NOT RECOMMENDED FOR PUBLICATION File Name: 25a0448n.06
Case No. 24-5538
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Oct 02, 2025 ) KELLY L. STEPHENS, Clerk BE THE BUSH RECOVERY MINISTRIES, ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF COFFEE COUNTY, TENNESSEE, ) TENNESSEE Defendant-Appellee. ) ) OPINION
Before: READLER, MURPHY, and MATHIS, Circuit Judges.
READLER, Circuit Judge. Be the Bush Recovery Ministries (“BTB”) ran a faith-based
residential rehabilitation program for recovering addicts in Coffee County, Tennessee. Seeking to
expand, BTB agreed to purchase a former elementary school, now a large home, in the County.
But the property was subject to zoning restrictions prohibiting the operation of a recovery facility.
Failing to persuade the County to change those rules, BTB sued, alleging violations of a host of
federal statutes as well as the Fourteenth Amendment. Between summary judgment and trial, the
County prevailed on all claims, prompting BTB’s appeal. We now affirm. No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
I.
A. BTB is a Christian, Tennessee-based nonprofit. It has operated a residential
rehabilitation program since 2018. Program participants are held to a rigorous schedule of daily
prayer, work, and Christian education, for a 12-to-18-month period.
BTB initially operated out of three rented residential facilities in the County, with a
cumulative capacity of 18 beds. While the facilities were large enough to accommodate BTB’s
students, that arrangement presented some challenges for BTB. For one, the facilities were located
near liquor stores as well as gas stations that sell beer and tobacco, which had the potential to
“create[] problems” for BTB’s resident participants. Prelim. Inj. Hr’g Tr., R. 39, PageID 503.
Operating in separate facilities also made it harder for the residents to participate in daily activities
together. Nonetheless, BTB, during its over three-year period utilizing these properties, achieved
a 95% non-recidivism rate for its graduates, with no resident failing a drug test during that period.
Seeking to house its program under one roof and expand operations, BTB took interest in
purchasing a building on an eight-acre property in the County near Riley Creek. The Riley Creek
Property was most recently used as a private home but had previously served as an elementary
school. The property’s large size would have enabled BTB to house up to thirty participants under
one roof. Accordingly, BTB agreed to purchase the property—contingent on the County giving
zoning approval for using the property as a rehabilitation program.
With respect to the County’s zoning rules, the Riley Creek Property was located in a zone
classified as a “Low Density Residential District,” abbreviated to “RS-1.” BTB Email to County
Commissioners, R. 58-14, PageID 1203. The RS-1 zone is designed to encourage single-family
residential neighborhoods, as reflected by the uses allowed in the zone:
2 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
RS-1, Low Density Residential District
Uses Permitted [i.e., of right] Uses Permitted as Special Exceptions [i.e., by permission]
Single-family dwellings. Duplexes[.] Civil defense facilities. Any business or service . . . of the same general character as the . . . permitted uses . . . . Fire department facilities. Travel trailer parks and campgrounds. Police department facilities. Civic, social, fraternal, and philanthropic. Electrical and gas substations. Private (nonprofit) clubs, lodges, meeting halls and Educational facilities (parochial recreation centers. and public). Art galleries. Pumping facilities for water/sewer. Athletic associations. Rights of Way for Libraries. transportation. Museums. Sewage collection lines. Indoor and outdoor commercial entertainment and sporting Water storage tanks and events. facilities. Planetariums and aquariums. General agriculture. Recreation centers and gymnasiums (nonprofit). Churches and Religious Swimming pools and beaches. facilit[i]es[.] Yachting clubs (private). Zoological and botanical gardens (non-commercial). Major petroleum and natural gas transmission lines and facilities. Cemeteries, columbarium[]s, and mausoleums. Electrical and gas substations. Golf courses. Radio, telephone, and television towers and transmission facilities.
Zoning Resolution 2006-39, R. 58-6, PageID 1026–27. The RS-1 ordinance did not permit BTB
to operate its proposed facility as of right, as that zone permits just one residential use as of right:
single-family dwellings. See id. at PageID 1026. By special exception from the zoning authority,
3 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
another small-scale residential use—a duplex—is allowed. All other residential uses, including
multi-family and large-scale residential use, are prohibited.
Upon agreeing to buy the property, BTB approached the County to obtain zoning approval
for using the property to house its rehabilitation program. A zoning administrator informed BTB
that its program landed outside any permitted or special use exception identified in RS-1 and
suggested that BTB instead seek an amendment to the zoning ordinance. Securing an amendment,
however, was not a guarantee. Traversing the County’s multi-step process for approving proposed
zoning amendments would begin with the Regional Planning Commission, which is tasked with
“approving plats, reviewing general growth plans and other such matters as may []come before
[it].” Zoning Resolution 2006-39, R. 59-1, PageID 1299. Proposed amendments to a zoning
resolution are submitted to the Commission for review and, from there, recommendations are made
to the full County Commission. The County Commission, following a public hearing, issues final
decisions on rezoning and proposed amendments to the zoning ordinance. Those decisions are
appealable to the Regional Board of Zoning Appeals.
