_______________________________ 

Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

FILED JUNE 27, 2007 

THE GREATER BIBLE WAY TEMPLE OF 

JACKSON, 

Plaintiff-Appellee, 

v Nos. 130194, 130196 

CITY OF JACKSON, JACKSON PLANNING 

COMMISSION, AND JACKSON CITY COUNCIL, 

Defendants-Appellants. 

BEFORE THE ENTIRE BENCH 

MARKMAN, J. 

We granted leave to appeal to consider whether the Religious Land Use and 

Institutionalized Persons Act of 2000 (RLUIPA), 42 USC 2000cc et seq., entitles 

plaintiff to the rezoning of its property from single-family residential to multiplefamily residential to allow plaintiff to build an apartment complex. The lower 

courts held that RLUIPA does entitle plaintiff to the rezoning of its property. We 

conclude that a refusal to rezone does not constitute an “individualized 

assessment,” and, thus, that RLUIPA is inapplicable. Further, even if RLUIPA is 
applicable, the building of an apartment complex does not constitute a “religious 

exercise,” and even if it does constitute a “religious exercise,” the city of 

Jackson’s refusal to rezone plaintiff’s property did not substantially burden 

plaintiff’s religious exercise, and even if it did substantially burden plaintiff’s 

religious exercise, the imposition of that burden is in furtherance of a compelling 

governmental interest and constitutes the least restrictive means of furthering that 

interest. Therefore, even assuming that RLUIPA is applicable, it has not been 

violated. For these reasons, we reverse the judgment of the Court of Appeals and 

remand this case to the trial court for the entry of a judgment in favor of 

defendants. 

I. FACTS AND PROCEDURAL HISTORY 

Plaintiff wants to build an apartment complex across the street from its 

church on property that it owns in the city of Jackson. The property consists of 

eight lots totaling 1.13 acres. The property is zoned single-family residential (R1). One of the lots contains a single-family residence, and the remaining lots are 

vacant. There are single-family residences on each side of the property. Plaintiff 

petitioned the city to change the zoning of the property to multiple-family 

residential (R-3) so that it could construct an apartment complex. 

The Region 2 Planning Commission recommended denying plaintiff’s 

rezoning petition. After a public hearing, the city planning commission also voted 

to recommend that the city council deny plaintiff’s rezoning petition. Pursuant to 

2
 
these recommendations, and following another public hearing, the city council 

voted to deny plaintiff’s rezoning petition. 

Plaintiff then filed a complaint against defendants, containing two counts: 

count one directly challenged the city’s zoning decision and count two alleged a 

violation of RLUIPA. The trial court granted defendants’ motion for summary 

disposition with regard to count one, which decision was not appealed. With 

regard to count two, the trial court denied defendants’ motion for summary 

disposition and granted plaintiff’s motion for summary disposition in part. 

Specifically, the trial court ruled that RLUIPA did apply because the city’s zoning 

decision constituted an “individualized assessment,” and the refusal to rezone 

plaintiff’s property imposed a “substantial burden” on the exercise of religion. 

The trial court then ordered a trial on the issue whether the city had a compelling 

interest for its refusal to rezone. After a bench trial, the trial court ruled that 

defendants had failed to demonstrate such an interest. Therefore, it determined 

that defendants had violated RLUIPA and that plaintiff was entitled to the 

requested rezoning of its property. The trial court enjoined defendant from 

interfering in any manner with plaintiff’s efforts to construct an apartment 

complex on its property. After the final order was issued, plaintiff filed a motion 

for attorney fees and costs and the trial court awarded plaintiff over $30,000 in 

attorney fees and costs. 

3
 
The Court of Appeals affirmed the trial court in all respects. 268 Mich App 

673; 708 NW2d 756 (2005). The Court of Appeals also held that the application 

of RLUIPA to compel the requested rezoning did not render the statute 

unconstitutional. We granted defendants’ application for leave to appeal. 474 

Mich 1133 (2006). 

II. STANDARD OF REVIEW 

A trial court’s ruling on a summary disposition motion is a question of law 

that this Court reviews de novo. Haynes v Neshewat, 477 Mich 29, 34; 729 NW2d 

488 (2007). Questions of statutory interpretation are also questions of law that 

that this Court reviews de novo. Id. 

III. ORIGINS OF RLUIPA 

The First Amendment of the United States Constitution provides, in 

pertinent part, “Congress shall make no law respecting an establishment of 

religion, or prohibiting the free exercise thereof . . . .” US Const, Am I. The 

second clause of this amendment is commonly known as the Free Exercise Clause. 

The protections provided by the First Amendment, including the Free Exercise 

Clause, have been “incorporated” and extended to the states and to their political 

subdivisions by the Fourteenth Amendment. Cantwell v Connecticut, 310 US 296, 

303; 60 S Ct 900; 84 L Ed 1213 (1940); Santa Fe Independent School Dist v Doe, 

530 US 290, 301; 120 S Ct 2266; 147 L Ed 2d 295 (2000). 

4
 
In Sherbert v Verner, 374 US 398; 83 S Ct 1790; 10 L Ed 2d 965 (1963), 

the plaintiff, a member of the Seventh-Day Adventist Church was discharged by 

her employer because she would not work on Saturday, the Sabbath Day of her 

faith. She was unable to obtain other employment because she would not work on 

Saturdays. The South Carolina Unemployment Compensation Act, SC Code, Tit 

68, § 68-1 et seq., provided that a claimant was ineligible for benefits if the 

claimant had failed “without good cause” to accept available suitable work. The 

Employment Security Commission determined that the plaintiff’s religious belief 

against working on Saturdays did not constitute “good cause.” The United States 

Supreme Court held that denying the plaintiff unemployment compensation 

benefits solely because of her refusal to accept employment in which she would 

have to work on Saturdays contrary to her religious belief imposed a substantial 

burden on her exercise of her religion that was not justified by a compelling state 

interest, and, thus, violated the Free Exercise Clause. 

In Employment Div, Dep’t of Human Resources of Oregon v Smith, 494 US 

872; 110 S Ct 1595; 108 L Ed 2d 876 (1990), the United States Supreme Court 

held that Oregon’s prohibition of the use of peyote in religious ceremonies, and 

the denial of unemployment benefits to persons discharged for such use, does not 

violate the Free Exercise Clause of the First Amendment. The Court explained 

that generally applicable, religion-neutral laws that have the effect of burdening a 

5
 
 

 

particular religious practice need not be justified, under the Free Exercise Clause, 

by a compelling governmental interest.1 

In response to Smith, Congress enacted the Religious Freedom Restoration 

Act of 1993 (RFRA),2

 prohibiting the government from substantially burdening a 

person’s exercise of religion, even by means of a generally applicable, religionneutral law, unless the government could demonstrate that the burden imposed 

furthers a compelling governmental interest and that it constitutes the least 

restrictive means of furthering such interest. 

1 Smith, supra at 884, held that Sherbert was distinguishable because 

Sherbert involved an “individualized governmental assessment”; that is, the “good 

cause” standard at issue in Sherbert allowed the government to consider the 

plaintiff’s “particular circumstances.” See pp 15-17 infra. That is, Smith held that 

while the “compelling governmental interest” test may be applicable to laws 

allowing for an “individualized governmental assessment,” it is not applicable to 

generally applicable laws that do not allow for an “individualized governmental 

assessment.” 

2

 RFRA provides, in pertinent part: 

(a) In general. Government shall not substantially burden a 

person’s exercise of religion even if the burden results from a rule of 

general applicability, except as provided in subsection (b). 

