Patricia E. Salkin
Raymond and Ella Smith Distinguished Professor of Law; Associate Dean;
Director, Government Law Center at Albany Law School
May 25, 2011
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Religious property uses can be affected by a
variety of local land use regulations,
including:
◦ Comprehensive plans
◦ Zoning (e.g., permitted uses, height, setbacks,
and density regulations)
◦ Subdivision review
◦ Open space plans/conditions
◦ Site plan review
◦ Historic preservation and landmark laws
◦ Building permit requirements
◦ Eminent domain
◦ Variance and nonconforming use procedures
A number of federal constitutional provisions
limit local land use control, including:
◦ First Amendment
x Signs and billboards
x Adult entertainment facilities
x Religious facilities
◦ Fifth Amendment
x Regulatory takings
x Eminent domain
◦ Fourteenth Amendment
x Substantive & Procedural Due Process
x Equal Protection
Land use is generally regulated at the local
level, but a number of federal statutes limit
municipal control where NIMBY concerns
could otherwise inhibit lawful and necessary
development:
◦ Title VIII of the Civil Rights Act of 1968 and the
Fair Housing Act Amendments of 1988 (housing
discrimination)
◦ Americans with Disabilities Act of 1990
◦ Telecommunications Act of 1996
◦ Religious Land Use and Institutionalized Persons
Act of 2000
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The New York Constitution
State planning and zoning enabling statutes
Specific legislation
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First Amendment Establishment Clause:
“Congress shall make no law respecting
an establishment of religion....”
First Amendment Free Exercise Clause:
“Congress shall make no law ...
prohibiting the free exercise” of religion
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Sherbert v. Verner, 374 U.S. 398
(1963)
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Shad v. Borough of Mt. Ephraim, 452
U.S. 398 (1981)
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Employment Division v. Smith, 494
U.S. 872 (1990)
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Church of Lukumi Babalu Aye v. City of
Hialeah, 508 U.S. 520 (1993)
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Congress passed RFRA in 1993 in response to
Employment Division v. Smith.
RFRA’s goal was to reinstate the strict scrutiny test
in Free Exercise cases.
However, the Supreme Court found RFRA
unconstitutional as applied to the states in City of
Boerne v. Flores, 512 U.S. 507 (1997)
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Congress enacted RLUIPA in 2000 in
response to the Supreme Court’s finding
that RFRA was unconstitutional.
Is RLUIPA constitutional?
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RLUIPA was intended to address “hidden”
discrimination and unfair treatment in the
land use process, not to exempt religious
institutions from reasonable property
restrictions.
◦ RLUIPA “does not provide religious institutions
with immunity from land use regulation….In
many cases, real property is used by religious
institutions for purposes that are comparable to
those carried out by other institutions…this alone
does not automatically bring these activities
within [RLUIPA’s] definition of ‘religious
exercise.’” Joint Statement of Senators Hatch and
Kennedy, 146 Cong. Rec. S7776
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Codified at 42 U.S.C. § 2000cc, RLUIPA
contains four land use provisions:
◦
◦
◦
◦
Substantial Burden
Equal Terms
Nondiscrimination
Unreasonable Limitation/Exclusion
“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 that impostition
of the burden...
(A) is in furtherance of a compelling
governmental interest; and
(B) is the least restrictive means of
furthering that compelling governmental
interest.”
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RLUIPA’s substantial burden provision applies
only if:
(A) the substantial burden is imposed under a
program that receives federal funding;
(B) the imposition or removal of the substantial
burden affects interstate commerce; or
(C) the substantial burden is imposed as part of a
regulatory system that makes individualized
assessments of the proposed uses for the property
involved.
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Some courts have found the individualized assessment aspect
to include zoning regulations that allow for variances or
special permits.
◦ See, Fortress Bible Church v. Feiner, 734 F.Supp.2d 409 (N.D.N.Y. 2010)
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Not all courts agree that zoning and land use
regulations are individualized assessments
solely because they allow discretionary and
possibly subjective decisions:
◦ Grace United Methodist Church v. City of Cheyenne,
451 F.3d 643 (10th Cir. 2006).
◦ Cambodian Buddhist Society v. Town of Newtown,
285 Conn. 381 (2008).
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RLUIPA defines “land use regulation” as “a
zoning or landmarking 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 the land)....”
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No.
◦ The District Courts for the Eastern and Western
Districts of New York have held that eminent
domain is not a “land use regulation.” Faith
Temple Church v. Town of Brighton, 405
F.Supp.2d 250 (W.D.N.Y. 2005); Congregation
Adas Yerim v. City of New York, 673 F.Supp.2d
94 (E.D.N.Y. 2009).
