John K. Lohrstorfer | Bauckham, Sparks, Lohrstorfer, Thall & Seeber, P.C. | 458 West South Street | Kalamazoo, MI 49007-4621

Michigan Townships Association (MTA)

This has been before the Court of Appeals now three times. This
Supreme Court, in lieu of their granting leave vacated Shepherd and remanded it back for reconsideration in light of Greater Bible Way, supra. This court gave them specific instructions regarding whether the denial of the variance imposed a substantial burden on religious exercise and whether it was acting contrary to Shepherd Montessori’s religious beliefs. It further directed that a mere inconvenience or irritation would not constitute a substantial burden in their practice of religion. Shepherd may have to locate a school in a zone zoned for schools but it would not constitute a violation of their
religious beliefs. The Court of Appeals in Shepherd III agreed with the Supreme Court’s direction and accepted the principles that were enunciated but they proceeded to act against those principles when they found there was a violation of the equal protectionclaim. The Court of Appeals, instead of using a rational basis test, used a strict scrutiny which went to the validity of the ordinance they already found that the ordinance
was valid. Secondly, after citing the proper principles in looking at an equal protection claim as set forth in their own cases of Shepherd I, Shepherd II they, instead of looking at whether the religious entity was similarly situated as a secular entity decided to look at comparing a day school with primary school. The issue wasn’t how similar the two could be, but whether or not they belonged to the same zone and they had already
ruled they could be in different zones. Nevertheless, they found that Shepherd Montessori was treated differently than a secular institution. There were no affidavits or evidence presented to show that secular entities were able to locate in areas not zoned
for schools or that they had treated churches or religious entities different on this school issue.

The Supreme Court reversed the Court of Appeals decision on the equal protection claim and reinstated the trial court’s ruling of summary disposition in favor of the township.