RLUIPA UPDATE
February 21, 2003
Professor Alan C. Weinstein
Cleveland-Marshall College of Law
Cleveland State University
2121 Euclid Avenue B LB 230
Cleveland, Ohio 44115-2214
(216) 687-3758
alan.weinstein@law.csuohio.edu
Background
The
Religious Land Use & Institutionalized Person Act[1]
(RLUIPA) passed both houses of Congress in July of 2000 and was signed into law
by President Clinton on September 22nd. RLUIPA affects local land use regulations by setting forth a
general rule prohibiting a local government from imposing or implementing a
land use regulation in a manner that imposes a substantial burden on the
religious exercise of a person, including a religious assembly or institution,
unless the government can demonstrate that imposition of the burden is in
furtherance of a compelling governmental interest and is the least restrictive
means of furthering that compelling governmental interest.
RLUIPA
provides that this general rule applies in any case in which the substantial
burden is imposed from a program or activity that is federally-funded, the
substantial burden, or its removal, affects interstate commerce, or the
substantial burden is imposed as a result of land use regulations that permit
the government to make individualized decisions regarding the use of the
affected property.[2] In short, RLUIPA requires that local
government demonstrate both that it has a compelling governmental interest to
justify regulations that substantially burden free exercise and that it has
used the least restrictive means to advance that interest.
In addition,
RLUIPA contains provisions mandating that local land use regulations must:
grant Aequal treatment@ to a
religious assembly or institution;[3]
not discriminate against any assembly or institution on the basis of religion
or religious denomination;[4]
and not impose or implement a land use regulation that totally excludes
religious assemblies from a jurisdiction or unreasonably limits religious
assemblies, institutions, or structures within a jurisdiction.[5] Finally, RLUIPA also prescribes rules for
legal claims brought under the statute, including shifting the burden of
persuasion to local government once a plaintiff produces prima facie evidence
of a violation[6] and
providing for the recovery of attorneys= fees under 42 U.S.C. '1988.[7]
What Types of Challenges Have Been Brought
Under RLUIPA ?
In
the two and one-half years since RLUIPA was signed into law, about a dozen
RLUIPA challenges to local government land-use regulation of religious uses
have produced reported decisions;[8]
however, the author=s ongoing review of news and Internet sources
shows that approximately thirty additional cases have been filed and a similar
number of RLUIPA lawsuits threatened.[9] The claims asserted in these complaints and
threatened suits may be grouped into several distinct Aland use@ categories.
These include: the right to conduct worship services in one=s home;[10]
the right to establish a religious use in a residential zone[11]
or, conversely, in a non-residential zone;[12]
the right to establish a Asocial service@
religious use;[13]
challenging regulations that prohibit Areligious uses@ while
allowing similar uses;[14]
challenging an Aeffective ban@ on
religious uses,[15] and
challenging the denial of a development permit[16]
or an application submitted under an historic preservation ordinance.[17]
Have the Courts
Ruled on the Constitutionality of RLUIPA ?
