Zoning Regulation of Religious Activities: Impact of Federal Law

by

Roland F. Chase, Esq.
Miller Scott & Holbrook
Newport, Rhode Island

    Your neighbors are very nice, but 40 or more people are coming to their house every week for Bible studies. Their cars line the street and sometimes block your driveway. Doesn't the zoning ordinance say something about this?

    It may, but then again, what it says may not be enforceable.

    Under the Federal Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA),1 churches and other religious assemblies and organizations, such as home Bible studies, now have the protection of specific federal statutes against overly burdensome, restrictive, or discriminatory land use regulations. 2 Congress adopted the Act in response to "massive evidence" that churches, especially new, small or unfamiliar churches, are "frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation." 3

Basic provisions
    The RLUIPA, which has been upheld as constitutional insofar as it applies to land use 4 by most 5 but not all 6 federal courts, imposes a "strict scrutiny" standard of review on land use laws that substantially burden religious exercise. 7 It states: "No government shall impose or implement 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...."8

    However, there is an escape hatch for governments. Even though it substantially burdens religious exercise, a zoning or other land use restriction is lawful if the government proves that it furthers a "compelling governmental interest" and that it is the least restrictive means of furthering that interest.9

    The RLUIPA contains a special burden-of-persuasion provision. The church or other plaintiff bringing a suit under the Act10 has the burden of proving that the government regulation imposes a substantial burden on the plaintiff's exercise of religion.11 If the plaintiff produces prima facie evidence to support its claim,12 the burden then shifts to the government to carry the very difficult burden13 of proving the other elements of the claim; i.e., that the land use regulation is the least restrictive means of furthering a "compelling governmental interest."14

Elements of claim
    This statutory scheme reveals five primary elements of a claim under the RLUIPA: the plaintiff must show that a land use restriction imposes or will impose (1) a "substantial burden" on (2) "religious exercise," while to avoid liability the government must show that it has (3) a "compelling governmental interest" in the contested land use restriction, and that the restriction is (4) the "least restrictive means" it could reasonably use (5) "in furtherance of" its interest.

    The RLUIPA does not define what constitutes a "substantial burden" on religious exercise. Case law indicates that to be substantial, a burden on religious activity must have more than an incidental effect that makes it more difficult to practice the religion15 or causes inconvenience to the plaintiff.16 According to some cases, for a burden on religion to be substantial, the government regulation must tend to coerce individuals into acting contrary to their religious beliefs,17 or compel action or inaction with respect to the sincerely held belief.18 It means something more than having a greater burden than is imposed on secular institutions.19 The Seventh Circuit says a land use regulation imposing a substantial burden is one that "necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise ... effectively impracticable."20

    A number of cases have found that a land use regulation imposed a substantial burden on religious exercise. For example, denying an application to build or expand a church on property already owned by the church is a substantial burden because it "fundamentally inhibits its ability to practice its religion."21 On the same rationale, denying an existing church permission to move to a site it has purchased or has a contractual right to purchase is a substantial burden.22 Imposing an approval process that will unreasonably delay the construction of a church has been held to violate the substantial burden provision.23

    On the other hand, zoning that requires Orthodox Jews to walk several extra blocks to a synagogue does not impose a substantial burden, even though their religion forbids them from driving on the Sabbath and the extra distance might preclude some who are ill, young or very old from attending.24 And the fact that alternate space that could be used for religious services is difficult or even impossible to find does not, by itself, amount to a substantial burden.25

    The substantial burden claimed by the plaintiff in a RLUIPA case must be on a "sincerely held" religious belief or exercise of religion.26 This is a question of fact,27 which obviously requires more than a mere allegation of sincere religious belief.28

    As to what constitutes "religious exercise," the term is defined broadly in the Act as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief."29 Specifically, the use of real property, or the building or conversion of a structure on real property,30 for some "religious exercise" is protected under the Act as the religious exercise of the person or entity using or intending to use the property for that purpose.31

    Clearly this expansive32 and perhaps revolutionary33 definition of "religious exercise" covers more than the use of a building for group worship34 and even a weekly home Bible study that congests a residential street.35 Presumably it is also broad enough to cover other, less traditional, activities engaged in by many churches, such as soup kitchens, homeless shelters, and counseling centers,36 although some courts may balk at going this far.37 And RLUIPA does not authorize religious institutions which have facilities for purely secular functions to throw the mantle of "religious exercise" over all their operations.38

    Turning to the government's side of the case, when does a city or town have a "compelling interest" in using land use law in such a way that it restricts the religious exercise of some of its inhabitants?

    The relatively sparse case law decided under the RLUIPA suggests that the answer is: Not often. A "compelling" interest is something more than a "substantial" interest,39 and it must be a genuine interest, not one manufactured to thwart religious development of property.40 As to specific interests, the government may have a compelling interest in enforcing its zoning regulations and ensuring traffic safety in residential neighborhoods,41 but eliminating blight42 and generating revenue43 do not rise to the level of compelling governmental interests.

