The Volokh Conspiracy
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Rezoning Request for Catholic Shrine May Have Been Denied Because of Shrine's "Pro-Life Message"
From Judge Stephanos Bibas, joined by Judge Tamika Montgomery-Reeves, in Monday's Holy Trinity Ukrainian Catholic Church v. Township of Collier:
Holy Trinity is a Ukrainian Catholic parish outside Pittsburgh. It practices the Catholic faith, but with rituals and architecture that are distinctively Ukrainian. The parish owns two plots of land. On one of them, in Carnegie, sits a church, where it holds regular liturgies. The other plot, in nearby Collier Township, has been owned by the parish for more than seven decades. That 41-acre plot houses the parish's cemetery and mausoleum but is otherwise mostly wooded.
About three years ago, Holy Trinity's pastor felt called to turn the second plot into a shrine, a pilgrimage destination for faithful to gather from "near and far." The shrine would "honor Mary, the Mother of God, and would pay homage to the sanctity of life." With the help of lawyers, architects, and traffic consultants, Holy Trinity designed the shrine. It envisioned a 13,000-square-foot chapel with gold domes, a bell tower, a museum, a gift shop, and a retreat center.
But the plot is constrained by Collier Township's zoning code. The code divides the township into districts, each of which allows certain types of buildings. The northern, wooded half of the plot lies in a planned-economic-development district, allowing larger projects like business offices, amusement parks, or country clubs. The southern half is in a rural-residential district, allowing farms and single-family homes. Neither district contemplates shrines.
The zoning code is enforced by Collier's five-member Board of Commissioners. The Board has power not only to rezone land or amend the code, but also to approve or deny some building projects, because the code makes some land uses conditional. For instance, the code conditionally allows new churches in rural-residential districts, but only if the Board approves them. In any event, anything as big as Holy Trinity's shrine needs the Board's approval.
To fit the shrine project into the zoning code, Holy Trinity applied to do two things. First, it asked the Board to amend the zoning code to allow planned cultural centers, including the shrine, in economic-development districts. Second, it sought to rezone some of its rural-residential land into economic-development land, to make a larger plot for the shrine. As part of its application, Holy Trinity included sketches of its shrine plus a traffic study showing minimal impact on the surrounding community. After a live hearing with concerned residents, the Board denied Holy Trinity's application, expressing concern about traffic and Holy Trinity's fundraising projections. Some residents, and at least one Board member, were also troubled once they learned that the shrine's message would be pro-life.
So Holy Trinity tried again with a smaller project. It applied to build a modest chapel entirely on its rural-residential land. Though the Board approved the new application, it came with strings attached, limiting bell ringing, the height of the chapel, and who could be remembered at memorial services….
The majority held that Holy Trinity wasn't entitled to a preliminary injunction, because the harm could be repaired by damages (one of the elements of the preliminary injunction inquiry); on this matter, the majority and Judge Paul Matey's dissent had an interesting and complicated debate. But here's a passage as to the facts that struck me as worth noting, even apart from that controversy:
Finally, and most troubling, both community and Board members objected to the shrine's pro-life message. One resident worried that "Father Jason has been very involved in pro life. This is to be a pro life museum … [W]hen you think very political rights, either side, it brings a lot of danger, a lot of protests, as well as costs that could be incurred by the community." Another complained that "the intent of the shrine was a celebration for Roe vs. Wade being overturned … [and] reparation for sin of abortion and counseling, spiritual direction …. this will bring a bunch [of people] potentially for a rally and this could also bring the opposite as well for protest."
Privately, at least one of the Board's members agreed. The day after the hearing, that commissioner forwarded an email about the shrine's pro-life stance to the rest of the Board: "Looks like we might have dodged a bullet last night. The true inten[t] of the shrine" was pro-life and "This could have been a disaster." Another township officer, copied on the email, seemed to affirm those sentiments. Nothing in the record suggests that any other Board member responded and disagreed. And in her deposition, the Board member who wrote the email confirmed that "one of the reasons" that the Board had denied the application was Holy Trinity's pro-life purpose. She also defended denying land-use approval "based on the nature of the religious service to be held in the building."
These objections hint at unconstitutional religious hostility and content-based discrimination, concerns that would be better addressed on a more developed factual record. But at the very least, they strongly suggest that the Board resists ever approving the shrine project. If so, the rezoning denial is effectively absolute, and the "degree" of burden on Holy Trinity is substantial. Plus, the township does not show that denying approval altogether is the least-restrictive means to serve a compelling interest. That is enough to show that Holy Trinity is very likely to prevail on its RLUIPA [Religious Land Use and Institutionalized Persons Act] substantial-burden claim….