The
only reported case to date to address the constitutionality of RLUIPA=s land use provisions upheld
the statute. In Freedom Baptist
Church of Delaware County v. Township of Middletown,[18]
the plaintiff church sued the Township after it denied the church=s application for a use
variance to allow worship services in a rented office building. The church claimed that the Township=s zoning ordinance: (1) did
not allow religious worship as a use permitted as-of-right at any location; (2)
imposed onerous minimum acreage and parking requirements where it permitted
religious worship as a conditional use; and (3) treated schools less
stringently than churches. The church
charged that these restrictions imposed a substantial burden on religious
exercise and also violated the RLUIPA provisions barring discrimination against
and imposing unreasonable limits on religious assemblies.[19]
The
Township filed a motion to dismiss, challenging the facial constitutionality of
RLUIPA on several grounds, including the Establishment and Free Exercise
Clauses of the First Amendment, the Commerce Clause, and the Equal Protection
Clause.[20]
District Court Judge Dalzell, after reviewing portions of the statute=s legislative record that
documented the Amassive evidence@ that local governments were
violating the Aright to assemble for
religious purposes@ and Aexamined Congress=s constitutional authority
to enact this bill in light of recent developments in Supreme Court federalism
doctrine,@ noted that the A[d]efendants= motion to dismiss requires
us to test whether Congress has, indeed, conformed this legislation with the
Supreme Court=s rapidly evolving
federalism jurisprudence of recent years.@[21]
In
short, the question that Judge Dalzell had to answer was whether Congress had
drafted RLUIPA with sufficient precision to avoid the constitutional
infirmities that had doomed its predecessor statute, the Religious Freedom
Restoration Act (RFRA).[22] RFRA was enacted in 1993 to reinstate the
strict scrutiny standard of review for religious freedom challenges that the
U.S. Supreme Court had abandoned in Employment
Division, Department of Human Resources of Oregon v. Smith.[23] In
the Smith Court's view, striking a balance between protection
of religious practices and the requirements imposed by laws of general
application was a task for legislatures, not courts.[24] But
the balance that Congress sought to achieve through RFRA did not survive the
Court=s scrutiny.
In City
of Boerne v. P.F. Flores,[25]
the Court ruled that Congress had violated basic principles inherent in the
separation of powers among the branches of the federal government when it
enacted RFRA. Congress had relied on
its broad grant of power under the enforcement clause of the Fourteenth
Amendment in enacting RFRA, but the Court ruled that Congress had exceeded that
authority by attempting to alter the constitutional right to free
exercise of religion, rather than enforce it.
RLUIPA,
like RFRA, seeks to negate the effect of the Smith decision and
reinstate the compelling interest test; however, it differs from RFRA in two
key elements. First, Congress relied on
its power under the Spending and Commerce Clauses, as well as the Fourteenth
Amendment, in enacting RLUIPA. Second,
as opposed to RFRA=s extensive reach, RLUIPA is limited to land
use regulation and prisoners= rights.
The question for Judge Dalzell was whether these changes were sufficient
to yield an outcome for RLUIPA different from RFRA=s.
Judge
Dalzell began his discussion of the defendants=
challenges to RLUIPA by rejecting their claim that RLUIPA violates the
Establishment Clause by showing favoritism towards religious organizations and
their members. Although acknowledging
that Justice Stevens= concurring opinion in Boerne had
expressed similar concerns about a near-parallel provision in RFRA,[26]
Judge Dalzell found persuasive the fact that Justice Stevens= view had not been adopted by the other Justices nor by any of
the post-Boerne appellate decisions which held that RFRA remains
effective as to the federal government.[27] While Judge Dalzell=s observations are accurate, several commentators have concluded
that RLUIPA, or the antecedent Religious Liberty Protection Act,[28]
raise serious Establishment Clause concerns.[29]
Judge
Dalzell turned next to whether Congress had exceeded its authority under the
Commerce Clause in enacting RLUIPA. In
a trio of recent cases, the U.S. Supreme Court has rejected Congressional
attempts to assert Commerce Clause authority for laws that extend the reach of
the federal government, either because the regulated activity did not
substantially affect interstate commerce[30]
or was fundamentally of local concern, such as land-use regulation.[31] The concern that lies at the core of the
Court=s rulings in these cases is
federalism: if not constrained in some principled way, Congress could assert
its authority A[t]o regulate Commerce
. . . among the several States,@ so broadly as Ato completely obliterate the Constitution=s distinctions between
national and local authority.@[32]
Judge
Dalzell distinguished the first two of these cases, Lopez and Morrison,
arguing that the non-economic, criminal nature of the activities at issue was
central to the Court=s decisions, and concluded
that Congress still retained broad power over economic activity, even where
zoning regulation was implicated, citing the Telecommunication Act of 1996[33]
as a recent example of legislation that governs local zoning Awithout (to date) any
judicially-recognized constitutional objection.@[34] He concluded that Ainsofar as state or local authorities >substantially burden= the economic activity of
religious organizations, Congress has ample authority to act under the Commerce
Clause,@ and upheld RLUIPA
subsection (a)(2)(B).[35]
Two omissions raise
questions about Judge Dalzell=s analysis of the Township=s Commerce Clause challenge.