In line with this process, BTB proposed an amendment to the RS-1 zoning rules to add as
a permitted use “[n]on-profit Churches and/or religious ministries, funded solely by private
donations, that provide education, skills training, and addiction recovery support to its members
who are temporarily housed at the facility.” BTB Zoning Amendment Appl., R. 30-1, PageID 274.
The Planning Commission gave the proposal a negative recommendation. BTB did not proceed
for consideration by the County Commission, instead opting to file a new application. This time
around, BTB sought authorization to operate at the Riley Creek Property by special exception in
the RS-1 zone, submitting an effectively identical proposal to its previous proposed amendment.
The Planning Commission again voted to reject BTB’s proposal. The matter was then placed on
4 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
the County Commission’s agenda for consideration. The County Commission, by an 11-7 vote,
also rejected the proposal.
Undeterred, BTB asked the County about rezoning the Riley Creek Property to a “High
Density Residential District,” or “R-2.” Authorized R-2 uses include “special personal and group
care facilities.” Zoning Resolution 2006-39, R. 58-6, PageID 1096–97 (citation modified). That
designation captured, for instance, “assisted living facilities for [the] elderly or handicapped,”
“nursing homes,” “family care facilities,” “group care facilities,” and “day care facilities for
elderly persons.” Id. at PageID 1025, 1096–97 (citation modified). The County Attorney told
BTB that its facilities likely did not fit that category and would instead be classified as a “special
institutional care facility.” County Attorney Email to BTB, R. 58-16, PageID 1213 (citation
modified). Such facilities are allowed in the “General Commercial District” or “C-2” and include
“facilities that involve forced residency, full time supervision and care for: . . . individuals who are
addicted to drugs and/or alcohol.” Zoning Resolution 2006-39, R. 58-6, PageID 1096. The County
Attorney also informed BTB that while other zoning codes, if amended, might facilitate BTB,
current zoning permitted it to operate only in a C-2 zone.
BTB contemplated its next steps. In the end, it forewent another attempt at securing an
amendment to the zoning code. Nor did it seek to have the Riley Creek Property rezoned to meet
the requirements of R-2. And BTB was unable to locate a property in a C-2 zone because its
options consisted only of “abandoned factories[,]” “gas stations[,]” “or multi-million dollar
properties with no existing structures on them,” none of which “[were] suitable for a residential
faith-based recovery ministry.” McCall Dep., R. 58-2, PageID 843. Believing it was left with few
other options, BTB filed suit against the County. Included in BTB’s complaint were claims under
the Fair Housing Act as Amended (“FHAA”), Americans with Disabilities Act (“ADA”),
5 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and 42 U.S.C. § 1983, alleging
a violation of the Equal Protection Clause of the Fourteenth Amendment.
As the litigation unfolded, another party bought the Riley Creek Property. As for BTB, its
lease on its existing properties was set to expire. To ensure it could continue operations, BTB
purchased a new plot, one sitting less than four miles away from the Riley Creek Property in
neighboring Bedford County. The Bedford Property, also a former elementary school, could host
about twenty program participants. Despite relocating, BTB purportedly maintained a desire to
return to the County, the place where it was founded, many of its donors reside, and most of its
extracurricular activities occur.
B. After filing its complaint, BTB moved for a preliminary injunction. The district court
denied BTB’s motion, a decision we affirmed. Be the Bush Recovery Ministries v. Coffee County,
No. 22-5391, 2023 WL 110775, at *2 (6th Cir. Jan. 5, 2023). Both parties then moved for summary
judgment. The district court granted summary judgment to the County on all but one claim. As
to that remaining claim—BTB’s assertion that the County failed to grant BTB a reasonable
accommodation in violation of both the FHAA and ADA—the district court concluded that there
were genuine issues of material fact necessary for resolution at trial. At the close of the ensuing
trial, the jury returned a verdict for the County. BTB now appeals.
II.
Before turning to the merits, a threshold matter bears addressing. BTB timely filed a notice
of appeal following the district court’s entry of final judgment. See Notice of Appeal, R. 127,
PageID 2875. But in doing so, it appears to have mistakenly refiled the notice related to its prior
appeal from the denial of its preliminary injunction motion, rather than a new notice crafted to
later developments in the case. Compare Notice of Appeal, R. 127, with Notice of Interlocutory
6 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
Appeal, R. 35. To that end, the notice filed to initiate this appeal states that BTB is appealing the
denial of its motion for a preliminary injunction and makes no mention of the district court’s final
judgment. Notice of Appeal, R. 127, PageID 2875.
