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.
Add sports facilities to the list. In the progressive college town (and state capital) of 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 special districts for campuses and invited educational institutions to submit master plans outlining future development. In 2014, Edgewood and UW voluntarily submitted their plans to the city.
In 2018, Edgewood decided to upgrade its athletic field to include seating, lighting, restrooms, and concessions, but the city said its master plan strictly prohibited “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 its 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 prohibited athletic contests.
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 (for permission to install lights) in 2020 that the building department approved but the municipal plan commission denied. 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 and related entities/persons. Edgewood claimed that the defendants violated federal and state laws and infringed on its First Amendment right to freely exercise its faith. The defendants filed a motion for summary judgment requesting Judge William M. Conley to dismiss the case. Judge Conley ruled on December 30, 2022.
The court said that a key reason for creating special districts 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 observed 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. Its neighbors 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.
In denying Edgewood a permit to install lighting, the city considered evidence from nearby 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.
The Religious Land Use and Institutionalized Persons Act (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 because it was permitted to conduct practices and physical education classes. The court basically said that Edgewood missed the key point that outdoor lighting was never identified as a future project in Edgewood’s master plan.
The court also rejected Edgewood’s argument that the city had treated UW, a pubic institution more favorably because it allowed the university to install lights at its tennis stadium in 2018. Judge Conley saw this as an apples-and-oranges comparison because UW applied prior to submitting its master plan while Edgewood applied after submitting its master plan.
The court said that the different set of facts “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 a public high school, Vel Phillips Memorial, because the city permitted Memorial to install lighting on its field. The court found that the circumstances were not comparable because Memorial 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.
Moreover, even if the UW and Memorial situations were comparable to Edgewood’s, the city had demonstrated “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 also argued that the city has substantially burdened its religious exercise, which is a hot-button culture wars issue these days. Judge Conley astutely recognized that conducting athletic events is not an inherent element of faith, and that requiring a school to travel to an off-campus facility for games is not a substantial burden.
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.”
Judge Conley treaded carefully in denying Edgewood’s claims under state law, abiding 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 city’s 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.”
THE TAKEAWAY
*What appears on the surface to be religious discrimination may be something completely different.
*If you can’t fight city hall, then you certainly can’t fight city hall and your NIMBY neighbors.
[This story first appeared in the Sports Litigation Alert, the leading online sports law publication, and is reproduced with its permission.]