First, Judge Dalzell failed to cite, let alone discuss the implications
of, the most recent, and arguably most relevant, of the Court=s decisions striking down a statute as exceeding Congressional
power under the Commerce Clause. In Solid
Waste Agency of Cook County v. U.S Army Corps of Engineers,[36]
the Court struck down a Corps' rule extending the definition of "navigable
waters" under the federal Clean Water Act to include intrastate waters
used as habitat by migratory birds, arguing that APermitting
respondents to claim federal jurisdiction over ponds and mudflats falling
within the >Migratory Bird Rule= would result in a significant impingement of the States'
traditional and primary power over land and water use.@[37]
RLUIPA clearly intrudes deeply and pervasively into this same area of
local governmental authority in this area.
And this concern is not lessened by Judge Dalzell=s claim that the intrusion of the Telecommunications Act into
local zoning decisions did not raise federalism questions: the Federal
Communications Commission, which administers the Act, has regulated
communications since 1934[38]
and the 1996 act preempts only those local zoning decisions that Aprohibit or have the effect of prohibiting@ the provision of personal wireless services,[39]
while explicitly preserving local zoning authority Aover decisions regarding the placement, construction, and
modification of personal wireless service facilities.@[40]
The
second omission in Judge Dalzell=s analysis is his failure to address two recent law
review articles,[41] cited
by the Township, that argue, based on the doctrines announced in Lopez
and Morrison, there are serious concerns as to whether Congress exceeded
its power under the Commerce Clause in enacting RLUIPA. Judge Dalzell simply dismissed any concerns
these articles raise, stating that the court is Ain no position to quibble with Congress=s ultimate judgment that the
low visibility of land regulation decisions may well have worked to undermine
the Free Exercise rights of religious organizations around the county.@[42] Given that these two articles are not alone in raising these
Commerce Clause concerns regarding RLUIPA,[43]
the arguments presented deserved a more extended analysis.
Judge
Dalzell next considered the Aindividualized assessments@ provision of RLUIPA.[44] After noting that Congress sought in this
provision Ato codify the individualized
assessments jurisprudence in Free Exercise cases,@[45] including the Court=s most recent Free Exercise
decisions, Smith[46]
and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,[47]
Judge Dalzell concluded that RLUIPA Afaithfully codifies the >individual assessments= jurisprudence@ announced by the Supreme
Court and Ais therefore not
constitutionally exceptional.@ [48]
Judge
Dalzell=s conclusion that RLUIPA=s Aindividualized assessments@ provision does nothing more
than codify the Court=s Aindividualized exemptions@ implicitly mirrors the
claims of RLUIPA=s advocates that A[m]ost determinations of
zoning matters that burden religious exercise do not fall under Smith=s category of >neutral laws of general
applicability,=@[49] and thus should be governed
by the Aindividualized assessments@ provision.[50]
Other commentators refute that claim, however, arguing that the Aindividualized assessments@ provision should only apply
when a land use regulation allows for ex-post facto Awholly discretionary
decisions by unelected officials who discriminate between religious and secular
reasons for granting individual exemptions from otherwise generally applicable
laws.@[51] This author=s reading of those portions
of Smith and Lukumi Babalu Aye that discuss the Aindividualized exemptions@ question suggests that the
claim of RLUIPA=s advocates that Amost@ land use decisions should
be governed by its Aindividualized assessments@ provision cannot be
sustained.[52] As will be seen later, the scope one accords
to the Aindividualized assessments@ provision of RLUIPA plays a
critical role in judging the statute=s constitutionality on federalism grounds.