In this instance, it deserves asking whether BTB properly invoked our appellate
jurisdiction. Federal Rule of Appellate Procedure 3(c) instructs that a party’s notice of appeal must
“designate the judgment—or the appealable order—from which the appeal is taken.” Fed. R. App.
P. 3(c)(1)(B). Historically, Rule 3(c)’s requirements were understood to be jurisdictional in nature,
meaning “their satisfaction is a prerequisite to appellate review.” Smith v. Barry, 502 U.S. 244,
248 (1992). We have likewise taken the position that where a district court order intended to be
challenged before us was not properly designated in the notice of appeal, we lacked jurisdiction to
review it. See, e.g., JGR, Inc. v. Thomasville Furniture Indus., Inc., 550 F.3d 529, 531 (6th Cir.
2008). So, at first blush, BTB’s seeming mistake could deprive us of jurisdiction to hear this entire
appeal save for the issues relating to the preliminary injunction order, which we previously
resolved.
The Appellate Rules, however, were recently amended. See generally Fed. R. App. P. 3,
Advisory Committee Notes, 2021 Amendments. Appellate Rule 3(c)(7) now provides that “[a]n
appeal must not be dismissed for . . . failure to properly designate the judgment if the notice of
appeal was filed after entry of the judgment and designates an order that merged into that
judgment.” Fed. R. App. P. 3(c)(7). We take this provision to mean what it says. The fact that
BTB’s notice designated the earlier order denying its motion for a preliminary injunction—and
not the final judgment—does not deprive us of jurisdiction over the final judgment. See also
Christian Separatist Church Soc’y of Ohio v. Ohio Dep’t of Rehab. & Corr., No. 17-4213, 2018
WL 6131852, at *1 (6th Cir. July 12, 2018) (mem.) (“When the district court entered a final
7 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
judgment, the interlocutory order denying injunctive relief was merged into the final judgment.”).
This interpretation, we note, comports with the Second Circuit’s similar understanding of the
amended appellate rules—namely, that an appeals court retains jurisdiction in this context despite
a party’s failure to correctly identify the appealed order. See Brock v. City of New York, No. 23-
1148, 2024 WL 3493495, at *1 (2d Cir. July 22, 2024) (mem.) (applying Rule 3(c)(7) and
exercising jurisdiction when notice of appeal designated an earlier order rather than the final
judgment); Killoran v. Westhampton Beach UFSD, No. 21-2647, 2023 WL 4503151, at *1 n.2 (2d
Cir. July 13, 2023) (mem.) (similar). And it also aligns with our recent holding that a notice of
appeal does not limit our jurisdiction to the orders designated therein unless an appellant includes
express language stating their appeal is so limited. James v. Norfolk S. Ry. Co., No. 24-3275, 2025
WL 2049553, at *6 (6th Cir. July 22, 2025) (interpreting and applying the recently amended
Appellate Rule 3(c)(6)).
In light of the rule’s recent change, in short, BTB’s errant notice of appeal does not limit
the scope of its appeal.
III.
We review a district court’s grant of summary judgment with fresh eyes, viewing the
evidence and drawing all reasonable inferences in the nonmovant’s favor. Hall v. Navarre, 118
F.4th 749, 756 (6th Cir. 2024). Summary judgment is warranted only if “the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(a).
A. Fair Housing Act as Amended and Americans with Disabilities Act. Begin with BTB’s
first claim: that the County’s zoning ordinance facially discriminates against the handicapped, in
violation of the FHAA and ADA. Both statutes prohibit housing-related discrimination against
8 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
individuals on the basis of handicap or disability, including against former drug users seeking
rehabilitation. 42 U.S.C. § 3604(f)(1) id. § 12132; id. § 12114(b)(2) (clarifying that handicapped
individuals may include former drug users “participating in a supervised rehabilitation program”).
And these prohibitions, we have said, apply to municipal zoning laws. See Smith & Lee Assocs.,
Inc. v. City of Taylor, 13 F.3d 920, 924 (6th Cir. 1993) (FHAA applies to zoning); Anderson v.
City of Blue Ash, 798 F.3d 338, 356 (6th Cir. 2015) (same for ADA). Along the same lines, we
have assumed (without deciding) that the same framework applies to claims under each statute.
See Jones v. City of Akron, No. 19-3286, 2020 U.S. App. LEXIS 35650, at *5 (6th Cir. Nov. 12,
2020) (mem.) (collecting cases).
