By Gary Chester, Senior Writer
The term ”NIMBY” was first used in a 1980 Virginia newspaper article by Emilie Travel Livezey, who was describing opponents of hazardous waste material sites such as landfills. The acronym for “not in my backyard” applies to community resistance to unwanted development in residential neighborhoods. It is normally reserved for objections to power plants, apartment complexes, wind turbines, and similar uses of land.
Now, add sports facilities to the list. In the progressive college town and state capital, Madison, Wisconsin, some vocal neighbors vehemently opposed the installation of stadium lights for night football games at a Catholic high school. Amidst community opposition, the city denied the school’s application to install lights at its field.
Was this a typical NIMBY case or was there something more sinister afoot?
In Edgewood High Sch. of the Sacred Heart v. City of Madison, 2022 U.S. Dist. LEXIS 233570 (W.D. Wis. 2022), the court dealt with the issue of whether the municipality’s conduct constituted religious discrimination.
THE ROAD TO LITIGATION
Edgewood High School was founded in Madison in 1881. It is a private Catholic school in the Sinsinawa Dominican tradition. In 2011, the city created Campus Institutional Districts (CIDs) for Edgewood, the University of Wisconsin-Madison (UW), and other local schools that were invited to submit master plans for future growth and development. In 2014, Edgewood and UW submitted master plans.
In 2018, Edgewood decided to upgrade its athletic field to include seating, lighting, restrooms, and concessions. The city interpreted Edgewood’s master plan as restricting the use of the field to practices and physical education classes while strictly prohibiting “athletic contests.” The zoning administrator in 2019 cited Edgewood for a violation of zoning ordinances by holding girls’ soccer contests on the field.
Edgewood appealed to the zoning board. The board denied the appeal even though UW had arguably used its property for purposes not disclosed in the master plan and had never been cited for a violation.
Nevertheless, Edgewood did not amend its master plan to include athletic competition. Instead, the school applied for a lighting permit under a municipal ordinance. The city refused to issue the permit because the lights could be used for athletic contests that were not permitted under the master plan.
Edgewood then filed a request to repeal its master plan, a move that would put it on equal footing with other schools and enable it to install lighting. But before considering Edgewood’s application, the city enacted a new outdoor lighting ordinance that would make it more difficult to install lighting.
The plaintiff filed a conditional use application in 2020 that met with the building department’s approval. However, the municipal plan commission denied the application and the city common council upheld the denial in 2021. In viewing the landscape, Edgewood believed the city was treating it differently from public institutions.
DID UW RECEIVE PREFERENTIAL TREATMENT?
On May 3, 2022, Edgewood brought suit against the city, its zoning board of appeals, its planning commission, the common council, and three individuals. The complaint asserted that the defendants violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Free Exercise Clause, and other statutes and constitutional provisions. Trial judge William M. Conley decided the defendants’ motions for summary judgment on December 30, 2022.
In its decision, the court indicated that one purpose of CIDs noted in the city’s zoning regulations was to “[b]alance the ability of major institutions to change…with the need to protect the livability and vitality of adjacent neighborhoods.” Judge Conley also noted that Edgewood’s master plan proposed 22 new projects, but did not include a proposal for improvements to a new athletic field.
Edgewood played its home football games off-campus at Breese Stevens Field, which is also the homefield for Madison East High School, a public institution. After receiving a million-dollar grant from a private donor, Edgewood sought to install lights at its field and upgrade the track surrounding the field. Nearby neighborhoods expressed opposition to putting lights on the field. This opposition dates back to at least 1996. Edgewood was permitted to resurface the track because it could be classified as maintenance and repair.
However, in denying Edgewood a permit to install lighting, both the plan commission and the common council considered evidence from neighboring homeowners suggesting that lighting would have a “substantial negative impact on the uses, values, and enjoyment of surrounding properties” and that Edgewood had produced no evidence to the contrary.
RLUIPA prohibits city ordinances or zoning rules from treating religious land uses worse than secular land uses. Edgewood argued that the city was wrong to interpret its master plan as precluding all athletic contests, as opposed to practices and physical education classes. The court said that the distinction was beside the key point that outdoor lighting was never identified as a future project in Edgewood’s master plan. In addition, the school held athletic competitions at its field during daylight hours and had never been cited for a violation.
The court also rejected Edgewood’s argument that the city had treated UW and a public high school, Vel Phillips Memorial, more favorably. The court noted: “To establish a prima facie equal-terms violation, the plaintiff must come forward with evidence of a similarly situated secular comparator that is more favorably treated.” Edgewood argued that UW was permitted to install lights at its tennis stadium in 2018. Yet, the court found that UW applied for this installation prior to submitting its master plan, in contrast to Edgewood’s application that was made after it had submitted its master plan.
The trial judge also found that since the plaintiff and a comparator were subject to different standards it “compels the conclusion that there was no unequal treatment.”
DID A PUBLIC HIGH SCHOOL RECEIVE PREFERENTIAL TREATMENT?
Edgewood argued that the city treated it worse than Memorial High School because the city permitted Memorial to install lighting on its field. The court found that Memorial was not a valid comparator because it did not submit a master plan and was not subject to those zoning rules. Moreover, Memorial had replaced existing lighting which constitutes maintenance and repair.
The court concluded that Edgewood failed to show that either comparator was treated better under the same approval process as Edgewood, since their lighting applications were submitted at different times, under different rules, and under different circumstances. Even if Edgewood had shown that a comparator was treated more favorably, which would have shifted the burden of proof to the defendants, the court found that the defendants offered “overwhelming evidence of permissible reasons for treating plaintiff’s proposed lighting project differently” in view of proximity to neighbors and the lighting, noise, and crowd concerns surrounding high school football games.
THE COURT DOES NOT SEE THE LIGHT(S)
Edgewood further argued that the city has substantially burdened its religious exercise. In rejecting the argument, the court noted that conducting athletic events at night is not necessarily an inherent element of the Sinsinawa Dominican faith. Moreover, the Eighth Circuit and three other circuits have found that in similar circumstances the religious exercise is merely inconvenienced, but not substantially burdened.
The court stated that it “cannot conceptualize how Edgewood’s religious exercise is seriously violated simply because it must schedule night games just a 15-minute drive east of its campus. In fact, the school has barely supported its assertion that playing any sports games at night is important to Edgewood’s sincere religious beliefs.”
The court rejected the plaintiff’s free speech claim on similar grounds.
In considering state law claims, the court found that Edgewood had no vested right to outdoor lighting because its application did not strictly comply with zoning requirements. Judge Conley also followed the rule that a court should not substitute its judgment for that of decision-making bodies where there is substantial evidence to support their decisions.
Here, the plan commission considered Edgewood’s application for nearly five hours and the city common council considered evidence for nearly four hours. Neighbors testified and studies were presented to show that noise levels from Edgewood were already excessive and additional noise and lighting would negatively impact property values. Edgewood’s own sound study found that nighttime noise levels would exceed 70 decibels.
In granting summary judgment to all defendants, the court stated, “The Council further noted that Edgewood might not comply with suggested limits and had been dishonest with neighbors…All of this constitutes substantial evidence sufficient to support the Council’s ultimate decision on appeal.”
Even though the facts may show that what on the surface appears to be religious discrimination this may not always be the case. Finally, if you can’t fight city hall, then surely you can’t fight city hall and your NIMBY neighbors.