Fresh Start Center v. Grosse Ile, Township ofDoc. 12

UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISIONFRESH START CENTER,
Plaintiff(s),Case No. 24-cv-12140
vs.
HON. GERSHWIN A. DRAINTOWNSHIP OF GROSSE ILE,
Defendant(s).
OPINION AND ORDER DENYING MOTION FOR PRELIMINARY
INJUNCTION [#5]I.

INTRODUCTION
Plaintiff, Fresh Start Center (the “Center”), filed this action against the

Township of Grosse Ile, alleging the Township has violated the First Amendment’s
Free Exercise Clause and the Religious Land Use and Institutionalized Persons
Act, 42 U.S.C. § 2000cc (“RLUIPA”) by denying the Center’s request for a special
land use to operate its religious retreats at the Center’s Property, which is locatedin a Township district primarily zoned for single-family residences.
Now before the Court is the Center’s Motion for Preliminary Injunction,
filed on August 16, 2024. The Center limits its present motion to its RLUIPA
claims only. The Township filed a Response on August 22, 2024, and the Center
filed a Reply on August 23, 2024. A hearing was held on August 29, 2024. For

Dockets.Justia.com

the reasons that follow, the Court denies the Center’s Motion for Preliminary
Injunction.
II.

FACTUAL BACKGROUND
A. The Township’s Zoning Ordinance
Grose Ile Township has adopted a Zoning Ordinance (“ZO”), found in

Chapter 285 of the Grosse Ile Code of Ordinances. See Grosse Ile Township
Ordinance, § 285 et seq. The ZO divides Grosse Ile Township into districts andcreates regulations governing land development within those districts. Id., § 2852.1. Article 3 of Chapter 285 sets forth the regulations for all single-family
residential districts. Id., Article 3.1-3.5. The Property is located in a district zoned
R-1-B, Single-Family Residential. ECF No. 1, PageID.6. Chapter 285-3.1 statesthat single-family residential districts, including the R-1-B district, are intended toprovide for “a residential environment consisting of predominantly low-density,
single-family dwelling units, with a limited range of other uses that are considerednecessary or appropriate to enhance the quality of life within Grosse Ile’s
residential neighborhoods. Id., § 285-3.1. Chapter 285-3.1 states that theregulations governing single-family residential districts are intended to:a. Provide a high-quality residential living environment which
encourages safety and enhancement of property values;b. Protect open areas, shorelines, woodlands, wetlands; and otherdistinctive natural features that contribute to the overall quality oflife on Grosse Ile;2

c. Ensure development is in accordance with the availability of public
utilities, facilities, and services;d. Prevent overcrowding by establishing standards for density,
minimum lot sizes and minimum yard dimensions;e. Protect residential areas by promoting traffic volumes and speeds
consistent with the neighborhood character based on a hierarchy ofstreet functional classification;
f. Discourage development which is inconsistent with the quality anddesign of existing residential neighborhoods;
g. Accommodate care facilities that are single-family residential incharacter while avoiding an excessive concentration of thesefacilities within the single-family districts; andh. Ensure infill development is consistent with the character of
established neighborhoods, is compatible with the size, scale,setback, and architectural character of surrounding homes, does notoverbuild small lots, minimizes impacts to views, privacy, andaccess to sunlight and contributes to the distinct, cohesive
character in the various neighborhoods, which are significant
factors in the Township’s quality of life.
Id., § 285-3.1. Principal permitted uses in single-family residential districts,
including R-1-B, include:(1) Single-family detached dwelling units meeting the residential
design standards of § 285-3.4E. Single-family subdivisions andsite condominium projects must also comply with Municipal Coderequirements including Chapter 238, Subdivision Control, andChapter 71, Condominium Projects, as appropriate.
(2) Essential services not including buildings or storage yards, when
operating requirements necessitate their location within the district
to serve the immediate vicinity as determined by the Planning
Commission.
(3) Land designated as public parks public open space, bike paths andlands designated for preservation as part of the natural drainage
system.
(4) State-licensed adult foster care family home in a single-family
residence (six or fewer adults).