◦ See also City and County of Honolulu v. Sherman,
110 Haw. 39 (2006), which reached the same
result.
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Maybe.
◦ A New Jersey District Court held that although
eminent domain is not a “land use regulation,” a
religious institution could challenge the taking of its
property pursuant to the municipality’s open space
acquisition plan, which was a “land use regulation.”
Albanian Associated Fund v. Twp. of Wayne, 2007 WL
2904194 (D.N.J. 2007).
◦ The Seventh Circuit has also suggests that some
condemnations may be “land use regulations.” St.
John’s United Church of Christ v. Chicago, 502 F.3d
616 (7th Cir. 2007).
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Yes according to Fortress Bible Church v. Feiner,
734 F.Supp.2d 409 (N.D.N.Y. 2010).
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A sewer tap-in ordinance is not a “land use
regulation,” according to Second Baptist Church
v. Gilpin Twp., 118 Fed.Appx. 615 (3d Cir.
2004).
Similarly, a Kentucky appellate court held that
RLUIPA was not violated by requiring religious
schools to comply with school sanitation laws
because they were not “land use regulations.”
Liberty Road Christian School v. Todd County
Health Dept., 2005 WL 2240482 (Ky.App.
2005).
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The construction of a communications tower that
obscured a synagogue’s scenic views was not caused
by a “land use regulation” within RLUIPA’s scope.
Omnipoint Communications v. City of White Plains, 202
F.R.D. 402 (S.D.N.Y. 2001).
A city’s decision to open a road between two churchowned properties is not a “land use regulation.” Prater
v. City of Burnside, 289 F.3d 417 (6th Cir. 2002).
A city’s refusal to sell certain property to a religious
organization was not a “land use regulation.” Taylor v.
City of Gary, 233 Fed.Appx. 561 (7th Cir. 2007).
Involuntary annexation is not a “land use regulation.”
Vision Church v. Village of Long Grove, 468 F.3d 975
(7th Cir. 2006).
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RLUIPA definition:
◦ “The term ‘religious exercise’ includes any exercise
of religion, whether or not compelled by, or central
to, a system of religious belief.... 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.”
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The courts have ruled that not every possible
land use connected to a religious organization
qualifies as a “religious exercise”:
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Today, religious institutions do more than build
houses of worship. Common auxiliary uses include:
◦ Schools
◦ Community centers, gyms
◦ Hospitals, insurance agencies
◦ Homeless shelters, halfway houses, food pantries
◦ Dining facilities, retail stores
◦ Movie theaters, arenas, radio broadcasting
◦ Offices
◦ Credit unions, banks
◦ Neighborhood developments, senior housing
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Yes (mostly).
◦ Westchester Day School v. Village of Mamaroneck, 504 F.3d
338 (2d Cir. 2007).
◦ Living Water Church of God v. Meridian, 384 F. Supp. 2d
1123 (WD Mich. 2005).
◦ Grace United Methodist Church v. City of Cheyenne, 451
F.3d 643 (10th Cir. 2006).
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Cemeteries.
◦ McGann v. Incorporated Vill. Of Old Westbury, 741 N.Y.S.2d
75 (2d Dept. 2002).
◦ Roman Catholic Diocese of Rockville Centre v. Incorporated
Village of Old Westbury, 2011 WL 666252 (E.D.N.Y. 2011).
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A Shabbos House (a lodging house located near a
hospital to make it easier for Orthodox Jews to visit the
sick on the Sabbath).
◦ Bikur Chollim v. Village of Suffern, 664 F.Supp.2d 267
(S.D.N.Y. 2009).
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Homeless shelters.
◦ Family Life Church v. City of Elgin, 561 F.Supp.2d 978
(N.D.Ill. 2008).
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Addiction rehab facilities (sometimes).
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A spiritual retreat.
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◦ Ministries v. Osceola County, 20 Fla. L. Weekly
Fed. D. 314 (M.D.Fla. 2006).
◦ DiLaura v. Ann Arbor, 30 Fed. Appx. 501 (6th Cir.
2002).
Social events, congregation dining facilities,
and a lounge and meditation area.
◦ Episcopal Student Ass’n v. Ann Arbor, 341
F.Supp.2d 691 (E.D. Mich. 2004).
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“Transitional housing” for previously incarcerated,
nonviolent drug and alcohol offenders, charging $25
per day.
◦ Libolt v. Town of Irondequoit, 885 N.Y.S.2d 806 (4th Dept.
2009)
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Assisted living apartments.
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Church administrative buildings.
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◦ Greater Bible Way Temple of Jackson v. City of Jackson, 478
Mich. 373 (2007).
◦ North Pacific Union Conference Association of the SeventhDay Adventists v. Clark County, 118 Wash.App. 22 (2003).
