In Covenant Christian Ministries, Inc. v. City of Marietta, Case No. 10-11966, 10-12222, 2011 WL 3903432 (11th Cir. Sept. 7, 2011), the court of appeals affirmed the district court’s authority to remedy an ordinance’s facial violation of the “equal terms” provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA) by striking other assembly uses from the list of permitted uses in residential zones, rather than by adding language permitting religious assemblies in the religious zones. The City argued that “private parks, playgrounds, and neighborhood recreation centers” were not proper comparators or “assembly” uses like a church, because people gather for different reasons. The court disagreed. On the other hand, the court found that the striking of “private parks, playgrounds, and neighborhood recreation centers” from the list of permitted uses was consistent with the purpose of the zoning restriction to limit use to low-density, single-family dwellings. Consequently, the court also affirmed the district court’s award of $1.00 in nominal damages and no compensatory damages for the violation, affirmed the district court’s ruling that the church did not acquire a vested right to develop the church on property never permitted for the purpose, and dismissed the church’s demand for injunctive relief.

To acquire a vested right to development under a Georgia law, a property owner must prove four conditions including having obtained a valid building permit. The church had argued that upon finding the ordinance in violation of RLUIPA, the district court should have added language allowing churches in the zone to the ordinance, whereupon it would have gained a vested right to build the church. But the court held that any such interlocutory order by a district court would not have been final so as to trigger said rights, and that the church should have known that the City could always amend its ordinance to comply with RLUIPA by denying all assembly uses. The court held the church’s request for injunctive relief moot, because the city fundamentally changed the offending ordinance in 2008 to permit churches in the zone, subject to special use approval, and because the city had a history of attempting to comply with RLUIPA.