Standing. Before taking up the merits of BTB’s claims, we encounter another jurisdictional
issue, namely, BTB’s standing to pursue each FHAA and ADA claim and each form of relief it
seeks. See TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021). For the FHAA and ADA
claims, BTB, recall, seeks declaratory relief, monetary damages, and a permanent injunction
enjoining the County from enforcing the zoning ordinance. In effect, BTB aims to operate its
residential rehab program in the RS-1 and R-2 zones in the County. In district court, the County
argued that BTB lacked standing to challenge its exclusion from the R-2 zone. The district court
seemingly agreed with the County, addressing BTB’s claims related to the RS-1 zone only. BTB
claims this was error, asserting that its challenge properly covers both residential zones. Appellant
Br. 19–21.
We disagree with BTB. Standing to bring a suit, it is well understood, is an “irreducible
constitutional minimum.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To meet this
requirement, BTB must satisfy standing’s three well known elements. Id. at 560–61. That is, BTB
must show that it has suffered (or will suffer) an injury in fact that is concrete, particularized, and
9 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
actual or imminent; that this injury is caused by the County’s conduct; and that this injury will be
redressed by a favorable court decision. Id.
BTB fails at the outset, as it cannot demonstrate that it suffered an “actual” injury by being
excluded from the R-2 zone. Id. BTB, remember, sought to purchase a property in the RS-1 zone
only. And once it contracted to purchase the Riley Creek Property, it applied for a zoning variance
in just the RS-1 zone. BTB has never identified any property that suited its needs in the R-2 zone,
nor did BTB seek to have the Riley Creek Property rezoned to satisfy R-2’s requirements. As a
result, BTB lacks any “past injury” from the R-2 ordinance that might suffice to obtain backward-
looking relief in the form of damages. Likewise, no imminent future injury exists to allow the
other types of forward-looking equitable remedies BTB seeks. Bannister v. Knox County Bd. of
Educ., 49 F.4th 1000, 1017 (6th Cir. 2022).
BTB similarly lacks standing to seek any declaratory or injunctive relief as to either the
RS-1 or R-2 zone. While BTB claims that it “wants to return to [the] County,” Appellant Br. 15,
what we interpret to mean potentially in either an RS-1 or R-2 zone, that bare assertion fails to
meet standing’s injury requirement to obtain equitable relief to challenge either the County’s RS-
1 or R-2 zoning rules. See Bannister, 49 F.4th at 1017 (requiring an imminent injury to have
standing to obtain forward-looking equitable remedies). Consider here the Supreme Court’s
decision in Lujan. The plaintiffs there challenged a regulation that limited the scope of the
Endangered Species Act, claiming that U.S.-funded projects abroad threatened endangered species
they wished to observe. Id. at 557–58. That was not enough to demonstrate standing. Id. at 562.
Why? Because the plaintiffs’ asserted injuries were speculative, and thus lacked the concreteness
and imminence required by Article III. Id. at 564. As the Supreme Court explained, a professed
“intent to return,” “without any description of concrete plans, or . . . even any specification
10 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
of when the some day will be—do[es] not support a finding of the actual or imminent injury”
needed. Id. (citation modified). BTB runs into the same issue here. While it claims it would move
back to the County, BTB’s purported plan to operate in an RS-1 or R-2 zone is speculative, as it
has identified no property in either zone that might house its rehabilitation center. See Oral Arg.
at 5:10.
BTB counters that it need not engage in a fruitless exercise before obtaining injunctive
relief. In its view, it is pointless to attempt to purchase a new site when the County will inevitably
deny its zoning variance. Fair enough. But we do not require that BTB contract to buy a new
home. We do ask, however, that BTB describe any “concrete plans” it has in the future that will
necessitate a zoning variance, Lujan, 504 U.S. at 564, such as identifying properties in the RS-1
or R-2 zone that it could acquire in the near future, cf. Tenn. Conf. of NAACP v. Lee, 139 F.4th
557, 567 (6th Cir. 2025) (noting there was no imminent injury where the NAACP “did not identify
any specific individuals . . . whom it planned to help” but only “suggest[ed] it may help such an
individual at some point down the road”). This is what imminence requires. At bottom, because
BTB currently has only “some day intentions” to return to the County, it has failed to show that
any exclusion from a zone in the County amounts to the “imminent injury” required for it to have
standing to obtain equitable relief. Lujan, 504 U.S. at 564.
On the other hand, we agree that BTB has standing to pursue damages stemming from its
exclusion from the RS-1 zone and the denial of its proposed amendment to that zone. See
Bannister, 49 F.4th at 1017. As mentioned, BTB attempted to purchase property in an RS-1 zone.
