore, in determining whether Petersen has

prevailed, we must examine the practical impact of the

judgment. The only judgment here is the one entered

after the trial. That judgment originally awarded

Petersen nominal damages, which would have been

sufficient under Farrar to obtain prevailing party

status, but not necessarily to obtain fees. That damage

award, however, was vacated on Petersen’s motion,

and the settlement followed. Therefore, the only

judgment in this case is a determination that

Petersen's rights were violated. As the Supreme Court

noted in Buckhannon however, attorney’s fees are not

available where plaintiff has “acquired a judicial

pronouncement that the defendant has violated the

Constitution unaccompanied by ‘judicial relief.’”

[emphasis in original]. It is the settlement, not the

judgment of the court, that obtained the practical relief

sought by Petersen, and therefore the judgment cannot

provide a basis for prevailing party status.

Id. at 865-66.

The Seventh Circuit, therefore, has ruled that a judgment

merely affirming a violation of civil rights but not awarding

other relief does not confer prevailing party status.

The District of Columbia Circuit in Thomas v. National

Science Foundation, 330 F.3d 486 (D.C. Cir. 2003), also

strictly followed this Court’s teachings on prevailing party

status. In Thomas, plaintiffs filed suit against the National

Science Foundation (“NSF”), a government agency, and

Network Solutions, Inc. (“NSI”), a private contractor.

Plaintiffs alleged that the NSF and NSI collected fees for

internet registration services and the NSF retained 30% for

deposit into a fund for future government use on internet

projects. Plaintiffs alleged that the deposit of registration fees

into the fund was an unconstitutional tax that was neither

imposed nor ratified by Congress. The district court issued a

preliminary injunction barring the NSF and NSI from

spending money in the fund. The district court also awarded

plaintiffs partial summary judgment by declaring the portion

of registration fees deposited into the fund unconstitutional.

The district court did not award any other injunctive or

monetary relief in connection with the award of partial

summary judgment. After the grant of the preliminary

injunction and partial summary judgment, Congress passed

legislation that properly authorized deposits into the fund,

rendering plaintiff's case moot. Plaintiffs then moved for

attorney fees under the Equal Access to Justice Act, 28

U.S.C. § 2412(e)(1)(A), contending that they were prevailing

parties. Citing to Buckhannon and Hewitt, the D.C. Circuit

ruled that plaintiffs were not prevailing parties.

Thomas reviewed Buckhannon, Hewitt, Texas State

Teachers, and Rhodes and found three core principles in this

Court’s prevailing party jurisprudence. The first principle was

that a claimant must show that there has been a “court-

ordered ‘change [in] the legal relationship between [the

plaintiff] and the defendant.’” Thomas, 330 F.3d at 493,

quoting Buckhannon, 532 U.S. at 604. Second, a party must

be awarded a judgment providing “some relief by the court.”

Id. at 493, quoting Buckhannon at 603. Third, “a claimant is

not a ‘prevailing party’ merely by virtue of having ‘acquired

a judicial pronouncement that the defendant has violated the

Constitution unaccompanied by judicial relief.’” Id. , quoting

Buckhannon at 606. Under these principles, Thomas

determined that the grant of a preliminary injunction did not

afford plaintiffs prevailing party status. Thomas also rejected

plaintiffs’ argument that the grant of partial summary

judgment made them prevailing parties:

Appellees’ claim fares no better with respect to the

partial summary judgment. That order merely

declared that the disputed Preservation Assessment

was an unconstitutional tax. The partial summary

judgment did not afford appellees any concrete relief

beyond this mere legal declaration. As noted above,

Buckhannon and Hewitt make it clear that a mere

“judicial pronouncement that the defendant has

violated the Constitution,” unaccompanied by

“judicial relief,” is not sufficient to make a claimant

a “prevailing party.” This type of “judicial decree” is

not enough to warrant a fee award, because it

represents “not the end but the means” of litigation. A

declaration must require “some action (or cessation of

action) by the defendant that the judgment produces -

the payment of damages, or specific performance or

determination of some conduct.” The partial summary

judgment in this case did not achieve any such results.

Id. at 493-94 (citations omitted).

The D.C. Circuit, therefore, ruled that summary judgment

confirming a Constitutional violation but awarding no other

relief fails to confer prevailing party status.

The Sixth Circuit in this case held that summary judgment

without an award of judicially enforceable relief is sufficient

to make plaintiffs prevailing parties. This ruling is contrary to

the Seventh, Eighth, and D.C. Circuits in Sierra Club,

Peterson, and Thomas.

3. If Repeated, the Sixth Circuit’s Reliance upon

Statements Made on the Record and Not Incorporated

in a Judgment Will Erode the Certainty of Judgments

and this Court’s Prevailing Party Rulings.

It is axiomatic that “The court speaks through its

judgment, and not through any other medium.” Hill v United

States ex rel. Wampler, 298 U.S. 460, 465; 56 S. Ct. 760; 80

L. Ed. 1283 (1936); see also Bell v. Thompson, 545 U.S.

794, 805; 125 S. Ct. 2825; 162 L. Ed. 2d 693 (2005)

(“‘Basic to the operation of the judicial system is the principle

that a court speaks through its judgments and orders.’”

quoting Murdaugh Volkswagen, Inc. v. First National Bank of

South Carolina, 741 F.2d 41, 44 (4th Cir. 1984)).

According to Murdaugh:

Courts must speak by orders and judgments, not by

opinions, whether written or oral, or by chance

observations or expressed intentions made by courts

during, before or after trial, or during argument.

When the terms of a judgment conflict with either a

written or oral opinion or observation, that judgment

must govern.

Id. at 44.

This reasoning is sound, but unfortunately contradicted by

the Sixth Circuit’s opinion. This Court should affirm the time-

honored rule in Murdaugh that a court speaks only through its

written orders and judgments. A judgment that does not grant

enforceable relief by its express terms cannot be the basis for

prevailing party status.

Murdaugh’s rule provides certainty in the judicial process.

The Sixth Circuit’s position that it is acceptable to look behind

a written judgment does not.

The district court’s judgment in this case is the only

judicial pronouncement upon which the Sixth Circuit should

have based a prevailing party determination, but the judgment

does not order or enjoin any conduct or award any damages.

The terms of the judgment, therefore, do not support a ruling

that plaintiffs are prevailing parties because those terms do

not direct “some action (or cessation of action) by the

defendant” such as “the payment of damages, or some

specific performance, or the termination of some conduct.”

Hewitt, 482 U.S. at 761. The Sixth Circuit instead reviewed

and relied upon selective comments the district court made at

the summary judgment hearing to conclude that plaintiff

obtained enforceable relief. The Sixth Circuit’s reliance on

the hearing transcript, not the judgment, produces the peculiar

result that plaintiffs, despite not being awarded injunctive or

declaratory relief, nevertheless obtained “complete” relief:

When the plaintiffs filed their First Amended

Complaint, the defendants denied them their requested

use of the property. Now the plaintiffs are expressly

allowed their proposed use of the property without any

application of the defendants’ zoning ordinances. The

fact that the court did not grant an injunction or

declaratory judgment when it granted the plaintiffs’

motion for summary judgment does not make the

ultimate relief less complete.

471 F.3d at 671 (emphasis added) [Pet. App. pg. 1a].

The Sixth Circuit characterized the judgment as having the

effect of a declaratory ruling or injunction “expressly

allow[ing] [plaintiffs’} proposed use of the property.” Jd. The

district court, however, noted that “no declaratory or

injunctive relief was awarded” by its judgment. Opinion,

Appx. at 20a.

Certainty and finality are essential to our judicial system.

Judgments are always the product of deliberation. At the

conclusion of a hearing or trial, the litigants and the court

itself often do not know what a judgment will state. Indeed,

a judgment is commonly entered well after argument.

Ultimately, however, the court must make its decision, and

when it does, its judgment should be the clear and final word.

See, e.g., Ramdass v. Angelone, 530 U.S. 156, 174; 120 S.

Ct. 2113; 147 L. Ed. 2d 125 (2000) (“it is judgment which

signals that the case has become final and is about to end or

reach another stage of proceedings.” ). Any other result would

mean chaos, with appellate courts and litigants unsure of

what, if anything, a court has decided. The Sixth Circuit’s

opinion provides a basis to undermine the certainty and

finality of judgments. If comments a court makes while

considering the parties’ arguments can later be grafted on to

a judgment, both certainty and finality are at risk. This Court

should grant certiorari to prevent a danger to the judicial

process.

CONCLUSION

This Court should grant the Township’s petition for

certiorari to address important issues of federal law on which

the circuits are divided and which this Court should settle.

Respectfully submitted,

James J. Walsh,

Counsel of Record

G. Christopher Bernard

BODMAN LLP

201 South Division

Suite 400

Ann Arbor, MI 48104

(734) 761-3780

(734) 930-2494 (Fax)

Counsel for Petitioners

Township of Ann Arbor; Ann

Arbor Township Zoning Official;

Ann Arbor Township Zoning Board

of Appeals

September 10, 2007

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 05-2482/2506

[Filed June 12, 2007]

TIM DILAURA, ET AL.,

Plaintiffs-Appellants,

¥.

TOWNSHIP OF ANN ARBOR, ET AL.,

Defendants-Appellees.

A a ee a a

Neat

NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION

BEFORE: MERRITT and MOORE, Circuit Judges; and

COLLIER,” District Judge.

