Eagle Cove Cert. Petition

8/12/2019 Eagle Cove Cert. Petition

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In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

EAGLE COVE CAMP & CONFERENCE CENTER, INC.,

a Wisconsin non-stock corporation,et al.,Petitioners,

v.

TOWN OF WOODBORO, WISCONSIN,et al.,Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

NO.


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QUESTIONS PRESENTED

1. Does the Equal Terms provision of RLUIPA, 42U.S.C. 2000cc(b)(1), prohibit favorable treatment ofsecular assembly and institutional uses that are

similarly situated to the prohibited religious assemblyand institutional use, as held by the Third, Ninth andEleventh Circuits, or does it only prohibit favorabletreatment of the most similar secular assembly andinstitutional use, as the Seventh Circuit Court of

Appeals held below.

2. Does the Substantial Burdens provision of

RLUIPA, 42 U.S.C. 2000cc(a): only extend to burdens on religious exercise that are

absolute in nature, prohibiting the religious landuse at issue entirely from the relevant jurisdiction,as the Court of Appeals held;


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LIST OF ALL PARTIES

(1) Petitioner Eagle Cove Camp & ConferenceCenter, Inc., a Wisconsin non-stock corporation, was aplaintiff in the trial court and an appellant in the Court

of Appeals. Its corporate disclosure statement isenclosed.

(2) Petitioner Arthur G. Jaros, Jr., as co-trusteeof the Arthur G. Jaros, Sr. and Dawn L. JarosCharitable Trust, as trustee of the Arthur G. Jaros, Sr.Declaration of Trust and of the Dawn L. JarosDeclaration of Trust, and in his personal capacity, was

a plaintiff in the trial court and appellant in the Courtof Appeals.

(3) Petitioner Wesley A. Jaros, as co-trustee ofthe Arthur G. Jaros, Sr. and Dawn L. Jaros CharitableTrust, was a plaintiff in the trial court and appellant inth C t f A l


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(7) Respondent Town of Woodboro, Wisconsin,was a defendant in the trial court and an appellee inthe Court of Appeals.

(8) Respondent County of Oneida, Wisconsin,

was a defendant in the trial court and an appellee inthe Court of Appeals.

(9) Respondent Oneida County Board ofAdjustment was a defendant in the trial court and anappellee in the Court of Appeals.


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CORPORATE DISCLOSURE STATEMENT

EAGLE COVE CAMP & CONFERENCE CENTER,INC. is a Wisconsin non-stock corporation and has noshareholders. Therefore, it has no parent corporation

and no publicly held company owns any interest in thecorporation.

CRESCENT LAKE BIBLE FELLOWSHIP is aWisconsin non-stock corporation and has noshareholders. Therefore, it has no parent corporationand no publicly held company owns any interest in thecorporation.


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TABLE OF CONTENTS

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

LIST OF ALL PARTIES . . . . . . . . . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT. . . . . iv

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES. . . . . . . . . . . . . x

CITATIONS OF THE OFFICIAL ANDUNOFFICIAL REPORTS OF THE OPINIONS

AND ORDERS ENTERED IN THE CASE. . . . . 1

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . 1

CITATIONS TO CONSTITUTIONAL STATUTORYAN D R EG U LA TO RY P RO VI SI O NSINVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2


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2. THE COURT OF APPEALS HAS CONSTRUEDTHE SUBSTANTIAL BURDENS PROVISIONOF RLUIPAS RELIGIOUS LAND USEPROTECTIONS IN A MANNER THATCONFLICTS WITH DECISIONS OF OTHER

UNITED STATES COURTS OF APPEALS ANDOF THIS COURT . . . . . . . . . . . . . . . . . . . . . . . . 21

A. The Court of Appeals Holding that aSubstantial Burden Can Arise Only WhenGovernment Action Renders ReligiousExercise Impossible or EffectivelyImpracticable is Contrary to Other Circuit

Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

B. The Court of Appeals Holding thatSubstantial Burdens on Religious ExerciseCan Never Be Created by Neutral LandUse Regulations is Contrary to the Plain


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WITH RESPECT TO THE SAME TOTALEXCLUSION PROVISION THAT HAVE NOTBEEN SETTLED, BUT SHOULD BESETTLED, BY THIS COURT. . . . . . . . . . . . . . 31

A. The Court Below Interpreted RLUIPAs TotalExclusion Provision in a Manner That BothConflicts with Schad v. Borough of Mount

Ephraimand Deprives Whole Categories ofReligious Assemblies from Important FederalProtection Against Being Totally Excludedfrom Entire Jurisdictions . . . . . . . . . . . . . . . 31

B. The Court Below Interpreted RLUIPAs TotalExclusion Provision in a Manner ThatPermits Governments of SuperiorJurisdictions to Totally Exclude All Types ofReligious Assemblies from All But One of ItsInferior Jurisdictions, Thereby Presenting an


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Appendix C Judgment in the United StatesDistrict Court for the Western Districtof Wisconsin(February 5, 2013) . . . . . . . . . . . App. 76

Appendix D Order Denying Petition for Rehearingand Petition for Rehearing En Banc inthe United States Court of Appealsfor the Seventh Circuit(December 10, 2013) . . . . . . . . . App. 78

Appendix E Decision of the Oneida County Boardof Adjustment [R.63-54]

(February 11, 2010) . . . . . . . . . . App. 80Appendix F Decision of the Oneida County

Planning & Zoning Committee [R.63-52](August 19, 2009) . . . . . . . . . . . . App. 91


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Appendix K Minutes of Oneida County Planning &Zoning Committee Meeting [R.63-31](June 14, 2006) . . . . . . . . . . . . . App. 189

Appendix L Color Photograph of Apartment

Building Overlooking Squash Lake[R.77-53] . . . . . . . . . . . . . . . . . . App. 210

Appendix M Zoning Map of Riparian Lands atSquash Lake [R.63-21] . . . . . . App. 211


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x

TABLE OF CITED AUTHORITIES

CASES:

Adkinsv.Kaspar, 393 F.3d 559 (5th Cir. 2004),cert. denied,545 U.S. 1104 (2005) . . . . . . . . . . . 25

Bethel World Outreach Ministriesv.MontgomeryCnty. Council, 706 F.3d 548 (4th Cir. 2013)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 28, 29

Centro Familiar Cristiano Buenas Nuevas v.City of Yuma,651 F.3d 1163 (9th Cir. 2011) . . . . . . . . . . . . . . 19

City of Ladue v. Gilleo,512 U.S. 43 (1994) . . . . . . . . . . . . . . . . . . . . . . . 30

Civil Liberties for Urban Believers v. City ofChicago, 342 F.3d 752 (7thCir. 2003),cert denied 541 U S 1096 (2004) 22 23 26


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xi

Hale O Kaula v. Maui Planning Commn,229 F. Supp. 2d 1056 (D. Haw. 2002) . . . . . . . . 36

Hobby Lobby Stores, Inc. et al., v. KathleenSebelius, et al.,

723 F.3d 1114 (10

th

Cir. 2013),cert. granted, 134 S.Ct. (2013) . . . . . . . . . . . . . . 26

Holt v. Hobbs,Docket No. 13-6827 (March 3, 2014) . . . . . . . . . 13

International Church of Foursquare Gospel v.San Leandro, 673 F.3d 1059 (9thCir. 2011),cert. denied, 132 S. Ct. 251 (2011) . . 24, 25, 30, 31

Lee v. Weisman,505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . . . . 35

Lighthouse Institute for Evangelism v. City ofLong Branch, 510 F.3d 253 (3d Cir. 2007),

d d U S ( )


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Moussazadehv. Tex. Dept of Crim. Justice,703 F.3d 781 (5th Cir. 2012) . . . . . . . . . . . . . . . 25

National Advertising Co. v. City of Orange,861 F.2d 246 (9thCir. 1988) . . . . . . . . . . . . . . . . 30

Neighborhood Enterprises v. City of St. Louis,644 F.3d 728 (8thCir. 2011),cert. denied, 132 S.Ct. 1543 (2012) . . . . . . . . . . 30

River of Life Kingdom Ministries v. Village ofHazel Crest,611 F.3d 367 (7th Cir. 2010) (en banc) . . . . . . . 19

Schad v. Borough of Mount Ephraim,452 U.S. 61 (1981) . . . . . . . . . . . . . . 31, 32, 33, 38

Warsoldierv.Woodford,418 F.3d 989 (9th Cir. 2005) . . . . . . . . . . . . . . . 25

Washington v Klem


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28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13

28 U.S.C. 1343(a)(3) & (4) . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

42 U.S.C. 2000cc . . . . . . . . . . . . . . . . . . . . . . . . . . . 242 U.S.C. 2000cc(a) . . . . . . . . . . . . . . . . . . . . . . . . . i