(b) Exception. Government may substantially burden a 

person’s exercise of religion only if it demonstrates that application 

of the burden to the person--

(1) is in furtherance of a compelling governmental interest; 

and 

(2) is the least restrictive means of furthering that compelling 

governmental interest. [42 USC 2000bb-1.] 

6
 
 

However, in City of Boerne v Flores, 521 US 507; 117 S Ct 2157; 138 L Ed 

2d 624 (1997), the United States Supreme Court held that Congress, in enacting 

RFRA, had exceeded its powers under § 5 of the Fourteenth Amendment to enact 

legislation enforcing the Free Exercise Clause of the First Amendment because 

RFRA proscribes state conduct that the First Amendment itself does not 

proscribe.3 The Court explained: 

Congress’ power under § 5, however, extends only to 

“enforcing” the provisions of the Fourteenth Amendment. The 

Court has described this power as “remedial . . . .” The design of the 

Amendment and the text of § 5 are inconsistent with the suggestion 

that Congress has the power to decree the substance of the 

Fourteenth Amendment’s restrictions on the States. Legislation 

which alters the meaning of the Free Exercise Clause cannot be said 

to be enforcing the Clause. Congress does not enforce a 

constitutional right by changing what the right is. It has been given 

the power “to enforce,” not the power to determine what constitutes 

a constitutional violation. Were it not so, what Congress would be 

enforcing would no longer be, in any meaningful sense, the 

“provisions of [the Fourteenth Amendment].” 

While the line between measures that remedy or prevent 

unconstitutional actions and measures that make a substantive 

change in the governing law is not easy to discern, and Congress 

must have wide latitude in determining where it lies, the distinction 

exists and must be observed. There must be a congruence and 

proportionality between the injury to be prevented or remedied and 

the means adopted to that end. Lacking such a connection, 

legislation may become substantive in operation and effect. [Id. at 

519-520.] 

3

 Section 5, the Enforcement Clause of the Fourteenth Amendment, 

provides: 

The Congress shall have power to enforce, by appropriate 

legislation, the provisions of this article. [US Const, Am XIV, § 5.] 

7
 
 

 

The Supreme Court then concluded that the substantial costs that RFRA exacted 

through its “compelling governmental interest” test “far exceed any pattern or 

practice of unconstitutional conduct under the Free Exercise Clause as interpreted 

in Smith.” Id. at 534. Thus, “the Court invalidated RFRA as applied to the states, 

finding it an unconstitutional exercise of Congress’ Enforcement Clause powers 

because Congress had not shown a pattern of religious discrimination meriting 

such a far-reaching remedy . . . .” Galvan, Beyond worship: The Religious Land 

Use and Institutionalized Persons Act of 2000 and religious institutions’ auxiliary 

uses, 24 Yale L & Policy R 207, 218 (2006).4 

In response to City of Boerne, Congress enacted RLUIPA. Unlike RFRA, 

RLUIPA does not attempt to bar all laws that substantially burden religious 

exercise. Instead, it focuses on land use regulations5

 and provides, in pertinent 

part: 

4

 Although RFRA no longer applies to the states, it still applies to the 

federal government. See Gonzales v O Centro Espirita Beneficente Uniao Do 

Vegetal, 546 US 418; 126 S Ct 1211; 163 L Ed 2d 1017 (2006) (holding that, 

under RFRA, the Controlled Substances Act, 21 USC 801 et seq., cannot prohibit 

a religious sect from receiving communion by drinking hoasca, a tea that contains 

a hallucinogen). 

5

 RLUIPA also focuses on regulations pertaining to institutionalized 

persons, but that portion of RLUIPA is not applicable here. 

8
 
 

(a) Substantial burdens. 

(1) General rule. No government[6] shall impose or implement 

a land use regulation[7] in a manner that imposes a substantial burden 

on the religious exercise of a person, including a religious assembly 

or institution, unless the government 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. 

6

 “Government” is defined as: 

(i) a State, county, municipality, or other governmental entity 

created under the authority of a State; 

(ii) any branch, department, agency, instrumentality, or 

official of an entity listed in clause (i); and 

(iii) any other person acting under color of State law; and 

(B) for the purposes of sections 4(b) and 5 [42 USC 2000cc2(b) and 2000cc-3], includes the United States, a branch, 

department, agency, instrumentality, or official of the United States, 

and any other person acting under color of Federal law. [42 USC 

2000cc-5(4).] 

7

 “Land use regulation” is defined as a 

zoning or landmarking law, or the application of such a law, that 

limits or restricts a claimant’s use or development of land (including 

a structure affixed to land), if the claimant has an ownership, 

leasehold, easement, servitude, or other property interest in the 

regulated land or a contract or option to acquire such an interest. [42 

USC 2000cc-5(5).] 

That the city’s denial of plaintiff’s petition to rezone its property here constitutes a 

“land use regulation” is uncontested. 

9
 
 

 

(2) Scope of application. This subsection applies in any case 

in which--

* * * 

(C) the substantial burden is imposed in the implementation 

of a land use regulation or system of land use regulations, under 

which a government makes, or has in place formal or informal 

procedures or practices that permit the government to make, 

individualized assessments of the proposed uses for the property 

involved. [42 USC 2000cc(a).][8] 

“Religious exercise” is defined as “any exercise of religion, whether or not 

compelled by, or central to, a system of religious belief.” 42 USC 2000cc5(7)(A). RLUIPA specifically provides that “[t]he use, building, or conversion of 

8

 RLUIPA further provides: 

(b) Discrimination and exclusion. 

(1) Equal terms. No government shall impose or implement a 

land use regulation in a manner that treats a religious assembly or 

institution on less than equal terms with a nonreligious assembly or 

institution. 

(2) Nondiscrimination. No government shall impose or 

implement a land use regulation that discriminates against any 

assembly or institution on the basis of religion or religious 

denomination. 

(3) Exclusions and limits. No government shall impose or 

implement a land use regulation that--

(A) totally excludes religious assemblies from a jurisdiction; 

or 

(B) unreasonably limits religious assemblies, institutions, or 

structures within a jurisdiction. [42 USC 2000cc(b).] 

Plaintiff does not argue that 42 USC 2000cc(b) was violated. 

10
 
 

real property for the purpose of religious exercise shall be considered to be 

religious exercise of the person or entity that uses or intends to use the property for 

that purpose.” 42 USC 2000cc-5(7)(B). A plaintiff asserting a RLUIPA violation 

has the burden of presenting prima facie evidence to support the assertion. 42 

USC 2000cc-2(b).9

 That is, the plaintiff has the burden to prove that RLUIPA is 

applicable and that the government has implemented a land use regulation that 

imposes a substantial burden on the exercise of religion. Id. Once the plaintiff has 

proven this, the burden shifts to the government to prove that the imposition of 

such burden is in furtherance of a compelling governmental interest and 

constitutes the least restrictive means of furthering that interest. Id. As the United 

States Supreme Court has explained, “RLUIPA is [a] congressional effort[] to 

accord religious exercise heightened protection from government-imposed 

burdens, consistent with this Court’s precedents.” Cutter v Wilkinson, 544 US 

709, 714; 125 S Ct 2113; 161 L Ed 2d 1020 (2005). Therefore, it is clearly 

9

 RLUIPA provides, in pertinent part: 

If a plaintiff produces prima facie evidence to support a claim 

alleging a violation of the Free Exercise Clause or a violation of 

section 2 [42 USC 2000cc], the government shall bear the burden of 

persuasion on any element of the claim, except that the plaintiff shall 

bear the burden of persuasion on whether the law (including a 

regulation) or government practice that is challenged by the claim 

substantially burdens the plaintiff’s exercise of religion. [42 USC 

2000cc-2(b).] 