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(5) State-licensed adult foster care family home in a single-family
residence (six or fewer adults; foster care five or more days per
week.
(6) Family day care (one to six children, less than 24 hours’ care).
(7) Foster family home (one to four children, 24 hours’ care).
Id., § 285-3.3.
Article 3 also identifies a number of uses that are allowed by special land
use permit in the single-family residential districts, subject to the standards andapproval requirements set forth in Article 22, Special Land Use Review. Id., §285-3.3C. In the R-1-B single-family residential district, the following land uses
are permitted subject to approval: schools, churches,1 child-care centers or daycare centers, golf clubs, boat clubs, cemeteries, public utility buildings, adult foster
care small group (7 to 12 adults), group day-care (7 to 12 unrelatedchildren/private residence). Each of the possible special land uses has a number of
additional conditions that must be satisfied, including a minimum of 40 footsetbacks (schools, churches, child-care/day-care centers), direct access to acollector, arterial or paved public road (schools, churches, child-care/day-care
centers, cemeteries), and minimum road frontage (child-care/day-care centers),
screening requirements (schools, churches, child-care/day-care centers, cemeteries,
boat clubs), among other requirements. Id., § 285-3.3C(1).

“Church” is broadly defined in the Township Zoning Ordinance as “any structure
wherein persons regularly assemble for religious activity.” § 285-1.3.

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Article 7 of the ZO governs the Macomb Street District, which allows
religious facilities as a matter of right. Id., § 285-7.2. Currently, there is available
property for sale in the Macomb Street District.
B. Fresh Start Center
In October of 2020, Yochannon Polter, President of the Board of Fresh Start
Center, and Tzadok Eliyahu, purchased residential property for use as a vacationhome in the Township. ECF No. 1, PageID.5. In early 2021, the Center2 began
holding religious retreats to help individuals of the Orthodox Jewish faith whohave experienced religious and other trauma resulting in the loss of faith in or
feeling resentment or bitterness towards God. The Center’s mission is to restore
these individuals’ relationship and belief in God. Id., PageID.3. The Center
believes a core tenant of Judaism is to help those adherents who have fallen in theirfaith to heal their relationship with God. Id. The Center’s mission is infurtherance of this sincerely held belief. Id.
The Center holds retreats twice a month at the Property, one for males andone for females. Id., PageID.4. The retreats last for one week. Id. Each retreat
consists of 4 to 5 participants, who come from all over the world. Id. In addition
to the participants, there can be up to 2 to 4 other individuals at the Property. Id.

The record is devoid of facts explaining under what authority the Center operates
on the Property. However, at the hearing, the Center advised that it has a leaseagreement to operate its retreats at the Property.

25One is a facilitator; one is a rabbi and up to two additional support staff. Id. The
Center screens the participants by having prospective participants complete arigorous questionnaire and thorough screening calls and discussions. Id.
Individuals either stay at local hotels or stay at the Property. Id., PageID.5. The
Center denies prescribing or administering medical care or medications. Id. Nordoes the Center offer out-patient treatment for drug, alcohol, sexual addiction, or
mental illnesses. Id.
C. Fresh Start Center’s Special Land Use Request
On January 30, 2023, a participant at the Center wished to leave the retreat
and likely misunderstood where she was supposed to be picked up by her sister.
Id., PageID.8. A resident called the Township Police Department indicating there
was a woman in “pilgrimage garb” hiding along the side of the resident’s home.
ECF No. 9, PageID.278. The police picked up the participant and returned her tothe Property. ECF No. 1, PageID.8. The woman informed the police that she had
been staying in a “temporary house” called Fresh Start. ECF No. 9, PageID.278.
On February 2, 2023, Ross Querro, the Community & Economic
Development/Downtown Development Authority Director, made a businesslicense inquiry to the Michigan Department of Licensing and Regulatory Affairs(“LARA”) as to whether the Center was an unlicensed adult foster care facility.