42 U.S.C. 2000cc(a)(1) . . . . . . . . . . . . . . . . . . 11, 23

42 U.S.C. 2000cc(a)(1)(A) . . . . . . . . . . . . . . i, 12, 29

42 U.S.C. 2000cc(a)(2) . . . . . . . . . . . . . . . . . . . . . 27

42 U.S.C. 2000cc(b)(1) . . . . . . . . . . . . . . . . . . . i, 14

42 U.S.C. 2000cc(b)(3)(A) . . . . . . . . . . . . . . . . . i, 32

42 U.S.C. 2000cc-2 . . . . . . . . . . . . . . . . . . . . . . . . . 2

42 U S C 2000cc-3 2


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STATE STATUTES

WIS.STAT. 59.69(1) . . . . . . . . . . . . . . . . . . 2, 4, 7, 35

WIS. STAT. 59.69(4) . . . . . . . . . . . . . . . . . . . . . . . . 37

WIS. STAT. 59.69(5)(c) . . . . . . . . . . . . . . . . . . . . 2, 35WIS.STAT. 59.69(5)(d) . . . . . . . . . . . . . . . . . . . . . . . 4

WIS. STAT. 59.69(5)(e) . . . . . . . . . . . . . . . . . . . . . . 35

WIS.STAT. 60.10(2) . . . . . . . . . . . . . . . . . . . . . . . . . 2

WIS.STAT. 60.10(2)(c) . . . . . . . . . . . . . . . . . . . . . . . 4

WIS.STAT. 60.22(3) . . . . . . . . . . . . . . . . . . . . . . . 2, 4

WIS.STAT. 60.62(4) . . . . . . . . . . . . . . . . . . . . . . . 2, 4

WIS.STAT. 61.35 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4

WIS STAT 62 23 2 4


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9.28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

9.42(E)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 35

RULES

Fed. R. Civ. P. 56(c) and (e)(2) . . . . . . . . . . . . . . . . . 2

OTHER AUTHORITIES

Abandoning the Use of Abstract Formulations inInterpreting RLUIPAs Substantial BurdenProvision in Religious Land Use Cases, RobertM. Bernstein, 36 COLUMBIA J. OF LAW& THE

ARTS 283 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . 21

Equal Terms: What Does It Mean and How Does ItWork: Interpreting the Equal Terms Provision ofthe Religious Land Use and InstitutionalizedPersons Act (RLUIPA), Andrew Cleves, 80 U.


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RLUIPA: Necessary, Modest, and Under-Enforced,Douglas Laycock & Luke W. Goodrich, 39FORDHAM URBAN L.J. 1021 (2012) . . . . . . . . 15, 21

RLUIPAs Equal-Terms Provisions Troubling

Definition of Equal: Why the Equal-TermsProvision Must Be Interpreted Narrowly, SeanFoley, 60 KANSAS L.REV. 193 (2011) . . . . . . . . 14

When Religion and Land Use Regulations Collide:Interpreting the Application of RLUIPAs EqualTerms Provision, Ryan M. Lore,46 U.C.DAVIS L.REV. 1339 (2013). . . . . . . . . . . . . . . . . . . . . . . . . 15


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CITATIONS OF THE OFFICIAL ANDUNOFFICIAL REPORTS OF THE OPINIONS

AND ORDERS ENTERED IN THE CASE

The opinion of the Seventh Circuit Court of Appeals

dated October 30, 2013 in docket #13-1274 is officiallyreported at 734 F.3d 673 (7th Cir. 2013) and isunofficially reported as 2013 U.S. App. LEXIS 22151.Appendix A. An order of that court dated December10, 2013 denied Petitioners petition for rehearing bythe panel anden banc. Appendix D.

The district courts memorandum opinion and orderin docket #10-118 dated February 1, 2013, granting themotions for summary judgment of the Respondents anddenying Petitioners motion for summary judgment asto liability on Count I--Total Exclusion Violation underthe Religious Land Use and Institutionalized Persons

Act of 2000--was not published. Appendix B. An


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CITATIONS TO CONSTITUTIONAL STATUTORYAND REGULATORY PROVISIONS INVOLVED

United States Constitution, Amendment I; UnitedStates Constitution, Amendment XIV, Section 1; 28U.S.C. 1331; 28 U.S.C. 1343(a)(3) & (4); 42 U.S.C. 1983; Religious Land Use and InstitutionalizedPersons Act of 2000: 42 U.S.C. 2000cc; 42 U.S.C. 2000cc-2; 42 U.S.C. 2000cc-3; 42 U.S.C. 2000cc-4;42 U.S.C. 2000cc-5; Fed. R. Civ. P. 56(c) and (e)(2);WIS. STAT. 59.69(1); WIS. STAT. 59.69(5); WIS.STAT. 60.10(2); WIS. STAT. 60.22(3); WIS. STAT. 60.62(4); WIS. STAT. 61.35; WIS. STAT. 62.23;

WIS. STAT. 66.1001. The relevant text of theseprovisions are set out in Appendix G.

CONCISE STATEMENT OF THE CASE

Petitioners Arthur G. Jaros, Jr., Wesley A. Jaros,d R d ll S J b th d t t f


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The Jaros brothers Christian faith, as rooted intheir Biblical understanding of stewardship includingthe concepts of first fruits and the offering withoutblemish,1 compelled them to dedicate and convert2

those thirty-four acres--family-owned for over sixty

years--to full-time Christian ministry as a Bible camp,serving youth, including youth with medicaldisabilities, during the summer season and older teensand adults during the remainder of the year. App. 24-26. Petitioners Arthur and Randall Jaros intend topersonally teach Christian education courses at thecamp. R. 16, 19. As the court below found:

Eagle Cove believes that their religion mandatesthat the Bible camp must be on the subjectproperty. Eagle Cove also believes that theymust operate the Bible camp on a year-roundbasis. Neither of these beliefs is in dispute.


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laws and regulations of both the Town of Woodboro andCounty of Oneida, and is located in zoning districts 2and 4, as determined by the County zoning map.

App. 3, 27.

Pursuant to Wisconsin Statutes sections 60.10(2)(c)and 60.22(3), the electorate of the Town of Woodboro on

April 12, 2005 voted to confer Village Powers upon itsTown Board,3thereby vesting it with land use planningpower. WIS. STAT. 60.22(3), 61.35, 62.23. On April14, 2009, the Town Board adopted a ComprehensivePlan,4also known as a Master Plan,5that incorporatedby reference the Towns previously adopted 1997 Land

Use Plan6

as twice revised during 19987

to serve as aguide for officials to use in planning the futuredevelopment of the Town. WIS. STAT. 60.62(4),62.23(2); R. 63-19, Chapter 7(D), ECF pp. 60 ff; R. 103-40. Wisconsin Statutes section 59.69(1) requires theCounty of Oneidas zoning ordinance to incorporate


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comprehensive revision to its existing zoning ordinanceknown as the Oneida County Zoning and ShorelandProtection Ordinance (OCZSPO). The OCZSPOcreated thirteen different zoning districts exclusive ofone special district (District 11). App. 27, 149-150

( 9.20). The OCZSPO included a zoning map for eachof the twenty Towns (including the Town of Woodboro)situated within the County. R. 103-3 to 103-22.Woodboros zoning map8 reflected Woodboros 1997Land Use Plan9and continues to reflect that plan asincorporated into the Towns 2009 ComprehensivePlan, which Land Use Plan did not provide any locationfor Petitioners religious land use. R. 63-19, Chapter

7(D), ECF pp. 60 ff; R. 103-40. Under Wisconsin law,the OCZSPO took effect upon County Board enactmentin Shoreland areas throughout the unincorporatedportions of County including a portion of thePetitioners property. App. 148 ( 9.12(B)). TheOC S O k ff f h l d l


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Within each zoning district, three categories of uses,each containing an enumerated specific land uses forthat district, were provided, as follows:

(1) Permitted (as of right) Uses;

(2) Administrative Review Uses; and

(3) Conditional Uses.

App. 27, 151-152.

The OCZSPO has no specific use expresslydenominated for religious camps. Instead, theRespondents determined that Petitioners proposed use

fell within the category of recreational camps. App.93. Article X of the OCZSPO defines the termrecreation camps to mean:

Areas of land improved with buildings or tents,and sanitary facilities used for the


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listed as conditional uses for various zoning districts,including Districts 2 and 4. App. 34, 156, 158.

None of the Town of Woodboro was zoned District 5or District 10 under the zoning map11included as partof the OCZSPO that was formally adopted by theTowns Board12and which map was required to and did[App. 31] incorporate the Towns own land use plan.WIS. STAT. 59.69(1).

Recreational camps, which the County determinedincluded Petitioners proposed Bible camp, are onlypermitted under certain conditions in zoning districts5 or 10, neither of which, as noted, exists in theTown. Listed uses in the Countys zoning districts 2and/or 4 (where the property is located) includedschools (including secular boarding schools),community buildings, museums, community livingarrangements of unlimited capacity, government uses


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these permitted uses could have equal or greaterimpacts to the relevant land use interests at issue13.

Following the decision by early 2004 of the JarosPetitioners to develop the Bible camp, County zoningofficials initially advised them during 2005 thatrezoning of the camps land to District 5 or District 10would be necessary. App. 38.

After a series of legal proceedings before the Townand the County,14 the County on June 14, 2006expressly informed the Petitioners that the rezoningpetition filed in December, 200515was unnecessary andthat the camp could accomplish most or all of itsstated objectives without any rezoning by using theCountys conditional use permit procedure. App. 201.

As a result, the petition to rezone was formally deniedby the full twenty-one person elected County Board atits August, 2006 meeting. App. 5, 37.