ORDER

The court having received a petition for rehearing en

banc, and the petition having been circulated not only to the

‘ Hon. Curtis L. Collier, Chief United States District Judge for the

Eastern District of Tennessee, sitting by designation.

original pane] members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en banc, the petition for

rehearing has been referred to the original panel.

The panel has further reviewed the petition for rehearing

and concludes that the issues raised in the petition were fully

considered upon the original submission and decision of the

cases. Accordingly, the petition is denied. However, the panel

amends its opinion to add a new footnote two to the text on

page four of the slip opinion:

<2> In their petition for rehearing/rehearing en banc,

the defendants cite, for the first time, a case which, they

argue, requires that a court provide a plaintiff with a

monetary judgment or an injunction before the plaintiff can

achieve prevailing party status. Pet. for Reh’g/Reh’g En Banc

at 10 (citing Gregory v Shelby County, 220 F.3d 433, 447

(6th Cir. 2000)). We note that this argument conflicts with the

defendants’ earlier argument to this court that, to be a

prevailing party, the plaintiff must obtain “relief in the form

of a money judgment, an enforceable declaratory judgment or

an injunction.” Br. of Defs.-Appellees/Cross-Appellants at

24. Now the defendants are arguing that only a monetary

judgment or injunction will suffice.

Both arguments, however, are wrong. Defendants’ new

argument fails because Gregory, and the case upon which it

relied, Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169

(6th Cir. 1990), have both been abrogated by Buckhannon Bd.

& Care Home, Inc. v. W. Va. Dep’t of Health & Human

Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 2d

855 (2001). Buckhannon makes clear that all that is required

to obtain prevailing party status is a judgment that is

enforceable and on the merits. /d. at 604 (“[E]nforceable

judgments on the merits and court-ordered consent decrees

create the ‘material alteration of the legal relationship of the

parties’ necessary to permit an award of attorney’s fees.”

(quoting Tex. State Teachers Ass’n v. Garland Indep. Sch.

Dist., 489 U.S. 782, 792-93, 109 S. Ct. 1486, 103 L. Ed. 2d

866 (1989))). To the extent that Gregory and Wooldridge limit

prevailing parties to those parties who obtain monetary

judgments or injunctions, they are abrogated.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 05-2482/2506

{Filed December 27, 2006]

TIM DILAURA; DF LAND DEVELOPMENT

L.L.C.; APOSTOLATE FOR THE

EUCHARISTIC LIFE,

Plaintiffs- Appellants/Cross- Appellees,

TOWNSHIP OF ANN ARBOR; ANN ARBOR

TOWNSHIP ZONING OFFICIAL; ANN ARBOR

TOWNSHIP ZONING BOARD OF APPEALS,

Defendants-Appellees/Cross-Appellants.

ST a a ee a ee ee ee ee ee ae

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 00-70570—Bernard A. Friedman, Chief District Judge

Before: MERRITT and MOORE, Circuit Judges; COLLIER,

Chief District Judge.”

* The Honorable Curtis L. Collier, Chief United States District

Judge for the Eastern District of Tennessee, sitting by designation.

ee are

OPINION

KAREN NELSON MOORE, Circuit Judge. Plaintiffs Tim

DiLaura (“DiLaura”), DF Land Development, L.L.C., and

Apostolate for the Eucharistic Life (collectively “the

plaintiffs”) appeal the district court’s order granting the

plaintiffs attorney fees and costs. The plaintiffs argue that the

district court abused its discretion in ordering a sixty-percent

reduction from the amount recommended by the magistrate

judge’s Report and Recommendation. The defendants

Township of Ann Arbor, Ann Arbor Township Zoning

Official, and Ann Arbor Township Zoning Board of Appeals

(collectively “the defendants”) cross-appeal, arguing that the

district court erred in ruling that the plaintiffs were entitled to

any costs or fees because they were not prevailing parties.

Because the district court was within its discretion in

finding that the plaintiffs were prevailing parties, but abused

its discretion in reducing the fees and costs by sixty percent,

we AFFIRM in part and REVERSE and REMAND in part

the district court’s judgment granting attorney fees and costs

to the plaintiffs in the amount of $72,214.24.

I. BACKGROUND

As this is the third time that these parties have come

before our court, there is a long history behind this case.

DiLaura, as a member and Executive Director of the

Apostolate for the Eucharistic Life, received a charitable

donation of real estate in the Township of Ann Arbor for

hosting guests for religious prayer and contemplation. In

conjunction with this proposed use, DiLaura planned on

providing complementary food and overnight accommodations

for approximately eight guests throughout each week.

DiLaura sent a letter to the zoning official asking whether

the plaintiffs’ proposed property use under the donation was

prohibited by the defendants’ zoning ordinance. The zoning

official responded that DiLaura was prohibited under the

zoning laws from using the property in the way in which he

proposed. DiLaura filed an application for a variance, but the

zoning board of appeals denied the variance application.

The First Amended Complaint was brought under 42

U.S.C. § 1983, and alleged violations of, inter alia, the

plaintiffs’ right to free exercise of religion under the First

Amendment of the United States Constitution and the

Religious Freedom Restoration Act. U.S. CONST. amend I; 42

U.S.C. § 2000bb et seq. (“RFRA”). The district court

granted the defendants’ motion to dismiss for lack of subject

matter jurisdiction, holding that the plaintiffs lacked standing

and that the plaintiffs’ claims were not ripe.

In DiLaura v. Ann Arbor Charter Twp., 30 F. App’x 501,

505-07 (6th Cir. 2002) (unpublished opinion) (“DiLaura I”),

we concluded that the plaintiffs did have standing and that

their claims were ripe for review. Although we disagreed with

the district court’s reasoning, we agreed that there was no

First Amendment violation. /d. at 508. However, we

concluded that the plaintiffs’ RFRA claim was still valid.

Although parts of RFRA had recently been declared

unconstitutional by the Supreme Court while DiLaura I was

on appeal, Congress enacted the Religious Land Use and

Institutionalized Persons Act, 42 U.S.C. § 2000cc ef seq.

(“RLUIPA”), which amended RFRA. DiLaura I, 30 F.

App’x at 507. Thus, we remanded to the district court to

determine whether the defendants were violating the plaintiffs’

rights under RFRA as amended by RLUIPA. /d. at 510.

After DiLaura I, on November 14, 2002, the plaintiffs

filed a Second Amended Complaint. formally claiming a

violation under RLUIPA. On December 16, 2002, the

township board of trustees, on the recommendation of the

planning commission, granted the plaintiffs a conditional

permit to operate a bed and breakfast. Although the

defendants asserted that they would not enforce it, a bed and

breakfast permit requires that the permitee charge guests a fee

and prohibits serving alcohol or meals other than breakfast

and light snacks. These restrictions, if enforced, would

interfere with the plaintiffs’ plan to provide services for free

and to serve lunch, dinner, and communion wine.

On remand from DiLaura I, the district court granted

summary judgment in favor of the plaintiffs, concluding that

the defendants’ bed and breakfast proposal violated RLUIPA.

While acknowledging that the defendants were not going to

enforce the bed and breakfast provisions at the present time,

the district court stated that it had “to look at what [the bed

and breakfast ordinance] says and take it [as] exactly what

[the defendants] could do.” Joint Appendix (“J.A.”) at 838

(Mot. Hr’g on Cross-Mot. for Summ. J. (“Hr’g”) at 27). The

district court did not formally grant an injunction, but, rather,

stated on the record that the defendants could never enforce

the bed and breaktast provisions against the plaintiffs. The

defendants appealed, and we affirmed. DiLaura v. Twp. of

Ann Arbor, 112 F. App’x 445, 446 (6th Cir. 2004)

(unpublished opinion) (DiLaura II).

This brings us to the issue before us today. After DiLaura

IT, the plaintiffs requested attorney fees and costs associated

with litigating this case. The magistrate judge issued a Report

and Recommendation concluding that the plaintiffs were

entitled to attorney fees and costs in the amount of

$178,535.61. The district court found that the plaintiffs were

prevailing parties, but reduced the award by sixty percent to

$72,214.24. The parties cross-appealed to this court; we have

jurisdiction over their appeals under 28 U.S.C. § 1291.

Il. PREVAILING PARTIES

We review a district court’s determination of prevailing

party status for clear error. Knology, Inc. v. Insight

Commce’ns. Co., L.P., 460 F.3d 722, 726 (6th Cir. 2006).

The defendants argue that the plaintiffs are not entitled to any

attorney fees or costs, because they do not qualify as

“prevailing parties” under 42 U.S.C. § 1988(b).' Section

1988(b) provides, in pertinent part, that in an action to

enforce provisions under RFRA or RLUIPA “the court, in its

discretion, may allow the prevailing party . . . a reasonable

attorney’s fee as part of the costs .. . .” Prevailing party

status is a “statutory threshold” which must be crossed before

there is any consideration of a fee award. Tex. State Teachers

Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109

S. Ct. 1486, 103 L. Ed. 2d 866 (1989). This threshold is

crossed when “the plaintiff has succeeded on ‘any significant

issue in litigation which achieve[d] some of the benefit the

parties sought in bringing suit’... .” Jd. at 791-92 (alteration

in Original) (quoting Nadeau v. Helgemoe, 581 F.2d 275,

278-79 (ist Cir. 1978)). See also Deja Vu of Nashville, Inc.

v. Metro. Gov’t of Nashville & Davidson County,. Tenn. , 421

F.3d 417, 420 (6th Cir. 2005), cert. denied, 126 S. Ct. 2916,

165 L. Ed. 2d 917 (2006).

' According to Rule 54(d) of the Federal Rules of Civil Procedure,

costs are to be awarded as “of course” to the prevailing party.