A theater and banquet space owned by a religious
organization but leased to others was not a “religious
exercise” and operated for primarily commercial uses.
◦ Scottish Rite Cathedral Ass’n v. Los Angeles, 156 Cal.App.4th
108 (2007).
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In some cases, the question of whether a “religious use”
exists depends not on how auxiliary it is to a primary
religious use, but whether a bona fide religious use exists
at all.
Church of Universal Love and Music v. Fayette County,
2008 U.S. Dist. LEXIS 65564 (W.D.Pa. 2008)
Scottish Rite Cathedral Ass’n v. Los Angeles, 156
Cal.App.4th 108 (2007)
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If it is determined that a land use regulation
burdens a religious exercise, the next question is
whether that burden is substantial.
RLUIPA intentionally left the term “substantial
burden” undefined, but “The term ‘substantial
burden’ as used in this Act is not intended
to be given any broader definition than the
Supreme Court’s articulation of the concept
of substantial burden or religious exercise.”
Joint Statement, 146 Cong. Rec. S7776.
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The circuit courts have adopted different
standards:
◦ Living Water Church of God v. Twp. of Meridian, 258
Fed. Appx. 729 (6th Cir. 2007).
◦ CLUB v. Chicago, 342 F.3d 752 (7th Cir. 2003).
◦ Guru Nanak Sikh Society v. County of Sutter, 456 F.3d
978 (9th Cir. 2006).
◦ Midrash Sephardi v. Town of Surfside, 366 F.3d 1214
(11th Cir. 2004).
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Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2d Cir.
2007)
◦ Court adopted the coercion test set forth in the 11th Circuit’s Midrashi opinion
◦ Noted that a substantial burden claim may exist where land use restrictions are imposed
arbitrarily, capriciously or unlawfully, as in this case, where the decision was based on
grounds unrelated to the public health, safety or welfare.
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Regulations that have minimal impacts on
religious exercise are unlikely to be deemed
substantial burdens.
Costs and procedural requirements are not
per se substantial burdens. See CLUB v.
Chicago, 342 F.3d 752 (7th Cir. 2003).
However, unjustified delays, uncertainty and
expense were found to be substantial
burden in Sts. Constantine & Helen v. New
Berlin, 396 F.3d 895 (7th Cir. 2005).
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No. Most courts agree that it is not a substantial
burden to require religious entities to apply for
variances or special permits.
◦ Murphy v. New Milford Zoning Commission, 402 F.3d 342 (2d
Cir. 2005).
◦ See also Konikov v. Orange County, 410 F.3d 1317 (11th Cir.
2005)
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However, if an application is submitted, it will be a
substantial burden if the municipality refuses to
consider it at all.
◦ Castle Hills First Baptist Church v. Castle Hills, 2004 U.S. Dist.
LEXIS 4669 (W.D. Tex Mar. 17, 2004).
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Not always. A religious institution may
reasonably be required to amend its
application or seek administrative
remedies.
◦ Roman Catholic Diocese of Rockville
Centre v. Incorporated Village of Old
Westbury, 2011 WL 666252 (E.D.N.Y.
2011)
◦ See also Corp. of the Presiding Bishop v.
City of W. Linn, 338 Ore. 453 (2005)
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Sometimes.
◦ Albanian Associated Fund v. Twp. of Wayne, 2007 WL
2904194 (D.N.J. 2007)
◦ Castle Hills First Baptist Church v. Castle Hills, 2004 WL
546792 (W.D.Tex. 2004)
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Availability of Alternative Site is important
◦ City of Woodinville v. Northshort United Church of Christ, 162 P.3d
427 (Wash.App. 2007)
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Courts are more likely to find a substantial burden
if the plaintiff has submitted multiple applications
and made attempts to compromise with the
municipality, and it appears unlikely that the
religious institution could do anything to secure an
approval, especially if there is a “whiff” of
discriminatory motive or bad faith.
Likely a Substantial
Burden
` Nowhere to locate in
the jurisdiction
` Unable to use property
for religious purposes
` Imposing excessive
and unjustified delay,
uncertainty or expense
` Unwillingness to
compromise/bad faith
Likely Not a Substantial
Burden
` Plaintiffs never sought
a permit
` Timely denial that
leaves other sites
available
` Denial that has a
minimal impact
` Denial where no
reasonable expectation
of an approval
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No, even if a land use regulation constitutes a
substantial burden on religious exercise, it is
permissible if it furthers a compelling
government interest by the least restrictive
means possible
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Once substantial burden is proven, the
burden shifts to the government to make the
above showing
y Demonstrating
a compelling
government interest is demanding
y
Public Safety
yPeople v. Miller (N.Y.Sup.Ct. St.
