CINCINNATI (CN) — A Catholic organization urged the Sixth Circuit on Wednesday to revive its lawsuit against a Michigan township that had ordered it to remove religious symbols from private property.
Catholic Healthcare International has a 40-acre plot of land in Genoa zoned as a "country estate." Seeking to construct a grotto and 6,000-square-foot chapel, however, the group needed a religious worship zoning permit.
It filed suit when the township elected both to deny its zoning request and to order the removal of all religious symbols from an existing grotto on the site honoring St. Padre Pio, an Italian Capuchin friar whose work in health care became the basis for the group's ministerial work.
At a hearing of the Sixth Circuit in Cincinnati on Wednesday, an attorney for Catholic Healthcare International argued that "there's no way" the township's zoning ordinance satisfies the standard for strict scrutiny required by the Religious Land Use and Institutionalized Persons Act.
"We are dealing with fundamental rights of the highest order," said Robert Muise, of the American Freedom Law Center in Ann Arbor. "This is not about building a shed."
U.S. Circuit Judge Joan Larsen, a Trump appointee, asked Muse why the property can't be treated like a private park, similar to something the Boy Scouts might create for a campsite.
Muise said his client sought the township's permission to operate as a park but was told that avenue was available only if it would become a public park, which would mean surrendering its ownership interest in the land and agreeing not to build a chapel on the site.
David Burress of Seward Henderson in Royal Oak, Michigan, argued on behalf of the township and was peppered with questions by U.S. Circuit Judge Raymond Kethledge throughout his allotted time.
Kethledge, a George W. Bush appointee, pressed Burress about the lower court's decision on ripeness and seemed unsatisfied with any of the attorney's answers.
"Finality demands the relevant agency ... has gone through the zoning process," Burress said.
"Which [Catholic Healthcare International] has done twice," Kethledge responded. "Here, enforcement has already happened, they have been forced to remove these things already. That looks pretty ripe to me."
Genoa Township denied the permit for Catholic Healthcare International based on traffic and noise concerns, as well as the belief that the use would fall outside the scope of the country estate zoning category, which is primarily residential but allows for some small-operation farming.
Kethledge emphasized that Catholic Healthcare International removed the chapel from its second zoning application, which he called a "pretty material change" that allowed the zoning commission to reconsider its denial.
"They had their chance," he told Burress. "We're talking about nature trails in the woods. Why isn't this just like a park with workout stations [where] you're doing pull-ups instead of prayers?"
"Just like any other park, CHI has to go through the land-approval process," the attorney reiterated, abbreviating the name of the township's legal opponent.
"I'm not persuaded by that, to be candid with you," Kethledge responded. "We have an outcome here, unquestionably. All the stuff has been removed. Why does this [land] deserve the much more rigorous treatment it's gotten?"
Burress focused his reply on the driveway entrance to the property, which he said is directly off a road with a 55 mph speed limit and does not meet road commission standards, as well as concerns about parking and a decrease in the values of neighboring properties.
Muise used his rebuttal time to hammer home his point on ripeness and asked the court for an expedited ruling, given that Catholic Healthcare International has an event planned at the property for September.
"We've spent over $40,000 to try and figure out what the township wants from us to be able to set up these displays," he told the panel.
When U.S. District Judge Shalina Kumar dismissed a portion of the lawsuit in December 2022, the Biden appointee focused on the failure of Catholic Healthcare International to submit a permit application seeking permission only to maintain the grotto — and not construction of the chapel.
Kumar said this left unanswered questions about the application of zoning laws and rendered the litigation premature.
She did, however, grant the group's request for an injunction to allow gatherings at the property after the expiration of a driveway permit.
Both parties appealed Kumar's rulings to the Sixth Circuit.
In its brief to the appeals court, attorney Muise argued the grotto, stations of the cross and other symbols on the property do not violate Genoa Township's signage restrictions, especially considering they are not visible from the public road that leads to the land.
As for Kumar's ripeness analysis, Muise claimed there is no process by which the organization can seek approval for the display of religious symbols other than the special-use permit, which the township has already denied twice.
"Plaintiffs have had to pay exorbitant fees and suffer long delays and uncertainty as a result of being forced to comply with the unconstitutional and discriminatory demands of the township," Muise wrote, "and whether plaintiffs can engage in their right to religious exercise and expression on CHI's private property is entirely dependent upon the subjective judgment of the planning commission and the township board."
Burress argued in the township's brief that the appeal is barred because Catholic Healthcare International already brought an unsuccessful appeal in state court of the zoning issues. Burress also said the group's failure to comply with road access requirements prevent it from holding any functions at the property.
"The fact that CHI has no valid access to the property ... and the fact that CHI has failed to comply with the standards prescribed by the Livingston County Road Commission, required the district court to conclude that CHI has no lawful access for any of its organized events," he wrote.
"The district court has erred and abused its discretion by concluding that CHI is free from compliance with access standards, simply because its permit has expired," the brief continues.
U.S. Circuit Judge Eric Clay, a Bill Clinton appointee, rounded out Wednesday's panel, which did not set a timetable for its decision.Follow @@kkoeninger44
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