Although costs are part of the ultimate award that plaintiffs seek,

the debate between the parties focuses on attorney fees under 42

U.S.C. § 1988.

““[T]he touchstone of the prevailing party inquiry must be

the material alteration of the legal relationship of the

parties.’” Farrar v. Hobby, 506 U.S. 103, 111, 113 S. Ct.

566, 121 L. Ed. 2d 494 (1992) (quoting Garland, 489 U.S.

at 792-93). A material alteration requires that “[tJhe plaintiff

[] obtain an enforceable judgment against the defendant from

whom fees are sought, or comparable relief through a consent

decree or settlement.” /d. (citations omitted). The relief must

directly benefit the plaintiff “at the time of the judgment or

settlement.” /d. In contrast, “[w]here the plaintiff's success

on a legal claim can be characterized as purely technical or de

minimis, a district court would be justified in concluding that”

the plaintiff is not a prevailing party under the statute.

Garland, 489 U.S. at 792. Further, the change in the

relationship between the parties must be court ordered—if a

party’s change in position is purely voluntary, then there is no

prevailing party. Buckhannon Bd. & Care Home, Inc. v. W.

Va, Dep’t of Health & Human Servs., 532 U.S. 598, 605,

121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001).

The defendants make two overlapping arguments in

defense of their position that the plaintiffs are not prevailing

parties. First, the defendants argue that their change in

position was purely voluntary, that the district court did not

vider the defendants to do anything, and, therefore, under

Buckhannon, the plaintiffs are not prevailing parties. We

cannot agree with the defendants’ characterization of their

actions as voluntary. To the contrary, if the defendants’

actions in this case were voluntary, they would not have

appealed the district court’s decision in DiLaura IJ. The

plaintiffs did not obtain full relief in this case until the district

court announced, and this court affirmed, that the defendants

could not enforce the bed and breakfast permit limitations

against the plaintiffs. Thus, the defendants’ actions were not

completely voluntary.

10a

Second, the defendants argue that the grant of summary

judgment in the plaintiffs’ favor was only a technical or

symbolic victory, and, thus, under Farrar v. Hobby, the

plaintiffs are not prevailing parties. They argue that the rule

is that “a plaintiff who does not obtain relief in the form of a

money judgment, an enforceable declaratory judgment or an

injunction is not a prevailing party under Section 1988.” Br.

of Defs.-Appellees/Cross-Appellants at 24. According to the

defendants, because the district court’s grant of summary

judgment in favor of the plaintiffs did not include one of these

forms of relief, the plaintiffs are not prevailing parties.

The defendants’ argument rests on an erroneous view of

the law. They do not cite any cases stating that a party must

obtain a money judgment, an enforceable declaratory

judgment, or an injunction before it is entitled to prevailing

party status. As explained above, if the party points to

? In their petition for rehearing/rehearing en banc, the defendants

cite, for the first time, a case which, they argue, requires that a

court provide a plaintiff with a monetary judgment or an injunction

before the plaintiff can achieve prevailing party status. Pet. for

Reh’g/Reh’g En Banc at 10 (citing Gregory v. Shelby County, 220

F.3d 433, 447 (6th Cir. 2000)). We note that this argument

conflicts with the defendants’ earlier argument to this court that, to

be a prevailing party, the plaintiff must obtain “relief in the form

of a money judgment, an enforceable declaratory judgment or an

injunction.” Br. of Defs.-Appellees/Cross-Appellants at 24. Now

the defendants are arguing that only a monetary judgment or

injunction will suffice.

Both arguments, however, are wrong. Defendants’ new

argument fails because Gregory, and the case upon which it relied,

Wooldridge v. Marlene Industries Corp. , 898 F.2d 1169 (6th Cir.

1990), have both been abrogated by Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S.

ae Phage

lla

success on a Significant issue leading to a material legal

alteration between the parties, then that party has crossed the

“statutory threshold” into prevailing party status. Although a

money judgment, an enforceable declaratory judgment, or an

injunction will indicate such an alteration between the parties,

these are not the only ways in which such a changed

relationship may manifest itself. The case at bar provides an

example.

Here, the district court granted the plaintiffs’ motion for

summary judgment, and stated on the record that the

defendants could not enforce their ordinance against the

plaintiffs’ proposed use of the property. The district court

explained that it was not granting an injunction because “the

relief [the plaintiffs were] asking for in effect is [the

defendants] not enforcing their ordinance. I’m going to grant

that. That’s your motion for summary judgment.” J.A. at 836

(Hr’g at 25). While the district court declined to label the

relief “injunctive,” the effect of its order granting summary

judgment materially affected the legal relationship between

the parties in that after the district court’s judgment was

rendered, the threat of enforcement no longer existed. The

plaintiffs’ victory was not merely technical or symbolic, and

598, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001). Buckhannon

makes clear that all that is required to obtain prevailing party status

is a judgment that is enforceable and on the merits. /d. at 604

(“[E]nforceable judgments on the merits and court-ordered consent

decrees create the ‘material alteration of the legal relationship of the

parties’ necessary to permit an award of attorney's fees.” (quoting

Texas State Teachers Ass'n v. Garland Independent School Dist.

489 U.S. 782, 792-93, 109 S. Ct. 1486, 103 L. Ed. 2d 866

(1989))). To the extent that Gregory and Wooldridge limit

prevailing parties to those parties who obtain monetary judgments

or injunctions, they are abrogated.

12a

the district court’s determination that the plaintiffs were

prevailing parties was not clearly erroneous.

ll. FEE REDUCTION

A. Standard of Review

We review for abuse of discretion a district court’s

determination of the attorney fees due under § 1988, affording

“substantial deference” to the district court’s decision. Deja

Vu, 421 F.3d at 423. Abuse of discretion “exists only when

a district court ‘relies upon clearly erroneous factual findings,

applies the law improperly, or uses an erroneous legal

standard.’” Jd. (quoting Wikol ex rel. Wikol v. Birmingham

Pub. Schs. Bd. of Educ. , 360 F.3d 604, 611 (6th Cir. 2004)).

B. The Decision to Reduce the Award Was An Abuse of

Discretion

In the case at bar, the district court abused its discretion

on three levels, all of which culminated in its decision to

reduce the fees and costs awarded. First, it incorrectly

concluded that the plaintiffs were not entitled to fees for work

done prior to the Second Amended Complaint, because the

plaintiffs ultimately prevailed only on their RLUIPA claim

which was not raised until the Second Amended Complaint.

Second, the district court applied the wrong legal standard,

because, although it implicitly found that the case at bar was

one involving a common core of facts, it improperly treated

the various claims as distinct, reducing fees based on the

number of claims won versus the number of claims lost.

Third, the district court erred in finding that the plaintiffs did

not get complete relief.

13a

1. Relationship Between RLUIPA Claim and the

Original Complaint

One reason motivating the district court’s decision to

reduce attorney fees and costs was its conclusion that the

plaintiffs did not raise their RLUIPA claim until the Second

Amended Complaint. According to the district court, “[nJone

of the claims initially pled succeeded and none of the relief

initially sought was obtained.” J.A. at 302 (Order at 3).

But in DiLaura I, we explained that in their First

Amended Complaint the plaintiffs pleaded a claim under

RFRA which was amended by RLUIPA, enacted while the

case was on appeal. DiLaura I, 30 F. App’x at 507. Thus, on

remand, the panel instructed the district court to adjudicate

the original RFRA claim according to the RLUIPA

provisions. /d. at 510. It follows that the district court was

incorrect in its finding that none of the original claims

succeeded, because, according to DiLaura I, the panel

required the RFRA claim in the First Amended Complaint to

be adjudicated as a RLUIPA claim. Even though the plaintiffs

did not formally include a RLUIPA claim until their Second

Amended Complaint, it was an abuse of discretion for the

district court to ignore the decision of a panel of this court in

DiLaura I, and to treat the RLUIPA claim as unconnected to

the work related to the First Amended Complaint.

2. The District Court Applied the Wrong Legal

Standard to a Case Involving a Common Core of

Facts and Related Legal Claims

The district court also abused its discretion in failing to

State the correct legal standard applicable when a series of

related legal claims are based on a common core of facts. We

recently stated that:

l4a

“[A] court should not reduce attorney fees based on a

simple ratio of successful claims to claims raised.

When claims are based on a common core of facts or

are based on related legal theories, for the purpose of

calculating attorney fees they should not be treated as

distinct claims, and the cost of litigating the related

claims should not be reduced.”

Deja Vu, 421 F.3d at 423 (quoting Thurman v. Yellow Freight

Sys., Inc., 90 F.3d 1160, 1169 (6th Cir. 1996) (citation

omitted)). “‘Litigants in good faith may raise alternative legal

grounds for a desired outcome, and the court’s rejection of or

failure to reach certain grounds is not a sufficient reason for

reducing the fee. The result is what matters.’” Jd. (quoting

Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S. Ct. 1933,

76 L. Ed. 2d 40 (1983) (footnote omitted)).

In the case at bar, the district court’s statement of the

applicable law is selective and, thereby, misleading. To the

extent that the standard is stated correctly, the opinion

improperly applies that standard to the facts. The district

court opinion states:

In determining a reasonable attorney fee “the district

court should focus on the significance of the overall

relief obtained by the plaintiff in relation to the hours

reasonably expended in the litigation.” Hensley v.