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ECF No. 1, PageID.8. Following an investigation, LARA determined that theCenter was not an unlicensed adult foster care facility. Id.
The Township reviewed Fresh Start’s website to learn more about theCenter. ECF No. 9, PageID.278. Fresh Start’s website indicated that the Property
was being used as a retreat center, providing therapy for “emotional and mental
health struggles, originating from unresolved childhood issues, trauma, abuse, andmore” by hosting intensive 7-day retreats “developed under the guidance andleadership of a team of world-renowned trauma experts, licensed clinicaltherapists, doctors and rabbonim . . . .” Id. The Fresh Start retreats are offered at a
“subsidized” price of $6,995.00. Id.
On March 13, 2023, the Township’s counsel sent Mr. Polter and Mr. Eliyahu
a letter demanding that they cease using the Property as a trauma retreat center.
Id., PageID.9, 59. On May 17, 2023, counsel for Plaintiff met with Township staff
to discuss resolution of the land use issues concerning the Property. ECF No. 1,
PageID.9. The Township asserts that it first became aware of a religious use of theProperty at this meeting. ECF No. 9, PageID.283. After discussing various
options to bring the Property into compliance with the Township’s ordinances,
Plaintiff made the determination to apply for special land use approval to use theProperty as a church. Id. The Township agreed that it would not take enforcement
action against Plaintiff and would allow retreats to continue, so long as the Center7

worked in good faith to resolve the outstanding land use issue. Id., ECF No. 1,
PageID.9.
On June 6, 2023, the Center submitted its “Pre-Application Meeting
Checklist,” and a letter informing the Township it is improper for the Township toquestion the religious exercise of the Center, as it falls within the type of conduct
protected by RLUIPA. Id. On June 27, 2023, Mr. Querro sent a letter to counsel
for the Center indicating the Pre-Application Packet did not include sufficient
information to determine whether the Center’s proposed use complies with theTownship’s Zoning Ordinance. ECF No. 1, PageID.81. On August 18, 2023, theCenter’s attorney and Township officials discussed the next steps for the Center.
Id., PageID.9. Following this meeting, it was determined that the Center would
apply for special land use permission to continue use of the Property for religious
purposes. Id., PageID.10. The discussion did not indicate that denial of the special
land use was likely. Id.
On December 18, 2023, the Center submitted its special land use application
to the Township. Id. On March 7, 2024, Brian Borden, the Township’s City
Planner, sent a draft of his special land use and site plan report to Mr. Querro forreview. Id. Mr. Querro responded that, “after reviewing this I can’t find asituation where the Commission would turn this down.” Id. The Township issued
notice of a public meeting for the Planning Commission to consider the Center’s

8special land use application. Id. The Township received multiple letters opposing
the special land use. Id., PageID.11, 116-119. Two of the letters explicitly
questioned the religious nature of the Center, highlighting the information foundon the Center’s website stating the retreats provide therapy for “emotional andmental health struggles, originating from unresolved childhood issues, trauma,
abuse, and more” and cost participants $6,995.00. Id.
On March 20, 2024, the Township Planning Commission held a public
hearing on the Center’s special land use permit application. ECF No. 1,
PageID.11. At the meeting, two Planning Commission members made multiplecomments questioning whether the Center was a religious organization rather thana for profit business. Id. This sentiment was echoed in the public comments. Id.
Because the Township’s Zoning Ordinance required different setbacks for the
special land use requested, the Township’s Zoning Board of Appeals was required
to consider a request for a variance from the setback requirement before thePlanning Commission could act on the Center’s special land use application andsite plan. See § 285-22.2. Thus, no decision on the special land use permit
application was made by the Commission at the March 20, 2024 meeting.
While the Center disagreed with the need for a variance, on April 17, 2024,
the Center applied for a variance regarding the 40-foot setback requirement. ECF
No. 1, PageID.11. On May 6, 2024, the Planning Commission recommended that9

Zoning Board of Appeals deny the Center’s variance request. On May 28, 2024,
the Zoning Board of Appeals denied the Center’s variance request. Because theCenter could not satisfy the setback requirement, the Township Planning
Commission voted to recommend to the Township Board that it deny the Center’s
special land use application. Id., PageID.12. On August 12, 2024, the Board ofTrustees voted unanimously to deny Plaintiff’s special land use permit application,
but for different reasons than the Planning Commission. The Township based its
denial of the application for special land use because it (1) was not compatible withthe master plan where the use will not preserve neighborhood character or protect
the privacy of the residents and (2) the use is not compatible with adjacent land
uses because a fee-based religious retreat and therapy center is a significant
departure from the well-established residential use of the property and surrounding
properties. Id.
D. Procedural Posture
Plaintiff filed the instant lawsuit three days later and immediately moved fora temporary restraining order and/or preliminary injunction. The Court granted theCenter’s Motion for a Temporary Restraining Order on an ex parte basis
concluding that the Township’s ZO “appears to violate” the substantial burden andequal terms provisions, and therefore irreparable injury is presumed. ECF No. 6,
PageID.257-258. The Court also set a briefing schedule and a hearing to consider

10the Center’s Motion for a Preliminary Injunction. The Temporary Restraining
Order expires on August 30, 2024.
III.