    The "least restrictive means" requirement obligates the government to show that its interests could not be achieved by narrower state action that burdens the plaintiff to a lesser degree.44 As a generalization, it may be said that this requirement is not likely to be met where the result is a total ban on the religious activity.45

    The final element ties the previous two together. The means chosen by the government the challenged land use regulation or decision must be "in furtherance of" the government's compelling interest.46 This is a causation requirement; even if the government can show a compelling interest that qualifies as the least restrictive means available, still the government must also show that there is a rational connection between that interest and the land use restriction.47 For example, denying a church right to relocate into an existing building, on the ground that it will replace the only grocery store in a low-income area and cause the loss of needed jobs, was held to fail the "in furtherance of" test because the store was the month-to-month tenant of a landlord who wanted to sell the building and was willing to evict the tenant in order to do so.48

Discrimination and exclusion
    The Religious Land Use and Institutionalized Persons Act also bars governments from imposing or implementing a land use regulation in a manner that "treats a religious assembly or institution on "less than equal terms" with a nonreligious assembly or institution,"49 or "discriminates against any assembly or institution on the basis of religion or religious denomination."50

    Thus, even though it qualifies as a "religious exercise," a land use is subject to neutral zoning laws that is, to laws not specifically aimed at religious uses that are applied even-handedly. Merely requiring a church to obtain a special-use permit,51 for example, or to complete an onerous application process,52 is not by itself a violation of the Act. A religious land use may be prohibited or limited in particular locations on the same basis as non-religious uses;53 for example, if a religious assembly is simply too big for the location.54

    The kinds of institutions that are similarly situated so as to be considered on a par with churches and synagogues under the anti-discrimination clause are nonreligious "assemblies" and "institutions."55 Thus a zoning ordinance that permitted private clubs and other secular assemblies in the business district, but excluded churches and synagogues from that district, unlawfully discriminated against religious assemblies or institutions in violation of the RLUIPA.56

    These applications of the non-discrimination clause are unsurprising, but the rule that religious institutions must be treated on equal terms with nonreligious institutions raises some interesting questions. If churches are zoned differently from other institutions, such as libraries or museums, is this provision violated? For example, the Newport Zoning Ordinance allows schools, colleges, universities, and libraries to be 45 feet high,57 but churches are subject to the height limitation of the district in which they are located, which might be as low as 30 feet.58 Is this a violation of the RLUIPA?59

    And how does the "equal terms" rule square with the basic requirement of RLUIPA that religious institutions may not be substantially burdened? Since under the RLUIPA only religious institutions not libraries, museums, or other non-religious institutions are protected against substantial burdens imposed by land use regulations, a zoning ordinance or zoning board can impose a substantial burden on, say, a museum but not on a church.60 Moreover, another provision of the Act expressly authorizes governments to grant exemptions from any land use policy or practice that would otherwise apply in order to avoid substantially burdening religious exercise,61 but no such exemption is available to nonreligious institutions.

    The RLUIPA also prohibits governments from totally excluding religious assemblies from a jurisdiction,62 or "unreasonably limit[ing] religious assemblies, institutions, or structures within a jurisdiction."63 The total exclusion clause is straightforward enough municipalities cannot legislate a secular cityscape but what does it mean to "unreasonably limit" religious assemblies, institutions, or structures?64 It could be argued that this provision overlaps or is inconsistent with the "substantial burden" standard in the Act because it posits a separate unreasonable limitation test65 in addition to the substantial burden test and does not allow the government to defend on the ground of a compelling interest that is the least restrictive means.66 However, a more likely reading is that this provision is simply a step-down from the total exclusion provision; e.g., just as the government cannot prohibit all religious assemblies in a jurisdiction, so it cannot prohibit all but a token church or two.67

    It is important to note that the total exclusion and unreasonable limitation provisions apply not only to the decisions of zoning boards and similar agencies that make "individualized assessments of the proposed uses for the property involved,"68 but to all regulation of land uses."69 In other words, to guard against the possibly arbitrary decisions of a zoning board,70 the RLUIPA prohibits them from placing a substantial burden on religious institutions without proof that the burden is the least restrictive means of furthering a compelling governmental interest.71 But in the enactment of zoning and other land use regulations, which may have a negative impact on religious institutions without the zoning board ever becoming involved,72 the flat prohibition against total exclusion and unreasonable limitation of religious institutions applies.73

Enforcement
    Violations of the RLUIPA are enforceable by private actions74 against the government75 in federal or state courts.76 This means, for example, that a church denied permission to construct or enlarge a sanctuary in a particular zoning district may file suit in Superior Court or in the U.S. District Court against the city or town and attempt to show that its right to free exercise of religion was substantially burdened for no compelling governmental reason.77

    However, if an alleged violation of the "substantial burden" section is adjudicated in a state forum,78 it is not entitled to full faith and credit in a federal court unless the claimant had a "full and fair adjudication" of that claim in the state forum. A far stronger inducement to file a RLUIPA case in federal court is the fact that victorious plaintiffs may be able to collect attorney's fees from the municipalities they sue.79

    Consistent with the general rule in Rhode Island zoning challenges,80 the plaintiff may be required to exhaust administrative remedies for example, by applying to the zoning board for a variance before bringing suit under the RLUIPA.81

    An alleged violation claimed by a church or other plaintiff may not only be the basis for an affirmative action seeking damages82 or other relief,83 it may also be raised defensively in a judicial proceeding.84 Although it does not say so, presumably the RLUIPA may be invoked in an administrative proceeding such as a zoning or planning board hearing,85 and the administrative body would have to decide whether the burden on the church would be substantial and, if so, whether denial of zoning relief would be least restrictive means of meeting a compelling governmental interest.86

    In addition to private lawsuits, federal authorities are authorized to bring an action for injunctive or declaratory relief to enforce compliance with the Act.87

Footnotes:

  1. 42 U.S.C. 2000cc 2000cc-5, added by P.L. 106-274, 1 et seq., 114 Stat. 803 (Sept. 22, 2000). The Act deals with two types of religious freedom claims: those by churches and other religious institutions claiming to be hampered by onerous zoning regulations, and those by prisoners claiming that prison regulations infringe their right to freely exercise their religion. Only the first type of claim is discussed in this article.