Eckerhart, 461 U.S. 424, 435, 103 S. Ct. 1933, 76 L.

Ed. 2d 40 (1983). Further a reduction from the

lodestar is appropriate when the prevailing party

“achieve[s] only partial or limited success.” /d. at

436.

In the present case, plaintiffs’ success was “partial

or limited indeed.” None of the claims initially pled

15a

succeeded and none of the relief initially sought was

obtained. Three years into the litigation plaintiffs

asserted the RLUIPA claim, which did succeed, but

still the remaining claims failed and no declaratory or

injunctive relief was awarded.

J.A. at 302-03 (Order at 3-4) (alteration in original) (emphasis

supplied). The district court’s quotation from Hensley fails to

recognize that the Supreme Court mandated the following:

“Such a lawsuit [one involving a common core of facts]

cannot be viewed as a series of discrete claims. Instead, the

district court should focus on the significance of the overall

relief obtained by the plaintiff in relation to the hours

reasonably expended on the litigation.” Hensley, 461 U.S. at

435.

By focusing on the fact that most of the plaintiffs’ claims

failed, the district court does what Hensley specifically

forbids: it analyzes a series of related legal claims based on a

common core of facts, and determines the amount of fees, not

based on the plaintiffs’ overall success, but based on the

success or failure of the individual claims.’ Because the

plaintiffs ultimately prevailed on only one of their related

legal claims, the district court reduced the attorney fees and

costs by sixty percent. It is of no import that the relief came

only from the RLUIPA clam, because under Hensley “[t}he

* The district court opinion does not even mention the phrase

“common core of facts,” but given that the portion of Hensley from

which it quotes is specific to cases involving a common core of

facts, we infer that the district court believed this to be such a case.

This is certainly the more plausible position—all of the claims were

based on the defendants’ refusal to grant the plaintiffs permission

to operate a religious retreat, and all of the claims were designed to

enable use of the property at issue as proposed.

16a

result is what matters.” Jd. Thus, the district court’s reduction

in fees was an abuse of discretion.

3. The Relief Obtained Was Complete

The district court also erred in deciding that the

“plaintiffs’ success was ‘partial or limited. . . .’” J.A. at 302

(Order at 3). When the plaintiffs filed their First Amended

Complaint, the defendants denied them their requested use of

the property. Now the plaintiffs are expressly allowed their

proposed use of the property without any application of the

defendants’ zoning ordinances. The fact that the court did not

grant an injunction or declaratory judgment when it granted

the plaintiffs’ motion for summary judgment does not make

the ultimate relief less complete.

IV. CONCLUSION

The parties dispute whether there was a stipulation as to

the correct amount of fees and costs due to the plaintiffs in

this case if they were to prevail. We need not reach this issue

at this time; we conclude that, in this case, it is more

appropriate to remand to the district court for a decision on

fees that is consistent with our opinion.

For the foregoing reasons we AFFIRM the district court’s

judgment that the plaintiffs are prevailing parties, we

REVERSE the district court’s judgment insofar as it reduced

the fees and costs by sixty percent, and we REMAND to the

district court for further proceedings consistent with this

opinion.

17a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Civil Action No. 00-CV-70570-DT

[Filed September 28, 2005]

TIM DiLAURA, DF LAND DEVELOPMENT

LLC and APOSTOLATE FOR THE

EUCHARISTIC LIFE,

Plaintiffs,

ANN ARBOR CHARTER TOWNSHIP, ANN

ARBOR CHARTER TOWNSHIP ZONING

OFFICIAL, and ANN ARBOR CHARTER

TOWNSHIP ZONING BOARD OF APPEALS,

Defendants.

OPINION AND ORDER ACCEPTING IN PART AND

REJECTING IN PART MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION REGARDING

PLAINTIFF’S MOTION FOR COSTS AND

ATTORNEY FEES

This matter is presently before the court on plaintiffs’

motion for costs and attorney fees. The motion was referred

18a

to Magistrate Judge Wallace Capel, Jr., who has issued a

report recommending that the motion be granted. Defendants

have filed objections to the report and recommendation,

plaintiffs have responded to the objections, and defendants

have filed a reply.

The court agrees with the magistrate judge’s conclusion

that plaintiffs are prevailing parties within the meaning of 42

U.S.C. § 1988(b) and that they are therefore entitled to some

measure of attorney fees. However, the court disagrees with

the magistrate judge’s conclusions that plaintiffs in this

lawsuit “received exactly what they sought” and that they are

entitled to their requested fee of approximately $175,000.’

While plaintiffs did succeed in obtaining a ruling that

defendants violated their rights under the Religious Land Use

and Incarcerated Persons Act (RLUIPA), 42 U.S.C.

§ 2000cc, they did not prevail on any of their other claims

and they did not obtain any other relief. In their 30-paged first

amended complaint, plaintiffs asserted claims for violation of

their rights under the First, Fourth, Fifth and Fourteenth

Amendments, the Religious Freedom Restoration Act, 42

U.S.C. § 2000bb, the Michigan Constitution, and the Fair

Housing Act, 42 U.S.C. § 3604. Plaintiffs also claimed that

the township ordinance was void for vagueness, that it

' Although plaintiffs initially sought $230,608 in fees and $5,299 in

costs, they reduced the total to $174,650.61 after conferring with

defendants at the magistrate judge’s request. See Report and

Recommendation, p. 13 n.10; defendants’ Objections to the Report

and Recommendation, p. 4; plaintiffs’ Response to the Objections,

p.l. In addition, plaintiffs seek $5,885 for fees incurred in

preparing supplemental briefs relating to this fee petition. The court

therefore understands plaintiffs to be seeking a total of

$186,535.61.

19a

violated their due process rights, that the ordinance

constituted “exclusionary zoning” under M.C.L. § 125.592

and an unlawful prior restraint on First Amendment rights,

and that it rendered their property valueless and was

“confiscatory.” Plaintiff also asserted a claim for “appeal” of

the ZBA decision. Plaintiffs did not prevail on any of these

claims. For relief, plaintiffs sought an order allowing them to

use their property for the purpose they proposed; an

injunction enjoining enforcement of the ordinance; a

declaration that the ordinance was unconstitutional and

invalid; a declaration that defendants’ actions were

unreasonable and arbitrary; a declaration that defendants’

actions were unconstitutional and violative of plaintiffs’ due

process rights and plaintiffs’ rights under the Michigan

Constitution; and a declaration that the ordinance was void for

vagueness and an improper prior restraint on plaintiffs’ First

Amendment rights. Plaintiffs did not receive any of this relief.

Plaintiffs did succeed in obtaining a ruling from the court

of appeals, which reversed this court’s grant of summary

judgment for defendants and remanded the case for further

proceedings. Interestingly, the court of appeals focused on

whether plaintiffs had standing to assert a claim under

RLUIPA, which was enacted while the appeal was pending.

Nine months after the court of appeals issued its opinion,

plaintiffs finally amended their complaint in order to assert,

for the first time, a claim under RLUIPA. Plaintiffs also

repeated their earlier claims and demands for relief.

This court eventually granted summary judgment for

plaintiffs, but only under RLUIPA. The court of appeals

affirmed, but likewise only under RLUIPA. As defendants

correctly note, plaintiffs actually prevailed only on this single

Claim - a claim they formally pled, for the first time, in their

second amended complaint, which was filed nearly three

20a

years after the lawsuit was commenced.’ Plaintiffs clearly did

not prevail on any of their various other claims, and they did

not obtain any of the various forms of requested injunctive or

declaratory relief. In determining a reasonable attorney fee

“the district court should focus on the significance of the

overall relief obtained by the plaintiff in relation to the hours

reasonably expended on the litigation.” Hensley v. Eckerhart,

461 U.S. 424, 435, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983).

Further, a reduction from the lodestar is appropriate when the

prevailing party “achieves only partial or limited success.” /d.

at 436.

In the present case, plaintiffs’ success was “partial or

limited” indeed. None of the claims initially pled succeeded

and none of the relief initially sought was obtained. Three

years into the litigation plaintiffs asserted the RLUIPA claim,

which did succeed, but still the remaining claims failed and no

declaratory or injunctive relief was awarded. Under these

unique circumstances, a 60% across-the-board reduction of

the requested amount of costs and fees is warranted.

Accordingly,

IT IS ORDERED that plaintiffs’ motion for costs and

attorney fees is granted in the amount of $72,214.24

($180,535.61 x .40).

IT IS FURTHER ORDERED that Magistrate Judge

Capel’s Report and Recommendation is accepted in part and

rejected in part as explained above.

? Plaintiffs commenced suit in Washtenaw Circuit Court on January

10, 2000. They filed their second amended complaint on November

14, 2002.

2la

/s/ Bernard A. Friedman

BERNARD A. FRIEDMAN

CHIEF UNITED STATES DISTRICT JUDGE

Dated: September 28, 2005

Detroit, Michigan

JUDGMENT

The court has granted plaintiffs’ motion for costs and

attorney fees. Accordingly,

IT IS ORDERED AND ADJUDGED that judgment be

and is hereby granted for plaintiffs and against defendants in

the amount of $72,214.24.