LAW & ANALYSIS

A. Standard of Review
Injunctive relief is “an extraordinary remedy that may only be awarded upona clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22 (2008). In considering whether to grant injunctive
relief, courts consider the following four factors: “(1) whether the movant has astrong likelihood of success on the merits; (2) whether the movant would suffer
irreparable injury without the injunction; (3) whether issuance of the injunction
would cause substantial harm to others; and (4) whether the public interest would
be served by the issuance of the injunction.” Certified Restoration Dry Cleaning
Network, LLC v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (citation omitted).
“In RLUIPA cases–as in other cases involving free-exercise rights–the likelihoodof success on the merits is often the dispositive factor.” Catholic Healthcare Int’l,Inc. v. Genoa Charter Twp., 82 F.4th 442, 447 (6th Cir. 2023); see also Gonzales
v. Nat. Bd. Of Med. Exam’rs, 225 F.3d 620, 625 (6th Cir. 2000). The party seeking
the injunction must establish its case by clear and convincing evidence. See
Garlock, Inc. v. United Seal, Inc., 404 F.2d 256, 257 (6th Cir. 1968).

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B. Likelihood of Success on the Merits
1. Substantial Burden
RLUIPA provides in relevant part:
No government shall impose or implement a land use regulation in amanner that imposes a substantial burden on the religious exercise ofa person, including a religious assembly or institution, unless thegovernment demonstrates that imposition of the burden on that
person, assembly or institution–(A) is in furtherance of a compelling governmental interest; and(B) is the least restrictive means of furthering that compelling
governmental interest.
42 U.S.C. § 20000cc(a)(1). A burden is “substantial” if it has “some degree ofseverity” and is “more than an inconvenience.” Catholic Healthcare, 82 F.4th at
448. “[T]aking seriously the requirement that a burden be ‘substantial’ isnecessary in order to avoid an interpretation of RLUIPA that would exempt
religious institutions from all land-use regulations.” Livingston Christian Schs. v.
Genoa Charter Township, 858 F.3d 996, 1003 (6th Cir. 2017) (citing Living Water
Church of God v. Charter Twp. of Meridian, 258 F. App’x 729, 736 (6th Cir.
2007)). A religious institution can show a substantial burden by demonstrating that(1) it has no “feasible alternative location from which it can carry on its mission;”(2) it has or “will suffer substantial delay, uncertainty, and expense due to theimposition of the regulation,” and (3) it did not impose the burden upon itself.
Livingston Christian Schs., 858 F.3d at 1004.