    The Religious Land Use and Institutionalized Persons Act was enacted in response to the U.S. Supreme Court's decision in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), which held RLUIPA's predecessor, the Religious Freedom Restoration Act (RFRA) unconstitutional as applied to states. Because both acts share common features that were not declared unconstitutional, such as the "substantial burden," "compelling governmental interest," and "least restrictive means" tests, some cases decided under the RFRA are relevant to issues arising under the RLUIPA.  (back to text)

  2. The term "land use regulation" is defined in the Act as "a zoning or landmark law, or the application of such a law, that limits or restricts a claimant's use or development of land (including a structure affixed to land) ...." 42 U.S.C. 2000cc-5(5). A city's decision to develop a previously dedicated roadway, which was owned by the city but located between two lots owned by a church, was held not to be a "zoning or landmarking law restricting the development or use" of the church's property, in Prater v. City of Burnside, Ky., 289 F.3d 417, 434 (6th Cir. 2002), even though the church desired to acquire the city-owned land for its own purposes.

    Relevant RLUIPA cases are discussed in John J. Dvorske, Annotation, Validity, Construction, and Operation of the Religious Land Use and Institutionalized Persons Act of 2000 (42 U.S.C.A. 2000cc et seq.), 181 A.L.R. Fed. 247 (2002). Very recent opinions and much other relevant information can be found on the internet at http://www.rluipa.com.  (back to text)

  3. See Freedom Baptist Church of Delaware County v. Township of Middletown, 204 F.Supp.2d 857, 862 (E.D. Pa. 2002) (quoting from Joint Statement of Sen. Hatch and Sen. Kennedy on the Religious Land Use and Institutionalized Persons Act of 2000, 146 Cong. Rec. S7774-01, Ex. 1 (Jul. 27, 2000)). Among other abuses, the Joint Statement noted that zoning codes frequently exclude churches in places where they permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes, and that the individualized assessments of zoning boards "readily lend themselves to discrimination" but also by their nature "make it difficult to prove discrimination in any individual case." Id. at pp. 862-63, quoting from Joint Statement.

    Cases illustrating such discrimination are not hard to find. See, e.g., C.L.U.B. v. City of Chicago, 342 F.3d 752, 756 (7th Cir. 2003) (church's rezoning application opposed by city's planning department because presence of church would inhibit development of area for entertainment); Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203 (C.D. Cal. 2002) (city repeatedly put roadblocks in path of church seeking conditional use permit to build on 18-acre parcel of land, even though law allowed churches in that area with permit, and then attempted to take parcel by eminent domain in order to convey it to major warehouse style discount retail outlet).  (back to text)

  4. With respect to its coverage of "institutionalized persons" the RLUIPA has been held constitutional by the United States Supreme Court. Cutter v. Wilkinson, ___ U.S. ___, ;125 S.Ct. 2113; 161 L.Ed.2d 1020 (2005). However, because the jurisdictional grounds for applying the Act to prisoners is different than the grounds applicable in religious land use controversies, the Cutter decision does not necessarily foreshadow a similar result when a constitutional challenge to the Act's land use provisions is presented to the Supreme Court. (back to text)

  5. See, e.g., San Jose Christian College v. Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) (recognizing that RLUIPA is constitutional exercise of Congress' spending power); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1235-43 (11th Cir. 2004) (rejecting challenges based on First, Fourteenth, and Tenth Amendments); Freedom Baptist Church of Delaware County v. Township of Middletown, 204 F.Supp.2d 857, 865-74 (E.D. Pa. 2002) (RLUIPA does not violate Commerce Clause or 14th Amendment, and constitutionally codifies existing Free Exercise, Establishment Clause, and Equal Protection jurisprudence); Hale O Kaula Church v. Maui Planning Com'n, 229 F.Supp.2d 1056, 1071-72 (D. Hawaii 2002) (RLUIPA not unconstitutional under Commerce Clause); Westchester Day School v. Village of Mamaroneck, 280 F.Supp.2d 230, 233-39 (S.D. N.Y. 2003), reversed on other grounds 386 F.3d 183 (2nd Cir. 2004) (RLUIPA does not violate Commerce Clause, Establishment Clause, 10th Amendment, or 14th Amendment).

    See also Roman P. Storzer & Anthony R. Picarello, Jr., The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices, 9 Geo. Mason L.Rev. 929 (2001); Shawn Jensvold, The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA): A Valid Exercise of Congressional Power? 16 BYU J. Pub. L. 1 (2001).  (back to text)

  6. See, e.g., Elsinore Christian Ctr. v. City of Lake Elsinore, 270 F.Supp.2d 1163, 1175-82 (C.D. Cal. 2003) (RLUIPA violates 14th Amendment).

    See also Evan Shapiro, Comment, The Religious Land Use and Institutionalized Persons Act: An Analysis Under the Commerce Clause, 76 Wash. L.Rev. 1255 (2001) (arguing that land use regulation does not constitute "economic activity" as defined by United States Supreme Court and is insufficiently connected to interstate commerce to be constitutional under Commerce Clause); Ada-Marie Walsh, Note, Religious Land Use and Institutionalized Persons Act of 2000: Unconstitutional and Unnecessary, 10 Wm. & Mary Bill Rts. J. 189 (2001).  (back to text)

  7. Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1220 (C.D. Cal. 2002) (RLUIPA provides strict scrutiny standard of review for land use cases); Grace United Methodist Church v. City of Cheyenne, 235 F.Supp.2d 1186, 1196 (D. Wyo. 2002).  (back to text)

  8. 42 U.S.C. 2000cc(a)(1).   (back to text)

  9. 42 U.S.C. 2000cc(a)(1)(A), (B).   (back to text)

  10. The burden-of-persuasion section, 42 U.S.C. 2000cc-2(b), states that it also applies to alleged violations of the Free Exercise Clause of the United States Constitution.   (back to text)

