The Application of RLUIPA to Land Use Regulation
By Steven M. Silverberg1
There has been a history of uneven enforcement and even outright discrimination against religious uses and uses by various religious groups through enforcement of land use regulations. In an effort to eliminate such discrimination the United States Congress adopted the Religious Freedom Restoration Act. 2
In 1997, the United States Supreme Court in City of Boerne v. Flores3, held that the Religious Freedom Restoration Act was unconstitutional. Thereafter, in late 2000, Congress adopted the Religious Land Use and Institutionalized Persons Act (RLUIPA) in an attempt to respond to the concerns raised by the Supreme Court, but to still provide the protections for religious uses that Congress perceived were required. 4
As a result of the adoption of RLUIPA, a virtual cottage industry has sprung up in the United States resulting in a large number of law suits claiming that, in those cases, the denial of land use permits substantially burdens religious exercise in violation of RLUIPA.5 The suits also threaten the financial stability of a number of small municipalities as the broad relief allowed under RLUIPA and 42 U.S.C. S1985 is used to claim, among other things, large attorney fee awards.
While portions of RLUIPA relate to prisoners' rights, the section of RLUIPA that most directly impacts local government provides, in part, that government may not "impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person. . .," unless the government demonstrates that the burden imposed is, "in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest."6
Broadly, the application of RLUIPA covers three categories of government action: (1) if a "substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability"; (2) the substantial burden affects commerce; or (3) the substantial burden is imposed by "a land use regulation or system of land use regulations. . ." when the government has in place "formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved."7
As has been noted,8 the three categories implicate, respectively, the Spending Clause (U.S. Const. art. I, sec. 8, cl.1), the Commerce Clause (U.S. Const. art. I, sec. 8, cl.3) and the Enforcement Clause (U.S. Const. amend. XIV sec. 5).
RLUIPA further provides that implementation of a land use regulation in a manner which discriminates, excludes, limits or otherwise treats a religious institution or assembly on "less than equal terms with a nonreligious assembly or institution" would be an action that substantially burdens religious exercise.9 The burden shifts to the government to defend the regulation once a religious institution carries its burden of establishing that a regulation substantially burdens the exercise of religion. Further, under the statute religious exercise is a vague enough concept to offer broad opportunities for claims of infringement as the statute provides that religious exercise "includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief." 10
While not intended to be an exhaustive discussion of RLUIPA cases, there are several recent decisions of interest.
In Dilaura v. Land Development L.L.C.,11 the Sixth Circuit upheld the District Court finding of an RLUIPA violation involving an attempt to obtain approval for a religious retreat. In that case, the plaintiff sought variances to operate a religious retreat which would be used to carry out the organization's practice of contemplative prayer. The Town argued, among other things, that RLUIPA did not apply or that the issue was moot as a permit had been issued to operate a bed and breakfast. The Circuit Court agreed with the District Court that the denial of the variances constituted a RLUIPA violation. The Circuit Court also agreed that the issuance of the bed and breakfast approval did not render the claim moot.
The Court noted that there was a substantial difference between the bed and breakfast permitted and the operation sought by the plaintiff. It specifically noted that the requirement of the bed and breakfast regulations that "guests" pay a fee is a substantial burden on religious exercise. Further, the denial of the right to serve alcoholic beverages precluded the use of communion wine and the inability to serve lunch and dinner prevented overnight stays. Thus, the Court concluded that the denial of the variance "effectively barred" the property from being used for the exercise of religion and therefore, constituted a substantial burden on the exercise of religion.
Likewise, the Seventh Circuit found a RLUIPA violation in the case STS. Constantine and Helen Greek Orthodox Church v City of New Berlin.12 There the court found a substantial burden on the Church when the City denied a planned unit development ("PUD") zone for church use in order to operate the Church property on 14 of 40 acres of land purchased for that purpose. Initially the Church had applied to rezone the property from residential to institutional. However, the City Planning Commission expressed concern that if rezoned to institutional use the property could later be converted to other, apparently less desirable, uses.
In order to address the concerns raised by the City, the Church proposed creating a PUD overlay zone on the property that would be limited to church related uses. The City's Director of Planning recommended the change but the Planning Commission recommended denial and the City Council voted down the proposal.
The stated reason for denying the proposal was a concern that if the property were sold the purchaser would not be bound by the zoning restriction. The Court noted that this interpretation of the effect of a zoning amendment was simply wrong and the PUD designation would restrict the use of the property irrespective of ownership.