Judge
Dalzell also upheld the RLUIPA provisions prohibiting: (1) discrimination
against religious institutions and assemblies, (2) the total exclusion of
religious assemblies from a jurisdiction, and (3) placing unreasonable limits
on religious assemblies, institutions or structures.[53] Judge Dalzell argued that the
anti-discrimination provisions do no more than Acodify existing Supreme Court decisions under
the Free Exercise and Establishment Clauses of the First Amendment as well as
under the Equal Protection Clause of the Fourteenth Amendment,@[54] while the bans on exclusion
of religious assemblies and placing unreasonable limits on religious
assemblies, institutions or structures each codified other Supreme Court
decisions.[55] The judge cited Schad v. Borough of Mount
Ephraim[56]
as establishing the rule that a local government cannot entirely exclude a type
of conduct that the First Amendment protects and City of Cleburne v.
Cleburne Living Center[57]
as prohibiting Aunreasonable limits@ on religious assemblies,
institutions or structures.
Finally,
Judge Dalzell disputed the Township=s claim that RLUIPA contains the same fatal flaw
that doomed RFRA, exceeding the remedial authority of Congress under ' 5 of the Fourteenth
Amendment because it attempts a substantive change in constitutional
protections. Judge Dalzell argued that
RLUIPA should not meet RFRA=s fate both because it was a less intrusive statute, dealing
only with religious exercise in the context of land use and institutionalized
persons, and because it does not attempt a substantive change in the law, doing
nothing more than codifying established rights. Thus, Judge Dalzell concluded that Aunlike RFRA, the RLUIPA does not >contradict[ ] vital
principles necessary to maintain separation of powers and the federal balance.=@[58] In Judge Dalzell=s view, while RLUIPA Aplaces a statutory thumb on the side of religious
exercise in zoning cases,@ because ARLUIPA is as narrowly drawn
as the Telecommunications Act was, we do not believe the new statute unduly
offends the federal structure.@[59]
Judge
Dalzell=s conclusion that RLUIPA
does not contain the same fatal defect as RFRA hinges on his having found no
constitutional flaws in the jurisdictional bases for the statute. As noted above, however, the analysis of the
Commerce Clause jurisdictional basis for RLUIPA espoused by Judge Dalzell had
previously been criticized by several commentators.[60] Further, his expansive view of the Aindividual assessments@ basis for RLUIPA
jurisdiction as reaching most zoning decisions is at odds with the judge=s claim that ARLUIPA is as narrowly drawn
as the Telecommunications Act@ and, more fundamentally, does not find support in the
discussion of that issue in Smith and Lukumi Babalu Aye. In short, much of Judge Dalzell=s analysis of the
constitutionality of RLUIPA has already been criticized in the law review
literature.
Finally,
all parties in this litigation agreed that RLUIPA=s constitutionality constitutes a Acontrolling question of law
as to which there is substantial ground for difference of opinion@ so that an immediate appeal
will likely Amaterially advance the
ultimate termination of litigation,@[61] which allowed Judge Dalzell
to certify the question of RLUIPA=s constitutionality to the Third Circuit as an
interlocutory appeal.[62]
The
Third Circuit will not have an opportunity to rule on this question,
however. On November 15, 2002, Judge
Dalzell approved a settlement[63]
between the parties in which the township agreed to change its zoning
ordinances to comply with RLUIPA and paid the church=s $10,000 legal expenses.[64] The settlement put to rest growing
speculation over how the Third Circuit might rule in Freedom Baptist in
light of the Circuit=s ruling, one month before the Freedom
Baptist settlement, on another religious land-use case, Congregation Kol
Ami v. Abington Township.[65]
Kol
Ami involved claims that
Abington Township=s zoning laws violated both the state and
federal constitutions as well as RLUIPA.
At issue was the Township=s denial of the Congregation=s request to covert a former convent for use as its
synagogue. The Congregation argued that
their rights to equal protection were denied because there was no rational
basis for the zoning decision prohibiting their proposed synagogue at this
location. The Township argued that the
proposed use as a synagogue would create unacceptably high levels of traffic,
noise and other neighborhood disruptions as compared with the property=s previous use as a convent. The Congregation prevailed on a
motion for summary judgment, the court finding that the Township=s zoning ordinance, as applied to the plaintiffs, was an
unconstitutional denial of equal protection.[66] Analyzing the Congregation=s claim based on the U.S. Supreme Court=s 1985 decision in City of Cleburne v. Cleburne Living
Center,[67]
the district court found that uses Asimilar@ to the proposed synagogue could be allowed
as a special exception in the zoning district at issue, and thus the Township=s refusal to allow the synagogue was irrational and a denial of
equal protection.