  11. 42 U.S.C. 2000cc-2(b).   (back to text)

  12. Although making out a prima facie case of substantial burden is enough to shift the burden of persuasion to the government, the government does not have to disprove the prima facie case; i.e., it does not have to prove that the plaintiff's exercise of religion has not been substantially burdened by the regulation; the burden of persuasion on that issue remains on the plaintiff. 42 U.S.C. 2000cc-2(b).   (back to text)

  13. See Westchester Day School v. Village of Mamaroneck, 280 F.Supp.2d 230, 242 (S.D. N.Y. 2003), reversed on other grounds 386 F.3d 183 (2nd Cir. 2004) (noting "extreme difficulty" of carrying government's burden of proof).   (back to text)

  14. 42 U.S.C. 2000cc-2(b). Even apart from the RLUIPA, these findings are generally required under a "strict scrutiny" analysis whenever individualized exemptions from a general requirement of law are available but denied to a religious activity. See Church of the Lukumi Babula Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203 (C.D. Cal. 2002) (since land-use decisions by city were not "generally applicable laws" but rather involved "individualized governmental assessments," strict scrutiny standard of review applied); Hale O Kaula Church v. Maui Planning Com'n, 229 F.Supp.2d 1056, 1072-1073 (D. Hawaii 2002) (since refusal to grant special-use permit to allow church use in agricultural district was under system of "individualized exemptions," county had to demonstrate compelling interest and that denying permit would be least restrictive means of satisfying that interest, regardless of RLUIPA).   (back to text)

  15. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) ("substantial burden" requires something more than incidental effect on religious exercise); Grace United Methodist Church v. City of Cheyenne, 235 F.Supp.2d 1186, 1194 (D. Wyo. 2002); Guru Nanak Sikh Society of Yuba City v. County of Sutter, 326 F.Supp.2d 1140, 1152 (E.D. Cal. 2003) (to be "substantial burden," governmental conduct must actually inhibit religious activity in concrete way, and cause more than mere inconvenience; emphasis by court). See Henderson v. Kennedy, 347 U.S. App. D.C. 340, 265 F.3d 1072 (D.C. Cir. 2001) (regulation prohibiting plaintiffs from selling T-shirts bearing religious messages on National Mall was not substantial burden on their religious exercise because it restricted only one of many ways they could spread gospel).   (back to text)

  16. Murphy v. Zoning Com'n of Town of New Milford, 148 F.Supp.2d 173, 188 (D. Conn. 2001), vacated on procedural grounds 402 F.3d 342 (2d Cir. 2005).   (back to text)

  17. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) ("substantial burden" is akin to significant pressure which directly coerces religious adherent to conform his or her behavior accordingly); Grace United Methodist Church v. City of Cheyenne, 235 F.Supp.2d 1186, 1197 (D. Wyo. 2002).   (back to text)

  18. Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995); Jolly v. Coughlin, 76 F.3d 468, 477 (2nd Cir. 1996). See also San Jose Christian College v. Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) ("substantial burden" must impose "significantly great restriction or onus" upon religious exercise).   (back to text)

  19. Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 900 (7th Cir. 2005) (noting that since separate provision of RLUIPA, 42 U.S.C. 2000cc(b)(1), forbids government to treat religious assembly or institution on less than equal terms with nonreligious assembly or institution, "substantial burden" provision must mean something different from "greater burden than imposed on secular institutions").   (back to text)

  20. C.L.U.B. v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003).   (back to text)

  21. Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1226 (C.D. Cal. 2002) (since existing facility could not handle congregation's large and growing membership, and facility's small size prevented congregation from meeting as single body, as its beliefs counseled, city's zoning and eminent domain actions that would prevent church from constructing large facility on new site substantially burdened its exercise of religion); Guru Nanak Sikh Society of Yuba City v. County of Sutter, 326 F.Supp.2d 1140, 1152 (E.D. Cal. 2003) (denial of use permit to convert property into Sikh temple, particularly when coupled with denial of prior application, actually inhibited plaintiff's religious exercise).   (back to text)

  22. Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 898-901 (7th Cir. 2005) (city's refusal to rezone land purchased by Greek Orthodox church to allow construction of $12 million church imposed substantial burden, where land was bordered on one side by Protestant church and on other side by land city had agreed to rezone for another Protestant church); Elsinore Christian Ctr. v. City of Lake Elsinore, 270 F.Supp.2d 1163, 1169-70 (C.D. Cal. 2003) (since denial of conditional use permit effectively barred any use by church of land it had contracted to buy, church's burden was "not only substantial, but entire").   (back to text)

  23. Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 901 (7th Cir. 2005) (although church could have searched for other parcels of land or continued filing applications with city, in either case delay, uncertainty, and expense that church would suffer would be substantial even if not insuperable).   (back to text)

  24. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1228 (11th Cir. 2004) (burden of walking "few extra blocks" is not "substantial" within meaning of RLUIPA).   (back to text)

  25. C.L.U.B. v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (scarcity of affordable land, along with costs, procedural requirements, and inherent political aspects of approval processes, are incidental to any high-density urban land use and do not amount to substantial burden on religious exercise); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227-28 fn. 11 (11th Cir. 2004) (noting that all land users, not just churches, face the same problem).   (back to text)

  26. Grace United Methodist Church v. City of Cheyenne, 235 F.Supp.2d 1186, 1194 (D. Wyo. 2002). See also Henderson v. Kennedy, 347 U.S. App. D.C. 340, 265 F.3d 1072 (D.C. Cir. 2001) (RLUIPA did not alter propriety of inquiring into importance of religious practice when assessing whether substantial burden exists).   (back to text)