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of a site-specific design. App. 28-29, 162-163; R. 63-37.During Fall 2006, the camp selected an architecturaland engineering team which developed that design.16

After the County began processing the applicationfiled in December 2006, it required Petitioners, as acondition of its further processing, to procuresignificant site-specific permits from variousdepartments of the state government including permitsfor grading within 1000 of a body of water, forconstruction and operation of a potable water well, forthe design of a private on-site waste water sanitarysystem and for the operational discharge of that private

on-site waste water sanitary system. App. 42. Thecamp incurred costs approaching $200,000 forarchitectural design, engineering services andsuccessful procurement17 of those permits from theState of Wisconsin between Autumn 2006 and late2008 App 42; R 144-5 pp 13 14 Schedule A


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minimum acreage and dimension requirementsapplicable to Recreation Camps,18 a revised designsubmitted in May 2009 voluntarily reduced the heightto the 35 height limit applicable only to single familyresidences,19and the Countys staff informed the P&Z

Committee favorably of the camps resolution of thestaffs technical concerns. R. 110-4, p. 24.

One element for the approval of a conditional usepermit application is that the use must be compatiblewith . . . any adopted local plans for the area.OCZSPO 9.42(E)(3) at App. 29, 167. The conditionaluse permit was denied by the P&Z Committee at its

July 29, 2009 meeting where its members reasonedthat a rezoning of the land was necessary after all20

and that the Bible camp was not compatible with theTown of Woodboros adopted land use plan included inits adopted comprehensive plan. Transcript at R. 110-4 pp 63; see App 95 at 3 The Committee also


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matter of law, could not be found by a jury to constitutea substantial burden on the Petitioners religiousexercise. App. 8, 18, 21. The Court of AppealsOpinion stated that although it was undisputed thatEagle Cove believes that their religion mandates that

the Bible camp must be on the subject property . . . andthat they must operate the Bible camp on a year-roundbasis, [i]t is not the land use regulations that createa substantial burden, but rather Eagle Covesinsistence that the camp be placed on the subjectproperty. App. 3, 12.

The Court of Appeals also held that no substantial

burden within the meaning of 42 U.S.C. 2000cc(a)(1)upon Petitioners religious exercise arose because thePetitioners had the opportunity to seek out otherproperties on which to build their camp elsewhere inthe County other than the Town of Woodboro butchose not to do so App 13 16 As noted above the


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judgment motions on the substantial burden count.

The Court of Appeals also held that even if thePetitioners religious exercise had been substantiallyburdened by a government, the County had acompelling interest within the meaning of 42 U.S.C. 2000cc(a)(1)(A) in preserving the rural and rusticcharacter of the Town as well as the single-familydevelopment around Squash Lake.22 App. 14.

Following an unsuccessful23administrative appealto the countys Board of Adjustment from the P&ZCommittees denial of the conditional use permitapplication, the Petitioners commenced their civilaction in the United States District Court for theWestern District of Wisconsin on March 10, 2010. App6. Count I of the Petitioners Amended Complaintraised the RLUIPA Total Exclusion claim presentedby Question 3, supra. Count III raised the RLUIPA


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District Court had federal question jurisdiction under28 U.S.C. 1331.

The Town and County Respondents each filedmotions for summary judgment on all counts. App. 20,47. The Petitioners moved that same day for summary

judgment on Count I, the RLUIPA Total Exclusionclaim. Id. The District Court issued its summary

judgment ruling on February 1, 2013. Appendix B. OnFebruary 5, 2013, judgment was entered for theRespondents. Appendix C. Petitioners filed theirNotice of Appeal that same day. R. 157.

The Court of Appeals affirmed the District Courts

summary judgment ruling on October 30, 2013.Appendix A. The Petitioners petition for rehearingwas filed on November 13, 2013 and was deniedwithout comment by Order entered on December 10,2013. Appendix D.


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provisions but also the Total Exclusion provision ofRLUIPA, each of which was intended by Congress toprotect the use of private lands for purposes of exerciseof religion as guaranteed by the First and Fourteenth

Amendments in face of abridgements thereof by units

of local government exercising state land useregulatory powers.

1. THE COURT OF APPEALS HAS CONSTRUEDTHE EQUAL TERMS PROVISION OFRLUIPAS RELIGIOUS LAND USEPROTECTIONS IN A MANNER THATCONFLICTS WITH DECISIONS OF OTHER

UNITED STATES COURTS OF APPEALS.The text of RLUIPAs Equal Terms land use

provision reads simply:

(1) Equal terms. No government shall impose ori l t l d g l ti i


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split has now morphed into a four-way interpretation.The holding below is a unique interpretation of theprovision that is contrary to any reasonable reading ofits text adverse to its Congressional intent, andinternally inconsistent with RLUIPAs rule of

construction that its provisions shall be construed infavor of a broad protection of religious exercise . . . .

The Court of Appeals adopted an extremely narrowview that the only non-religious assembly orinstitution to be compared with the religious assemblyor institution at issue is the most comparable, in thiscase, secular recreation camps:

While this zoning district permit certainreligious and secular assemblies, recreationalcamps are prohibited outright, regardless ofreligious affiliation. It is clear that the OCZSPOdoes not treat religious land uses, in particular


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However, the most closely comparableusepurely recreational campsis also notallowed on the Subject Property. In that way,religious (Bible camps) and nonreligious (secularrecreational camps) uses are treated the same

under the Zoning Code.App. 68, emphasis added.

In contrast, the Eleventh Circuit has not sonarrowly limited this provision, interpreting the termsassembly and institution as possessing theirordinary or natural meanings. Midrash Sephardi

Inc. v. Town of Surfside, 366 F.3d 1214, 1230 (11thCir.

2004)).Any unequal treatment by a zoning ordinancebetween a religious assembly or institution and anynonreligious assembly or institution gives rise to a

prima facieequal terms violation. Specifically, thatcourt found that a private club constituted an


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The Eleventh Circuit then utilizes strict scrutinyanalysis to permit the government to overcome thepresumptive violation by demonstrating the existenceof a compelling government interest and its utilizationof the least restrictive means to accomplish that

interest:Thus, a violation of (b)s equal treatmentprovision, consistent with the analysis employedinLukumi, must undergo strict scrutiny.

Id. at 1232.

The Third Circuit, on the other hand, has ruled that

the Equal Terms provision could be violated only ifreligious and secular assemblies or institutions both: (i)are similarly situated as to the regulatory purpose ofthe challenged ordinance; and (ii) the religiousassembly or institution was treated less well than thei il it t d l bl i tit ti b th


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Id. at 266-7, emphasis added.

We conclude instead that a religious plaintiffunder the Equal Terms Provision must identifya better-treated secular comparator that issimilarly situated in regard to the objectives of

the challenged regulation.

Id. at 268. In such case, the land use regulation wouldbe subject to strict liability and automaticallyinvalidated:

We hold that RLUIPAs Equal Terms provisionoperates on a strict liability standard; strict

scrutiny does not come into play.Id. at 269. Thus, the Third Circuit rejected theEleventh Circuits broad definition of assemblies orinstitutions and the latters use of strict scrutiny toovercome a prima facie violation.


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recreational camps that were also prohibited) anddisregarded other permitted secular assemblies andinstitutions that could have equal or greater impacts asto either the regulatory purpose or the regulatorycriteria. These included the numerous and wide-

ranging uses listed at page 9, supra. As the DistrictCourt remarked, Petitioners submitted evidencedemonstrating such equivalent impacts, including theRespondents own admissions, coupled with disparatetreatment by the zoning code:

[P]laintiffs principal challenge seems to be withthe treatment of Bible camps in particular,arguing that Bible camps are not different fromother, permissible secular uses with regard toany accepted criteriaunder the Zoning Code.

App. 68. However, in the District Courts and Court ofAppeals identical formulations, the fact that a wide


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substantial burden provision, a serious split hasdeveloped among the Circuits.

One extreme view--which is the least protective ofreligious liberties and which was formulated withoutregard to RLUIPAs own rule of construction in favor of

the broadest possible protection of religious liberties inthe use of private lands (42 U.S.C. 2000cc-3(g))--is theSeventh Circuits, as announced by a panel in Civil

Liberties for Urban Believers v. City of Chicago, 342F.3d 752 (7thCir. 2003) (C.L.U.B.). That panel heldthat a substantial burden is imposed by a land useregulation only when it:

bears direct, primary, and fundamentalresponsibility for rendering religiousexerciseincluding the use of real property forthe purpose thereof within the regulated

jurisdiction generallyeffectively impracticable.


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Further, the district courts dismissal of theChurchs assertion that there was no otherproperty suitable to accommodate its religioususe in the City is based, at least in part, on itsimproper scrutiny of the Churchs core religiousbeliefs. * * * The Church alleges that one of itscore beliefs is that Sunday morning services arethe local expression of . . . the congregation . . .com[ing] together to form one body with JesusChrist as its head. The Churchs beliefs alsorequire it to hold Sunday school and otherministries that take place at the same time asthe traditional Sunday service. In spite of the

Churchs allegations about its core beliefs, thedistrict court accepted the Citys contention thatthe Church could continue to conduct threeseparate Sunday services or could acquireseveral smaller properties throughout the City

d l f ff h


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action to render religious exercise . . . effectivelyimpracticable in order to qualify as asubstantial burden under RLUIPA. Id. at 761.This higher standard has been rejected in thiscircuit.See Guru Nanak, 456 F.3d at 989 n. 12.