The
Third Circuit vacated the district court=s ruling and remanded for additional factual
findings as to the compatibility of the proposed synagogue with the surrounding
residential area, ruling that the district court had erred because it Aoverlooked the threshold step that must betaken under the City
of Cleburne analysis B the court must first conclude that the two
land uses are >similarly situated.=@[68]
What
intrigued observers about the Third Circuit=s
decision was not its disposition of the case, but rather the tone of the opinion,
authored by Chief Judge Becker, which strongly supported the right of local
land use regulators to make appropriate distinctions among land uses, including
the decision to exclude houses of worship from residential areas, the precise
issue in Kol Ami.[69] Since the equal protection claim in Kol
Ami was factually and conceptually similar to a discriminatory treatment
claim under RLUIPA, the tone of the Kol Ami opinion, and in particular
its strong language that land use was a local, not federal, concern, hinted
that at least three judges on the Third Circuit might be concerned about RLUIPA=s usurpation of local land use authority when that Circuit ruled
on the statute=s constitutionality in the Freedom Baptist
case. That case=s settlement, of course, put such speculation to rest for the
time being.
What Have Been the Outcomes of Other RLUIPA Challenges ?
As
noted earlier, only a small number of RLUIPA cases have produced reported
decisions to date, with even fewer having reached the merits of the RLUIPA
claim. The most important decision to
date is, of course, Freedom Baptist, discussed at length above. Another important decision is Murphy v.
Zoning Comm=n of the Town of Milford.[70] In
this case, neighbors complained because up to 40 people attended the weekly
Sunday afternoon Aprayer meetings@ in
the Murphy=s home, expressing concern about emergency
vehicles= access and the safety of children playing in
a cul-de-sac because of the large number of cars parked on the street. The neighbors called the police several
times but no citations were issued and investigations by the town=s Zoning Enforcement Officer (ZEO) found that cars were not
blocking neighbors= driveways.
In November, 2000, the ZEO requested that the town=s Zoning Commission issue an opinion on whether the Murphy=s prayer meetings conformed with the town=s zoning regulations.
The Commission found that such regularly scheduled meetings are not a
customary accessory use in a single-family neighborhood and issued a cease and
desist order that limited to 25 the number of persons attending the prayer
meetings. The Murphy=s did not appeal the order, choosing instead to institute a
RLUIPA challenge in federal court under 42 U.S.C. ' 1983.[71]
After
denying exhaustion and ripeness challenges to the Murphy=s action,[72]
the court found that limiting the number of persons at prayer meetings to 25
would impose a substantial burden on the Murphy=s free
exercise rights because it would defeat the purpose of the meetings (to help
those in need, including the A26th person@) and the cease and desist order imposed a chilling effect on
attendance at the meetings.[73] Under RLUIPA, the court=s finding of a
substantial burden triggers strict scrutiny, requiring that government
demonstrate a compelling state interest for its regulation and that the
regulation at issue is the least restrictive means for achieving that interest.
The Murphy
court had little trouble finding that the town had shown Aa compelling interest in protecting the health and safety of
their communities through the enforcement of the local zoning regulations,@ but found that the limit on the number of persons attending
payer meetings did not meet the least restrictive means test, arguing that the
town should have placed a limit on traffic or on-street parking rather than
attendees. [74]
Interestingly, the judge chastised the failure of town officials to seek
a voluntary accommodation between the Murphy=s
religious rights and the town=s legitimate zoning interests.[75]
In Cottonwood
Christian Center v. Cypress Redevelopment Agency,[76]
the court granted the plaintiff=s motion for a preliminary injunction
prohibiting the Redevelopment Agency from acquiring the church=s property under eminent domain for commercial development,
which would have frustrated the church=s plans to develop its property with a new
300,000 sq. ft. religious facility.