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The Center argues that the denial of its variance and special land use
applications has substantially burdened the Center’s right to practice its sincerely
held religious beliefs. The Center argues that it has no feasible alternative location
for its religious retreats. The Center asserts that it has been unable to identify any
alternate location in the Township which is available and properly zoned for theCenter’s religious activity. The Center explains that there are lengthy kosher
requirements that must be met for preparing foods in the kitchen.
As an initial matter, it appears the Center misrepresents that there is noavailable alternate location in the Township to hold its retreats. At the hearing, theTownship asserted that there is vacant property located in the Township’s Macomb
Street district, which allows places of worship as of right. In any event, theunavailability of land in the particular jurisdiction “will not by itself support a
substantial burden claim.” Andon, LLV v. City of Newport News, VA, 813 f.3d 510,515 (4th Cir. 2016); Civil Liberties for Urban Believers (CLUB) v. City of
Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (a land use regulation does not impose
a substantial burden simply because of a lack of affordable land in Chicago or forother reasons, because such unavailability may be the result of competitive realestate markets and not the municipality’s actions).
In Livingston Christian Schs., the court concluded the plaintiff Christianschool “was not substantially burdened within the meaning of RLUIPA despite the13alleged unavailability of other land within Genoa Township.” 858 F.3d at 1011.
The court noted that the school’s stated mission “is to serve Livingston County as awhole, not Genoa Township in particular.” Id. In this case, the Center’s statedmission is to help individuals of the Orthodox Jewish faith restore theirrelationship with God. The Center seeks to serve such individuals from all over
the world, not just individuals residing in the Township. The Livingston ChristianSchs. court explained that:
Holding that a religious institution is substantially burdened any timethat it cannot locate within such a small area—even if it could locate
just across the border of the town limits—would be tantamount togiving religious institutions a free pass from zoning laws.
Id. The court also noted that Genoa Township comprises an area of only
36.3 square miles. Grosse Ile is significantly smaller, with a land area of
only 9.03 miles.
Here, the Center provides no specific facts that support its allegations that it
has no feasible location from which to carry out its religious exercise. Plaintiff
does not allege there is a large Orthodox Jewish community residing on Grosse Ilethat requires convenient access to Plaintiff’s retreats. The Complaint alleges that
retreat participants come from “all over the world.” Plaintiff has not come forwardwith any facts demonstrating why it is critical that its retreats be held in a singlefamily residential district in the Township. This is unlike United States v. City of14

Troy, which Plaintiff relies upon in support of its argument. 592 F. Supp.3d 591(E.D. Mich. 2022).
In Troy, the Adam Community Center sought to use property in the city thatwould be suitable to serve its 200 families. Id. at 599. The Court rejected Troy’s
argument that there were other feasible alternate locations just outside the city
because the plaintiff needed “a convenient central location in Troy due to Islam’s
requirement of five daily prayers” and “[d]riving long distances to othercommunities five times a day is impractical and unnecessary.” Id. at 609. Here,
Plaintiff’s retreat participants come from all over the world to attend a seven-day
retreat. Plaintiff does not claim that Grosse Ile, or the Property holds religious
significance such that its retreats must occur in the Township.
Next, Plaintiff asserts that it has incurred substantial delay and expended
significant money through the special land use and variance application process.
However, the only costs referenced in the Complaint are the costs associated withthe special land use and variance applications, costs that any property owner would
pay when seeking a special land use approval. The Center relies on Catholic
Healthcare Int’l, Inc. v. Genoa Charter Twp., 82 F.4th 442, 447 (6th Cir. 2023) insupport of its claim; however, in that case the plaintiff had expended $38,000.00 in
application fees for its special land use request and had been waiting for more than
two years for the administrative proceedings to be completed. At the hearing, the15Center represented that it has expended thousands of dollars and waited one and ahalf years for the special land use proceedings to conclude. However, in this case,
the Center was allowed to continue its retreats at the Property during the pendencyof the administrative proceedings. This is unlike Catholic Healthcare, where theplaintiff was not permitted to restore its religious displays to its prayer trail during
the pendency of the special land use proceedings. 82 F. 4th at 446.
When determining whether a municipality’s zoning laws substantiallyburden a person’s exercise of religion, courts also look to whether the burden on
the plaintiff was self-imposed. The Center argues it had a reasonable expectationthat its application would be granted, particularly given Mr. Querro’s comment to
Mr. Borden that there appeared to be no conceivable land use reason for denial.
The Center also argues it was not unreasonable to believe its retreats would beallowed to operate as of right in a zoning district which allows the much more
intrusive adult foster homes to operate as of right.
Plaintiff relies on the Sixth Circuit’s decision in Catholic Healthcare, Int’l,Inc. v. Genoa Charter Twp., where Genoa Charter Township treated the plaintiffs’
prayer trail as the zoning equivalent of a church building requiring the plaintiffs toapply for a special land use. 82 F.4th 442, 444 (6th Cir. 2023). In rejecting Genoa
Township’s argument that the plaintiffs had imposed the burden upon themselves,
the Catholic Healthcare court noted that Genoa Township’s Fillmore County Park16