International Church of Foursquare Gospel v. City ofSan Leandro, 673 F.3d 1059, 1068-1069 (9thCir. 2011).See also,McEachinv.McGuinnis, 357 F.3d 197, 202n.4 (2nd Cir. 2004) ([A] substantial burden [is] asituation where the [government] puts substantialpressure on an adherent to modify his behavior and to

violate his beliefs.); Washingtonv.Klem, 497 F.3d 272,280 (3d Cir. 2007) (substantial burden, inter alia,where the government puts substantial pressure on anadherent to substantially modify his behavior and to

violate his beliefs);Bethel World Outreach Ministriesv.Montgomery Cnty. Council, 706 F.3d 548, 556 (4thCir 2013) (substantial burden where a government


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B. The Court of Appeals Holding thatSubstantial Burdens on Religious ExerciseCan Never Be Created by Neutral LandUse Regulations is Contrary to the PlainText of RLUIPA and a Decision of theFourth Circuit.

In establishing the standard that RLUIPAsSubstantial Burden provision does not apply toneutral land use regulation, the Court of Appealswrote:

Though they claim to seek the protections ofRLUIPA, in reality Eagle Cove seeks nothing

more than an exception from the OCZSPO onthe basis of their religious beliefs. RLUIPA ismeant to protect religious freedoms fromimpermissible land use regulations, it is notmeant to allow religious exercise to circumvent


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. . . RLUIPAs substantial burden provision saysnothing about targeting. Rather, it simplyforbids government from imposing a substantialburden on religious exercise unless theGovernment demonstrates that it has used theleast restrictive means of furthering acompelling governmental interest; that is, unlessthe governmental action satisfies strict scrutiny.

42 U.S.C. 2000cc(a)(1).

706 F.3d at 556, 557, emphasis added.

C. The Court of Appeals Holding thatAesthetic Interests Constitute a

Compelling Governmental Interest IsContrary to the Holdings of this Court andOther Circuit Courts.

Even if the Court of Appeals below had found theP titi ligi i t h b


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goals of maintaining the rural and rusticcharacter of Woodboro . . .

App. 4. Even though the record29demonstrated thatthe riparian lands at Squash Lake had long since hadtheir rural and rustic character marred by apartment

buildings,30

manicured lawns,31

and extensiveshoreland zoned for Business32 and that Eagle CoveCamps development would not harm scenic naturalbeauty,33 the Court below contravened establishedcase law and created a conflict both with priorprecedents of this Court and among the Circuits thatreject aesthetic considerations as being compelling.

Metromedia v. City of San Diego, 453 U.S. 490, 511-12(1981) (traffic safety and aesthetics are not compellinggovernmental interest justifying content-basedrestriction on speech); City of Ladue v. Gilleo, 512 U.S.43, 54 (1994) (reducing visual clutter not compelling);Whitton v City of Gladstone 54 F 3d 140 1408 (8th Cir


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Church of Foursquare Gospel v. City of San Leandro,673 F.3d 1059, 1070-1071 (9th Cir. 2011) (rejectinginterest in preservation of character of lands);Dimmittv. City of Clearwater, 985 F.2d 1565, 1572 (11thCir.1993).

3. THE COURT OF APPEALS HAS CONSTRUEDTHE TOTAL EXCLUSION PROVISION OFRLUIPAS RELIGIOUS LAND USEPROTECTIONS IN A MANNER THATCONFLICTS WITH THIS COURTS RULINGIN SCHAD V. BOROUGH OF MOUNT

EPHRAIM AND HAS DECIDED TWOIMPORTANT QUESTIONS OF FEDERAL LAW

WITH RESPECT TO THE SAME TOTALEXCLUSION PROVISION THAT HAVE NOTBEEN SETTLED, BUT SHOULD BE SETTLED,BY THIS COURT.


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RLUIPAs Total Exclusion provision.34 Therefore, thecourts below held that the total exclusion from theTown of Woodboro of all year-round religious camps35

did not contravene RLUIPAs total exclusion provision.42 U.S.C. 2000(b)(3)(A). According to the Court of

Appeals, if any one type of religious assembly use, suchas at a religious shrine,36is allowed somewhere withina jurisdiction, RLUIPAs Total Exclusion is nottransgressed even if all other forms of religiousassembly land use, including houses of worship,religious schools, and religious camps, are totallyprohibited.

However, the legislative history to RLUIPAs Total

Exclusion provision clearly demonstrates that Congressderived the statutes Total Exclusion provision fromthis Courts decision in Schad v. Borough of Mount

Ephraim,452 U.S. 61 (1981).37 InSchad, this Courtheld that a government violated the First Amendments


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one particulartype of activity protected by the FirstAmendment--namely, live entertainment--from theentire jurisdiction. That is, not all free speech wasrequired to be banned in order for impermissible total

exclusion from a jurisdiction to have occurred.Accordingly, the Seventh Circuits construction of theTotal Exclusion provision in this regard not only iscontrary to both this Courts decision in Schad andplainly expressed Congressional intent but also violatesRLUIPAs own internal rule of construction (42 U.S.C. 2000cc-3(g)) in favor of the broadest possibleprotection of religious liberties consistent with theConstitution. However, this Court has not yet settled

but should settle the scope of the phrase religiousassemblies as employed by the Total Exclusionprovision to mean any formof religious assembly, inorder to avoid such absurd results as houses of worshipthat could be banned outright in New York City so long

h l h l d d h


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Second, it violates RLUIPAs own internal rule ofbroad construction in favor of the protection of religiousexercise (42 U.S.C. 2000cc-3(g)).

Third, it is contradicted by the legislative history ofRLUIPA.41

The meaning of the term a jurisdiction and thephrase from a jurisdiction as used within RLUIPAsTotal Exclusion provision has not been, but should be,settled by this Court in order to resolve the importantfederal question as to whether a unit of governmenthaving wider geographic jurisdiction can legislate in amanner that totally excludes all religious assemblies

from all but one of the smaller geographic jurisdictionssituated within its territory (e.g., can a Stategovernment directly exercising zoning power42totallyexclude all religious assemblies from all but one of itssubordinate jurisdictions including counties, cities,


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In the instant case, Respondent Oneida Countyconsists of greater than 700,000 acres of land of whichapproximately 22,000, holding a population of fewerthan 800 residents, lie in the Town of Woodboro. App.22. Within the County also lie nineteen other townsand the incorporated City of Rhinelander.43 App. 22,

27. The holding of the Court of Appeals is thatRLUIPAs total exclusion provision is not transgressedif the County totally excludes all religious assemblyuses from all but one of the nineteen towns lying withinthe County and permits only one type of religiousassembly use (e.g.,assembly at a religious shrine) inthe twentieth town. The District Court, whose total

exclusion interpretation the Court of Appeals fullyadopted, admitted this result would pertain from itsinterpretation of the statute.44 App. 52. Under thisreasoning, a state government exercising direct zoningauthority over its entire jurisdiction could totally

l d ll l bl f h


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Therefore, the common holding of both courts belowposes an important question of federal law as towhether RLUIPAs Total Exclusion provision affords

virtually no protection to the exercise of religiousliberties by religious assemblies whenever a superiorlevel of state government exercises zoning power over

a subordinate jurisdiction, or whether instead thatprovision affords a more robust protection ascommanded by RLUIPAs own rule of construction (42U.S.C. 2000cc-3(g)), and by Schadfrom which thatTotal Exclusion provision was derived.

CONCLUSION

As set forth herein, the decision below has createdconflicts with prior decisions of this Court and betweenthe circuits involving important questions of federallaw that concern the extent of RLUIPAs protection offree exercise of religion. These conflicts and important


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Respectfully submitted,

Arthur G. Jaros, Jr.Counsel of Record

The Law Office of Arthur G. Jaros, Jr.1200 Harger Road, #830

Oak Brook, IL 60523(630) [email protected]

Roman P. StorzerRobert L. Greene Of CounselStorzer & Greene, P.L.L.C.11 Broadway, Suite 615New York, NY 10004(212) [email protected]

@ t d


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APPENDIX


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App. i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court ofAppeals for the Seventh Circuit(October 30, 2013) . . . . . . . . . . . . App. 1

Appendix B Opinion and Order in the UnitedStates District Court for the WesternDistrict of Wisconsin(February 1, 2013) . . . . . . . . . . . App. 19

Appendix C Judgment in the United StatesDistrict Court for the Western District

of Wisconsin(February 5, 2013) . . . . . . . . . . . App. 76

Appendix D Order Denying Petition for Rehearingand Petition for Rehearing En Banc inh U i d S C f A l


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and the Oneida County Board of Adjusters (collectivelythe County). Eagle Cove alleged that Woodboro andthe Countys land use regulations, which prohibit themfrom running a year-round Bible camp on residentiallyzoned property, violated the Religious Land Use andInstitutionalized Persons Act (RLUIPA), the First

and Fourteenth Amendments of the United StatesConstitution, and the Wisconsin Constitution. EagleCove also sought state certiorari review underWisconsin Statute 59.694(10). For the reasons setforth below, we affirm the decision of the district court.