  27. Mosier v. Maynard, 937 F.2d 1521, 1527 (10th Cir. 1991); Grace United Methodist Church v. City of Cheyenne, 235 F.Supp.2d 1186, 1195 (D. Wyo. 2002).   (back to text)

  28. Mosier v. Maynard, 937 F.2d 1521, 1526 (10th Cir. 1991); Grace United Methodist Church v. City of Cheyenne, 235 F.Supp.2d 1186, 1195 (D. Wyo. 2002).   (back to text)

  29. 42 U.S.C. 2000cc-5(7)(A). See also 42 U.S.C. 2000cc-3(g), stating that the Act "shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the ... [RLUIPA] and the Constitution."   (back to text)

  30. For example, the conversion of a retail store into a storefront church.   (back to text)

  31. 42 U.S.C. 2000cc-5(7)(B). See San Jose Christian College v. Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) (conversion of property from hospital use to place for religious education is "religious exercise"); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1226 (11th Cir. 2004) (challenge of two congregations to exclusion of churches and synagogues from business district concerned "religious exercise" within meaning of RLUIPA).   (back to text)

  32. See Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1230-31 (C.D. Cal. 2002) ("By passing RLUIPA, Congress conclusively determined the national public policy that religious land uses are to be guarded from interference by local governments to the maximum extent permitted by the Constitution").   (back to text)

  33. See Elsinore Christian Ctr. v. City of Lake Elsinore, 270 F.Supp.2d 1163, 1170 (C.D. Cal. 2003) (by explicitly prescribing that centrality of belief is immaterial to whether belief constitutes "religious exercise," RLUIPA establishes "an entirely new and different standard than that employed in prior Free Exercise Clause jurisprudence).   (back to text)

  34. Guru Nanak Sikh Society of Yuba City v. County of Sutter, 326 F.Supp.2d 1140, 1151 (E.D. Cal. 2003) (gathering of individuals for purposes of worship or prayer is use of land constituting religious exercise).   (back to text)

  35. In fact, the basic scenario described at the beginning of this article is taken from Murphy v. Zoning Com'n of Town of New Milford, 148 F.Supp.2d 173 (D. Conn. 2001), vacated on procedural grounds 402 F.3d 342 (2d Cir. 2005), in which a town's zoning enforcement officer issued a cease and desist order against the owner of a single-family residence who was hosting prayer meetings in his home, regularly attracting about 40 persons. Although the zoning officer's position was upheld by the town's zoning commission, the U.S. District Court for Connecticut held that the town's actions had placed a substantial burden on the homeowner's religious practices and that therefore the zoning restriction was overridden by the RLUIPA. The court agreed that the town had a "compelling interest" in enforcing its zoning regulations and ensuring the safety of residential neighborhoods, but ruled that the cease and desist order was not the "least restrictive means" of protecting the health and safety of the community.   (back to text)

  36. See David L. Hudson, Jr., Zoning Gets Religion, A.B.A. J., Mar. 2004, at 20 (quoting Marci Hamilton, professor at Benjamin N. Cardozo School of Law, as stating: "Church buildings no longer sit empty the vast majority of the week, but offer child and senior day care, Alcoholics Anonymous meetings, homeless shelters, food kitchens, religious education during the week, and many other services"); Stephen A. Haller, On Sacred Ground: Exploring Congress's Attempts to Rein in Discriminatory State Zoning Practices, 33 Southwestern Univ. L.Rev. 285, 303 (2004) (citing reports of "megachurches" offering services such as McDonald's franchise, convention centers, hotels, restaurants, skate parks, baseball fields, bookstores, flower shops, gyms, senior centers, coffee shops, and dormitories).   (back to text)

  37. See Grace United Methodist Church v. City of Cheyenne, 235 F.Supp.2d 1186, 1197 (D. Wyo. 2002) (genuine issue of material fact existed as to whether operating day care with religious component constituted religious exercise under RLUIPA).   (back to text)

  38. Westchester Day School v. Village of Mamaroneck, 386 F.3d 183, 185-86, 189 (2nd Cir. 2004) (vacating summary judgment for Orthodox Jewish school in part because judge considered entire proposal for improvement of school as religious exercise, although great majority of proposed construction was of facilities designed to fulfill school's secular functions, such as classrooms, computer rooms, library space, and administrative offices).   (back to text)

  39. See Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1228 (C.D. Cal. 2002) (although esthetic concerns are substantial government interests, only compelling interest can justify burdening church's religious exercise rights under RLUIPA).   (back to text)

  40. See Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1228-29 (C.D. Cal. 2002) (alleged need to generate revenue and expand tax base was suspect in view of evidence that city had maintained 25% budget surplus without imposing utility tax and likelihood that construction and operation of large church would not place significant burden on city resources or require expansion of roads, but rather church bookstore would generate sales tax revenue and large numbers of people drawn to church could stimulate development of property surrounding church).   (back to text)

  41. See Murphy v. Zoning Com'n of Town of New Milford, 148 F.Supp.2d 173, 190 (D. Conn. 2001), vacated on procedural grounds 402 F.3d 342 (2d Cir. 2005).   (back to text)

  42. See Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1227-28 (C.D. Cal. 2002) (noting that construction of proposed church with 4,700 seat auditorium and other buildings would eliminate blight, and that 12-year-old determination of blight hardly seemed compelling since city failed to take action against blight until church purchased property). See also Elsinore Christian Ctr. v. City of Lake Elsinore, 270 F.Supp.2d 1163, 1173-74 (C.D. Cal. 2003) (assuming, without deciding, that curbing urban blight is "compelling interest" but holding that denial of conditional use permit for church would not further that interest).   (back to text)

