                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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



        *
          The Hon. Soloman Oliver, Jr., United States District Judge for the Northern District of Ohio, sitting
by des ignation.
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
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.