I. BACKGROUND

A. The Town of Woodboro and Oneida CountyWoodboro comprises approximately 750 residents

and about 21,857 acres of land. Oneida County has708,751 acres of land. Squash Lake is partially locatedi W db P t t Wi i St t t 60 62(1)


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App. 3

single-family use are zoned for business and weregrandfathered into the zoning plan as pre-existing usesduring the initial zoning in 1976.

On May 8, 2001, Woodboro voluntarily subjecteditself to the Oneida County Zoning and Shoreland

Protection Ordinance (OCZSPO), which establisheszoning districts throughout the County. Towns mustelect to be subordinate to the OCZSPOs provisions. Indoing so, they relinquish zoning authority to theCounty.

According to the OCZSPO, religious land uses arepermitted throughout the County and Woodboro.

Year-round recreational and seasonal camps arepermitted on thirty-six and seventy-two percent of theCounty, respectively. In addition, churches andreligious schools are allowed on sixty percent of theland in the County. Churches and schools are


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In doing so, the County considered the implicationsof RLUIPA and whether a denial would hinder EagleCoves right to exercise their religion on the subjectproperty. It found that a religious school or churchcould be constructed under existing zoning, that EagleCove could achieve its goals without rezoning by

applying for a conditional use permit, and that theproposed Bible camp directly conflicted with the SingleFamily Residential zoning around Squash Lake. Byresolution adopted on August 15, 2006, the Countyaccepted the recommendation of the County ZoningCommittee and denied the rezone petition.

In 2008, Eagle Cove sought to obtain a conditional

use permit (CUP) to construct its proposed Biblecamp on the subject property. If permitted, the CUPwould allow Eagle Cove to construct its Bible campwithout requiring rezoning of the subject property.Eagle Cove attached an Overall Site Plan with the


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application. Finally, Eagle Cove appealed to the OneidaCounty Board of Adjusters, which also found that theproposed use was impermissible.

D. District Court Proceedings

On March 10, 2010, Eagle Cove filed an action in

the United States District Court for the WesternDistrict of Wisconsin. They filed an amended complainton April 27, 2010, and asserted that the land useregulations by Woodboro and Oneida County deprivedEagle Cove of rights set forth under various provisionsin RLUIPA, the First and Fourteenth Amendments ofthe United States Constitution, the Americans with

Disabilities Act, the Rehabilitation Act, and theWisconsin Constitution. They also petitioned for a writof certiorarito the Wisconsin Supreme Court. Allparties moved for summary judgment.

Th di t i t t g t d j dg t f


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type of religious activity. 468 F.3d 975, 989-90 (7th Cir.2007). The district court went on to disagree with EagleCoves contention that Woodboro itself exercises

jurisdiction over the land use regulations within itsborders, finding that Woodboro has only an advisoryrole in the overall process and that it is the County that

exercises jurisdiction over the land use regulations onthe subject property.

In considering Eagle Coves unreasonable limitationclaim under RLUIPA, the district court found thatEagle Coves proposed use of implementing ayear-round Bible camp would be permitted in thirty-sixpercent of Oneida County and that seasonal

recreational camps would be permitted on seventy-twopercent of the County. Additionally,Woodborosplanning scheme allows for seasonal recreationalcamps on roughly fifty-seven percent of its land. TheCounty and Woodboro did not unreasonably limit


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the district court emphasized that, to qualify under thisprovision, the burden placed on religion must indeed besubstantial. To find otherwise would allow even theslightest of obstacles to trigger RLUIPAs substantialburden provision. Eagle Cove specifically rejectedalternative sites and methods for exercising their

religion. As the district court observed, the scope ofEagle Coves vision, not the OCZSPO, hindered theirreligious exercise.

The district court, using the same reasoning as inits substantial burden analysis, found that the freeexercise claim under the First Amendment and theclaim under the Wisconsin Constitution Article 1, 18

also failed.

Eagle Cove filed this timely appeal.

II. ANALYSIS


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App. 9

A. Total Exclusion Claim

Eagle Cove argues that Woodboro has violatedRLUIPAs total exclusion provision, which prohibitsgovernmental land use regulations from totallyexcluding religious assemblies from a jurisdiction. 42

U.S.C. 2000cc(b)(3)(A). Eagle Coves total exclusionargument is predicated, and in fact depends, on theassumption that Woodboro has jurisdiction toimplement land use regulations on the subjectproperty. This stems from the fact that year-roundrecreational camps are permitted throughout theCounty (rendering Eagle Coves total exclusion claimobsolete), but not allowed within Woodboros borders.

Jurisdiction generally describes any authority overa certain area or certain persons Smaller geographicareas, such as counties or cities, are separate

jurisdictions to the extent that they have powers


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App. 10

can dispose of dead animals or contract with a privatedisposal facility to do the same. Wisconsin Statute 60.23(20). Town meetings may be called to regulatethe appropriation of money. Wisconsin Statute 60.10(1)(3).

In this case, Woodboro was able to exercise itsjurisdiction in approving the OCZSPO. A countyordinance enacted under this section shall not beeffective in any town until it has been approved by thetown board The ordinance shall supersede any priortown ordinance in conflict therewith or which isconcerned with zoning[.] Wisconsin Statute 56.69(5)(c). Woodboro chose to be subordinate to

Oneidas zoning ordinance, and thereby relinquishedits jurisdiction over land use regulations to the County.

Eagle Cove argues that Woodboros implementationof its Land Use and Comprehensive Plans is proof that


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6248 at 2.) (emphasis added). Thus, it is clear that theCounty, not Woodboro, exercises jurisdiction.

For this reason, Eagle Coves total exclusion claimmust fail. There is ample evidence in the record tosuggest that operating a year-round Bible camp wouldbe possible in many parts of Oneida County.See supraPart I.A. In Vision Church, we held that the totalexclusion provision of RLUIPA prohibits only thecomplete and total exclusion of activity or expressionprotected by the First Amendment. 468 F.3d at 989. Itis undisputed that Eagle Cove could construct ayear-round Bible camp on thirty-six percent of the landin Oneida County. It is further undisputed that Eagle

Cove could construct a religious church or school on thesubject property. This is hardly a complete and totalexclusion.

A. Substantial Burden and Free Exercise Claims


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would permit religious organizations to supplant evenfacially-neutral zoning restrictions under the auspicesof religious freedom.See Petra Presbyterian Church v.Village of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007)(Unless the requirement of substantial burden istaken seriously, the difficulty of proving a compelling

governmental interest will free religious organizationsfrom zoning restrictions of any kind.)

There are numerous locations within OneidaCounty for Eagle Cove to place its Bible camp. Seesupra Part I.A. Eagle Cove concedes that there are fourtracts of land, out of the ten put forth by the County,which would be suitable for their proposed camp.

(Appellants Br. at 33.) Despite this admission, EagleCove has insisted from the onset of this litigation thatthe camp must be built on the subject property. In fact,they have never even looked into operating the Biblecamp on any other land in Oneida County though


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camp. Eagle Cove was given the opportunity to seekrezoning and a CUP application, both of which weredenied. They also had the opportunity to seek out otherproperties on which to build their camp, but chose notto do so. Rather, Eagle Cove brought this suit. Thoughthey claim to seek the protections of RLUIPA, in reality

Eagle Cove seeks nothing more than an exception fromthe OCZSPO on the basis of their religious beliefs.RLUIPA is meant to protect religious freedoms fromimpermissible land use regulations, it is not meant toallow religious exercise to circumvent facially-neutralzoning regulations. Eagle Cove is not requesting relieffrom an unjust law or ordinance implemented by theCounty that inhibits their religious activity; rather,

they seek special treatment on the basis of theirreligious purpose.See CLUB, 342 F. 3d at 762 ([N]osuch free pass for religious land uses masqueradesamong the legitimate protections RLUIPA affords to

l )


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were indicia of bad faith by the City that led the Courtto find no compelling governmental interest that theCity could put forth to justify its substantial burden onthe Church.Id. at 899 (The repeated legal errors bythe Citys officials casts doubt on their good faith).That is not the case here.

First, the fact that Eagle Cove has spentconsiderable time and money on various applicationsfor rezoning does not constitute, prima facie, asubstantial burden.See, e.g., CLUB, 342 F.3d at 761(That [Appellants] expended considerable time andmoney does not entitle them to relief underRLUIPAs substantial burden provision). Further, it is

clear from the record that the Town and Countymaintained their position throughout the rezoningapplication process that, while religious exercise wouldbe allowed in the form of a church or school on thesubject property they would not permit the


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App. 17assemblies, recreational camps are prohibited outright,regardless of religious affiliation. It is clear that theOCZSPO does not treat religious land uses, inparticular year-round Bible camps, less favorably thantheir secular counterparts. The County established theland use regulations to ensure that the single-family

environment around Squash Lake remains intact. Toachieve this goal, the OCZSPO forbids year-roundrecreational camps outright. Unfortunately for EagleCove, this means that they will have to place theirBible camp elsewhere.