DAVID J. WEAVER

CLERK OF COURT

By: /s/Carol L. Mullins

Deputy Clerk

September 28, 2005

Approved: /s/ Bernard A. Friedman

BERNARD A. FRIEDMAN

CHIEF U.S. DISTRICT JUDGE

22a

APPENDIX D

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Case No. 00-CV-70570

[Dated April 9, 2003}

TIM DiLAURA, DF LAND DEVELOPMENT,

LLC, and APOSTOLATE FOR THE

EUCHARISTIC LIFE,

Plaintiffs,

ANN ARBOR CHARTER TOWNSHIP,

ZONING OFFICIAL, and ANN ARBOR

CHARTER TOWNSHIP ZONING BOARD

OF APPEALS,

)

Defendants. )

)

CROSS-MOTIONS FOR SUMMARY JUDGMENT

BEFORE THE HONORABLE

BERNARD A. FRIEDMAN

United States District Judge

238 U.S. Courthouse and Federal Building

231 Lafayette Boulevard West

Detroit, Michigan 48226

23a

APPEARANCES:

For the Plaintiff: Robert Bunting, Esq.

Robert Charles Davis, Esq.

For the Defendant: William B. Forrest, III, Esq.

Court Reporter: Joan L. Morgan, CSR

Official Court Reporter

Proceedings recorded by mechanical stenography.

Transcript produced by computer-assisted transcription.

[p.2]

Detroit, Michigan

Wednesday, April 9th, 2003

THE CLERK: Calling case DiLaura versus Ann Arbor

Charter Township, case number 00-70570.

THE COURT: Good afternoon.

Maya we have appearances please?

MR. FORREST: William Forrest, on behalf of the

defendants, your Honor.

MR. BUNTING: Robert Bunting, on behalf of plaintiff.

MR. DAVIS: Your Honor, Robert Davis, on behalf of

the plaintiff.

Good Afternoon.

24a

THE COURT: Good afternoon, your Honor.

Do we have the plaintiff here? Good. It’s always good to

see litigants.

You know, I always think, if it were my case I would

want to be there.

MR. DAVIS: This is Mr. and Mrs. DiLaura.

THE COURT: Okay. Go on.

MR. DAVIS: Thank you, your Honor.

Robert Davis, again, on behalf of the plaintiff.

Living in Romeo without power --

THE COURT: I understand.

[p.3]

MR. DAVIS: My wife did hook up a generator, but it

didn’t get to the washing machine, and I think the dry

cleaners was also without power.

THE COURT: That’s fine. I know how tough it ts.

It’s so crazy. You know, you go and flip on a switch just

because you’re so used to it, and it doesn’t go on.

MR. DAVIS: The TV works but the washing machine

doesn’t. I'll have to get to that tomorrow.

THE COURT: The TV is more important.

rn rm ee Sr etn

25a

MR. DAVIS: Your Honor, we have submitted our papers

and I think --

THE COURT: Yes, I’ve read them.

MR. DAVIS: -- we’ve done a good job of getting you --

and I only want to punctuate for you our argument. And I

want to start with this: Our plaintiffs filed a notice. We

submitted a zoning request under the Zoning Scheme. We

were told we were not permitted use under their Zoning

Scheme. It puts it to the ZBA. We went to the ZBA and we

were flatly denied the use.

The Sixth Circuit, as we know, has confirmed the

plaintiffs’ standing to challenge the ordinance issue under the

RLUIPA law. And the Sixth Circuit had ruled that jurisdiction

is triggered, and that our activity proposed for the property as

a religious exercise is substantially

[p.4]

burdens by an ordinance scheme that said no.

Your Honor, under the law which is in front of you, the

defendants cannot impose a burden on a religious exercise

unless they first show a compelling governmental interest.

After our last conference with you we did some discovery

which is now before the Court. And it shows --

THE COURT: It doesn’t say burden, substantial burden.

MR. DAVIS: Yes, sir.

THE COURT: Substantial is the key to the --

26a

MR. DAVIS: Right.

We did discovery, Judge, and we have that before you.

There’s no police concern here. It’s been admitted. There

is no public health concern, no traffic concern, no sewage

concern, no fire safety concern. All admitted in the request,

there’s no concern. We had two full hearing nights before the

ZBA and no concerns were expressed during those hearings.

In their papers to you the defendants have not put forth

any compelling governmental interest at all. I don’t think they

even argued that. Instead what they did, and what they’ve put

before you is they held a meeting which we timely objected

to, and labeled it a bed and

[p.5]

breakfast.

The only real significance of that hearing, your Honor, is

that that hearing again concluded that there was no compelling

governmental interest. If you look at the resolutions of that

particular meeting it said that our use -- it meets the standards

of the ordinance; it’s compatible with the area. There’s no

parking problem, and there’s no impact.

But they still have yet to show a compelling governmental

interest for their actions, that action or the prior action.

When you look at the Murphy case which I know you’ve

read, it’s right on point. They just can’t do this.

27a

So they make a decision unilaterally that they’re going to

label it as a bed and breakfast. It only compounds the burden,

Judge. It compounds the burden, and let me tell you why.

THE COURT: No, I understand.

Why doesn’t the township get an ordinance, have a retreat

ordinance?

MR. FORREST: Because I don’t think the township

should have any ordinance that has a religious focus.

It’s clear, your Honor -

THE COURT: Well, people go on retreats for reasons

other then religion. We go on retreats -- our

[p.6]

management staff go on retreats for purposes of discussion,

but we don’t go to a bed and breakfast.

MR. FORREST: Well, you go to some place that might

have fifty rooms.

THE COURT: Well, we don’t, but we could.

MR. FORREST: You don’t go to someone’s house.

But what difference does it make, your Honor, if the

conditional permit says -- condition of use permit says bed

and breakfast?

The point is -

28a

THE COURT: It makes a difference to them.

MR. FORREST: Well, the point is -

THE COURT: Because they’re not a bed and breakfast.

MR. FORREST: Well, the point is, your Honor,

everything that Mr. DiLaura proposed in 1999, he can do

today with that permit.

And the Sixth Circuit analogized the proposed use, to do

a bed and breakfast.

THE COURT: The truth of the matter is, and I guess I’m

just speaking as truthfully as I can, had they not applied for

this -- to the township for anything, they could have done

what they wanted to do anyhow -

MR. FORREST: Well, they probably could have -

THE COURT: -- and nobody would have said a thing

[p.7}

or would have said a word or would have done anything

because they’re not doing anything that -

MR. FORREST: They probably could have, your Honor.

THE COURT: You know -

MR. FORREST: They -

THE COURT: I mean, from day one, this lawsuit has

bothered me for no other reason other -- not bothered me, you

29a

know, because had they wanted a retreat at their house I don’t

think anybody in the whole world would have -- and wanted

to do it as often or -- you know, probably would have been

very much welcomed, you know. We all need a little more

spirituality in our lives.

MR. FORREST: Well, and the only thing that the

township had any interest was the housing of overnight

guests.

THE COURT: They only had an interest because they

applied for a permit. If they didn’t ask for a permit, they

could have had all the housing they wanted over there.

MR. FORREST: Well, they asked is this allowed as a

matter of right in this agricultural zone, and it’s not. And then

they said, well, we want a variance. And the ZBA under

Michigan just didn’t have the authority to grant this variance.

[p.8]

MR. DAVIS: Your Honor, that’s absolutely not true.

Under the Zoning Scheme, we sent a letter in for fear of

prosecution and said is this okay. A letter comes back, says,

no, that’s not permitted.

When you get a letter under their Zoning Scheme, you

don’t go -- the ZBA and their Zoning Scheme is not for

variance purposes, it’s an appeal for those decisions.

We followed the Zoning Scheme. We had a question as to

whether or not we had a right to do this. We asked. They said

no. We went through their appellate process and here we are.

30a

Now, the law is clear. Absent the showing of a compelling

governmental interest summary judgment is appropriate in our

favor, and we’ve got to get on with this.

THE COURT: If I granted you summary judgment, what

good would that do? What happens? That means that you’re

not a bed and breakfast.

MR. DAVIS: That’s right, your Honor, because a bed and

breakfast -

THE COURT. Okay, you’re not a bed and breakfast, but

you still don’t have a variance.

MR. DAVIS: We just have the use, your Honor. The use

is allowed without the burden of the ordinance.

MR. FORREST: Your Honor, they have the use

[p-9]

today.

THE COURT: Yes.

MR. FORREST: If I may, your Honor, and I direct the

Court’s attention to another case on the point you mentioned.

It’s the Vineyards Christian Fellowship of Evanston versus

City of Evanston. We didn’t cite it in our brief -

THE COURT: I was just going to say -

MR. FORREST: It’s 31, March, 2003. So it was decided

last week.

31a

THE COURT: Okay.