However, the Court went beyond the simple analysis of the effect of zoning ordinances. It noted that the City had suggested as an alternative that the Church apply for a conditional use permit. But the permit would lapse within a year of issuance if construction did not commence. The Court found it was not feasible for the Church to raise sufficient funds through donations and commence construction within one year. The Court also rejected another suggested alternative and found that the actions of the City imposed a substantial burden on the Church which not only warranted the reversal of the summary judgment granted to the City but remanded the matter with instructions to the District Court to grant the Plaintiffs relief with a 90 day stay to give the City an opportunity to negotiate a resolution with the Church.
In Westchester Day School v. Village of Mamaroneck,13 and Murphy v. New Milford Zoning Commission,14 the Second Circuit, appears to be demonstrating some concern over the potential breadth of RLUIPA, but has not yet addressed the issue directly.
In Westchester Day School, the Village of Mamaroneck Zoning Board of Appeals denied a special permit to expand a religious school use that had existed for over fifty years. The Zoning Board of Appeals found that the impacts of the proposal would overburden the area. In challenging the denial, the Day School argued that under RLUIPA the denial of the special permit was a substantial burden on religious exercise. The District Court granted summary judgment to the Day School. The Circuit Court vacated the judgment and remanded the matter to the District Court finding that the District Court should not have granted summary judgment on the record. The Circuit Court found that the denial was not absolutely final and read in the decision of the Zoning Board of Appeals the possibility of approval of an amended application. While the basis of the decision was largely limited to a discussion of the procedural aspects of summary judgment motions and when the granting of summary judgment is appropriate, the Court made a strong statement of concern over the District Court's interpretation of the application of RLUIPA.
The Court stated that the Day School had both religious and secular components to its program. It noted that the District Court's decision did not find any difference, in assessing a burden on religious exercise, between the uses that were to be made for secular and religious purposes. Further, it found that the District Court reasoned that any improvement in school facilities was protected by RLUIPA. The Circuit Court then went on to suggest that by the reasoning proposed by the District Court a secular school seeking to expand a gymnasium and a religious school seeking to expand a gymnasium might be treated differently.
The Circuit Court went on to note: "[b]ecause the issue will arise in the court's future consideration of the case, we express doubt whether the protections of RLUIPA can be as broad as that. As a legislative accommodation of religion, RLUIPA occupies a treacherous narrow zone between the Free Exercise Clause . . . and the Establishment Clause . . . ."15
In the Murphy case, the Second Circuit decided a RLUIPA case on procedural grounds unrelated to the RLUIPA claim. In that case, a cease and desist order was issued directing the Murphys to stop holding Sunday prayer group meetings in their home in violation of local zoning. The decision discussed, in great detail, the jurisprudence of the ripeness doctrine as it applies to land use matters. The Court concluded that as the Murphys had never appealed the cease and desist order to the Zoning Board as is required the matter was not ripe for adjudication. It therefore vacated the permanent injunction issued by the District Court and remanded the matter with a direction that it be dismissed without prejudice to renew at such time as the matter is ripe for adjudication.
Thus far the majority of decisions on RLUIPA have given broad application to the statute. As a result a wide range of activities, at various levels of government, implicate potential RLUIPA violations. Therefore, any official having jurisdiction over land use must consider its implications. Zoning variances, site plan approval and special/conditional use permits are among the areas of regulation that most frequently create a forum for a claim of RLUIPA violations. Zoning ordinances must be drafted in a manner that does not discriminate against religious exercise. Municipalities must, among other things, be certain that permitting requirements do not single out religious institutions and practices and that such permitting requirements are related in some way to potential impacts of the use. The boards and commissions which implement and interpret zoning ordinances and other land use regulations must also be sensitive to the potential for a claim that the zoning ordinance has been implemented in a manner that discriminates against religious exercise.
1 Steven M. Silverberg is a partner in the White Plains, N.Y. law firm of Silverberg Zalantis LLP where he concentrates his practice in land use/zoning, municipal law and related litigation he can be reached by e-mail at firstname.lastname@example.org.
2 42 U.S.C.S 2000bb
3 521 U.S. 507, 117 S. Ct. 2157, 138 L.Ed.2d 624 (1997)
4 42 U.S.C. 2000cc, Pub.L. 106-274, Sept. 22, 2000, 114 Stat. 803
5 There are now about 75 reported land use decisions involving RLUIPA claims
6 42 U.S.C. 2000cc (a) (1) (A) and (B)
7 42 U.S.C. 2000cc (a)(2)
8 Grace United Methodist Church v. City of Cheyenne , 235 F.Supp.2d 1186 (D. Wyo.2002)
9 42 U.S.C. 2000c (b) (1), (2) and (3)
10 42 U.S.C 2000cc (5) (7) (A)
11 1112 Fed Appx. 445 (6th Cir, 2004)
12 2005 U.S. App Lexis 1552 (7th Cir. 2005)
13 386 F. 3d 183 (2d Cir. 2004)
14 402 F.3d 342 (2d Cir. 2005)
15 Westchester Day School supra at 189