E. Wisconsin Constitutional Claim

Eagle Cove believes that the protection offeredunder Article 1, 18 of the Wisconsin Constitution isgreater than that offered under federal law. Wisconsinapplies a compelling state interest/least restrictivealternative test when a claim is brought challenging a


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App. 18licensing, social security, and the like that arenormally acceptable.Id. at 887. The zoning ordinanceat issue here is generally applicable to all residentswithin Oneida County and thus would qualify asnormally acceptable under Article I, 18 of theWisconsin Constitution.

III. CONCLUSION

Considering all facts in favor of Eagle Cove, we findthat all claims under RLUIPA as well as the federaland Wisconsin constitutions lack merit. Consequently,we AFFIRM the district courts order grantingWoodboro and the Countys motion for summary

judgment.


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APPENDIX B

IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF

WISCONSIN10-cv-118-wmc

[Filed February 4, 2013]_______________________________________________EAGLE COVE CAMP & CONFERENCE )CENTER INC., a Wisconsin non-stock )corporation; ARTHUR G. JAROS, JR., )

individually and as co-trustee of the )Arthur G. Jaros, Sr. and Dawn L. Jaros )Charitable Trust, and as trustee of the )

Arthur G. Jaros, Sr. declaration of trust, and )t t f th D L J d l ti )


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)Defendants. )

_______________________________________________ )

OPINION AND ORDERThis action concerns the impact of zoning and land

use regulations adopted by the Town of Woodboro andthe County of Oneida on a group that believes theyhave been called to build a large, year-round Biblecamp on a specific piece of land located on a northernWisconsin lake. After unsuccessfully petitioning forpermanent rezoning of the land, plaintiffs applied fora conditional use permit. When this, too, was denied,plaintiffs turned to this federal court for relief under

various provisions of the Religious Land Use andInstitutionalized Persons Act, 42 U.S.C. 2000cc et seq.


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App. 21is Gods way of telling them -- throughadmittedly-imperfect, secular institutions -- to lookelsewhere for a more acceptable location. Ultimately,only God knows if they should continue to knock at thisparticular door or look for an open window somewhereelse. What appears substantially more certain, at least

to this court, is that plaintiffs have no right to reliefunder RLUIPA, the United States Constitution or theWisconsin Constitution. Indeed, as set forth below,the undisputed facts demonstrate that plaintiffs do notmeet their burden of establishing all the elements ofproof under any of their claims. Accordingly, the courtwill grant summary judgment to defendants.

UNDISPUTED FACTS1

A. Overview

1. The Parties


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App. 232. The Subject Property

The Jaros family has owned property on SquashLake in the Town of Woodboro and the County ofOneida for over sixty years, consisting of two principalparcels of land (the Subject Property or Property).The largest part of the Property, approximately 29

acres, was deeded to Eagle Cove (under its prior name,Squash Lake Christian Camp, Inc.) by the CharitableTrust on December 30, 2004, at an appraised value of$400,000. Eagle Cove has owned this land since thattime. The Charitable Trust also holds -- and at alltimes relevant to this lawsuit has held -- an ownershipinterest in approximately five acres contiguous to Eagle

Coves 29 acres. The Jaros family has no desire to selleither of these two parcels.

The Subject Property as a whole contains bothshoreland and non-shoreland areas, as those terms


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purpose of dissemination of the word of God by any andall legitimate means, although it does not require thatthe assets be devoted exclusively for the purposes of aBible camp. (Counts MSJ, Ex. 26 (dkt. #63-26) 3-4; id.,Ex. 25 (dkt. #63-25) 64-67.) The Arthur G. Jaros, Sr.Declaration of Trust and the Dawn L. Jaros

Declaration of Trust also hold title to an additional 24acres of undeveloped land directly north of the SubjectProperty. The assessed value of this land totalsapproximately $1,552,000, which plaintiffs also intendto use for the benefit of the proposed Bible-camp by(1) deeding one acre to Eagle Cove; (2) granting aneasement to Eagle Cove to construct an access roadbetween U.S. Highway 8 and the camp facilities; and

(3) allowing the camp to use the land for passiverecreation activities. The Jaros family also has nodesire to sell this land.

3 The Planned Bible Camp


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work of ministry and for the apologetics task. . . .

(Pls. PFOFs, Ex. E (dkt. #61-5) 1; see also id. at 6, 9(describing the purpose of the camp as providingreligious assembly and exercise).)

The Bible camps mission is summarized in terms ofFive Purposes: (1) Worship, meaning worshipingGod through various aspects, including preaching andsinging, and exulting God in his name; (2)Discipleship, which means encouraging growth in thelife of a believer; (3) Fellowship, meaning associatingwith other believers of like mind, sharing struggles andcomradery with other believers; (4) Outreach/

Evangelism, which means sharing the Gospel withothers; and (5) Service, meaning to help and blessother people. These Five Purposes are an importantpart of plaintiffs religious beliefs, and plaintiffs wish to


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Specifically, plaintiffs believe that the GreatCommission includes constructing and operating aBible camp to disseminate Gods word on a lake -- justas Jesus did in preaching around the Sea of Galilee --where baptisms can be performed. Even morespecifically, the Jaros brothers believe that their

religion mandates them to build the Bible camp on theSubject Property.

The planned Bible camp is to be a year-roundfacility, with one principal structure, a multi-functionlodge building. This building will include a chapel,classrooms for religious instruction, boardingaccommodations, food service facilities, and

recreational amenities. The activities will involveevangelism, worship, prayer, meditation, devotionalscripture reading, discipleship and role-modeling, aswell as Christian educational instruction. The campwill be open to 250 to 300 children and adults offering


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Code, no conditional use permit or rezoning would havebeen required to construct and operate the proposedBible camp on the non shoreland portion of theProperty.

1. Zoning Districts

Sixteen of the twenty towns in Oneida County,including the Town of Woodboro, have approved theZoning Code pursuant to Wis. Stat. 59.69(5). TheTown of Woodboro formally adopted the Zoning Codeon May 8, 2001. The Code describes fourteen separatezoning Districts:

1. Forestry 1-A (District 1-A)

2. Forestry 1-B (District 1-B)3. Forestry 1-C (District 1-C)4. Single Family Residential (District 2)5. Multiple Family Residential (District 3)6 R id ti l d F i g (Di t i t 4)


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district with a building permit.5Administrative reviewuses for a zoning district are those land uses that areallowed in the district only with an administrativereview permit issued by the Oneida County Planningand Zoning Department (the Planning and ZoningDepartment).6 Administrative review uses must be

compatible with the permitted uses for a given zoningdistrict and generally include specific conditions tofulfill the purpose of the district and the Zoning Code.Conditional uses for a zoning district are those landuses that are allowed in the district only with aconditional use permit issued by the Oneida CountyPlanning and Zoning Committee (the Planning andZoning Committee).7

Because of their unique characteristics, conditionaluses are allowed in a given zoning district only afterspecific steps are taken to consider their impact undertheZoning Code The Planning andZoning Department


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Natural Resources and U.S. Army Corps of Engineersmust be submitted with the conditional use permitapplication.8Then the Planning and Zoning Committeeseeks an advisory recommendation from the town inwhich the proposed conditional use is located and holdsa public hearing on the application. Finally, certain

standards must be met before a conditional use permitis approved:

1. The establishment, maintenance or operationof the conditional use will not be detrimentalto or endanger the public health, safety,morals, comfort or general welfare.

2. The uses, values and enjoyment of

neighboring property shall not besubstantially impaired or diminished by theestablishment, maintenance or operation ofthe conditional use.


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4. Whether the change would be in the publicinterest.

5. Whether the character of the area ofneighborhood would be adversely affected bythe change.

6. Whether the uses permitted by the changewould be appropriate in the area.

7. Whether the town board of the town in whichthe change would occur approves of thechange.

8. The size of the property that is the subject ofthe proposed change.

9. Whether the area to be rezoned is defined byrecognizable or clearly definable boundariessuch as those found in U.S.G.S. Land OfficerS d d l h


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land uses. (The significance, if any, of this expressomission is in dispute.) The Town of Woodboro LandDivision Ordinance establishes minimum lot size fornewly-platted parcels and some minimum roadstandards.

During the plaintiffs application process for a

conditional use permit to operate the Bible camp, theTown of Woodboro developed a Comprehensive Planpursuant to Wisconsin Statutes Chapter 66. Adopted in

April 2009, this Comprehensive Plan states as a policy:The Town should encourage low density single familyresidential development for its lake- and river-frontproperties. (Countys MSJ, Ex. 19 (dkt. #6319) 14.)While the Comprehensive Plan was in draft form,Eagle Cove submitted to the Town a written commentletter in early February 2009, which criticized the draftfor omission of religious land uses of any kind. Theparties dispute whether the Comprehensive Plan


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Towns 30(b)(6) designee testified that he could notrecall the County ever rejecting the Townsrecommendation for a petition for rezoning.

C. Breakdown of Zoning in County and Town

1. Zoning Districts

Roughly 57.47% of the land in the Town ofWoodboro is zoned Forestry 1-A. (No land in the Townis zoned Forestry 1-B.) Seasonal, recreational camps --whether religious or secular -- and religious shrines arecategorized as administrative review uses in theForestry 1-A and 1-B zoning districts.9Campgrounds --whether religious or secular -- are categorized as

conditional uses in the Forestry 1-A and 1-B zoningdistricts.