11
 
 

appropriate to examine the United States Supreme Court’s precedents when 

analyzing RLUIPA. 

IV. ANALYSIS 

A. INDIVIDUALIZED ASSESSMENT 

The threshold question is whether RLUIPA is applicable to this dispute. 

The burden is on plaintiff to prove that RLUIPA is applicable. 42 USC 2000cc2(b). RLUIPA “applies only if one of three jurisdictional tests is first met . . . .” 

Midrash Sephardi, Inc v Town of Surfside, 366 F3d 1214, 1225 (CA 11, 2004); 

see also Prater v City of Burnside, 289 F3d 417, 433 (CA 6, 2002) (“the Church 

may not rely upon RLUIPA unless it first demonstrates that the facts of the present 

case trigger one of the bases for jurisdiction provided in that statute”); Shepherd 

Montessori Ctr Milan v Ann Arbor Charter Twp, 259 Mich App 315, 326-327; 

627 NW2d 271 (2003) (“[i]n order to establish a claim under RLUIPA, a party 

must establish that at least one of these three jurisdictional elements exists”). 

RLUIPA states that it “applies in any case in which,” 

(C) the substantial burden is imposed in the implementation 

of a land use regulation or system of land use regulations, under 

which a government makes, or has in place formal or informal 

procedures or practices that permit the government to make, 

individualized assessments of the proposed uses for the property 

involved. [42 USC 2000cc(a)(2) (emphasis added).][10] 

10 RLUIPA also “applies in any case in which,” 

(continued...) 

12
 
 

Therefore, the issue is whether a substantial burden has been imposed in the 

implementation of a land use regulation under which a government is permitted to 

make an individualized assessment of the proposed uses for the property involved. 

This is not the first time that the phrase “individualized assessment” has 

been employed. The United States Supreme Court distinguished its decision in 

Bowen v Roy, 476 US 693; 106 S Ct 2147; 90 L Ed 2d 735 (1986), from its 

decisions in Sherbert and Thomas v Review Bd of Indiana Employment Security 

Div, 450 US 707; 101 S Ct 1425; 67 L Ed 2d 624 (1981), on the basis that the 

latter decisions, unlike Bowen, involved “individualized assessments.”11 “The 

(...continued) 

(A) the substantial burden is imposed in a program or activity 

that receives Federal financial assistance, even if the burden results 

from a rule of general applicability; 

(B) the substantial burden affects, or removal of that 

substantial burden would affect, commerce with foreign nations, 

among the several States, or with Indian tribes, even if the burden 

results from a rule of general applicability . . . . [42 USC 

2000cc(a)(2).] 

However, it is uncontested that A and B are not applicable to the instant case. 

11 In Sherbert, as discussed above, the United States Supreme Court held 

that South Carolina’s denial of unemployment compensation benefits to a member 

of the Seventh-Day Adventist Church who could not find work because her 

religious convictions prevented her from working on Saturdays abridged her right 

to the free exercise of her religion. In Thomas, the United States Supreme Court 

held that Indiana’s denial of unemployment compensation benefits to a Jehovah’s 

Witness who terminated his employment because his religious beliefs prevented 

him from participating in the production of weapons abridged his right to the free 

exercise of his religion. 

13
 
 

 

statutory conditions at issue in [Sherbert and Thomas] provided that a person was 

not eligible for unemployment compensation benefits if, ‘without good cause,’ he 

had quit work or refused available work. The ‘good cause’ standard created a 

mechanism for individualized exemptions.” Roy, supra at 708. In Sherbert and 

Thomas, the Court held that when the government applies individualized 

exemptions, but refuses to extend an exemption to an instance of genuine 

“religious hardship,” the government must demonstrate a compelling reason for 

denying the requested exemption. Id. 

In Smith, supra at 884, the United States Supreme Court again emphasized 

the distinction between governmental action requiring and not requiring 

individualized assessments. 

The Sherbert test, it must be recalled, was developed in a 

context that lent itself to individualized governmental assessment of 

the reasons for the relevant conduct. . . . [A] distinctive feature of 

unemployment compensation programs is that their eligibility 

criteria invite consideration of the particular circumstances behind 

an applicant’s unemployment. . . . [O]ur decisions in the 

unemployment cases stand for the proposition that where the State 

has in place a system of individual exemptions, it may not refuse to 

extend that system to cases of “religious hardship” without 

compelling reason. [Id., quoting Bowen, supra at 708.]

 In Church of the Lukumi Babalu Aye, Inc v City of Hialeah, 508 US 520, 

527; 113 S Ct 2217; 124 L Ed 2d 472 (1993), the United States Supreme Court, 

against the backdrop of a ritualistic practice of animal sacrifice by practitioners of 

the Santerian faith, held that a city ordinance that prohibits a person from 

14
 
“unnecessarily . . . kill[ing] . . . an animal” violates the Free Exercise Clause of the 

First Amendment. The Court explained: 

[B]ecause it requires an evaluation of the particular 

justification for the killing, this ordinance represents a system of 

“individualized governmental assessment of the reasons for the 

relevant conduct . . . .” As we noted in Smith, in circumstances in 

which individualized exemptions from a general requirement are 

available, the government “may not refuse to extend that system to 

cases of ‘religious hardship’ without compelling reason.” [Id. at 537 

(citations omitted).] 

“Individualize” is defined as “to . . . consider individually; specify; 

particularize.” Random House Webster’s College Dictionary (1991). Therefore, 

an “individualized assessment” is an assessment based on one’s particular 

circumstances. Accordingly, RLUIPA applies when the government makes an 

assessment based on one’s particular or specific circumstances or has in place 

procedures or practices that would allow the government to make an assessment 

based on one’s particular or specific circumstances. As the Ninth Circuit Court of 

Appeals recently held, “RLUIPA applies when the government may take into 

account the particular details of an applicant’s proposed use of land when deciding 

to permit or deny that use.” Guru Nanak Sikh Society of Yuba City v Sutter Co, 

456 F3d 978, 986 (CA 9, 2006). 

In the instant case, the city adopted a zoning ordinance that applied to the 

entire community, not just to plaintiff. See West v City of Portage, 392 Mich 458, 

469; 221 NW2d 303 (1974) (“‘[Z]oning ordinances . . . are classified as general 

policy decisions which apply to the entire community.’”) (Citation omitted.) 

15
 
 

Concomitantly, if the city had granted plaintiff’s request to rezone the property, 

such rezoning would also have applied to the entire community, not just 

plaintiff.12 A decision whether to rezone property does not involve consideration 

of only a particular or specific user or only a particular or specific project; rather, 

it involves the enactment of a new rule of general applicability, a new rule that 

governs all persons and all projects. See Sherrill v Town of Wrightsville Beach, 81 

NC App 369, 373; 344 SE2d 357 (1986) (“it is the duty of the zoning authority to 

consider the needs of the entire community when voting on a rezoning, and not 

just the needs of the individual petitioner”). Thus, if the city had granted 

plaintiff’s request to rezone the property from single-family residential to 

multiple-family residential, plaintiff could then have sold the property to any third 

party and that third party could have sold the property to any other third party and 

any of these parties could have built an apartment complex or any other 

conforming building on that property. Therefore, the city’s decision whether to 

rezone the property would not have been predicated on plaintiff’s particular 

circumstances or plaintiff’s particular project.13 Even if the city had affirmatively 

12 Although a request to rezone a particular piece of property “‘may be 

differentiated on the basis that such a determination is narrowly confined to a 

particular piece of property,’” West, supra at 469 (citation omitted), it still applies 

to the “entire community.” That is, the “entire community” would be bound by 

the city’s decision to rezone or not rezone the property. 

