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Understanding RLUIPA

Written by Daniel P. Dalton on January 24, 2011 Category: Land Use and Zoning, RLUIPA

RLUIPA, passed by a unanimous Congress in 2000 and signed into law by President Clinton, was proposed and enacted by Congress in response to actions taken by local government to exclude houses of worship within communities.

Churches traditionally located in residential areas and the model was the same throughout the United States: a high steeple, a large seating area, a choir loft, a meeting area and lots and lots of stain glass windows. Fast forward to 2008 and the traditional model of Church has disappeared. We now see Churches located in former basketball arenas, strip center malls, industrial parks and in the center of towns and villages where offices and industry once were located. Churches are becoming more accessible to their attendees and members than ever before.

Many communities have not embraced the new Church locations and have used zoning to exclude or limit the use of land available for religious use. This is based on two reasons. First, many communities are hostile to religious organizations as they are not required, by state law, to pay property taxes. Second, many communities remain unreceptive to any religious organization and do their best to discourage them.

Zoning, the legal authority granted to local governments from a state through its constitution and enabling legislation that gives a community the ability to regulate the use of land within its boundaries, generally consists of a map showing how the different areas of a community are used, establish land uses permitted in each district and a series of specific standards governing lot size, building height, and required yard and setback provisions. They also set forth a series of procedures for administering and applying the zoning ordinance.

A nearly unanimous Congress passed RLUIPA to level the playing field allowing religious uses in other areas of communities when it enacted the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) 42 USC 2000cc. This law, cosponsored by Senators Hatch and Kennedy, two political leaders at the opposite end of the political spectrum, was Congress’ response to the Supreme Court’s decision in City of Boerne v. Flores, 521 U.S. 507 (1997), where the Court ruled that Congress, in enacting a predecessor religious land use law, exceeded its enforcement power under Section 5 of the Fourteenth Amendment by “contradict[ing] vital principles necessary to maintain separation of powers and the federal balance.” City of Boerne, 521 U.S. at 536.

Congress enacted RLUIPA with five separate causes of action for religious discrimination. They are:

1. Substantial Burden. Congress provided that “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, unless the government demonstrates the imposition of the burden on that person, assembly or institution is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. §§ 2000cc (a)(1) and (2)(c).

2. Equal Terms. No government shall impose or implement 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. 42 U.S.C. § 2000cc (b)(1).

3. Nondiscrimination. No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination. 42 U.S.C. § 2000cc (b)(2).

4. Exclusions. No government shall impose or implement a land use regulation that totally excludes religious assemblies from a jurisdiction42 U.S.C. §§ 2000cc (b)(3)(A)

5. Unreasonable limitations. No government shall impose or implement a land use regulation that unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. 42 U.S.C. §§ 2000cc (b)(3)(B).

Congress also provided for damages and injunctive relief as a remedy for violation of RLUIPA, along with intervention from the Department of Justice to remedy religious discrimination in zoning ordinances. Congress mandated a broad interpretation of the Act as RLUIPA should be interpreted “in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of RLUIPA and the Constitution” and the “use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.” Finally, Congress defined a “land use regulation” as “a zoning or land marking 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), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.”

While RLUIPA is a relatively new law, it has had a positive impact for religious entities throughout the United States.

Regards, Dan

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