Here, Cottonwood spent a year assembling an eighteen acre site for its
proposed facility from six individual parcels located in a 300 acre largely
vacant area the City of Cypress had targeted for redevelopment. Churches were a permitted use under the
zoning designation for the area and Cottonwood applied for a development permit
on October 6, 2000. On October 26th, the
City Planning Manager rejected the application as incomplete because it did not
contain design review studies that the city wanted. On October 30th, the City adopted a 45-day moratorium
on new land use permits in the area of the Cottonwood property in order to
allow the city time to consider new plans for redevelopment of the area. The moratorium was subsequently extended to
October 30, 2002, thus effectively barring the church=s development for at least two years.[77]
Trying
to avoid this bar, the church appealed the City Planning Manager=s decision that its application was incomplete to the City Council. While this appeal was pending, City staff
contacted Cottonwood twice to ask if they were interested in developing their
property with various commercial ventures.
Cottonwood responded that it was
interested in developing the land as a church. Finally, on February 11, 2002,
the City Council considered Cottonwood=s appeal.
Council found that the requested design review studies were not
required, deemed the application complete, and directed staff to undertake a
review. But on February 28, 2002, the
Redevelopment Agency offered to purchase the Cottonwood property for
$14,583,500. Cottonwood refused. The
Redevelopment Agency then determined to acquire the land by eminent domain and
the City filed an action in state court to condemn the land on May 29, 2002.[78]
Cottonwood
first sued in January, 2002, challenging the constitutionality of the land use
decisions made by the Agency and the City, and later amended its complaint to
seek a preliminary injunction barring the City=s
condemnation of its property. After
denying the City=s motion to dismiss, District Court Judge
Carter ruled that RLUIPA=s strict scrutiny standard of review governed Cottonwood=s claim because the City=s actions regarding the proposed church met
both the commerce clause and Aindividualized assessments@ jurisdictional bases in the statute.[79] The Court further ruled that even were
jurisdiction under RLUIPA not invoked, strict scrutiny would still be
appropriate under a free exercise clause analysis because the City=s actions were Aindividualized assessments@ [80] and there was Astrong
evidence that Defendants= actions are not neutral, but instead
specifically aimed at discriminating against Cottonwood=s religious uses.@[81] The
Court also found that the City=s zoning and eminent domain actions
substantially burdened Cottonwood=s exercise of religion because they made it
impossible for the church Ato practice its religious beliefs in its
current location.@[82]
The
Court then examined whether the City had satisfied its strict scrutiny burden
by demonstrating that its actions were supported by a compelling governmental
interest and were the least restrictive means for accomplishing that
interest. The City had advanced two
interests for refusing to grant Cottonwood=s permit request and for condemning its
property: preventing blight and
generating revenue for the City. The
Court quickly dismissed the blight rationale, questioning whether the City=s twelve year old finding of blight was still valid and arguing
that the new 300,000 sq. ft. church would have eliminated any blight that did
exist.[83] The Court was similarly dismissive with the
City=s claimed interest in revenue generation,
noting that the City has maintained a 25% budget surplus without imposing
additional taxes and arguing more generally that by granting too much weight to
a claimed interest in revenue generation, courts could allow cities to deny
land-use permits for any not-for-profit entity.[84] Finally, the Court ruled that even if it had
found that these interests were compelling, the City had not utilized the least
restrictive means to advance these interests, but rather had Adone the equivalent of using a sledgehammer to kill an ant,@ noting again that construction of the proposed church would
have alleviated any blight and that Athe City has not demonstrated that there is
no other way to provide for revenue without taking the property and preventing
Cottonwood from building its church.@ [85]
After
the Court granted Cottonwood its preliminary injunction, the church and the
City skirmished back and forth a bit, but in October 2002, Cottonwood Christian
Center and the city agreed the church will sell its land where the city wanted
retail and the church will have the opportunity to purchase 28 acres on the
Cypress Golf Course. Both sides also agreed to drop their lawsuits as part of
the settlement.[86]
In two
other California cases, RLUIPA claimants have been less successful. In Ventura County Christian High School
v. City of San Buenaventura,[87]
a private religious school sought a preliminary injunction barring the city
from enforcing its zoning requirements as applied to modular classrooms the
school sought to erect on land leased from the public school district. The Court denied the motion, finding that
there was no evidence that the religious school had been treated unequally in
comparison to secular applicants as regards approvals for modular classrooms
and that compliance with the approval requirements did not substantially burden
the school=s exercise of religious freedom.