And when BTB learned that the County’s zoning ordinance did not allow it to operate in an RS-1
zone, BTB sought both a zoning amendment and special use exception from the County. The
County’s denial of both efforts foreclosed BTB’s ability to acquire the property and forced it to
11 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
relocate to another county. This loss of a definite economic opportunity is a classic example of
the kind of injury that satisfies Article III’s “actual” injury requirement. See, e.g., TransUnion,
141 S. Ct. at 2204 (explaining that “traditional tangible harms, such as physical harms and
monetary harms” qualify as an injury in fact under Article III).
Facial Discrimination. With our focus on the claims seeking damages for BTB’s exclusion
from the RS-1 zone, we turn to the merits. Recall that the district court granted summary judgment
for the County on BTB’s claim that the RS-1 zoning ordinance facially discriminated against the
handicapped but denied summary judgment on the question of reasonable accommodation.
Because BTB does not challenge the jury’s findings on the reasonable accommodation claim, that
leaves only the first claim for us to address.
As a general matter, the FHAA and ADA prohibit “facially discriminatory actions,” which
constitute a form of intentional discrimination or disparate treatment. Larkin v. Mich. Dep’t of
Soc. Servs., 89 F.3d 285, 289 (6th Cir. 1996); see also Cmty. Servs., Inc. v. Wind Gap Mun. Auth.,
421 F.3d 170, 177 (3d Cir. 2005) (discussing facially discriminatory ordinances as a form of
intentional discrimination under the FHAA). In the setting of a group home like the one operated
by BTB, a statute facially discriminates when it “single[s] out . . . group homes for the
handicapped” for different or worse treatment than comparable uses because of their residents’
handicap. Larkin, 89 F.3d at 290 (citing Smith & Lee Assocs., 13 F.3d at 930); Cmty. Servs., Inc.,
421 F.3d at 178 (explaining that “the most fundamental element of [a facial discrimination] claim
is that [the] plaintiff must demonstrate that [the] defendant’s alleged discrimination was ‘because
of a handicap’” (quoting 42 U.S.C. § 3604(f)(2))).
Measured by these standards, the County’s zoning rules for RS-1 zones do not facially
discriminate against the handicapped. Begin with the text of the RS-1 ordinance. RS-1 zones “are
12 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
designed to provide suitable areas for residential development consisting of single-family
dwellings and other structures that are accessory thereto within areas that are suburban in nature.”
Zoning Resolution 2006-39, R. 58-6, PageID 1026. In line with that aim, the only “permitted”
residential structures are “[s]ingle family dwellings,” with duplexes allowed “by special
exception.” Id. at PageID 1026–27. The regulation, notably, contains no mention of the
handicapped. Rather, the County employs a neutral distinction between family homes and other
residential uses. In that way, the limitation to single family homes and duplexes places BTB’s
rehab facility in the same position as any other type of non-family residential use. Said differently,
BTB’s exclusion from the RS-1 zones is not “because of” its residents’ handicap.
Nor does the County allow any uses in an RS-1 zone analogous to BTB’s intended use.
Recall that RS-1 zones permit only “single-family dwellings” as of right, and duplexes by special
exception. No other residential uses—whether tied to handicapped persons or not—are allowed.
As we have explained before, where “[r]esidential substance abuse service facilities [are] treated
the same as many other residential uses,” a local ordinance is not facially discriminatory. Get Back
Up, Inc. v. City of Detroit, 606 F. App’x 792, 796 (6th Cir. 2015) (per curiam). Confirming as
much here is the fact that “[t]here is no indication that disabled status, rather than, for example,
the building size or the commercial character of the development, is the dispositive trait, singled
out for different treatment.” 431 E. Palisade Ave. Real Est., LLC v. City of Englewood, 977 F.3d
277, 287–88 (3d Cir. 2020). In the end, BTB cannot show that its exclusion from the RS-1 zone
was “because of” its residents’ handicap. See 42 U.S.C. § 3604(f)(1).