13 Plaintiff’s counsel told the trial court that “even at the planning 

commission level, they don’t care what’s being built”; “they don’t consider a site 

(continued...) 

16
 
 

wanted plaintiff to build an apartment complex on its property, it could not have 

granted the requested zoning change unless it was also prepared to accommodate 

all projects falling within the scope of the rezoning. Plaintiff’s particular 

circumstances were simply not determinative of the city’s decision whether to 

rezone, and, thus, the city’s decision did not constitute an “individualized 

assessment” within the meaning of that term.14 Plaintiff has cited no cases in 

support of its position that a refusal to rezone property constitutes an 

“individualized assessment,” and we have found none. 

Moreover, plaintiff has presented no evidence to suggest that the city has in 

place procedures or practices that would permit the city to make “individualized 

assessments” when determining whether to rezone property. 

(...continued) 

plan”; “the site plan itself is irrelevant when it comes to requesting rezoning from 

R-1 to R-3.” Appellant’s appendix at 238a, 523a. 

14 Possibly, if plaintiff had requested a variance and the city had refused 

that request, this might constitute an “individualized assessment.” See Shepherd, 

supra at 320 (holding that “[w]hen the Ann Arbor Charter Township Zoning 

Board of Appeals examined and subsequently denied plaintiff’s petition for a 

variance, an individualized assessment pursuant to 42 USC 2000cc(a)(2)(C) 

occurred”). A request for a variance is significantly different from a request to 

rezone. When one requests a variance, one is requesting permission to use the 

property for a specific use. By contrast, when one requests a rezoning, one is 

asking the city for permission to use the property for any use that would be 

permitted under the new classification. Therefore, when the city considers a 

request for a variance, it does consider the specific site plan proposed by the 

landowner. But, when the city considers a request for rezoning, it considers the 

numerous different uses that would be permitted under the new classification, and 

it does not consider a specific site plan. 

17
 
Because the city’s refusal to rezone the property did not constitute an 

“individualized assessment,” and because there is no evidence that the city has in 

place procedures or practices that would permit it to make “individualized 

assessments” when determining whether to grant requests to rezone property, 

RLUIPA is not applicable here. 

B. RELIGIOUS EXERCISE 

Assuming that RLUIPA is applicable here, the next question is whether the 

building of an apartment complex constitutes a “religious exercise.” The burden is 

on plaintiff to prove that the building of an apartment complex constitutes a 

“religious exercise.” 42 USC 2000cc-2(b). RLUIPA provides in pertinent part: 

No government shall impose or implement a land use 

regulation in a manner that imposes a substantial burden on the 

religious exercise of a person, including a religious assembly or 

institution, unless . . . . [42 USC 2000cc(a)(1) (emphasis added).] 

“Religious exercise” is defined as “any exercise of religion, whether or not 

compelled by, or central to, a system of religious belief.” 42 USC 2000cc5(7)(A). RLUIPA specifically provides that “[t]he use, building, or conversion of 

real property for the purpose of religious exercise shall be considered to be 

religious exercise of the person or entity that uses or intends to use the property for 

that purpose.” 42 USC 2000cc-5(7)(B). A “religious exercise” consists of a 

specific type of exercise, an exercise of religion, and this is not the equivalent of 

an exercise-- any exercise-- by a religious body. “The term ‘religion’ has 

reference to one’s views of his relations to his Creator, and to the obligations they 

18
 
 

impose of reverence for his being and character, and of obedience to his will.” 

Davis v Beason, 133 US 333, 342; 10 S Ct 299; 33 L Ed 637 (1890), overruled on 

other grounds in Romer v Evans, 517 US 620, 634; 116 S Ct 1620; 134 L Ed 2d 

855 (1996). The United States Supreme Court has explained that “‘[t]he “exercise 

of religion” often involves not only belief and profession but the performance of . . 

. physical acts [such as] assembling with others for a worship service [or] 

participating in sacramental use of bread and wine . . . .’” Cutter, supra at 720, 

quoting Smith, supra at 877.15 The Supreme Court has further held that 

“[a]lthough RLUIPA bars inquiry into whether a particular belief or practice is 

‘central’ to a prisoner’s religion, see 42 U.S.C. § 2000cc-5(7)(A), the Act does not 

preclude inquiry into the sincerity of a prisoner’s professed religiosity. Cf. Gillette 

v. United States, 401 U.S. 437, 457, 91 S. Ct. 828, 28 L. Ed. 2d 168, (1971) (‘“The 

‘truth’ of a belief is not open to question”; rather, the question is whether the 

objector’s beliefs are “truly held.”’ (quoting United States v. Seeger, 380 U.S. 163, 

185, 85 S. Ct. 850, 13 L. Ed. 2d 733 (1965))).” Cutter, supra at 725 n 13. Nor, 

obviously, does RLUIPA bar inquiry into whether a particular belief or practice 

constitutes an aspect, central or otherwise, of a person’s religion. 

15 In Cutter, supra at 718, the United States Supreme Court held that 

“RLUIPA’s institutionalized-persons provision, § 3 of the Act, is consistent with 

the Establishment Clause of the First Amendment.” The Court also made clear 

that “Section 2 of RLUIPA [the land use regulation provision] is not at issue here. 

We therefore express no view on the validity of that part of the Act.” Id. at 716 n 

3. 

19
 
 

The question that we must answer is whether plaintiff is seeking to use its 

property for the purpose of religious exercise.16 Obviously, not everything that a 

religious institution does constitutes a “religious exercise.” Plaintiff bears the 

burden of establishing that its proposed use of the property constitutes a “religious 

exercise.” 42 USC 2000cc-2(b). In the instant case, the only evidence that 

plaintiff has presented to establish that its proposed use of the property constitutes 

a “religious exercise” is an affidavit signed by the bishop of the Greater Bible Way 

Temple. The affidavit states that plaintiff’s mission is set forth in its letterhead as 

follows: 

The Greater Bible Way Temple stands for truth, the 

promotion of the Gospel of Jesus Christ through the Apostolic 

Doctrine, and an exceptional level of service to the community. 

This includes housing, employment, consulting and supports as 

determined appropriate in fulfilling our Mission. 

16 Notwithstanding the inquiry required by RLUIPA into what constitutes a 

“religious exercise,” this Court is extremely cognizant of the difficulties inherent 

in a judicial body’s evaluating the practices of particular religious faiths or 

assessing the “centrality” of particular religious precepts. In accord, Smith, supra 

at 890 (“It may fairly be said that leaving accommodation to the political process 

will place at a relative disadvantage those religious practices that are not widely 

engaged in; but that unavoidable consequence of democratic government must be 

preferred to a system in which each . . . judge[] weigh[s] the social importance of 

all laws against the centrality of all religious beliefs.”); Lemon v Kurtzman, 403 

US 602, 613; 91 S Ct 2105; 29 L Ed 2d 745 (1971) (expressing concern about 

fostering an “‘excessive government entanglement with religion’”) (citation 

omitted). 

20
 
 

The affidavit further states that plaintiff “wishes to further the teachings of Jesus 

Christ by providing housing and living assistance to the citizens of Jackson.”17 

No evidence has been presented to establish that the proposed apartment 

complex would be used for religious worship or for any other religious activity. 