  43. See Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1227-28 (C.D. Cal. 2002) (noting that revenue generation is not type of activity needed to protect public health or safety, and that if revenue generation were compelling state interest, municipalities could exclude all religious institutions since churches are tax-exempt); Elsinore Christian Ctr. v. City of Lake Elsinore, 270 F.Supp.2d 1163, 1172 (C.D. Cal. 2003) (stating that maintenance of property tax revenue is "a potentially pretextual basis for decision-making that appears to have been a specific target of RLUIPA").   (back to text)

  44. Elsinore Christian Ctr. v. City of Lake Elsinore, 270 F.Supp.2d 1163, 1174-75 (C.D. Cal. 2003) (as matter of law, city failed to show that denial of conditional use permit to church was least restrictive means of advancing its interests in retaining needed grocery store and jobs in economically deprived area).   (back to text)

  45. See Murphy v. Zoning Com'n of Town of New Milford, 148 F.Supp.2d 173, 190 (D. Conn. 2001), vacated on procedural grounds 402 F.3d 342 (2d Cir. 2005) (order requiring plaintiffs to cease and desist holding regular prayer meetings for 25-40 people in their home was not least restrictive means of dealing with traffic and parking problems); Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1229 (C.D. Cal. 2002) (city's zoning and eminent domain actions were not least restrictive means of eliminating blight or generating revenue since allowing construction of large church on site would eliminate blight and city had numerous ways of generating revenue without preventing tax-free religious land uses).   (back to text)

  46. 42 U.S.C. 2000cc(a)(1)(A).   (back to text)

  47. Elsinore Christian Ctr. v. City of Lake Elsinore, 270 F.Supp.2d 1163, 1174 (C.D. Cal. 2003) ("in furtherance of" language presumably requires causal nexus between proffered governmental interests and action that purportedly advances them).   (back to text)

  48. Elsinore Christian Ctr. v. City of Lake Elsinore, 270 F.Supp.2d 1163, 1174 (C.D. Cal. 2003).   (back to text)

  49. 42 U.S.C. 2000cc(b)(1). See Konikov v. Orange County, Florida, ___ F.3d ___, 2005 U.S. App. LEXIS 10176 (2005) (RLUIPA's "equal terms" provision was violated since rabbi's religious meetings in home were subjected to zoning restrictions that were not applied to nonreligious gatherings). Compare Ventura County Christian High School v. City of San Buenaventura, 233 F.Supp.2d 1241, 1251 (C.D. Cal. 2003) (Christian high school that was required to obtain conditional use permit to build modular units on site leased from school district was not being placed on unequal footing with nonreligious entities in view of evidence that eight of ten private entities that built modular units on school district property obtained conditional use permits).   (back to text)

  50. 42 U.S.C. 2000cc(b)(2). Apart from the RLUIPA, laws discriminating against religious beliefs or practices are proscribed under the Free Exercise Clause of the Constitution. See Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1224 (C.D. Cal. 2002) (strict scrutiny of city's zoning and eminent domain actions was appropriate in view of strong evidence that actions were not neutral but were specifically aimed at discriminating against religious uses of property purchased as site for church).   (back to text)

  51. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1228 fn. 11 (11th Cir. 2004) (requiring churches and synagogues to apply for conditional use permit, which allows zoning commission to consider factors such as size, congruity with existing uses, and availability of parking, does not constitute substantial burden on religious exercise); Hale O Kaula Church v. Maui Planning Com'n, 229 F.Supp.2d 1056, 1069-1071 (D. Hawaii 2002) (land use classification scheme was not facially invalid because it required religious institutions, like all other non-agricultural uses, to obtain special-use permit to build in agricultural district); Konikov v. Orange County, Florida, ___ F.3d ___, 2005 U.S. App. LEXIS 10176 (2005) (requirement that religious organization apply for special exception in order to operate does not impose "substantial burden" on religious exercise). But see Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 899 (7th Cir. 2005) (requiring church to apply for conditional use permit, which would expire in one year and could not be renewed, to build $12 million church imposed substantial burden since church could not then assure donors that church would actually be built).   (back to text)

  52. San Jose Christian College v. Morgan Hill, 360 F.3d 1024, 1035 (9th Cir. 2004) (PUD ordinance's application requirements, which applied to all applicants, imposed "no restriction whatsoever" on religious exercise of Christian college that failed to submit complete application).   (back to text)

  53. Grace United Methodist Church v. City of Cheyenne, 235 F.Supp.2d 1186, 1197 (D. Wyo. 2002) (noting that zoning regulations, at most, only placed one restriction on means by which church could engage in its religious vocation to indoctrinate children into its faith, since it could operate day care facility with religious component in other areas of city consistent with regulations).   (back to text)

  54. See Hale O Kaula Church v. Maui Planning Com'n, 229 F.Supp.2d 1056, 1074 (D. Hawaii 2002) (noting that periodic gathering limited to 60 people would presumably present different burdens on county services than frequent gatherings of several hundreds or thousands of people, and that even "a periodic prayer circle might be evaluated differently if it were the size of Woodstock).   (back to text)

  55. 42 U.S.C. 2000cc(b)(1).   (back to text)

  56. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1232-35 (11th Cir. 2004) (rejecting town's argument that churches and synagogues do not cater to or stimulate shopping and retail needs of residents so as to fulfill objectives of business district because (1) evidence showed that synagogue members regularly patronized area shops before and after services, congregations themselves purchased supplies from businesses in area, and presence of synagogues led to opening of kosher food businesses in area, and (2) no evidence showed that private clubs and lodges permitted in business district contributed to district's objectives differently than religious institutions).   (back to text)