Seeing things otherwise, BTB responds that the County’s zoning rules resemble those we
held to be unlawful in MX Group, Inc. v. City of Covington, 293 F.3d 326 (6th Cir. 2002), and
Larkin v. Michigan Department of Social Services, 89 F.3d 285 (6th Cir. 1996). But in those cases,
13 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
unlike here, handicapped individuals were singled out for adverse treatment. Start with MX Group,
where a methadone clinic challenged the City of Covington’s amendment to its zoning code that
limited the number of “addiction treatment facilities” to one facility for every 20,000 persons in
the city. MX Grp., 293 F.3d at 330–31. That limitation conspicuously did not apply to any other
type of group facility and, in practice “completely foreclosed” the clinic’s (or any similar
operation’s) opening. Id. By singling out such facilities for this unique burden, the ordinance
facially discriminated against the clinics, and, as we noted, had the effect of imposing a “blanket
prohibition” on any new clinic across “the entire city.” Id. at 345. But the zoning ordinance for
RS-1 zones here contains no similar facial discrimination. Cf. Quality of Life, Corp. v. City of
Margate, 805 F. App’x 762, 769 (11th Cir. 2020) (distinguishing facts of MX Group from an
ordinance that barred drug-detox facilities in residential zones but allowed them in community-
facility zones). Similarly, in Larkin, the challenged statute explicitly imposed spacing and notice
requirements on foster care facilities only. Larkin, 89 F.3d at 289–90. That arrangement, “by [its]
very terms,” applied only to “facilities which will house the disabled,” and “not to other living
arrangements.” Id. at 290. By “singl[ing] out for regulation group homes for the handicapped,”
the ordinance, we explained, was “facially discriminatory.” Id. Here, by contrast, the County’s
RS-1 zoning has not imposed such a wholesale ban or special burden on substance abuse treatment
centers. In short, BTB cannot survive summary judgment on its claim that the County’s RS-1
zoning rules are facially discriminatory. (Our conclusion necessarily forecloses two of BTB’s
subsidiary arguments—one, that the district court never evaluated a claim of facial discrimination,
and two, that the district court erred in concluding that the County is immune from punitive
damages for any facial discrimination.)
14 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
Claims Allowed at Trial. BTB raises one last challenge to the district court’s FHAA and
ADA holdings. Namely, it asserts that it should have been able to pursue two theories at trial:
one, that the County “applied its zoning ordinance in a discriminatory manner,” and two, that it
“failed to make a reasonable accommodation for [BTB] under the FHA[A] and ADA.” The district
court allowed just the latter claim to proceed, characterizing the former as an abandoned disparate
impact claim. On appeal, BTB argues that it intended to pursue and adequately preserved a claim
regarding as-applied disparate treatment—not impact.
Whether we classify the claim as one about disparate treatment or disparate impact makes
no difference, as BTB failed to preserve either one. When it moved for a preliminary injunction,
BTB gave just two reasons why it was likely to succeed on the merits of its FHAA and ADA
claims: “The County’s zoning resolution is facially discriminatory,” and the County “has denied
Plaintiff a reasonable accommodation.” Pl.’s Mem. Supp. Mot. Prelim. Inj., R. 3-1, PageID 170,
173 (emphasis added). BTB did the same when appealing the district court’s denial of the
preliminary injunction. Even more importantly, the County moved for summary judgment on all
of BTB’s claims. At this point, BTB needed to show that a genuine issue of material fact existed
on all claims that it pursued. In response, BTB “ask[ed] th[e district] court to (1) declare the
County’s facially discriminatory ordinance illegal . . . and (2) find that the County denied [a]
reasonable accommodation.” Pl.’s Resp. Opp’n Def.’s Mot. Summ. J., R. 62, PageID 1494; see
also Pl.’s Reply Supp. Mot. Summ. J., R. 67, PageID 1616, 1619 (BTB asserting that it was
“entitled to judgment on its” FHAA and ADA claims because the resolution is “facially
discriminatory” and the County denied it “a reasonable accommodation” (citation modified)). At
no point did BTB assert that it had created a genuine issue of material fact on a distinct as-applied
disparate treatment or disparate impact claim. In sum, by failing to address its purported claim “in
15 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
response to a motion for summary judgment,” BTB abandoned the claim. Brown v. VHS of Mich.,
Inc., 545 F. App’x 368, 372 (6th Cir. 2013).
B. Religious Land Use and Institutionalized Persons Act. The district court granted
summary judgment to the County on BTB’s claim that the County violated RLUIPA by denying
its request for a zoning variance. RLUIPA forbids state and local governments from imposing or
implementing zoning in a way “that imposes a substantial burden on the religious exercise of a
person, including a religious assembly or institution” unless the ordinance is the “least restrictive
means of furthering [a] compelling governmental interest.” 42 U.S.C. § 2000cc(a)(1). At issue
here is whether BTB could show that the County’s zoning ordinance imposes a substantial burden
on BTB’s religious exercise.
BTB claims “that the Riley Creek Property provided an ideal home for BTB’s ministry,”
large enough to house the program in one location and situated in an ideal residential environment.
Appellant Br. 31. But by denying BTB’s proposed amendment to the RS-1 zoning ordinance, in
BTB’s telling, the County made it nearly impossible for BTB to find a suitable and affordable
alternative, forcing BTB to relocate to a neighboring county and buy a less ideal property, thereby
imposing an impermissible substantial burden on its religious exercise.