In an
unreported case, San Jose Christian College v. City of Morgan Hill,[88]
the court granted the defendant city=s motion for summary judgment against a
religiously affiliated college that had challenged the denial of its
application to re-zone a property for educational use. Here, the college had purchased a vacant
former hospital intending to use the property for its college campus, but the
city denied the college=s rezoning application on the grounds that
the property was the only site in the city zoned for hospital use and the
college had not complied with the city=s rezoning procedures. The college challenged
both the procedural and substantive elements of the city=s zoning code that governed its application for rezoning.[89]
The
court ruled that the RLUIPA claim failed because the college: (1) provided no
evidence that the city=s zoning code placed undue limitations on
religious institutions, treated them unequally, or discriminated against them
and (2) could not establish a prima facie case that the city=s action imposed a substantial burden on its religious exercise.[90] While this decision does not elaborate on
the basis for the ruling on the substantial burden issue, this same court=s prior ruling denying the plaintiff=s motion for a preliminary injunction argued that the proposed
use of the property as a college did not constitute an Aexercise of religion@ as that term has been defined in the Ninth
Circuit=s caselaw[91]
or as comprehended in RLUIPA.[92]
How Much Has RLUIPA AChanged the Rules@ for Land-Use Regulation of Religious Uses?
It is
clear that RLUIPA has imposed a new Congressional mandate on local government
land-use regulation of religious uses.
What is less clear is precisely how much that mandate actually constrains
a local government when it seeks to exercise its land use regulatory authority
over religious uses in a legitimate manner; i.e., in a manner that does not
unlawfully discriminate against such a use by denying an approval either
because the applicant is a Anon-mainstream@
religion or solely because the use is religious, rather than secular. Obviously, such illegitimate and
discriminatory actions by local government were unlawful even prior to RLUIPA.[101]
Undeniably,
local government is being sent a message that RLUIPA has Achanged the rules@ in a fundamental way. Unlike RFRA, which did not produce a large
number of challenges to land-use regulation of religious uses, RLUIPA has
resulted in a flurry of threatened, and actual, litigation. This difference may be attributable, in
part, to better organization by those who advocated for the statute=s enactment. Many of the RLUIPA plaintiffs have been assisted by
a conservative legal-defense group, the Becket Fund for Religious Liberty
(hereafter Becket Fund), headquartered in Washington, D.C, which has made
RLUIPA claims a focus of its activity.
A fairly comprehensive listing of RLUIPA challenges may be found on its website.[102]
Given
the above, local governments should anticipate that RLUIPA will be invoked as
mandating approval whenever a land-use regulation is applied to a religious
institution or assembly. Many local governments
are uncertain as to how to respond to an assertion that RLUIPA mandates
approval because only two RLUIPA challenge have been decided on the
merits. This uncertainty has led some
to defer legislative action that might affect religious institutions,[103]
while others have issued approvals based on concerns about the effect of RUIPA.[104]
While caution should always be exercised in evaluating the potential effect of a new law, the fact that only two reported cases to date have reached the merits of a RLUIPA challenge does not leave local government without guideposts for assessing claims that RLUIPA mandates a particular outcome. Local government may look for guidance to a substantial body of caselaw utilizing the APre-Smith@ free exercise analysis that included the possibility of applying the compelling interest test to land use regulation of religious uses.