Approximately 16% of the Countys land (excludingthe City of Rhinelander) is zoned General Use (District


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to provide an area of quiet seclusion for families.This is the Countys most restrictive residentialzoning classification. Minor vehicle traffic shouldbe infrequent and people few.

(Countys MSJ, Ex. 1 (dkt. #63-1) 9.22(A).) Churches,schools, libraries, community buildings, museums,

community living arrangements with nine or moreresidents, governmental uses, bed and breakfastestablishments with three or more guest rooms, andpublic parks and playgrounds are categorized asconditional uses in District 2. There are no objectivesize restrictions on these conditional uses, but all aresubject to approval. Some of these uses may generatesignificant motor vehicle traffic and noise, at leastperiodically, though all of these conditional uses aresubject to approval within District 2.

Approximately 10% of the Countys land (excluding


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Roughly 0.42% of the Countys land (excludingRhinelander) is zoned Multiple Family Residential(District 3) and a little less than 3% of the land in theCounty (excluding Rhinelander) and approximately4.5% of the Towns land is zoned Rural Residential(District 15). Churches and schools also are categorizedas conditional uses in these zoning districts.

Less than 1% of the land in the County (excludingRhinelander) and a little over 1% of the land in theTown is zoned Manufacturing and Industrial (District8). Religious shrines, churches and schools arecategorized as conditional uses in this district.

2. Squash Lake Area

Squash Lake is partially located in the Town ofWoodboro and partially located in the neighboringTown of Crescent. The entire lake and both towns arell l t d i O id C t Th f f


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exception is a parcel dedicated in 1974 as a publicpark pursuant to a subdivision plat approved by theTown of Woodboro.10

The seven parcels not zoned Single FamilyResidential (District 2) are zoned Business B-2 (District7).11Six of the seven business parcels are located in

one area of the lakeshore in Woodboro. These parcelscomprise 6.11 acres of developed property with 998 feetof lake frontage, consisting of: (1) a personal home,(2) four cottages (ranging in size from one to threebedrooms), (3) a personal residence, (4) a 4-unit rentalapartment building with three 1-bedroom units andone 2-bedroom units, (5) 5-unit rental apartmentbuildings with two 2-bedroom units and three1-bedroom units, and (6) a 17-unit apartment buildingwith eleven 2-bedroom units and six 1-bedroom units.The seventh parcel is located in the Town of Crescentand consists of approximately 20 acres of land with


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1. Rezone Petition

In October 2005, Arthur Jaros exchanged emailswith Steve Osterman of the County Zoning Departmentregarding the Jaros brothers desire to construct aBible camp in Woodboro. Osterman advised Jaros thatboth a rezone and a conditional use permit from the

County would be required to proceed with the project.The County informed plaintiffs that a rezoning of theProperty to District 5 or District 10 would be necessaryfor the proposed, year-round camp. On December 3,2005, the plaintiffs filed a petition to rezone the 34acres of land described above to Recreational District5. The general reason provided for rezoning was toallow for the construction and operation of a Biblecamp and related activities. The petition contained ageneral description of the planned Bible camp, but didnot provide any specifics on its anticipated capacity forcampers the size of the buildings or the extent of the


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voted to recommend that the County deny plaintiffspetition for rezoning.

Following that meeting, the Town of WoodborosAttorney, Gregory Harrold, contacted Arthur Jaros byletter, requesting a copy of a proposed restrictivecovenant Jaros had mentioned in support of his rezone

petition.12 Attorney Harrold received a draft of therestrictive covenant and forwarded it to Town ClerkSchmidt on March 30, 2006. On April 18, 2006, theTown Board met at Attorney Harrolds request toreconsider its original March 14 recommendations. Atthat meeting, there was a presentation by a member of

Attorneys Harrolds firm on RLUIPA. Arthur Jaroswas also present and given an opportunity to respond.

On May 11, 2006, the Town Board again held apublic meeting on the rezone petition, though it failedto provide actual notice of the meeting to the rezone


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It will result in significant increased trafficand noise which will impact the safety andgeneral welfare of the occupants in the

vicinity;

It will encourage excessive utilization forsingle family residential housing;

Further, the unknown nature of use whichcould be expanded significantly is anunknown risk to which neighbors and theTown should not be exposed to;

The [Town Land Use Plan] encourages singlefamily development, not large scale (275campers per week) utilization[.]

(Countys MSJ, Ex. 30 (dkt. #63-30) 2.)

On April 19, 2006, the Oneida County Planning andZ i C i d d bli h i h


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Subject Property would not allow for a recreationalcamp, such as that proposed by the applicants.

On June 14, 2006, the Planning and ZoningCommittee voted unanimously to recommend to theCounty Board that it deny the requested rezoning. TheCommittee concluded that (1) rezoning would be

inconsistent with the 1998 Town Land Use Plan and(2) the uses in a Recreational zoning district wouldconflict with those permitted in a Single FamilyResidential zoning district. The Committee alsopurported to consider whether the denial implicatedRLUIPAs provisions.

In August 2006, the Countys Planning and Zoning

Committee submitted a Report to the County Board ofSupervisors, which memorialized its June 14threcommendation. By resolution adopted on August 15,2006, the Countys Board of Supervisors accepted the


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(5) a lodge located adjacent to the lake consisting of aChapel, Classroom Area, Dining Hall, Lodging,Multipurpose Room/Gymnasium and Administrative

Areas. (Countys MSJ, Ex. 38 (dkt. #63-38); id., Ex. 28(dkt. #63-28) 94-95.) The application also stated thatthe facilities were designed to accommodate 250 to 300guests/campers.

On February 1, 2007, the County ZoningDepartment informed the applicants that their originalCUP application was incomplete under 9.42 of theZoning Code, because permits were missing from theWisconsin Department of Natural Resources and theDepartment of Transportation. The letter also askedpetitioners for additional information about the

ownership of the land, the number of campers to beserved, and details regarding planned recreationaluses. In early August 2007, the County ZoningDepartment administratively closed its file because the


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County Zoning Board. Specifically, the amendedapplication included an Overall Site Plan, describingthe layout of the proposed Bible camp facilities,including a proposed lodge in excess of 106,000 squarefeet in size, with a building footprint in excess of 42,000square feet, making it the largest building in the Townof Woodboro.13 As for the number of campers, theOverall Site Plan provided that the lodge wouldaccommodate a maximum of 348 persons, including 240campers and 108 staff and visitors. In addition, thePlan provided for five outdoor tent camping sites, eachaccommodating two 5-6 person tents.

The Plan also provided for at least 97 parkingspaces for cars and buses near Highway 8, proposing to

utilize a self-propelled, standard gauge, diesel poweredrail car measuring over 85 feet in length and otherwisesimilar in size to a typical single-level Amtrakpassenger rail car to transport campers and other


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Planning and Zoning Committee conducted a publicmeeting at which it voted to deny the CUP application,effectively adopting the reasons provided in the staffreport.

On September 16, 2009, the applicants filed anappeal with the County Board of Adjustment. That

Board conducted a public hearing regarding theapplicants appeal on December 1st. The Board allowedthe parties to make written submissions and theapplicants were given an opportunity to advocate infavor of their appeal at that hearing. On January 12,2010, the County Board of Adjustment conductedanother public meeting at which it affirmed the denialon January 12, 2010, and memorialized the denial in a

written resolution on February 11, 2010.

E. Other Properties in Oneida County

Pl i tiff h l k d i t th ibilit f


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At least fifteen recreational camps currently exist inOneida County. All fifteen existing recreational campsare located within the Recreational, Forestry 1-A,Forestry 1B, or General Use zoning districts.Defendants identify four Bible camps in the County,including plaintiff CLBFs camp. The most recentrecreational camp in the County was built in 1956. The

Countys 30(b)(6) designee could not recall receivingany applications to rezone an area as District 5 orDistrict 10 for purposes of a year-round recreationalcamp, nor any conditional use permits granted for anynew recreational camps.

OPINION

Plaintiffs bring the following eleven causes of actionagainst defendants:

(1) RLUIPA Total Exclusion Claim;


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Plaintiffs affirmatively moved for partial summaryjudgment only as to its claim of a violation of RLUIPAstotal exclusion provision. Both defendants -- the Townand the County -- filed largely-overlapping motions forsummary judgment on all eleven counts. Finding nomerit in plaintiffs claims, the court will grantdefendants motions.14

I. RLUIPA Total Exclusion Claim

RLUIPAs total exclusion provision provides:

No government shall impose or implement aland use regulation that-- (A) totally excludesreligious assemblies from a jurisdiction; . . . .