As RLUIPA’s text suggests, not all burdens qualify as “substantial.” See Living Water
Church of God v. Charter Township of Meridian, 258 F. App’x 729, 736–37 (6th Cir. 2007) (noting
that the term cannot be read out of the statute). In addressing what burdens cross that threshold,
we have avoided setting a “bright line test” for what amounts to a substantial burden. Livingston
Christian Schs. v. Genoa Charter Township, 858 F.3d 996, 1002 (6th Cir. 2017); Living Water,
258 F. App’x at 737. Instead, we have considered various factors in making that assessment,
including whether (1) the burden is more than a “mere inconvenience,” Living Water, 258 F. App’x
16 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
at 739, (2) the organization has been prevented from carrying out its “core religious functions,”
Livingston, 858 F.3d at 1006, (3) there is a suitable and readily available alternative property, id.,
and (4) the organization suffered from a substantial delay, uncertainty, or expense in waiting for a
zoning variance, id.
Applying those factors here, BTB fails to show a substantial burden at summary judgment.
Start with BTB’s stated desire to expand and consolidate its resident housing. While a facility’s
inability to expand may amount to a substantial burden, such claims require proof that the current
facility is so inadequate as to substantially burden the plaintiff’s ministry. See, e.g., Westchester
Day Sch. v. Village of Mamaroneck, 504 F.3d 338, 352–53 (2d Cir. 2007). BTB offers no such
evidence. In fact, it concedes it was not at capacity. See Prelim. Inj. Hr’g Tr., R. 39, PageID 530.
And while it speculates that capacity issues could arise in the future, we evaluate substantial
burdens based on present circumstances—not hypothetical future ones. Living Water, 258 F.
App’x at 738.
As for BTB’s desire to be in a single home to aid scheduling and transportation, here too
BTB cannot show that the County’s zoning restrictions amount to a substantial burden on BTB’s
exercise of religion. BTB’s claim mirrors one rejected in Living Water. There, a Christian school
argued that it needed to build a gymnasium onsite to avoid transporting students elsewhere for
physical education. Id. at 738. The panel acknowledged “that it would be more convenient to
have [a gym] onsite” as the school otherwise had to take students offsite for recreation. Id. at 739.
But the panel deemed this only a “mere inconvenience,” as the school could still carry out its
religious mission. Id. So too here. While BTB would prefer to operate from a single site, nothing
in the record suggests that its previous multi-property setup impaired its ability to carry out its core
religious mission.
17 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
Finally, consider BTB’s claim that it needs to be in a residential district. According to
BTB, numerous studies confirm that “recovery centers thrive in rural or residential areas.”
Appellant Br. 33; see also McCall Dep., R. 58-2, PageID 876. That said, BTB offers no specific
proof that an inability to relocate to such a site in the County substantially harmed its ministry.
See Livingston, 858 F.3d at 1007–08 (explaining that no substantial burden existed where a
religious school complained of dwindling enrollment but failed to provide evidence that was
caused by a failure to relocate). Nothing in the record shows that BTB had to curtail its ministry
as a result of not being located in a residential district. To the contrary, the record reveals that
BTB achieved an extraordinary success rate of 95% and went 3.5 years without a student failing a
drug test. Prelim. Inj. Hr’g Tr., R. 39, PageID 517, 546. While the inability to conduct operations
in a more conducive environment is fairly understood as a burden, the evidence does not reveal a
substantial burden. Instead, the level of success BTB is currently experiencing indicates that it is
more a “mere inconvenience” on its religion-infused efforts. Livingston, 858 F.3d at 1003 (quoting
Living Water, 258 F. App’x at 739).
Seeing things otherwise, BTB counters that its case is unique because it was essentially
“forced to relocate” outside the County. Appellant Br. 12 (emphasis omitted). On this point, BTB
alleges in particular that (1) it was relegated to one of the smallest and most expensive zone of the
County; (2) it would be forced to have a residential treatment center in a commercial area near
liquor stores and bars, undermining its mission; and (3) the process caused substantial delay,
uncertainty, and expense. For both legal and factual reasons, these arguments do not move the
ball.
Begin with BTB’s relocation argument. An effectively identical argument was rejected in
Livingston. There, we held that a religious institution’s inability to locate suitable facilities within
18 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
a town’s borders did not constitute a substantial burden on the institution’s exercise of religion.
