Howard Kaloogian established Grace New England, a Christian church, at his residentially zoned property in the Town of Weare. Churches are a permitted use in the residential zone under the Town’s zoning ordinance; however the Town’s Site Plan Review Regulations require approval from the Planning Board when undertaking a change of use. Prior to establishing the church on the property, Kaloogian initially considered developing the site as a commercial event venue, but after being told by the Planning Board at a conceptual consultation that the commercial uses would require zoning relief, he did not pursue that land use activity. Instead Kaloogian expanded his small religious gatherings into establishing a new church with a charter, and he became an ordained minister. The expanding attendance at services required renovations of the property including land clearing land for parking. This activity drew the attention of the Town’s Code Enforcement Officer who upon visiting the property advised Kaloogin to submit a one-page application for conceptual consultation with the Planning Board that could have resulted in waiver of full site plan review coupled with simple permission to allow a change of use.
Kaloogian refused to pursue the recommended conceptual consultation and after the Town threatened civil action to seek compliance Kaloogian brought suit in federal court contending that the Town’s attempt to enforce its zoning regulations violates his rights under four provisions of law: the Free Exercise Clause of the First Amendment; the Substantial Burden and Equal Terms provisions of RLUIPA; Part 1, Article 5 of the New Hampshire Constitution; and RSA § 674:76.
The court ruled that Kaloogian’s claims were only ripe for review to the extent that he asserts that he cannot be compelled to seek a waiver from the Site Plan Review Regulations through a formal public process in order to hold religious services on his property. As those claims, the court ruled that Kaloogian’s arguments failed on their merits as follows.
First Amendment Free Exercise Claim
To establish a claim of infringement of the Free Exercise clause of the First Amendment it must be demonstrated that a government entity has burdened sincere religious practices pursuant to a policy that is not neutral or generally applicable. Where a plaintiff makes that showing, the burden shifts to the government to establish that its action satisfies strict scrutiny. That is, the government must demonstrate its regulatory conduct was justified by a compelling state interest and was narrowly tailored in pursuit of that interest. If the plaintiff fails to meet this burden, then the challenge fails so long as the neutral and generally applicable policy is rationally related to a legitimate government interest.
A legal requirement is not neutral under this approach when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature. It is not generally applicable if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way or invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.
Ensuring that a municipal planning board makes its decisions through a process transparent to the public, especially where the process involves the discretionary issuance of individualized exemptions by elected officials, is of obvious importance to the government and its relationship with the public.
Considering only the requirement that Kaloogian must seek a waiver from the Site Plan Review Regulations through a formal process, the court concluded that the Town’s policy was neutral as to religious activities. The site plan review regulations on their face require all property owners subject to them to seek a waiver from the Planning Board in order to be freed from the site plan review process. Kaloogian offered no evidence to suggest that the Town structured its review processes to deliberately “single out” for conceptual consultations those property owners engaged in or proposing religious uses of their property.
The court concluded that the Town has a legitimate interest in issuing waivers from further review to property owners through an open, accountable process. And, especially in light of the minimal burden that a conceptual consultation imposes on a property owner—the completion of a short form with basic identifying information and attendance at a single public meeting—the court found that requiring Kaloogian’s cooperative participation in that process is rationally related to that interest. Therefore, Kaloogian’s challenge under the Free Exercise Clause failed.
Religious Land Use and Institutionalized Persons Act (RLUIPA) Claim
RLUIPA governs the regulation of land use by state and local governments as it relates to religious exercise. Kaloogian claimed that the Town’s zoning enforcement violates Section 2’s substantial burden provision, which prohibits government entities from enacting or enforcing land use regulations that substantially burden individuals’ religious exercise unless the burden satisfies strict scrutiny. The factors to be considered when weighing such a claim are (1) whether the regulation at issue appears to target a religion because of hostility to that religion itself; (2) whether the regulation was ‘imposed on the religious institution arbitrarily, capriciously, or unlawfully and (3) whether local regulators have subjected the religious organization to a process that may appear neutral on its face but in practice is designed to reach a predetermined outcome contrary to the group’s requests.
Taken together, all three factors that the First Circuit required the court to consider in evaluating a Substantial Burden claim weighed in favor of the Town. Comparing the Town’s zoning enforcement with respect to Grace New England with its nonenforcement with respect to the secular events Kaloogian has hosted reveals a coherent enforcement approach driven by the distinction between quasi-permanent changes of use and those incidental activities that typify a residential use.
Religious Freedom Claim, Part 1, Article 5 New Hampshire Constitution
Kaloogian claimed that the Town’s conduct violated Part 1, Article 5 of the New Hampshire Constitution on essentially the same grounds that the conduct violates the Free Exercise Clause of the First Amendment. State v. Mack, 173 N.H. 793, 802 (2020). Specifically, in State v. Mack, the New Hampshire Supreme Court keyed in on the provision’s “substantial linguistic differences”—namely, its protection of religious practices in addition to religious beliefs under Hale v. Everett, 53 N.H. 9 (1868)—to conclude that it does not accommodate the First Amendment’s “neutrality and general applicability” doctrine. Still, in Mack, the New Hampshire Supreme Court stopped short of holding that any government action conceivably applicable to a religious practice is subject to strict scrutiny. Instead, the Court reaffirmed its decisions in State v. White, 64 N.H. 48 (1886), and State v. Cox, 91 N.H. 137 (1940), each of which upheld neutral and generally applicable conduct restrictions that necessarily but incidentally applied to religious applications of the restricted conduct. What rendered these restrictions’ burdens on religious practices insubstantial and thus exempt from strict scrutiny, according to the Court, was their “limited scope” and “the fact that both statutes expressly provided that anyone could apply for and obtain a license, permit, or other lawful permission to engage in the conduct at issue.” Mack, 173 N.H. at 816.
Applying these principles to Kaloogian, the court concluded that since all it takes for a meritorious applicant to secure a waiver is to answer a one page, non-substantive questionnaire and attend a single public meeting— that this was precisely the kind of insubstantial licensure process that the New Hampshire Supreme Court endorsed as lawful under its precedents interpreting Part 1, Article 5. Thus, requiring Kaloogian to submit to that process does not violate that Religious Freedom provision of the New Hampshire Constitution.
Religious Use of Land and Structures – RSA 674:76
Kaloogian also claimed that the Town’s requirement that he seek a waiver from the site plan review regulations violates RSA 674:76, a recently enacted addition to New Hampshire’s Title LXIV, which authorizes and governs municipal planning and zoning regulation in New Hampshire. The court declined to exercise jurisdiction and review of this state law stating that the initial interpretation of RSA 674:76—a structure of exemptions with exceptions unique in New Hampshire law—is best left to the New Hampshire Supreme Court.
READ MORE IN COURT DECISION ON PRELIMINARY INJUNCTION!
Practice Pointer: When undertaking a zoning review or site plan application for property primarily used for religious purposes RSA 674:76 limits municipal regulation to matters involving height of structures, yard sizes, lot area, setbacks, open space, and building coverage requirements, provided those requirements are applicable equally to religious and non-religious uses and do not substantially burden religious exercise.