MR. FORREST: And it’s 2003, U. S. District Lexus

5079. And it discusses many things but on the question of

RLUIPA it discusses substantial burden, and goes back and

incorporates what has always been the test and that is not

mere inconvenience but something that forces someone to

abandon a fundamental religious tenant or deprives someone

of a governmental privilege -

THE COURT: I don’t think there’s any substantial burden

on this plaintiff. I really don’t. But on the same token I don’t

think it’s a bed and breakfast under any kind of conceivable,

imaginable kind of thing when they’re there for a retreat, you

know. The alcohol issue doesn’t bother me because, you

know, as I think -- your argument would be, you know, every

religious organization would need a liquor

[p. 10]

license no matter where -

MR. FORREST: But it really -

THE COURT: I tend to agree with the township that

there’s no substantial burden at all. But on the same token,

it’s not a bed and breakfast. No way in the world I could

possibly say this is a bed and breakfast.

MR. FORREST: Your Honor, DiLaura is afraid today to

put up a sign in front of that house that says Bread of Live,

Retreat House, whatever, and they can call it whatever they

want.

32a

The mere fact that the township because of the way the

zoning Ordinance is structured, and it was structured long

before this issue came up, requires a permit that says bed and

breakfast condition of use permit.

What is the label? The label doesn’t stop them from doing

anything they propose -

MR. DAVIS: Your Honor -

MR. FORREST: The only thing I think it requires -

THE COURT: If the ordinance had bed and

breakfast/retreat, I would say -- you know, I understand what

you’re saying, they’re not a bed and breakfast, we’re a

retreat, we're a -

MR. FORREST: Well, your Honor -

THE COURT: I don’t think they’ve met their

[p.11]

burden, of any substa,tial burden on any religious exercise or

anything -

MR. FORREST: Your Honor -

THE COURT: Why don’t you amend your ordinances to

put slash retreat and you’re home free.

MR. FORREST: I will bring your Honor’s concern to the

township’s board and suggest that they add that classification

to the Zoning Order.

33a

THE COURT: Go on.

MR. DAVIS: I do need to address that issue. When you

look at -- now calling it a commercial use however he wants

to label it. We had a conferred standing upon all the plaintiffs

in this matter. You the donation paperwork before you as a

matter of record, all had been confirmed up to the Sixth

Circuit.

If you start calling this something other than just a

religious use, you’re going to trigger the taxing implication of

that donation.

First of all, you go back in time. A bed and breakfast

requires payment. It requires breakfast only. It requires

certain refrigeration restrictions. It requires certain other

things. It requires certain inspections with the state. It

requires certain permits.

We don’t want that cxtra burden -

THE COURT: Churches requires, churches require -

[p.12]

and there’s no substantial burden on a church or a synagogue

or a mosque or anything of that nature. But fire regulations if

they have kitchen facilities, they have to meet the code for

refrigeration and so forth because whether you’ re praying or

not, you have to do a lot of praying so that there’s no fire,

you're not praying that there’s no fire -

MR. DAVIS: Your Honor, if you look -

34a

THE COURT: People who are there for spirituality,

they'll have a right to be protected -

MR. DAVIS: It’s his burden to show the compelling

governmental interest. You're actually making his argument.

If you look at the Murphy case, the Murphy case got all

done with the analysis and said, oh, we have this lingering

pretty good proof of a traffic problem, pretty good proof of

a fire problem, but the Murphy court said but the government

failed to show that this was a compelling governmental

interest, and that it was the least restricted means to implore

it.

So if you look at the Murphy case this issue already came

up. You are making an argument for his compelling

governmental interest, and I’m telling you that if you start

calling this or we start labeling this to what it’s not, if we lie

just so we can get around it, and we

[p.13]

call it something commercial, I’m going to lose the tax

donation issues. I’m going to be triggered into another role of

government. I’m going to have to get permits and inspections

and al! kinds of other things, other restrictions that I don’t

have right now. He’s actually putting me in a worse category

_ with more burden.

THE COURT: What are your burdens?

MR. DAVIS: The burdens of being a bed and breakfast?

THE COURT: Yes.

35a

MR. DAVIS: The burden of being a bed and breakfast,

Ordinance Provision 130.202, I have to charge people.

THE COURT: No, you don’t have to. What’s the

language?

MR. DAVIS: It requires payment.

THE COURT: Hold on.

MR. DAVIS: It’s Exhibit 7 to my brief, your Honor, the

Ordinance Scheme.

THE COURT: I have it right here, too. I’m just looking

at it.

MR. DAVIS: He says we read it wrong even though it

says “shall require payment.”

The township’s position was -

THE COURT: Here it is, right here.

[p.14]

MR. DAVIS: I can approach if you wish, your Honor.

It’s Exhibit 7, Section 130.202, your Honor. It says

“Definition, Schedule of Bed and Breakfast.”

It’s the second page of Exhibit 7, your Honor.

THE COURT: And where are you now?

ee oy ast ee ee

36a

MR. DAVIS: The second -- there’s a definition for bed

and breakfast in the Ordinance Scheme. It’s the third

definition down. The last -- “in return for payment.”

THE COURT: I see.

MR-DAVIS: Okay, the next one, your Honor, is that --

you’ve already addressed, there’s a prohibition against any

alcoholic beverages.

The ordinance also only allows breakfast. It prohibits use

of the refrigerator by the guests. It limits the number of the

guests. We have to comply with state regulations.

Section 130.1124 requires that we now supply written

evidence that we’ve complied with certain applicable codes

and regulations and that we get a new certificate of

occupancy.

Judge, and most importantly the tax implication, we’re

now a commercial business: We can’t lie and then make it a

commercial business. Two reasons: We don’t want

[p.15]

to go through those tax burdens. And number two -

THE COURT: If they passed an ordinance that said you

have to meet the state fire code if you have people there. That

you have to fire detectors. That you have to have adequate

parking. That if you do serve meals that you'll comply with

the standard, whatever the standard would be. If you’re meals

too, you know, people as a result of coming there for a

specific religious purpose. Would that be a substantial burden,

if it was designed for, specifically tor a retreat.

37a

MR. DAVIS: If he had that ordinance in place.

THE COURT: If there were such an ordinance.

MR. DAVIS: I think it would be arguably a substantial

burden. But here, he doesn’t have it.

He’s trying to -

THE COURT: Let me give you some examples. Forget

the bed and breakfast ordinance for a while. But if they had

ordinances in certain areas you can have retreats for religious

purposes. And the reason I say religious because I think they

probably should be for anything, but you’re saying for

anything, then they’re taxable.

I] mean, what happens if somebody wants to have a retreat

at -- you know, had this kind of property and I picture the

property fairly rural -

MR. DAVIS: Right. A big house -

[p. 16]

THE COURT: Yes, and wanted to have it for, you know,

for a company to come there and have a retreat for their

employees or for a some -

MR. DAVIS: If you’ re just allowed to do it, it’s fine. But

if you stick a commercial label on it you’re triggering the

burden. And he, the township, has made a unilateral decision

at their meeting, subject to our objection, we’re just going to

call you that.

Now -

38a

THE COURT: My question is: If they had an order,

number one, do you think they could pass such an ordinance?

Mr. Bunting, you can speak a little bit.

MR. BUNTING: If it limits us up to six people. The

Murphy case says that’s not -- that’s a burden in and of -

THE COURT: Usually I don’t let two people speak, but

you were so anxious to -

MR. BUNTING: The donation, that sort of thing, it kills

the donation.

MR. FORREST: Your Honor, the proposal that we

received in 1999, that was discussed by the Sixth Circuit was

two or three people on week nights up to five on weekends.

We said, let’s be safe, we'll give you six. Now,

[p. 17)

they’re complaining we gave them more than what they asked

for.

The tax issue was not raised in any of the papers. But |

can assure you, your Honor, that you’re only taxed on

income. And if Mr. DiLaura wants to charge a penny, or

charge nothing, it’s of no concern to the township. And there

are no tax implications. And this is raised -

THE COURT: Except the ordinance says in return for

payment.

39a

MR. FORREST: In return for payment, and it doesn’t say

the amount.

THE COURT: But even if it’s a penny, they’re saying it’s

a penny too much.

MR. FORREST: Is that a burden, your Honor? And as a

Catholic for fifty-five years, I know that religion is not

adverse to the collection of money.

MR. DAVIS: Your Honor -

MR. FORREST: But that’s not a burden.

THE COURT: There’s no organization that is adverse to

collecting money.

MR. FORREST: And, your honor, that’s not a

requirement. We do not say you must charge a minimum.

That’s a generic description of something that your Honor

might consider a retreat house.

[p.18]

But how can one get a substantial burden on a

fundamental religious belief by these silly little things that we

don’t want to have fire protection. We don’t -- we want to

serve the same meals that were proposed in 1999, we said

fine. Now they complain their limitation on meals.

Your Honor, no matter what we provided to these

plaintiffs, they would be dissatisfied.

MR. DAVIS: Your Honor, there’s a charitable -

40a

MR. FORREST: Because every time we address their

issues -- as your Honor suggested, we gave exactly what was

suggested in your chambers without complaint -

MR. DAVIS: No.

MR. FORREST: -- and now they complain.

THE COURT: Their only complaint now is that you’re

calling it a bed and breakfast.

MR. FORREST: Your Honor, call it whatever they want.

We’re not going to put a sign -

THE COURT: They can’t call it whatever they want

because you don’t have an ordinance to fit in with whatever

you want.

MR. FORREST: We don’t say put a bed and breakfast

THE COURT: I understand. The township in terms of

enforcement and so forth, it’s saying, hey, you know, we’re

not going to literally enforce this, we’re not going

[p.19}

to be in there doing an audit to see whether or not you serve

breakfast and lunch, or, you know, something like that.