Livingston, 858 F.3d at 1011. Critical to our analysis was the presence of an alternative facility
just outside of town, id., much like the Bedford County Property here, which sits only a four-mile
drive away from the Riley Creek Property, Google Maps Directions, R. 59-10, PageID 1449. And,
like the plaintiff in Livingston, BTB’s reasons for wanting to return to the County seem unrelated
to its religious mission. Compare Livingston, 858 F.3d at 1011–12 (observing the school’s
religious mission was not directly tied to location in one township), with Bell Decl., R. 62-1,
PageID 1515–16 (citing community ties and donor proximity as BTB’s reasons for wanting to
return). Instead, that desire appears to be driven more by preference than a religious need.
Nor does BTB’s argument about the character and cost of the C-2 zone carry the day. As
discussed, that the County’s zoning ordinances require BTB to operate in C-2’s commercial zone
rather than a residential one does not amount to a substantial burden. Again, there is no evidence
that BTB’s ministry was substantially burdened when it initially rented in a residential location
within the city. Rather, the record seems to reflect that BTB’s work was unimpeded there. And
while C-2 may be the smallest and most expensive zone, cost alone is not enough to establish a
substantial burden when, as here, the desired location relates to preference rather than religious
need. See Love Church v. City of Evanston, 896 F.2d 1082, 1086 (7th Cir. 1990) (“[W]hatever
specific difficulties [plaintiff] claims to have encountered, they are the same ones that face all [land
users]. The harsh reality of the marketplace sometimes dictates that certain facilities are not
available to those who desire them.”).
Lastly, BTB suggests that the County’s zoning amendment process imposed impermissible
delay and cost on BTB. On this point, BTB invokes Catholic Healthcare International, Inc. v.
Genoa Charter Township, 82 F.4th 442 (6th Cir. 2023), where we found a substantial burden on
19 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
religious exercise because the plaintiffs, due to lengthy administrative zoning proceedings, were
“unable to place the[ir] religious displays on their prayer trail” for two years. Id. at 449. BTB, on
the other hand, continued with its successful ministry, was never forced to suspend operations, and
was able to locate an alternative location. See also Living Water, 258 F. App’x at 739 (no
substantial burden when church needed to reapply for a permit and spend time and money to
redraw plans but was still able to carry out its religious mission).
We do not doubt that, as BTB emphasizes, it would have been easier to run its program in
a residential area in the County. But without more, this inconvenience falls short of meeting
RLUIPA’s requirement.
C. Equal Protection. Finally, BTB claims that the County violated the Fourteenth
Amendment’s Equal Protection Clause by treating BTB’s proposed property use differently than
similarly situated RS-1 uses. The Equal Protection Clause prohibits “any State” from “deny[ing]
to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend XIV, §
1. This well-trodden language safeguards against government action that “burdens a fundamental
right, targets a suspect class, or has no rational basis.” Ctr. for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (citation modified). Here, BTB pursues a “class of
one” theory, which requires it to show that (1) the County treated it differently than similarly
situated peers, and (2) there was no rational basis for the different treatment. Engquist v. Or. Dep’t
of Agric., 553 U.S. 591, 601–02 (2008).
BTB’s claim stumbles on both prongs. As to the first, BTB must identify similarly situated
comparators that the County intentionally treated different. Green Genie, Inc. v. City of Detroit,
63 F.4th 521, 527 (6th Cir. 2023). On this front, BTB does not identify a comparator group home
that sought either a zoning amendment or special exception to operate in the RS-1 zone. Rather,
20 No. 24-5538, Be the Bush Recovery Ministries v. Coffee Cnty., Tenn.
BTB alleges that it is being treated differently from similar generally permitted (or allowed by
special exception) RS-1 uses such as lodges, camps, and duplexes. Assuming these general
categories can serve as comparators, but see id. at 528 (considering as comparators those with
“relevant similarity,” meaning the same type of facility that went through the same zoning
process), BTB is not “similarly situated.” Unlike a lodge or camp, which caters to short term
visitors, BTB’s participants must commit to at least a year-long residential program. Nor does
BTB simply provide small housing like a duplex. Instead, BTB serves as a treatment facility for
nearly 20 patients. These stark differences mean the various groups “are dissimilar in some
material respect.” Green Genie, 63 F.4th at 529 (citation modified). And even if BTB could get
past prong one, BTB would still need to show that the County’s action either lacks any rational
basis that might support its decision or was motivated by animus or ill will. Warren v. City of
Athens, 411 F.3d 697, 711 (6th Cir. 2005). BTB cannot do so. It is not difficult to see a rational
basis underlying the County’s RS-1 zoning classifications, in that they seemingly are tied to
promoting public health and safety, as well as enhancing its residential areas. And, as already
discussed, the ordinance is facially neutral and lacks any indication of improper animus.
Accordingly, BTB’s equal protection claim fails.
* * * * *
For the reasons just explained, we affirm the district court.