  57. Newport Zoning Ordinance 17.04.050.   (back to text)

  58. See Newport Zoning Ordinance 17.16.060 and other sections limiting the height of structures in residential districts to 30 feet.   (back to text)

  59. The answer, arguably, is yes, if a church building of a large congregation is limited to 30 feet but a school building in the same zoning district, with a student-teacher population equivalent to the size of the church congregation, is allowed to build up to 45 feet.   (back to text)

  60. Of course, the zoning board may deny relief and thereby place a substantial burden on a church if the "compelling interest" and "least restrictive means" tests are satisfied, but these tests do not apply to the placing of substantial burdens on non-religious institutions.   (back to text)

  61. 42 U.S.C. 2000cc-3(e) provides, in substance, that a government may avoid the preemptive force of any provision of the RLUIPA either by changing local land use policies or practices that result in a substantial burden on religious exercise, or by providing exemptions from such policies or practices. See C.L.U.B. v. City of Chicago, 342 F.3d 752, 762 (7th Cir. 2003) (by amending zoning ordinance to require clubs, lodges, meeting halls, and similar secular uses to obtain special use permits in certain districts, as churches were already required to do, city removed any potential substantial burden on churches, which made RLUIPA inapplicable by its own terms to claims by churches denied permits to locate in such districts).   (back to text)

  62. 42 U.S.C. 2000cc(b)(3)(A).   (back to text)

  63. 42 U.S.C. 2000cc(b)(3)(B).   (back to text)

  64. A further question is why "religious assemblies, institutions, or structures" cannot be unreasonably limited but only "religious assemblies" cannot be totally excluded. The probable answer is sloppy draftsmanship; to read this provision as saying that religious institutions and structures can be totally excluded but not unreasonably limited would be absurd.   (back to text)

  65. See Omnipoint Communications, Inc. v. City of White Plains, 202 F.R.D. 402, 403 (S.D. N.Y. 2001) (identifying, as interests protected by the RLUIPA, land use regulation that either (1) totally excludes religious assemblies from city, (2) unreasonably limits such assemblies, or (3) substantially burdens religious exercise of congregation).   (back to text)

  66. 42 U.S.C. 2000cc(a)(1) says, in effect, that governments can by means of a land use regulation impose a substantial burden on the "religious exercise of a person, including a religious assembly or institution," if it uses the least restrictive means of furthering a compelling governmental interest. But 42 U.S.C. 2000cc(b)(3)(B) says flatly that no government "shall impose or implement a land use regulation that ... unreasonably limits religious assemblies, institutions, or structures." (Emphasis added) Literally these provisions say that while a government cannot "unreasonably limit" religious assemblies under any circumstances, it can impose a "substantial burden" on a religious assembly if the compelling interest and least restrictive means tests are satisfied.   (back to text)

  67. In other words, the unreasonable limitation test is applied to gauge the impact of land use regulation on churches (or other religious assemblies, institutions, or structures) in general, rather than on an individual church. This interpretation is supported by the fact that the substantial burden provision, 42 U.S.C. 2000cc(a)(1) uses the singular ("a person, including a religious assembly or institution") whereas the unreasonable limitation provision, 42 U.S.C. 2000cc(b)(3)(B) uses the plural ("religious assemblies, institutions or structures").   (back to text)

  68. 42 U.S.C. 2000cc(a)(2)(C). This provision, by its terms, only applies to subsection (a), the substantial burden provision of the Act. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1229 (11th Cir. 2004) ("plain terms and structure of RLUIPA" indicate that jurisdictional prerequisites included in the substantial burden provision, 42 U.S.C. 2000cc(a), do not apply to (b)'s prohibition on discrimination against and exclusion of religious institutions). But see Prater v. City of Burnside, Ky., 289 F.3d 417, 433 (6th Cir. 2002) (stating that church may not rely on RLUIPA unless it first demonstrates that facts of case trigger one of bases for jurisdiction in 42 U.S.C. 2000cc(a)(2)(A), (B), or (C)). See also Vineyard Christian Fellowship of Evanston, Inc. v. City of Evanston, 250 F.Supp.2d 961, 976, 992 (N.D. Ill. 2003), a strange decision in which the court expressly held that a zoning ordinance permitting cultural organizations and membership organizations in a zoning district as special uses, but barring churches from the district, was invalid as a violation of the church's rights under the Equal Protection Clause, but then rejected the church's claim that the ordinance also violated the "less than equal terms" provision of the RLUIPA.   (back to text)

  69. 42 U.S.C. 2000cc(a)(2)(C). According to Grace United Methodist Church v. City of Cheyenne, 235 F.Supp.2d 1186, 1192 fn. 3 (D. Wyo. 2002), this section of the RLUIPA attempts to codify the "individualized assessments" analysis from Free Exercise Clause jurisprudence. Denial of a conditional use permit is an example of an individualized land use assessment. Elsinore Christian Ctr. v. City of Lake Elsinore, 270 F.Supp.2d 1163, 1169 (C.D. Cal. 2003).   (back to text)

  70. See Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 900 (7th Cir. 2005) (noting vulnerability of non-mainstream churches to subtle forms of discrimination when, in granting or denying variances, "a state delegates essentially standardless discretion to nonprofessionals operating without procedural safeguards").   (back to text)

  71. 42 U.S.C. 2000cc(a)(1).   (back to text)

  72. This provision authorizes a facial challenge to, for example, a zoning ordinance relegating churches to outlying areas or to a very small portion of a municipality. Rather than shoulder the cost of lengthy administrative proceedings, followed by a possible judicial appeal, a small congregation struggling to find a place to worship could challenge such an ordinance directly.   (back to text)