Instead, it appears that the only connection between the proposed apartment 

complex and “religious exercise” is the fact that the apartment complex would be 

owned by a religious institution. Generally, the building of an apartment complex 

would be considered a commercial exercise, not a religious exercise. The fact that 

the apartment complex would be owned by a religious institution does not 

transform the building of an apartment complex into a “religious exercise,” unless 

the term is to be deprived of all practical meaning. Something does not become a 

“religious exercise” just because it is performed by a religious institution. 

Because plaintiff has not shown that the building of the apartment complex 

constitutes an exercise in religion, the city’s decision not to rezone the property 

cannot be said to have burdened plaintiff’s “religious exercise,” and, thus, 

RLUIPA has not been violated. 

17 The bishop’s affidavit proceeds to state that “there is a substantial need in 

the City of Jackson for clean and affordable housing, especially for the elderly and 

disabled.” However, because there is no evidence that the proposed complex 

would either be limited to housing elderly and disabled persons or be designed to 

accommodate elderly and disabled persons to any particular extent, it is 

unnecessary to address whether the building of such a complex would constitute a 

“religious exercise.” 

21
 
C. SUBSTANTIAL BURDEN 

Assuming, however, that the building of an apartment complex does 

constitute a “religious exercise,” the next question is whether the city’s refusal to 

rezone the property to allow the apartment complex constitutes a “substantial 

burden” on that “religious exercise.” The burden is on plaintiff to prove that the 

city’s refusal to rezone the property constitutes a “substantial burden” on 

plaintiff’s exercise of religion. 42 USC 2000cc-2(b). RLUIPA provides in 

pertinent part: 

No government shall impose or implement a land use 

regulation in a manner that imposes a substantial burden on the 

religious exercise of a person, including a religious assembly or 

institution, unless . . . . [42 USC 2000cc(a)(1) (emphasis added).] 

RLUIPA does not define the phrase “substantial burden.” However, this is not the 

first time that the phrase “substantial burden” has been used. 

Before deciding Smith, the United States Supreme Court held that a 

“substantial burden” on one’s religious exercise that was not justified by a 

compelling governmental interest violated the Free Exercise Clause. Jimmy 

Swaggart Ministries v Bd of Equalization of California, 493 US 378, 384-385; 

110 S Ct 688; 107 L Ed 2d 796 (1990), quoting Hernandez v Comm’r of Internal 

Revenue, 490 US 680, 699; 109 S Ct 2136; 104 L Ed 2d 766 (1989) (“Our cases 

have established that ‘the free exercise inquiry asks whether government has 

placed a substantial burden on the observation of a central religious belief or 

practice and, if so, whether a compelling governmental interest justifies the 

22
 
 

 

burden.’”). The United States Supreme Court’s definition of “substantial burden” 

in its free exercise cases is instructive in determining what Congress understood 

“substantial burden” to mean in RLUIPA. 

In Sherbert, supra at 404, the United States Supreme Court held that a 

“substantial burden” exists when an individual is “force[d] . . . to choose between 

following the precepts of her religion and forfeiting benefits, on the one hand, and 

abandoning one of the precepts of her religion . . . on the other hand.” 

In Thomas, supra at 717-718, the Supreme Court explained: 

Where the state conditions receipt of an important benefit 

upon conduct proscribed by a religious faith, or where it denies such 

a benefit because of conduct mandated by religious belief, thereby 

putting substantial pressure on an adherent to modify his behavior 

and to violate his beliefs, a burden upon religion exists. While the 

compulsion may be indirect, the infringement upon free exercise is 

nonetheless substantial. 

In Lyng v Northwest Indian Cemetery Protective Ass’n, 485 US 439, 450; 

108 S Ct 1319; 99 L Ed 2d 534 (1988), the United States Supreme Court 

explained that “incidental effects of government programs, which may make it 

more difficult to practice certain religions but which have no tendency to coerce 

individuals into acting contrary to their religious beliefs” do not constitute 

“substantial burdens.”18 

18 Relying on Lyng, our Court of Appeals held that “for a burden on 

religion to be substantial, the government regulation must compel action or 

inaction with respect to the sincerely held belief; mere inconvenience to the 

religious institution or adherent is insufficient.” Shepherd, supra at 330. 

23
 
 

 

Several federal circuit courts of appeal have also defined the term 

“substantial burden.” Although we are not bound by these decisions, Abela v Gen 

Motors Corp, 469 Mich 603, 606; 677 NW2d 325 (2004), we find them 

persuasive. 

In Civil Liberties for Urban Believers v Chicago, 342 F3d 752 (CA 7, 

2003), the Seventh Circuit Court of Appeals held that a Chicago zoning ordinance 

that allows churches as a matter of right in residential zones, but requires them to 

obtain special use permits in other zones, does not violate RLUIPA. That court 

explained: 

Application of the substantial burden provision to a regulation 

inhibiting or constraining any religious exercise, including the use of 

property for religious purposes, would render meaningless the word 

“substantial,” because the slightest obstacle to religious exercise 

incidental to the regulation of land use-- however minor the burden 

it were to impose-- could then constitute a burden sufficient to 

trigger RLUIPA’s requirement that the regulation advance a 

compelling governmental interest by the least restrictive means. We 

therefore hold that, in the context of RLUIPA’s broad definition of 

religious exercise, a land-use regulation that imposes a substantial 

burden on religious exercise is one that necessarily bears direct, 

primary, and fundamental responsibility for rendering religious 

exercise-- including the use of real property for the purpose thereof 

within the regulated jurisdiction generally-- effectively 

impracticable.[19] 

While [the ordinance] may contribute to the ordinary 

difficulties associated with location (by any person or entity, 

religious or nonreligious) in a large city, [it does] not render 

19 In Lighthouse Institute for Evangelism Inc v City of Long Branch, 100 

Fed Appx 70 (CA 3, 2004), the Third Circuit Court of Appeals adopted this same 

definition of “substantial burden.” 

24
 
 

impracticable the use of real property in Chicago for religious 

exercise, much less discourage churches from locating or attempting 

to locate in Chicago. See, e.g., Love Church v. City of Evanston, 

896 F.2d 1082, 1086 (7th Cir. 1990) (“Whatever specific difficulties 

[plaintiff church] claims to have encountered, they are the same ones 

that face all [land users]. The harsh reality of the marketplace 

sometimes dictates that certain facilities are not available to those 

who desire them”) . . . . Otherwise, compliance with RLUIPA 

would require municipal governments not merely to treat religious 

land uses on an equal footing with nonreligious land uses, but rather 

to favor them in the form of an outright exemption from land-use 

regulations. Unfortunately for Appellants, no such free pass for 

religious land uses masquerades among the legitimate protections 

RLUIPA affords to religious exercise. [Id. at 761-762 (emphasis in 

the original).] 

In San Jose Christian College v City of Morgan Hill, 360 F3d 1024 (CA 9, 

2004), the Ninth Circuit Court of Appeals held that there was no RLUIPA 

violation where the city denied the plaintiff’s rezoning application.20 That court 

explained: 

A “burden” is “something that is oppressive.” BLACK’S 

LAW DICTIONARY 190 (7th ed. 1999). “Substantial,” in turn, is 

defined as “considerable in quantity” or “significantly great.” 

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1170 

(10th ed. 2002). Thus, for a land use regulation to impose a 

“substantial burden,” it must be “oppressive” to a “significantly 

great” extent. That is, a “substantial burden” on “religious exercise” 

must impose a significantly great restriction or onus upon such 

exercise. 

20 We note that the court did not address the preliminary question whether 

RLUIPA was even applicable to the denial of the rezoning application. 