included a fifteen station “Leopold the Lion Reading Trail.” Id. at 444-45. The
court held that:
Plaintiffs had reason to think that their prayer trail would betreated in the same manner as ‘[p]rivate non-commercial parks, naturepreserves and recreational areas—none of which require a special
land-use permit in the type of zoning district in which plaintiff’s
parcel is located.
***
The Township’s demand that the plaintiffs obtain a special
land-use permit for the religious displays on their trail . . . came as ashock to these plaintiffs precisely because nothing in the Township’s
ordinance prepared them for it.
Id. at 449-50.
Conversely, in this case, the Property was not purchased with the intent tohold religious retreats, but rather as a vacation home. It is not reasonable for theCenter to conclude that it could conform its residential use of the Property to a
special land use of holding religious retreats. An adult foster care home is a place
where adults with disabilities live and are provided with care—a use consistent
with residentially-zoned property.
Finally, the Center complains that during the special land use proceedings,
members of the public and members of the Planning Commission allegedly madediscriminatory comments about the Center. However, whether there is evidence
that a municipality’s decision-making process was arbitrary, capricious, or
discriminatory is not relevant to the substantial burden inquiry in the Sixth Circuit.
See Livingston Christian Schs., 858 F.3d at 1004-05 (“Evidence of improper
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decision-making is more appropriately considered when evaluating whether agovernment action was narrowly tailored to serve a state interest–an inquiry thatthe court should undertake only after finding that a substantial burden exists.”)(citing Living Water Church of God, 258 F. App’x at 741).
Because Plaintiff has not demonstrated a strong likelihood of establishing asubstantial burden on the Center’s religious exercise, the Court need not determine
whether that substantial burden was the least restrictive means of furthering acompelling government interest. 42 U.S.C. § 2000cc-1(a). Here, the Center has
not shown there are no feasible alternate locations within the Township and outside
the Township where the Center can conduct its retreats. The only burden theCenter has demonstrated is disappointment that it cannot conduct its retreats at theProperty. The present record reveals that being unable to conduct its retreats at adesired location does not rise to the level of a substantial burden. While the Center
may ultimately succeed on the merits once the record is more fully developed, at
this juncture it has not shown a strong likelihood of success on the merits of its
substantial burden RLUIPA claim.
2. Equal Terms
Plaintiff also alleges that the Township’s ZO violates RLUIPA’s equal terms
provision. Under RLUIPA’s equal terms provision, localities are forbidden from
“impos[ing] or implement[ing] a land use regulation in a manner that treats a18

religious assembly or institution on less than equal terms with a nonreligious
assembly or institution.” 42 U.S.C. § 2000cc(b)(1). In order to establish a prima
facie case under RLUIPA’s equal terms provision, the plaintiff must demonstrate
the following: “(1) the plaintiff [is] a religious assembly or institution, (2) subject
to a land use regulation, that (3) treats the [plaintiff] on less than equal terms,[compared] with (4) a nonreligious assembly or institution.” Tree of Life ChristianSchs. v. City of Upper Arlington, 905 F.3d 357, 367 (6th Cir. 2018).
Plaintiff argues that because state-licensed adult foster care family homes
are permitted in the R-1-B zoning district as of right and churches are subject tospecial land use approval, the Township’s ZO violates the equal terms provision.
As an initial matter, the Michigan Zoning Enabling Act requires that an adult carefoster care family home be a principal permitted use in all residential zoning
districts. See MICH. COMP. LAWS § 125.3206(1).
Moreover, unlike Plaintiff’s proposed religious use, an adult foster carefamily home is a residential use, defined under state law as a home or facility thatprovides “foster care” for adults. “Foster care” is defined as “the provision ofsupervision, personal care, and protection in addition to room and board, for 24hours a day, 5 or more days a week, and for 2 or more consecutive weeks forcompensation provided at a single address.” MICH. COMP. LAWS § 400.704(8).