We’re not going to be there to see if you’ve collected a

penny. We’re not doing any of those things. That’s not their

problem. Their problem is that you have the ability to do so

if you want to and they’re here for the principle as well -

4la

MR. FORREST: Your Honor, we don’t have the ability

to tell them they can’t serve snacks because the ordinance

says they can which is what they described in 1999.

THE COURT: But some day if you wanted -- and I’m not

Suggesting that this township would do that, I think the

township has been cooperative in terms of doing certain

things, but, you know, you just kind of weigh it. And they’re

saying that some day, some new administration is going to

Say, wait a minute, you know, we don’t like what you’re

doing here. You don’t have a real use. You're supposed to be

a bed and breakfast, and we’re now going to literally enforce

this ordinance, and literally it says in return for payment. So

you're going to have to show us where you’ve gotten paid.

MR. FORREST: Well, your Honor, then -- if that

happened, then the Court could ask the question: Is this a

substantial burden on a religious exercise?

[p.20]

There’s no evidence that if we were doing it today it

would be a substantial burden.

THE COURT: But the issue is -- as I say, I’ve gone both

ways in preparing for today in terms of this case. The issue

is: is not if or when, or something, it’s how it exists today,

what he can do today, what’s your ability to do today.

MR. FORREST: No, no, under the escape clause we can

fashion a remedy which we've done that says whatever they

have identified as a substantial burden, we’ ve eliminated.

MR. DAVIS: Your Honor -

42a

MR. FORREST: And today, they can go and do exactly

what they proposed in 1999 -

THE COURT: So why don’t you just give them a

variance then?

MR. FORREST: Because -

THE COURT: Then they would be happy. Just give them

a variance that says you can have exactly what they ask for.

Get their letter out. I remember -- you’re right, I think it was

limited to I forgot how many people. It was limited to I think

four people, or whatever. Just grant their variance.

MR. FORREST: Your Honor, if we grant a variance and

a nosey neighbor takes us to Washentaw Circuit Court,

[p.21]

we lose because Michigan law of variances require for -- this

would be a huge variance, requires that the property can be

put to no productive use without a variance, and we know

that’s not true because it’s been used as a single-family home,

later proposed as a golf course.

So the concept that we violate Michigan law just because

they don’t like the labe' “See and breakfast” --

THE COURT: Michigan law says it can’t be put to any

other kind of use?

MR. FORREST: That’s for a use variance, your Honor.

For a dimension variance which is, you know, less than a side

yard, all you need is practical difficulty.

43a

THE COURT: But for use -

MR. FORREST: For a use variance you must show that

under current going, the property cannot be put to any viable

economic use.

THE COURT: And under current zoning a bed and

breakfast is -

MR. FORREST: Well, under the current zoning it’s a

single-family residential which is as viable -

THE COURT: But you gave them a variance for a bed

and breakfast.

MR. FORREST: We gave them what’s called a

conditional use permit, your Honor.

THE COURT: Oh, how about conditional use permit

[p.22]

for a retreat?

MR. FORREST: The ordinance -- as written doesn’t

identify use because -- to be candid, your Honor, no one has

ever suggested to the township until this case that they wanted

to have a retreat house.

Now, for all we know, people have had retreat houses of

this sort for years, it just never came on our radar screen.

But think about it, your Honor, of the multitude of uses

that people come up with you can’t identify everyone in a

zoning ordinance.

44a

THE COURT: I agree.

MR. FORREST: You just can’t.

MR. DAVIS: Your Honor, with respect to this -

THE COURT: The issue is now here. I remember when

I was a municipal attorney when they first came out gas. 1

mean, would you ever think of getting gas not self-service any

more and there’s a reason for it. And three cities that I

represented had ordinances that said you couldn’t self-serve.

The reason was because of the fire -- you know. And they

came out and -- you know, whoever thought there ever be

self-service gas stations. And I remember -- sometimes you

have to change ordinance to keep up with what’s happening

in the community.

MR. DAVIS: Your Honor, I submitted to you in the

[p.23]

papers the legislative history of this particular law.

THE COURT: I’m ready to rule.

But I don’t think there’s a substantial burden, but I don’t

think bed and breakfast is a fair characterization for what

happened -

MR. DAVIS: We don’t want any commercial burden,

Judge.

THE COURT: and what we’re doing is -- all I would be

doing, would be ruling to -- for the sake of ruling, but not out

of candidness. As I say I don’t believe that a bed and

45a

breakfast definition would be a substantial burden, but it also

is a substantial burden because of the fact it’s not what’s

going on over there, and it’s not being honest and the kinds

of things that all of us want to do in doing so. And I think the

way to resolve the problem is as I say, I have to grant the

motion of the plaintiff in this particular matter with the

understanding that the township somewhere down the line will

come up with an ordinance that will resolve this particular

problem.

MR. FORREST: Your Honor, you’re granting their

motion for summary judgment?

THE COURT: Their motion.

MR. FORREST: The plaintiffs?

THE COURT: I don’t know where that puts them.

[p.24]

As I say I’m not sure I’m doing them a favor because if I

grant their motion for summary judgment, it doesn’t put them

anywhere anyhow.

MR. FORREST: Your Honor is making a finding that

there’s no disputed issue of fact that there is a substantial

burden on the DiLauras’ religious exercise?

THE COURT: Under the caption of bed and breakfast.

I think the caption of bed and breakfast in and of itself -

I mean, if you want a trial, I’d be more than glad to give you

a trial on it.

46a

MR. FORREST: By that label -- do you think that label

violates RLUIPA?

THE COURT: I think so.

By labeling this as a bed and breakfast and the fact that

you have to have payment in return. And I understand your

argument, and I agree with you, and I know that the township

is never going to enforce that, but it’s still on the books that

they have to accept payment, that they have to do certain

kinds of things.

MR. FORREST: So is your Honor going to issue some

sort of injunction?

MR. DAVIS: You Honor, we would simply want an

injunction. Let me —

THE COURT: I’m not going to give you any kind of

{p.25]

injunction. All I’m going to do is at this point -- I guess they

can continue to do it until the township comes up with an

ordinance.

MR. DAVIS: Well, your Honor, in our prayer for relief,

we’ ve asked that you grant our motion which you’ re going to.

We just want -- we want an injunction that just says don’t

use any ordinance that you have in contravention of our -

THE COURT: I’m not -- the reason I’m not going to issue

an injunction because the relief that you’re asking for in effect

47a

is them not enforcing their ordinance. I’m going to grant that.

That’s your motion for summary judgment.

MR. DAVIS: That they not enforce their ordinance.

THE COURT: At this time. They can have another

ordinance that they can push -- and the reason I’m not going

to grant any kind of injunction telling them they can’t do this,

or they can’t do that, because I think that the test is a

substantial burden, okay.

But I also think there’s another test. I think the township

Owes a duty both to the other citizens of that community as

well as to anybody that may come to this particular location

to -- for basic kinds of protection,

[p.26]

you know, to make sure there’s a fire extinguisher. And |

suspect they’re going to issue -- I don’t know if -- I’m not

suggesting they do because I don’t care if they do, if you had

never filed your suit we wouldn't have been here, nobody

would have been here. You would have been operating your

retreat. Nobody would have said anything and probably they

would have -- maybe even have gotten an award in the

community one day for assistance.

MR. DAVIS: Your Honor -

THE COURT: You know, who knows.

But at this point all I’m saying is that they can’t enforce

that.

MR. DAVIS: And this Court will issue an order?

48a

THE COURT: We'll issue that.

MR. DAVIS: We would like to expressly reserve on the

record our right to submit papers and have a hearing on legal

fees.

THE COURT: Sure, you can always do that.

MR. DAVIS: Thank you, your Honor.

MR. FORREST: Your Honor, I think I’m entitied to some

findings by the Court that there’s no genuine issue, that

there’s a substantial burden which is the first step of any

RLUIPA analysis because I think we'll back in Cincinnati.

With all deference to your Honor | don’t think there's

anything in the record that supports the finding

[p.27]

that there’s a substantial burden on anyone’s religious

exercise.

I understand your Honor’s concern with the label we've

placed, but I think -

THE COURT; Okay -

MR. FORREST: -- before your Honor rules we need a

finding or a decision that there’s no genuine issue of fact; that

there’s been a substantial burden on the religious exercise of

the DiLauras -

THE COURT: I think -- starting number one, is the fact

that your papers say we don’t enforce it and so forth, that

there is a specific requirement that there must be a fee -- there

49a

must be payment. And I think payment is held to be a

substantial burden on any religious activity if you have to pay

in order to become -- to be part of a religious activity whether

it be a retreat, whether it be worship, whether it be whatever

it is, I think that’s a substantial burden in and of itself. I don’t

think I have to go any further than that because -- and, again,

I understand your papers, your papers say we’re not going to

enforce it and I know you're not, you know, in good faith and

so forth. But I have to look at what it says and take it exactly

what you could do. You may not be the city attorney, they

may get somebody else. They may get a new supervisor out

there, or some citizen can say wait a

[p.28]}

minute, you’re not enforcing the ordinance.

So just the mere fact that the ordinance requires that there

must a fee or must be a payment in return for allowing people

to utilize the sleeping rooms and so forth, I think in and of

itself 1 think without going any further, is a substantial

burden.