25
 
 

 

 

 

* * * 

[W]hile the PUD ordinance may have rendered College 

unable to provide education and/or worship at the Property, there is 

no evidence in the record demonstrating that College was precluded 

from using other sites within the city. Nor is there any evidence that 

the City would not impose the same requirements on any other entity 

seeking to build something other than a hospital[21] on the Property. 

[Id. at 1034, 1035.] 

In Midrash Sephardi, the Eleventh Circuit Court of Appeals held that an 

ordinance that prohibits churches and synagogues in the town’s business district 

does not impose a “substantial burden” on the exercise of religion. That court 

explained: 

[A] “substantial burden” must place more than an 

inconvenience on religious exercise; a “substantial burden” is akin to 

significant pressure which directly coerces the religious adherent to 

conform his or her behavior accordingly. Thus, a substantial burden 

can result from pressure that tends to force adherents to forego 

religious precepts or from pressure that mandates religious conduct. 

[Midrash Sephardi, supra at 1227.] 

In Adkins v Kaspar, 393 F3d 559 (CA 5, 2004), the Fifth Circuit Court of 

Appeals held that requiring the presence of a qualified outside volunteer at prison 

congregations did not impose a “substantial burden” on the plaintiff’s exercise of 

religion. That court explained: 

[A] government action or regulation creates a “substantial 

burden” on a religious exercise if it truly pressures the adherent to 

21 A city task force concluded that the city urgently needed a hospital and 

this particular piece of property was the only suitable location in the city for a 

hospital. 

26
 
 

significantly modify his religious behavior and significantly violates 

his religious beliefs. [T]he effect of a government action or 

regulation is significant when it either (1) influences the adherent to 

act in a way that violates his religious beliefs, or (2) forces the 

adherent to choose between, on the one hand, enjoying some 

generally available, non-trivial benefit, and, on the other hand, 

following his religious beliefs. On the opposite end of the spectrum, 

however, a government action or regulation does not rise to the level 

of a substantial burden on religious exercise if it merely prevents the 

adherent from either enjoying some benefit that is not otherwise 

generally available or acting in a way that is not otherwise generally 

allowed. [Id. at 570.] 

In Spratt v Rhode Island Dep’t of Corrections, 482 F3d 33 (CA 1, 2007), 

which involved a blanket ban against all preaching activities by prison inmates, 

the First Circuit Court of Appeals asserted: 

The district court decided that a “substantial burden” is one 

that “put[s] substantial pressure on an adherent to modify his 

behavior and to violate his beliefs,” citing Thomas v. Review Board 

of Indiana Employment Security Division, 450 U.S. 707, 718, 101 S. 

Ct. 1425, 67 L. Ed. 2d 624 (1981); see also Lovelace v. Lee, 472 

F.3d 174, 187 (4th Cir. 2006) (applying the Thomas standard in a 

RLUIPA case). Assuming arguendo that Thomas applies, . . . Spratt 

has made a prima facie showing that his religious exercise has been 

substantially burdened. [Id. at 38.] 

In Grace United Methodist Church v City of Cheyenne, 451 F3d 643 (CA 

10, 2006), the Tenth Circuit Court of Appeals held that the city’s denial of the 

plaintiff church’s request for a variance from an ordinance prohibiting any entity 

from operating a commercial day care center in a residential zone did not violate 

RLUIPA. That court explained: 

[T]he incidental effects of otherwise lawful government 

programs “which may make it more difficult to practice certain 

religions but which have no tendency to coerce individuals into 

27
 
 

acting contrary to their religious beliefs” do not constitute 

substantial burdens on the exercise of religion. [Id. at 662 (citation 

omitted).][22] 

After reviewing the above decisions, we believe that it is clear that a 

“substantial burden” on one’s “religious exercise” exists where there is 

governmental action that coerces one into acting contrary to one’s religious beliefs 

by way of doing something that one’s religion prohibits or refraining from doing 

something that one’s religion requires. That is, a “substantial burden” exists when 

one is forced to choose between violating a law (or forfeiting an important benefit) 

and violating one’s religious tenets. A mere inconvenience or irritation does not 

constitute a “substantial burden.” Similarly, something that simply makes it more 

difficult in some respect to practice one’s religion does not constitute a 

22 In Murphy v Missouri Dep’t of Corrections, 372 F3d 979, 988 (CA 8, 

2004), the Eighth Circuit Court of Appeals held that, to constitute a substantial 

burden, the government policy or actions 

must “significantly inhibit or constrain conduct or expression that 

manifests some central tenet of a [person’s] individual [religious] 

beliefs; must meaningfully curtail a [person’s] ability to express 

adherence to his or her faith; or must deny a [person] reasonable 

opportunities to engage in those activities that are fundamental to a 

[person’s] religion.” [Citation omitted.] 

Although the Sixth Circuit Court of Appeals has applied the same test when 

applying RFRA, Miller-Bey v Schultz, 1996 US App LEXIS 6541 (CA 6, 1996), it 

has not yet addressed the meaning of “substantial burden” under RLUIPA. The 

Murphy definition of “substantial burden” seems inconsistent with RLUIPA 

because RLUIPA specifically defines “religious exercise” as “any exercise of 

religion, whether or not compelled by, or central to, a system of religious belief.” 

42 USC 2000cc-5(7)(A). 

28
 
 

“substantial burden.” Rather, a “substantial burden” is something that “coerce[s] 

individuals into acting contrary to their religious beliefs . . . .” Lyng, supra at 

450.23 

In the instant case, plaintiff argues that the city’s refusal to rezone its 

property to allow it to build an apartment complex constitutes a “substantial 

burden” on its “religious exercise.” Even assuming that the building of an 

apartment complex constitutes a “religious exercise,” the city’s refusal to rezone 

the property so plaintiff can build an apartment complex does not constitute a 

“substantial burden” on that exercise. The city is not forbidding plaintiff from 

building an apartment complex; it is simply regulating where that apartment 

complex can be built. If plaintiff wants to build an apartment complex, it can do 

so; it just has to build it on property that is zoned for apartment complexes. If 

plaintiff wants to use the property for housing, then it can build single-family 

23 We recognize that some courts have held that a “substantial burden” 

exists where there is “delay, uncertainty, and expense.” See, for example, Sts 

Constantine & Helen Greek Orthodox Church v City of New Berlin, 396 F3d 895, 

901 (CA 7, 2005), and Living Water Church of God v Meridian Charter Twp, 384 

F Supp 2d 1123, 1134 (WD Mich, 2005). However, we reject this definition of 

“substantial burden” both because it is inconsistent with the United States 

Supreme Court’s definition of the phrase and because it is inconsistent with the 

common understanding of the phrase “substantial burden.” 

29
 
 

 

 

residences on the property. In other words, in the realm of building apartments, 

plaintiff has to follow the law like everyone else.24 

“While [the zoning ordinance] may contribute to the ordinary difficulties 

associated with location (by any person or entity, religious or nonreligious) in a 

large city,” Civil Liberties for Urban Believers, supra at 761, it does not prohibit 

plaintiff from providing housing. “Whatever specific difficulties [plaintiff church] 

claims to have encountered, they are the same ones that face all [land users].” Id., 

quoting Love Church, supra at 1086. The city has not done anything to coerce 

plaintiff into acting contrary to its religious beliefs, and, thus, it has not 

substantially burdened plaintiff’s exercise of religion. Lyng, supra at 450.25 

D. COMPELLING GOVERNMENTAL INTEREST 

Assuming that the city’s refusal to rezone the property constitutes a 

“substantial burden” on plaintiff’s “religious exercise,” the next question is 

whether it is “in furtherance of a compelling governmental interest.” The burden 

is on defendant to prove that the imposition of the burden on plaintiff is in 

24 Plaintiff was aware when it purchased the property that it was zoned 

single-family residential. Thus, plaintiff’s claim that the city’s refusal to rezone 

the property will cause it to lose the money that it invested in the property is 

meritless. 

