Recent Case Concerning the Interplay of a Municipal Sign Ordinance and Federal Law Protecting Religious Assemblies from Discriminatory Land Use Rules and Decisions

Christopher Cole and Megan Carrier | May 16, 2021

In 2000, Congress unanimously passed a law known as the Religious Land Use and Institutionalized Persons Act to prevent cities and towns from using landuse regulations and zoning to discriminate against religious assemblies. The fundamental provision creating this rough accommodation between municipal interests in their planning and zoning matters and religious assemblies trying to find a home or change the manner in which they will use a property is the “Equal Terms” provision of the statute.

RLUIPA’s “Equal Terms” section provides that “[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” Thirty-one words that, at least upon a first Recent Case Concerning the Interplay of a Municipal Sign Ordinance and Federal Law Protecting Religious Assemblies from Discriminatory Land Use Rules and Decisions reading, seem relatively noncontroversial. Lawyers, of course, are skilled in the art of analyzing seemingly simple phrases until they become confusing jumbles subject to multiple differing interpretations. Such is the predicament in which the Equal Terms provision finds itself, having been interpreted differently by at least two (and, if you really want to get into the weeds, more) Federal Courts of Appeal. By its October 7, 2020, decision in Signs for Jesus v. Town of Pembroke, NH, the First Circuit has joined the fray.

While the Third, Sixth, Seventh, Ninth, and Eleventh Circuits have all adopted their own slightly different tests to analyze Equal Terms challenges, the real dispute comes down to one basic distinction: should the Equal Terms provision be applied literally, or should municipalities only be required to treat religious entities equally with similarly situated nonreligious entities?

According to the Eleventh Circuit, the Equal Terms provision should be applied literally and broadly in favor of religious exercise. Under the Eleventh Circuit’s test, if a municipality allows any nonreligious entity to take an action under its zoning regulations (e.g. put up a sign, or locate in a specific zone), it must also allow a religious entity to take that action unless the differential treatment of the religious entity can satisfy strict scrutiny. The Third Circuit, by contrast, has held that a religious entity is not entitled to be treated on equal terms with every nonreligious entity. Rather, under the Third Circuit test, a regulation will violate the Equal Terms provision only if it treats religious assemblies or institutions less favorably than secular neentities that are similarly situated as to the regulatory purpose.

At first blush, the Eleventh Circuit test seems to make some sense. After all, the Equal Terms provision does not contain the words “similarly situated” or require a comparator. From a practical standpoint, however, the Eleventh Circuit’s test raises some interesting issues (if you’re a lawyer), several of which are illustrated by the Signs for Jesus case.

Signs for Jesus involved a church’s request to replace its traditional wooden sign, on which it displayed scheduling and religious messages, with an “electronic changing sign,” which could be manipulated from afar to project different religious messages and curricula to passersby. The Town of Pembroke’s sign ordinance, however, bans electronic signs in the part of town where the church is located, the Limited Office District. Undeterred, the church applied for a permit to install an electronic sign. The town’s code enforcement officer denied the permit, citing the ordinance. The church sought reconsideration of that decision and, alternatively, requested a variance from the Zoning Board of Adjustment. After the ZBA denied both requests, the church initiated an action in federal court claiming that the denials violated, among other laws, the RLUIPA Equal Terms provision. In support of its claim, the church argued that the town allowed three secular institutions to place electronic signs in the Limited Office District: a gas station (whose electronic sign was in existence prior to the adoption of the electronic sign provision and therefore constituted a lawful preexisting nonconforming use), the local School Administrative Unit (a subdivision of the state which, pursuant to RSA 674:54, is exempt from local zoning regulations), and the New Hampshire Department of Transportation (also exempt from local zoning regulations).

Rigid application of the Eleventh Circuit’s test to the facts of the Signs for Jesus case leads to a potentially interesting result. Specifically, if government actors— nonreligious entities—are exempt from local zoning regulations, and religious entities cannot be treated on “less than equal terms” with any nonreligious entities, a case might be made that all religious entities are therefore also exempt from zoning. Does the existence of a secular nonconforming use in a particular district mean that every religious institution must be permitted to install an equivalent nonconforming use? The result, in the end, is that religious entities are not treated equally with secular entities. Rather, when compared with non-governmental secular entities, or secular entities that do not enjoy rights associated with a nonconforming use, religious entities are actually treated more favorably.

Perhaps recognizing this concern, the First Circuit threw its lot in with the Third Circuit, finding that none of the secular institutions identified by the church (the gas station, the school, or the DOT) constituted appropriate “comparators” for purposes of an Equal Terms claim. The Court quoted and affirmed U.S. District Court Judge Paul J. Barbadoro’s opinion, in which he noted that the governmental actors – Pembroke Academy and NH DOT – were not viable comparators “because the State has deprived the Town of any power to regulate governmental land uses.” As a result, the sign ordinance’s exemption for these “legally required” signs “merely reflects Pembroke’s lack of authority to regulate governmental land use.” Nor was the gas station sign a proper comparator: the town was still disabled from regulating the gas station sign, but by a different legal regime, one that allows lawful preexisting nonconforming uses to continue indefinitely.

For the time being, we now have certainty as to how the First Circuit—and Federal District Courts for New Hampshire, Maine, Massachusetts and Puerto Rico—will interpret the Equal Terms provision. That said, it may only be a matter of time before the Supreme Court will settle this issue once and for all.

This article was originally published in the Bar News and can be found here.