## Facts

- A Greek Orthodox parish outgrew its existing church in Wauwatosa, Wisconsin, and sought to build a larger church complex.
- The Church purchased a 40-acre parcel in New Berlin zoned for residential use and planned a new worship facility and related improvements.
- The Church applied to rezone approximately 14 acres to “institutional,” which would permit a church.
- City officials expressed concern that if the Church could not finance construction, the parcel might be sold to a nonreligious institutional user (e.g., hospital or school).
- To address that concern, the Church proposed a Planned Unit Development (PUD) overlay restricting the rezoned area to “church-related uses.”
- The City’s planning director accepted the Church’s proposal as resolving the City’s concern, but the Planning Commission recommended denial and the City Council rejected the rezoning.
- The City suggested alternatives: (1) proceed via a conditional-use permit under residential zoning that would expire if construction did not begin within one year, or (2) submit a different PUD overlay that would revert to residential zoning upon sale; the Church declined to restart the process.
- The Church sued under RLUIPA, alleging the denial imposed a substantial burden on religious exercise; the district court granted summary judgment to the City and a city official.

## Issues

1. Whether the City’s denial of rezoning (despite the Church’s proposed use-restricting PUD overlay) imposed a “substantial burden” on religious exercise under RLUIPA.
2. If a substantial burden existed, whether the City proved the denial furthered a compelling governmental interest by the least restrictive means.

## Decision

- The Seventh Circuit reversed the summary judgment for the City.
- The court held the denial imposed a substantial burden on the Church’s religious exercise under RLUIPA as applied to the Church’s purchased parcel and proposed development.
- The court held the City did not justify the burden under RLUIPA’s strict scrutiny standard.
- The case was remanded with directions to grant relief, while allowing the City a reasonable opportunity to negotiate reasonable conditions consistent with RLUIPA.

## Legal Principles

- An as-applied RLUIPA substantial-burden claim does not require a religious institution to prove it has no alternative site anywhere in the municipality.
- A “substantial burden” may arise when government action is a direct cause of making religious land use effectively impracticable, including through serious delay, uncertainty, and expense tied to inconsistent, arbitrary, or mistaken decision-making.
- When a local government imposes a substantial burden on religious exercise through land-use regulation, it must demonstrate a compelling governmental interest and that its action is the least restrictive means of furthering that interest.
- A government’s speculative concern can fail strict scrutiny where the religious applicant offers enforceable land-use conditions that address the stated concern.

## Conclusion

The court concluded that New Berlin’s rezoning denial, resting on a mistaken view of the legal effect of the proposed PUD restrictions and forcing the Church to abandon its purchased site or restart a costly, uncertain process, substantially burdened religious exercise under RLUIPA and was not justified by compelling-interest, least-restrictive-means proof.


Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005)