19Thus, adult foster care is a place where adults with disabilities live and areprovided with care, a use consistent with residentially zoned property.
Additionally, the Center cannot establish that the ZO treats its proposed
religious use of the Property on less than equal terms with other nonreligious
assembly uses. In City of Troy, the Court concluded the city’s zoning ordinancetreated places of worship on less than equal terms than similarly situatednonreligious assemblies and institutions. 592 F. Supp. 3d at 606. Specifically, theCity of Troy court found the following:[I]n the General Business district, a nonreligious community center(or banquet hall, funeral home, theatre, etc.) could operate by rightfrom a building meeting general setback standards . . . without avariance. But because ZO § 6.21 imposes a 50-foot setback standard
on places of worship, a religious entity, regardless of size, would needvariances for all sides. If that building abutted a single-family homewith a 75-foot setback, the community center could have parking as
close as 10 feet from the property line. But a religious entity would
need a variance to have parking within 50 feet of the property line.
Id. Thus, in City of Troy, the zoning ordinance imposed additional burdenson places of worship compared with non-religious, assemblies andinstitutions.
This is unlike the Township’s ZO. The R-1-B zoning districtauthorizes other potential special uses, including schools, child-care or daycare centers, golf clubs, boat clubs, cemeteries, public utility buildings, adultfoster care small group homes (7 to 12 adults) and group day care centers.

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Except for adult foster care small group homes and cemeteries, every otherspecial land use is a nonreligious, assembly use similar to a church. All ofthese special land uses have additional conditions that must be satisfied inorder to be considered for approval, including the 40-foot setback
requirement that was applied to the Plaintiff. Day cares and cemeteries mustsatisfy a longer list of conditions than churches in order to obtain special
land use approval in single-family residential zoning districts in the
Township. As such, Plaintiff also cannot establish a strong likelihood of
success on the merits of its RLUIPA equal terms claim.
C. Irreparable Harm
The Center argues that it will suffer irreparable harm if a preliminary
injunction is not entered because it will be required to cease its bi-weekly retreats
in conformity with its sincerely held religious beliefs. The Center further argues
that a preliminary injunction will preserve the status quo during the pendency ofthis action.
Here, on this more fully developed record, the Court cannot conclude thepresumption of irreparable harm applies where Plaintiff cannot demonstrate astrong likelihood of success on the merits. See Roe v. Univ. of Cincinnati, No.
1:18-cv-312, 2018 U.S. Dist. LEXIS 226425 (S.D. Ohio Aug. 21, 2018)(when theplaintiff fails to demonstrate a likelihood of success on her constitutional claims,

21

no presumption of irreparable harm is warranted); Schrier v. Univ. of Colorado,
427 F.3d 1253, 1266 (10th Cir. 2005)(noting that “the loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury” but finding that the presumption does not apply unless the requisite
likelihood of success of the claim is established”) (internal quotation marks andcitation omitted).
Plaintiff has provided no facts that show its retreats must occur at theProperty. There are no allegations suggesting that only the Property is capable ofhosting retreats as opposed to another location. Unlike a synagogue, which must
be located such that observant worshippers are able to walk to participate inservices, all of the Center’s retreat participants travel from all over the world toaccess its services. While Plaintiff asserts the status quo must be maintained,
Plaintiff incorrectly asserts the status quo is allowing the Center to continue its
unauthorized use of the Property in violation of the Township ZO.
This factor does not weigh in favor of granting a preliminary injunction.
D. Public Interest and Balance of Harms
The final factors also weigh in favor of denying the Center’s request for apreliminary injunction. Plaintiff cannot show it is in the public interest for the
Court to prohibit the Township from enforcing its ZO or to overturn the decision of
the Township Board of Trustees to deny Plaintiff’s special land use. If the Court

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were to allow an unpermitted use of the Property during the pendency of thislawsuit, this would undermine the Township’s power to zone in the best interest of
its residents.
V.

CONCLUSION

Considering the four factors, the Court finds that Plaintiff has failed to meetits burden of establishing by clear and convincing evidence its entitlement to apreliminary injunction. A preliminary injunction is an extraordinary remedy whichshould be granted only where the circumstances clearly demand it. Here, Plaintiff
has not shown that it has a strong likelihood of success on the merits, or that it will
suffer irreparable harm absent an injunction. Nor has Plaintiff shown the otherfactors warrant entry of a preliminary injunction. Accordingly, Plaintiff’s Motion
for a Preliminary Injunction [#5] is DENIED.
Defendant shall file its Answer no later than September 12, 2024.
SO ORDERED.
Dated: September 5, 2024

/s/Gershwin A. DrainGERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 5, 2024, by electronic and/or ordinary mail.
/s/ Marlena Williams
Case Manager
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