25 We note that the lower courts’ interpretation of the “substantial burden” 

provision of RLUIPA would seem to render the “discrimination and exclusion” 

provision of RLUIPA effectively meaningless because it will almost always be 

easier to prove a “substantial burden” on one’s “religious exercise,” as those terms 

(continued...) 

30
 
 

furtherance of a compelling governmental interest. 42 USC 2000cc-2(b). 

RLUIPA provides in pertinent part: 

No government shall impose or implement a land use 

regulation in a manner that imposes a substantial burden on the 

religious exercise of a person, including a religious assembly or 

institution, unless the government demonstrates that imposition of 

the burden on that person, assembly, or institution-- 

(A) is in furtherance of a compelling governmental 

interest . . . . [42 USC 2000cc(a)(1) (emphasis added).] 

After a bench trial on this issue, the trial court held that “this mere concern 

over zoning [does not] establish[] a compelling State interest.” We respectfully 

disagree. It has long been recognized that “local governments have a compelling 

interest in protecting the health and safety of their communities through the 

enforcement of the local zoning regulations.” Murphy v Zoning Comm of the 

Town of New Milford, 148 F Supp 2d 173, 190 (D Conn, 2001). “‘All property is 

held subject to the right of the government to regulate its use in the exercise of the 

police power so that it shall not be injurious to the rights of the community or so 

that it may promote its health, morals, safety and welfare.’” Austin v Older, 283 

Mich 667, 677; 278 NW 727 (1938), quoting State v Hillman, 110 Conn 92, 105; 

147 A 294 (1929). Therefore, a municipal body “clearly has a compelling interest 

in enacting and enforcing fair and reasonable zoning regulations.” First Baptist 

(...continued) 

are defined by the lower courts, than it will be to prove discrimination or 

exclusion. See n 8 supra. 

31
 
Church of Perrine v Miami-Dade Co, 768 So 2d 1114, 1118 (Fla App, 2000). “A 

government’s interest in zoning is indeed compelling.” Konikov v Orange Co, 

302 F Supp 2d 1328, 1343 (MD Fla, 2004); see also Midrash Sephardi v Town of 

Surfside, 2000 US Dist LEXIS 22629, *51 (SD Fla, 2000) (holding that “the 

zoning interests of Surfside may properly be characterized as compelling”). “The 

compelling state interest and, hence, the municipal concern served by zoning 

regulation of land use is promotion of health, safety, morals or general welfare.” 

Home Bldg Co v Kansas City, 609 SW2d 168, 171 (Mo App, 1980). “[T]he 

ordinance serves a compelling state interest; the City[’s] . . . police power to 

regulate the private use of the land.” Lyons, supra at 5-6. “The city has a 

cognizable compelling interest to enforce its zoning laws. . . . Reserving areas for 

commercial activity both protects residential areas from commercial intrusion and 

fosters economic stability and growth.” Chicago Hts v Living Word Outreach Full 

Gospel Church and Ministries, Inc, 302 Ill App 3d 564, 572; 707 NE2d 53 (1998); 

see also Daytona Rescue Mission, Inc v City of Daytona Beach, 885 F Supp 1554, 

1560 (MD Fla, 1995) (holding that “the City’s interest in regulating homeless 

shelters and food banks is a compelling interest”). 

In the instant case, the city has a compelling interest in regulating where 

apartment complexes can be built within the city. As the United States Supreme 

Court has explained: 

The matter of zoning has received much attention at the hands 

of commissions and experts, and the results of their investigations 

32
 
 

have been set forth in comprehensive reports. These reports, which 

bear every evidence of painstaking consideration, concur in the view 

that the segregation of residential, business, and industrial buildings 

will make it easier to provide fire apparatus suitable for the character 

and intensity of the development in each section; that it will increase 

the safety and security of home life; greatly tend to prevent street 

accidents, especially to children, by reducing the traffic and resulting 

confusion in residential sections; decrease noise and other conditions 

which produce or intensify nervous disorders; preserve a more 

favorable environment in which to rear children, etc. With particular 

reference to apartment houses, it is pointed out that the development 

of detached house sections is greatly retarded by the coming of 

apartment houses, which has sometimes resulted in destroying the 

entire section for private house purposes; that in such sections very 

often the apartment house is a mere parasite, constructed in order to 

take advantage of the open spaces and attractive surroundings 

created by the residential character of the district. Moreover, the 

coming of one apartment house is followed by others, interfering by 

their height and bulk with the free circulation of air and 

monopolizing the rays of the sun which otherwise would fall upon 

the smaller homes, and bringing, as their necessary accompaniments, 

the disturbing noises incident to increased traffic and business, and 

the occupation, by means of moving and parked automobiles, of 

larger portions of the streets, thus detracting from their safety and 

depriving children of the privilege of quiet and open spaces for play, 

enjoyed by those in more favored localities-- until, finally, the 

residential character of the neighborhood and its desirability as a 

place of detached residences are utterly destroyed. Under these 

circumstances, apartment houses, which in a different environment 

would be not only entirely unobjectionable but highly desirable, 

come very near to being nuisances. [Village of Euclid v Ambler 

Realty Co, 272 US 365, 394-395; 47 S Ct 114; 71 L Ed 303 (1926).] 

See also Kropf v Sterling Hts, 391 Mich 139, 159-160; 215 NW2d 179 (1974) 

(adopting the above analysis in addressing “why the local zoning board could 

reasonably restrict multiple dwellings in a residential area”). That a court will 

defer to zoning authorities and will only overturn a zoning ordinance excluding 

other uses from a single-family residential area if it is arbitrary or capricious is 

33
 
evidence of the magnitude of the municipalities’ interest in such zoning 

ordinances. Kropf, supra at 161 (holding that “[i]t is not for this Court to second 

guess the local governing bodies in the absence of a showing that that body was 

arbitrary or capricious in its exclusion of other uses from a single-family 

residential district”). 

In this case, much testimony was presented regarding the city’s interest in 

preserving single-family neighborhoods. Charles Reisdorf, the Executive Director 

of the Regional Planning Commission, testified: 

[I]n an area where you have a large number of single-family 

residences, people have made purchases with the expectation that 

there will be some stability in the neighborhood. For most of us, the 

purchase of a home is the major expense of our life . . . . And so 

when you–- when you have something that’s incompatible 

interjected into a neighborhood area, it creates problems and often 

results in a blighting situation . . . . 

Dennis Diffenderfer, a planner who has been with the city’s Department of 

Community Development for nearly 20 years, testified: 

[A]ny time you even add a duplex or a three- or four-unit or a 

number of buildings that convert to rental, it does have a negative 

effect on the adjoining neighbors. I can speak not only as a housing 

professional, but from experiences. 

Charles Aymond, who has served as the chairman of the Jackson Planning 

Commission for over ten years, testified: 

[T]he City has experienced a great deal of blight and 

destabilization as the result of commercial enterprises . . . or 

different residential uses coming into what is generally referred to as 

a higher residential use. 

34
 
Plaintiff’s own architect, James Pappas, testified that if the property was 

rezoned multiple-family residential, as the plaintiff desires, a 45-foot apartment 

complex would be permitted and this would be “inappropriate with that 

neighborhood.” 