  73. See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1229 (11th Cir. 2004) (42 U.S.C. 2000cc(b)(1) does not require plaintiff to meet threshold jurisdiction test but renders municipality strictly liable for its violation, rendering discriminatory land use regulation per se unlawful without regard to any justifications supplied by zoning authority).   (back to text)

  74. A claimant under the RLUIPA must have "an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest." 42 U.S.C. 2000cc-5(5). See Elsinore Christian Ctr. v. City of Lake Elsinore, 270 F.Supp.2d 1163, 1169 fn. 2 (C.D. Cal. 2003) (church's contract to purchase property afforded it standing under RLUIPA even though it had not yet formally acquired property).   (back to text)

  75. For example, in the case of an ordinance or a zoning board decision alleged to violate the RLUIPA, the proper defendant would be the city or town that enacted the ordinance or appointed the zoning board. Apparently the Act does not allow private actions against individual municipal officials, although a civil rights claim under 42 U.S.C. 1983 might lie against such officials for denial of the statutory rights set forth in the RLUIPA. See Hale O Kaula Church v. Maui Planning Com'n, 229 F.Supp.2d 1056, 1067 (D. Hawaii 2002).

    Since the RLUIPA by its terms imposes obligations on, and creates a cause of action against, governmental entities exclusively, private entities are incapable of violating the Act. Williams Island Synagogue v. City of Aventura, 222 F.R.D. 554, 556 (S.D. Fla. 2004) (denying nonreligious entity right to intervene in RLUIPA case even though that entity's property interests might be adversely affected by outcome).   (back to text)

  76. 42 U.S.C. 2000cc-2(a).   (back to text)

  77. However, one disadvantage of choosing a federal forum is that the remedies available do not include zoning relief. See Hale O Kaula Church v. Maui Planning Com'n, 229 F.Supp.2d 1056, 1074 (D. Hawaii 2002) (noting that Hawaii state court could apparently grant special use permit to plaintiff if constitutional violation were found, but federal court could only find constitutional violation).   (back to text)

  78. 42 U.S.C. 2000cc-2(c).   (back to text)

  79. 42 U.S.C. 1988(b) (authorizing award of reasonable attorney's fee to prevailing party in actions to enforce provision of Religious Land Use and Institutionalized Persons Act). See Freedom Baptist Church of Delaware County v. Township of Middletown, 204 F.Supp.2d 857, 874 fn. 19 (E.D. Pa. 2002) (commenting that although RLUIPA contemplates dual federal-state jurisdiction, fee-shifting of 42 U.S.C. 1988(b) "assures that these cases will all be filed in federal court").   (back to text)

  80. See Roland F. Chase, Rhode Island Zoning Handbook 167 (1993 & Supp. 2004) (landowners challenging zoning provisions as invalid or unconstitutional as applied to specific property must first seek administrative relief before resorting to courts).   (back to text)

  81. Murphy v. New Milford Zoning Com'n, 402 F.3d 342 (2d Cir. 2005). See also Konikov v. Orange County, Florida, ___ F.3d ___, 2005 U.S. App. LEXIS 10176 (2005), in which the court said that a plaintiff seeking to challenge a municipality under the RLUIPA must first prove that the land use law has been finally applied to the property at issue, a requirement met in this case because the plaintiff had been fined for not complying with the zoning code.   (back to text)

  82. Under 42 U.S.C. 2000cc-2(a), a plaintiff who asserts a violation of the RLUIPA in a judicial proceeding may obtain "appropriate relief" against a government. In Freedom Baptist Church of Delaware County v. Township of Middletown, 204 F.Supp.2d 857, 860 fn. 2 (E.D. Pa. 2002), the court recognized that even if a church is ultimately successful in obtaining desired zoning relief, damages may be assessed against the municipality for out-of-pocket losses such as the cost of seeking a variance and for intangible injuries such as anxiety and distress suffered by church members. But see Guru Nanak Sikh Society of Yuba City v. County of Sutter, 326 F.Supp.2d 1140, 1162 (E.D. Cal. 2003) (denying compensatory damages for expenses of filing application for conditional use permit, since such expenses would have been incurred even if plaintiff's constitutional rights had not been violated, but awarding nominal damages of one dollar against each defendant).

    Standing to sue under the Act is governed by the general rules of standing under Article III of the Constitution. 42 U.S.C. 2000cc-2(a).   (back to text)

  83. See Guru Nanak Sikh Society of Yuba City v. County of Sutter, 326 F.Supp.2d 1140, 1161 (E.D. Cal. 2003) (declaratory and injunctive relief are "appropriate relief" under RLUIPA).   (back to text)

  84. For example, a church sued by a municipality to halt an activity or a building expansion that allegedly violates a zoning restriction may defend on the ground that the restriction is unlawful under the RLUIPA.Otherwise, a church denied zoning relief or a building permit contrary to the provisions of the RLUIPA would have to either file a lawsuit, such as a declaratory judgment action, or wait to file a Superior Court appeal from an adverse administrative decision in order to get the protection afforded by the Act.   (back to text)

  85. Otherwise, a church denied zoning relief or a building permit contrary to the provisions of the RLUIPA would have to either file a lawsuit, such as a declaratory judgment action, or wait to file a Superior Court appeal from an adverse administrative decision in order to get the protection afforded by the Act.   (back to text)

  86. See Hale O Kaula Church v. Maui Planning Com'n, 229 F.Supp.2d 1056, 1074 (D. Hawaii 2002) (although state law may not permit planning commission to adjudicate constitutionality of statutes, arguably Congress had in mind that commission would be able to decide factually-specific constitutional considerations of whether burden on church would be substantial or whether denial of special-use permit would be least restrictive means of meeting compelling governmental interest).   (back to text)

  87. 42 U.S.C. 2000cc-2(f).   (back to text)