42 U.S.C. 2000cc(b)(3)(A).

Plaintiffs contend that the exclusion of year-roundBible camps from the Town of Woodboro violates this

i i F l i iff l i d h


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year-round religious camp they feel called to build.Churches and schools, including religious schools, areconditional uses on the Subject Property. The recordalso reflects that plaintiffs have used their land forsome religious retreats, although on a much morelimited scale than their planned facilities.Unfortunately for plaintiffs, RLUIPAs total exclusion

provision is concerned with just that: the complete andtotal exclusion of activity or expression protected by theFirst Amendment. See Vision Church, United

Methodist v. Vill. of Long Grove, 468 F.3d 975, 989 (7thCir. 2007) (citingSchad v. Borough of Mount Ephraim,452 U.S. 61 (1981) (town totally excluded liveentertainment, which included nonobscene nude

dancing)). The land use regulations at issue here do notapproach the complete and total exclusion of religiousactivity or expression, including plaintiffs religiousassembly, whether from the County, the Town, or evenf h S b


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expression and not with the exclusion of specific kindsof institutions or structures.15

In addition, the plaintiffs choice to operate ayear-round Bible camp, rather than a seasonal one,further restricts the land available to their use sinceover half of the land in the Town of Woodboro (57.4%)

is zoned Forestry 1-A. Seasonal recreational camps -whether religious or secular -- are categorized asadministrative review uses in this zoning district.While operating a seasonal rather than a year-roundBible camp would certainly restrict plaintiffs religiousexercise, such a temporal limitation also does notconstitute a total exclusion of religious assembliesunder RLUIPA. This court is not holding -- and

defendants do not argue -- that the proposedyear-round Bible camp is not a religious assembly


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under RLUIPA. Rather, the court holds that RLUIPAsimply does not require every plausible religiousassembly to be allowed, wherever, whenever andhowever plaintiffs may choose.

As to the second hurdle, the court is unconvincedthat the Town is the appropriate unit to consider for

the total exclusion claim. The County made the crucialdecisions at issue here, consistent with its Zoning Code.While it is true the Town chose to adopt the ZoningCode, its adoption does not render the Town a land useregulator. Plaintiffs most compelling argument to thecontrary is that absent the Towns adoption of theCountys Zoning Ordinance, the Subject Property wouldhave remained unzoned, allowing for the Bible camp.

By adopting the Code, the Town effectively ceded to theCounty the role of land use regulator, with the Townretaining an advisory role. Ultimately, however, it isthe Countys Zoning Code and the Countys denials of


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relevant jurisdiction the government regulates under 2000cc(b)(3)(A) could be different than the total

jurisdiction regulated by the governmental entity.Applied here, plaintiffs argue that the County could beliable under RLUIPAs total exclusion provision so longas year-round Bible camps are totally excluded from a

jurisdiction, namely the Town. Under plaintiffs

reasoning, however, a jurisdiction could be a singlezoning district, which would mean a government couldbe liable merely by excluding churches from aparticular zoning district. Such piecemeal applicationof the total exclusion provision goes too far. A far morereasonable construction is for a jurisdiction underRLUIPAs total exclusion provision to refer to theentire geographic area governed by the zoningordinance at issue.See Elijah Grp., Inc. v. City of LeonValley, Tex., No. SA-08-CV-0907 OG (NN), 2009 WL3247996, at *8 (W.D. Tex. Oct. 2, 2009), revd on other

d d ( h C )


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Plaintiffs counter with an example where a countyis the land use regulator, but only one town within thecounty allows churches. Under the courts construction,this hypothetical would not implicate the totalexclusion provision because religious assemblies arenot totally excluded from the county, but this is not tohold that the hypothetical would pass other RLUIPA

provisions, particularly the unreasonable limitationsprovision. Moreover, an exclusion of a particular sect ordenomination from a jurisdiction would likely implicateRLUIPAs nondiscrimination provision.

II. RLUIPA Unreasonable Limitation Claims

Indeed, this is exactly plaintiffs position in

contending that defendants land use regulations alsoviolate RLUIPAs unreasonable limitations, whichprovides:

N g t h ll i i l t


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justified by legitimate nondiscriminatory municipalplanning goals.Id. A municipality may chart out aquiet place where yards are wide, people few, andmotor vehicles restricted[.] [These] are legitimateguidelines in a land-use project addressed to familyneeds.Id. at 1001 (quoting Congregation Kol Ami v.

Abington Twp., 309 F.3d 120, 135 (3d Cir. 2002)). As

such, religious assemblies have a reasonableopportunity to build within the [Town and the County],provided that the requirements for a special use permithave been fulfilled.Id.

III. RLUIPA Substantial Burden Claim, FreeExercise Claim and Wisconsin ConstitutionClaim

Defendants also move for summary judgment onplaintiffs substantial burden claim under RLUIPA.Under this provision,


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Chi. (CLUB), 342 F.3d 752, 759 (7th Cir. 2003)(quoting 42 U.S.C. 2000cc-5(7)).

While this provision offers plaintiffs strongest claimunder RLUIPA, the Seventh Circuit has repeatedlywarned that the substantial component of this testmust be taken seriously. Otherwise, the slightest

obstacle to religious exercise incidental to theregulation of land use -- however minor the burden itwere to impose -- could then constitute a burdensufficient to trigger RLUIPAs requirement that theregulation advance a compelling governmental interestby the least restrictive means. CLUB, 342 F.3d at 761;see also Petra Presbyterian Church v. Vill. of

Northbrook, 489 F.3d 846, 851 (7th Cir. 2007) (Unless

the requirement of substantial burden is takenseriously, the difficulty of providing a compellinggovernment interest will free religious organizationsfrom zoning restrictions of any kind )


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political aspects of zoning and planning decisions donot render the use of real property for religious exerciseimpracticable. CLUB, 342 F.3d at 761. Expendingconsiderable time and money also does not entitleland use applicants to relief under RLUIPAssubstantial burden provision.Id.

In Sts. Constantine & Helen Greek OrthodoxChurch, Inc. v. City of New Berlin, 396 F.3d 895 (7thCir. 2005), the Seventh Circuit reversed the districtcourts decision granting summary judgment to theCity and granted summary judgment to the plaintiff-church, finding the denial of a zoning varianceconstituted a substantial burden. Understandably,plaintiffs rely heavily on certain language from that

case, which suggests that delay, uncertainty andexpense constitute a substantial burden. 396 F.3d at901 (The Church could have searched around for otherparcels of land (though a lot more effort would have


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whether a compelling government interest exists --with the substantial burden requirement. In Sts.Constantine & Helen, for example, the Seventh Circuitnoted that the repeated legal errors by the Citysofficials casts doubt on their good faith, and describedthe mayor of the City of New Berlin as playing adelaying game. 369 F.3d at 899; see also Guru Nanak

Sikh Soc. of Yuba City v. Cnty. of Sutter, 456 F.3d 978,991 (9th Cir. 2006) (finding substantial burden wherethe plaintiffs history with the defendant countysuggested that any further attempts could very well bein vain).

As much as plaintiffs purport to have done so, theyfail to offer similar evidence here that would allow a

reasonable trier of fact to find that the delay,uncertainty, and expense incurred was the result ofdefendants bad faith. At most, plaintiffs contend thatthe defendants mislead them by suggesting that


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reasonable accommodation by the petitioner, Town andthe County, the petitioner could achieve most if not allof its objectives under the existing zoning districts.(Countys MSJ, Ex. 32 (dkt. #63-32) 4.)20Importantly,however, plaintiffs omit other critical language:Neither land use classifications [governing the SubjectProperty] allow for the proposed recreation camp

proposal. (Id.) A fair reading of this report and otherexchanges between the parties during the rezoningpetition demonstrates that County officials were simplynoting -- as this court has noted -- that plaintiffs couldexercise their religious beliefs on the Subject Property,but not necessarily by means of a year-round Biblecamp.

Plaintiffs also take issue with defendants delay indeciding their CUP application, specifically arguingthat defendants should have rejected the application atthe outset rather than after prolonged deliberations


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of a bad faith delay. Indeed, around the time theCounty deemed plaintiffs CUP application complete,the County Zoning Department warned plaintiffs thatit did not expect to recommend approval of the permitto the Planning and Zoning Committee, because theproposed use was not permitted by or consistent withthe zoning of the property. (Countys MSJ, Ex. 47 (dkt.

#63-47) 3-4.) Moreover, the final decision, including thedenial of the appeal by the Board of Adjustment, wasissued less than one year after the CUP applicationwas deemed complete. The court does not doubt, anddefendants do not dispute, that plaintiffs expendedconsiderable time and money in pursuit of therezoning petition and CUP application, but this is notenough to entitle them to relief under RLUIPAssubstantial burden provision. CLUB, 342 F.3d at 762.

Regardless of whether plaintiffs experienced delay,uncertainty and expense the Seventh Circuit


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fairly categorized as secular in nature. The OverallSite Plan, depicted below and submitted with theamended CUP application, calls for a large parking lot,extensive recreational fields, a beach, a large enoughlake to accommodate water sports, and a train carsimilar in size to a single-level Amtrak passenger railcar:


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A 63


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churchs conditional use application to build a 100-childdaycare center in a low-density residential zone did notconstitute a substantial burden on religious exerciseeven though daycare intended to have a religiouseducation component); Westchester Day Sch. v. Vill. of

Mamaroneck, 386 F.3d 183, 189 (2d Cir. (holding thatvillages zoning ordinances did not substantially

burden an Orthodox Jewish school seeking to expandits facilities for secular education purposes). Havingfailed to even pursue a more modest recreational campbefore coming into court, particularly where allowed byexisting zoning and CUPs, plaintiffs fall well short ofproving a substantial burden on their exercise ofreligion.21

Plaintiffs free exercise claim under the FirstAmendment of the United States Constitution andclaim under the Wisconsin Constitution Article

Documents

Eagle Cove Cert. Petition