Given the city’s general interest in zoning, and the city’s specific interest in 

maintaining the character of this single-family residential neighborhood, we 

conclude that the city has a compelling interest in maintaining single-family 

residential zoning and in not rezoning this area of the city. 

E. LEAST RESTRICTIVE MEANS 

Given that the imposition of the burden on plaintiff is in furtherance of a 

compelling governmental interest, the final question is whether a particular 

governmental action constitutes the “least restrictive” means of furthering that 

interest. 42 USC 2000cc(a)(1)(B). The burden is on defendant to prove that an 

action constitutes the least restrictive means of furthering the compelling 

governmental interest. 42 USC 2000cc-2(b). RLUIPA provides in pertinent part: 

No government shall impose or implement a land use 

regulation in a manner that imposes a substantial burden on the 

religious exercise of a person, including a religious assembly or 

institution, unless the government 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 USC 2000cc(a)(1) (emphasis added).] 

35
 
 

In the instant case, plaintiff asked the city to rezone the property from 

single-family residential to multiple-family residential. In response, the city could 

have done one of two things-- it could have granted or it could have denied 

plaintiff’s request to rezone the property. The city decided to deny plaintiff’s 

request to rezone the property. That is, the city decided to maintain the singlefamily residential zoning. There do not appear to be any less restrictive means of 

maintaining the single-family residential zoning. 

For these reasons, we conclude that any burden placed on plaintiff’s 

exercise of religion is in furtherance of a compelling governmental interest and 

constitutes the least restrictive means of furthering that compelling governmental 

interest.26 Therefore, even assuming that RLUIPA is applicable in the instant 

case, it has not been violated.27 

26 42 USC 1988(b) provides, “In any action or proceeding to enforce a 

provision of . . . the Religious Land Use and Institutionalized Persons Act of 2000 

. . . the court, in its discretion, may allow the prevailing party, other than the 

United States, a reasonable attorney’s fee as part of the costs . . . .” For the 

reasons discussed herein, plaintiff is not a “prevailing party,” and, therefore, is not 

entitled to attorney fees. 

27 As discussed above, in City of Boerne, the United States Supreme Court 

held that Congress, in enacting RFRA, had exceeded its power under § 5 of the 

Fourteenth Amendment to enact legislation enforcing the Free Exercise Clause 

because RFRA proscribes state conduct that the First Amendment itself does not. 

In Smith, the United States Supreme Court held that generally applicable, religionneutral laws that have the effect of burdening a particular religious practice need 

not be justified under the Free Exercise Clause by a compelling governmental 

interest. However, “where the State has in place a system of individual 

exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ 

(continued...) 

36
 
 

V. CONCLUSION 

RLUIPA applies to burdens imposed by governmental bodies on “religious 

exercises” in the course of implementing land use regulations under which 

“individualized assessments” may be made of the proposed uses for the land. An 

“individualized assessment” is an assessment based on one’s particular or specific 

circumstances. A decision concerning a request to rezone property does not 

involve an “individualized assessment.” Therefore, RLUIPA is not applicable 

here. 

A “religious exercise” constitutes “any exercise of religion, whether or not 

compelled by, or central to, a system of religious belief.” 42 USC 2000cc5(7)(A). However, something does not become a “religious exercise” just because 

it is carried out by a religious institution. Because the only connection between 

religion and the construction of the apartment complex in this case is the fact that 

(...continued) 

without compelling reason.” Smith, supra at 884. Proponents of RLUIPA argue 

that Congress has the authority to enact RLUIPA because it merely codifies Smith. 

However, the lower courts in the instant case held that, under RLUIPA, a religious 

institution need not abide by a generally applicable, religion-neutral zoning 

ordinance unless it is justified by a compelling governmental interest. This seems 

inconsistent with the Free Exercise Clause as interpreted in Smith, which, held that 

a generally applicable, religion-neutral law does not have to be justified by such 

an interest. Whenever possible, courts should construe statutes in a manner that 

renders them constitutional. People v Bricker, 389 Mich 524, 528; 208 NW2d 172 

(1973). Because the lower courts’ interpretation of RLUIPA would render 

RLUIPA unconstitutional, we reject their interpretation and instead adopt the 

interpretation set forth in this opinion. 

37
 
 

the apartment complex would be owned by a religious institution, the building of 

the apartment complex does not constitute a “religious exercise.” 

A “substantial burden” on one’s “religious exercise” exists where there is 

governmental action that coerces one into acting contrary to one’s religious beliefs 

by way of doing something that one’s religion prohibits or refraining from doing 

something that one’s religion requires. A mere inconvenience or irritation does 

not constitute a “substantial burden”; similarly, something that simply makes it 

more difficult in some respect to practice one’s religion does not constitute a 

“substantial burden.” Because the city has not done anything to coerce plaintiff 

into acting contrary to its religious beliefs, the city has not substantially burdened 

plaintiff’s religious exercise. 

Even if the city did substantially burden plaintiff’s religious exercise, 

imposition of that burden here is in furtherance of a compelling governmental 

interest, namely, the enforcement of local zoning ordinances, and constitutes the 

least restrictive means of furthering that compelling governmental interest. 

Therefore, even assuming that RLUIPA is applicable, RLUIPA was not violated. 

For these reasons, we reverse the judgment of the Court of Appeals and remand 

this case to the trial court for the entry of a judgment in favor of defendants. 

Stephen J. Markman 

Clifford W. Taylor 

Maura D. Corrigan 

Robert P. Young, Jr. 

38
 
______________________________ 

v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

THE GREATER BIBLE WAY TEMPLE OF 

JACKSON, 

Plaintiff-Appellee, 

Nos. 130194, 130196 

CITY OF JACKSON, JACKSON PLANNING 

COMMISSION, AND JACKSON CITY COUNCIL, 

Defendants-Appellants. 

CAVANAGH, J. (concurring). 

I agree with part IV(B) of the majority opinion. I write separately because 

I believe it is unnecessary to determine whether defendants made an 

individualized assessment in this case or whether the statutory test of strict 

scrutiny was met, because plaintiff failed to show that its petition for rezoning 

was related to plaintiff’s exercise of religion. Thus, I would reverse the Court of 

Appeals judgment on that basis and remand to the trial court for dismissal of 

plaintiff’s claim. 

Michael F. Cavanagh 

Elizabeth A. Weaver 
________________________________ 

v 

S T A T E O F M I C H I G A N 

SUPREME COURT 

THE GREATER BIBLE WAY TEMPLE OF 

JACKSON, 

Plaintiff-Appellee, 

Nos. 130194, 130196 

CITY OF JACKSON, JACKSON PLANNING 

COMMISSION, AND JACKSON CITY COUNCIL, 

Defendants-Appellants. 

KELLY, J. (concurring). 

I agree with the order in which the majority opinion interprets the relevant 

provisions of the Religious Land Use and Institutionalized Persons Act, 42 USC 

2000cc et seq. I concur in the majority’s holding that there was no individualized 

assessment in this case and therefore that RLUIPA is not applicable. 

I write separately because I believe it is unnecessary to discuss (1) whether 

the building of an apartment complex was a religious exercise, (2) whether the 

refusal to rezone plaintiff’s property substantially burdened the alleged religious 

exercise, and (3) whether the alleged burden was in furtherance of a compelling 

governmental interest and constituted the least restrictive means of furthering that 

interest. The majority’s discussion of these issues is mere dicta. 
I would reverse the Court of Appeals judgment because RLUIPA is 

inapplicable in the instant case. 

 Marilyn Kelly 

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