Now, I don’t believe under any circumstances that there’s

a substantial burden to follow the law in terms of tire and

things like that. But I think if you go no further than that, it’s

a substantial burden.

MR. FORREST: Very well.

MR. DAVIS: Will we be getting some sort of declaratory

judgment?

THE COURT: I’m not exactly sure how we’ll do it. We’!!

put something together. But it won't be an injunction because

50a

that will -- I don’t think it reaches that level at this point for

extraordinary injunctive relief.

Okay, anything else?

MR. DAVIS: Thank you, your Honor.

We thank the Court for its time.

THE COURT: Sure, thank you.

(Proceedings concluded.)

[p.29]

CERTIFICATE

I, JOAN L. MORGAN, Official Court Reporter for the

United States District Court for the Eastern District of

Michigan, appointed pursuant to the provisions of Title 28,

United States Code, Section 753, do hereby certify that the

foregoing proceedings were had in the within entitled and

number cause of the date hereinbefore set forth; and I do

further certify that the foregoing transcript has been prepared

by me or under my direction.

/s/ Joan L. Morgan

JOAN L. MORGAN, CSR

Official Court Reporter

Detroit, Michigan 48226

Date: April 30, 2003

Sla

APPENDIX E

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Civil No. 00-70570

[Filed April 11, 2003]

DILAURA, et al.,

Plaintiffs,

Vv.

ANN ARBOR TOWNSHIP, et al.,

Defendants.

i A i a a a

ORDER GRANTING PLAINTIFFS’ MOTION

FOR SUMMARY JUDGMENT AND

DENYING DEFENDANTS’ MOTION

FOR SUMMARY JUDGMENT

On April 9, 2003 the plaintiffs’ and the defendants’

motions for summary judgment came before the Court. A

hearing was held and oral arguments were heard. For the

reasons stated on the record, and in accordance with the terms

stated on the record,

IT IS ORDERED that the plaintiffs’ motion for summary

judgment is granted.

52a

IT IS FURTHER ORDERED that the defendants’ motion

for summary judgment is denied.

/s/

BERNARD A. FRIEDMAN

UNITED STATES DISTRICT JUDGE

Dated: APR 11 2003

Detroit, Michigan

Copy Mailed This Date To:

Robert L. Bunting, Esq. Robert Charles Davis, Esq.

James J. Walsh, Esq. William B. Forrest, Esq.

Sandra L. Sorini, Esq.

APPENDIX F

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Civil No. 00-70570

[Filed April 15, 2003}

DILAURA, et al.,

Plaintiffs,

Vv.

ANN ARBOR CHARTER TOWNSHIP, et al.,

Defendants.

ee a a ee a a

JUDGMENT

The court has issued an order granting the plaintiffs’

motion for summary judgment.

Accordingly,

IT IS ORDERED AND ADJUDGED that judgment be

and is hereby granted for plaintiffs and against defendants.

Costs to be permitted in accordance with law.

54a

DAVID J. WEAVER

CLERK OF COURT

By:/s/

Deputy Clerk

Approved: /s/

BERNARD A. FRIEDMAN _

UNITED STATES DISTRICT JUDGE

APR 15 2003

Copy Mailed This Date To:

Robert L. Bunting, Esq. Robert Charles Davis, Esq.

James J. Walsh, Esq. William B. Forrest, Esq.

Sandra L. Sorini, Esq.

55a

APPENDIX G

CHARTER TOWNSHIP OF ANN ARBOR

BOARD OF TRUSTEES

WASHTENAW COUNTY, MICHIGAN

RESOLUTION OF APPROVAL OF

CONDITIONAL USE PERMIT

DECEMBER 16, 2002

Resolution adopted at a regular meeting of the Board of

Trustees of the Charter Township of Ann Arbor, Washtenaw

County, Michigan, held at the Township Hall, 3792 Pontiac

Trail, Ann Arbor, Michigan, on December 16, 2002.

PRESENT: Della DiPietro, Virginia Forshee, John Allison,

Michael Moran, Gene Ragland, Richard Dieterle and

Catherine Braun

ABSENT: None

Motion by Trustee Allison, supported by Trustee Ragland.

1. FINDINGS

1.1. Tim DiLaura (“Applicant”) filed with the

Township an application for a variance with the Zoning Board

of Appeals for use of 4901 Dixboro Road, Ann Arbor

Township, Michigan, parcel code no. 09-01-100-004

(“Property”), where Mr. DiLaura and his wife would reside,

56a

for housing 2-3 overnight guests during the week and up to 5

overnight guests on weekends (“Application”). D.F. Land

Development as the owner of the Property authorized the

Application.

1.2. The Applicant subsequently filed a complaint in the

United States District Court pertaining to the Application and

proposed use of the Property for housing overnight guests.

1.3. The use of the Property proposed by the Applicant

qualifies as a Bed and Breakfast operation under Section

11.24 of the Township Zoning Ordinance as follows:

1.3.1 The Property consists of a single family

detached dwelling unit of greater than 2000 sq. ft. which

will be the principal residence of the DiLauras.

1.3.2 The Property will be used for housing of no

more than 6 transient overnight guests with sufficient off

street parking, bathing facilities, and simple food service

provided from the residential kitchen.

1.4. The Property is located in the Township’s

Agricultural district which allows Bed and Breakfast

operations as a Conditional Use.

1.5. The Planning Commission held a public hearing on

December 2, 2002 for consideration of a Conditional Use

Permit for a Bed and Breakfast at the Property and found that

that proposed use of the Property meets the standards of the

zoning ordinance as a Conditional Use as follows:

1.5.1 Housing of up to 6 overnight guests will

not unduly burden existing or future neighboring uses,

57a

and will be compatible with the General Development

Plan and existing and future uses in the vicinity.

1.5.2 The proposed use will be adequately served

by essential public services, and access and parking

facilities are sufficient for the number of guests proposed.

1.5.3 The proposed use will not create additional

requirements for public facilities and will not be

detrimental to the economic welfare of the community.

1.6. After the public hearing the Planning Commission

adopted a resolution recommending approval by the Township

Board of a Conditional Use Permit for the Property as a Bed

and Breakfast operation for up to 6 transient overnight guests

in addition to the resident operators.

1.7. The Planning Commission recommended that such

approval be conditioned on the following: In the event a

Conditional Use Permit Agreement is executed for use of the

adjacent property as a golf course, or if construction of the

golf course commences, or if the Property is otherwise

developed for a different use, then the Bed and Breakfast

operation of the Property shall cease and this Permit shall be

deemed revoked.

1.8. By law the proposed use of the Property must

comply with State Construction Code Section 125.1504b

which requires a smoke detector in p-*"er working order in

each sleeping room and a fire extinguisher in proper working

order on each floor.

58a

2. RESOLUTION

BE IT RESOLVED:

Township Board approves issuance of a Conditional Use

Permit for use of the Property as a Bed and Breakfast

operation for up to 6 transient overnight guests in addition to

the resident operators.

Provided, however, such approval is conditioned on the

following: In the event a Conditional Use Permit Agreement

is executed for use of the adjacent property as a golf course,

or if construction of the golf course commences, or if the

Property is otherwise developed for a different use, then the

Bed and Breakfast operation of the Property shall cease and

this Permit shall be deemed revoked.

AYES: _ Delia DiPietro, Virginia Forshee, John Allison,

Michael Moran, Gene Ragland, Richard Dieterle and

Catherine Braun

NAYES: None

ABSTAIN: None

RESOLUTION DECLARED ADOPTED.

/s/

Michael Moran, Ann Arbor Charter Township

Supervisor

I certify that the foregoing is a true and complete copy of

a resolution adopted by the Board of Trustees of the Charter

Township of Ann Arbor, County of Washtenaw, State of

59a

Michigan, at a special meeting held on December 16, 2002,

that said meeting was conducted and public notice of said

meeting was given pursuant to and in full compliance with the

Open Meetings Act, being Act 267, Public Acts of Michigan,

1976, and that the minutes of said meeting were kept and will

be or have been made available as required by said Act.

/s/

Catherine A. Braun, Township Clerk

Dated: ,2002

“tae

APPENDIX H

42 U.S.C. § 1988. Proceedings in vindication of civil rights

* * *

(b) Attorney's fees

In any action or proceeding to enforce a provision of

sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this

title, title IX of Public Law 92-318 (20 U.S.C. 1681 et seq.],

the Religious Freedom Restoration Act of 1993 [42 U.S.C.

2000bb et seq.}, the Religious Land Use and !nstitutionalized

Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of

the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or

section 13981 of this title, the court, in its discretion, may

allow the prevailing party, other than the United States, a

reasonable attorney's fee as part of the costs, except that in

any action brought against a judicial officer for an act or

omission taken in such officer's judicial capacity such officer

shall not be held liable for any costs, including attorney's

fees, unless such action was clearly in excess of such officer's

jurisdiction.

6la

42 U.S.C. § 2000cc. Protection of land use as religious

exercise.

(a) Substantial burdens

(1) General rule.

No government shall impose or implement a land use

regulation in a manner that imposes a substantial burden on

the religious exercise of a person, including a religious

assembly or institution, unless the government demonstrates

that imposition of the burden on that person, assembly, or

institution --

(A) is in furtherance of a compelling governmental

interest; and

(B) is the least restrictive means of furthering that

compelling governmental interest.

(2) 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

implementation of a land use regulation or system of land use

62a

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

proposed uses for the property involved.

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.