TIM DILAURA, DF LAND DEVELOPMENT, L.L.C., and APOSTOLATE FOR THE EUCHARISTIC LIFE v. States District Court for the Eastern District of Michigan Tow Nship of Ann Arbor,…

*The Hon. Soloman Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting
by des ignation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0008n.06
Filed: October 6, 2004
NO. 03-1635
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TIM DILAURA, DF LAND DEVELOPMENT, )
L.L.C., and APOSTOLATE FOR THE )
EUCHARISTIC LIFE, )
)
Plaintiffs-Appellees, )
)
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF MICHIGAN
)
TOW NSHIP OF ANN ARBOR, ANN )
ARBOR TOW NSHIP ZONING OFFICIAL, )
and ANN ARBOR TOWNSHIP ZONING )
BOARD OF APPEALS, )
)
)
Defendants-Appellants. )
______________________________________
BEFORE: NORRIS and DAUGHTREY, Circuit Judges, and OLIVER,* District
Judge.
PER CURIAM. The dispute in this case arose when the plaintiffs, Tim DiLaura, DF
Land Development L.L.C., and the Apostolate for the Eucharistic Life, requested
permission from the Township of Ann Arbor to operate a religious retreat, intended
primarily for a practice described by plaintiff DiLaura as “contemplative prayer.” Although
the plaintiffs’ initial attempts to secure a zoning variance were rebuffed by the defendant

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township and its zoning board of appeals, the district court subsequently concluded that
the proposed restrictions on the plaintiffs’ plans violated the provisions of the Religious
Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc – 2000cc-5
and entered judgment for the plaintiffs. The defendants now appeal that determination,
arguing alternatively that this matter is moot or, if not moot, that the RLUIPA is inapplicable
to this situation or, if applicable, that the plaintiffs have failed to establish a substantial
burden on the exercise of their religion. The defendants’ brief also contains an allegation
that the Act is unconstitutional, but the United States, as intervenor in the appeal, pointed
out at oral argument that the constitutional issue was not raised in the district court and
should be considered waived. Given a chance to rebut this contention, counsel for the
defendants postulated only that it was unnecessary to reach the constitutional question
posed in the brief on appeal. We agree.
We also agree with the district judge’s determination that the plaintiffs were entitled
to relief in this case. The district court held that the issuance of a bed-and-breakfast permit
had not rendered the case moot because the restrictions connected with such a permit
would substantially limit the plaintiffs’ intended use of the property, in violation of the
protections afforded by the Act. The district court noted, for example, that the bed-and-
breakfast regulations require payment by the “guests” of such a facility and that such
“payment is held to be a substantial burden on any religious activity.” Moreover, the
plaintiffs would have been barred from serving alcohol, thereby restricting their ability to
provide communion wine, and they could not have offered any meals other than “breakfast,
snacks, coffee and tea service,” thereby preventing their plan to supply overnight
participants with lunch and dinner as well as breakfast. In short, designation as a bed and

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breakfast would have effectively barred the plaintiffs from using the property in the exercise
of their religion and, hence, the defendants’ refusal to allow a variance constituted a
substantial burden on that exercise.
Finally, we note that the question of the Act’s application was resolved by a previous
aCase ppeal. See DiLaura v. Ann Arbor Charter Township, No. 00-1846, 2002 WL 273774
at ** 8 (6th Cir. Feb. 25, 2002).
For the reasons set out above, we AFFIRM the judgment of the district court.

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