Lawrence Co. Jul. 23, 2008)
yMurphy v. Town of New Milford, 289 F.
Supp. 2d 87 (D.Conn. 2003), vacated on
other grounds, 402 F.3d 342 (2d Cir.
2005).
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Some courts have found planning to be a compelling
interest, primarily in cases where a religious
organization seems to disregard reasonable zoning
restrictions.
◦ Christian Methodist Episcopal Church v. Montgomery, 2007
WL 172496 (D.S.C. 2007)
◦ Greater Bible Way Temple v. City of Jackson, 478 Mich. 373
(2007).
y
y
y
y
y
Westchester Day School v. Mamaroneck, 386 F.3d 183
(2d Cir. 2004) – property values
Cottonwood Christian Center v. City of Cypress, 218
F.Supp.2d 1203 (C.D.Cal. 2002) – generating revenue
and removing blight
But see Lighthouse Institute for Evangelism v. City of
Long Branch, 406 F.Supp.2d 507 (D.N.J. 2005) –
economic development
Grace Church v. City of San Diego, 555 F.Supp.2d 1126
(S.D.Cal. 2008) – preservation of industrial zones
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The equal terms provision prohibits government
from imposing or implementing a land use
regulation in a manner that treats a religious
assembly or use on less than equal terms with
similar nonreligious assembly or institution.
The nondiscrimination provision prohibits
government from imposing or implementing a land
use regulation that discriminates against any
religious assembly or use on the basis of religion
or religious denomination.
The equal terms and nondiscrimination aspects of
RLUIPA operate independently of the substantial
burden provision.
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The Eleventh Circuit held in Midrash Sephardi v.
Town of Surfside, 366 F.3d 1317 (11th Cir.
2004), that there is an equal terms violation if
the ordinance allows any secular assembly use.
However, the Third Circuit held in Lighthouse
Institute for Evangelism v. City of Long Branch,
510 F.3d 253 (3d Cir. 2007), that the equal
terms provision is only violated if the ordinance
treats the religious use less well than secular
uses that are similarly situated as to the
regulatory purpose of the ordinance.
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The Seventh Circuit in River of Life v. Village
of Hazel Crest, 611 F.3d 367 (7th Cir. 2010)
was critical of the approaches taken by both
the Eleventh and Third Circuits.
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Third Church of Christ v City of New York, 626 F.3d 667 (2d Cir. 2010)
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Rocky Mountain Christian Church v. Bd. of Cty.
Commissioners, 605 F.3d 1081 (10th Cir. 2010),
involved the proposed expansion of a mega
church.
The church claimed it was treated unequally as
compared to a school expansion approved a
decade earlier. But the county claimed school was
not a valid comparator use because:
x The church expansion was double the school:
132,000 sf vs. 60,000 sf;
x The church expansion was one large building while
school expansion was multiple small buildings; and
x The church expansion increased traffic 10 times vs.
school.
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The court rejected the county’s claim that the
school was not a valid comparator use because:
◦ Total size of project after expansion was similar:
196,000 sf for school vs. 240,800 sf for church
◦ Both added a gymnasium of same size, expanded
student body by 120, and were in same zoning
district
◦ Both had same buffer area between building
expansion and property line
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So … the expansions were not identical, but close
enough to uphold jury’s conclusion they were
similarly situated.
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RLUIPA also prohibits local governments
from totally excluding religious assemblies
or unreasonably limiting them.
Courts have said this provision is not
violated merely because religious
assemblies are not permitted as of right in
any zoning districts; it is not an
unreasonable limitation to require a special
use permit or other approval.
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Floodgates have opened on litigation from
religious institutions challenging zoning laws
Help from well-funded allies (e.g., Becket Fund for
Religious Liberty)
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Municipalities sued under RLUIPA have faced
substantial damage/settlement awards:
◦ Hollywood Comm. Synagogue v. City of Hollywood,
436 F.Supp.2d 1325 (2006), city settled for $2M
◦ Village of Mamaroneck agreed to pay $4.75 M to
settle claims brought against it by the Westchester
Day School.
◦ A $3.7 million award was upheld against the
municipality in Reaching Hearts International v. Prince
George’s County, 368 Fed. Appx. 370 (4th Cir. 2010)
◦ $2.1 million against Boulder, Colorado in Rocky
Mountain Christian Church v. Board of county
Commissioners of Boulder Co., 2010 WL 148289 (2010).
◦ A $1.5 million settlement St. Benedict Center v. Town of
Richmond,et.al, (NH Superior Ct. 10/23/09)
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Examine your land use regulations and keep
them up to date, along with your comprehensive
plan.
Use the comprehensive plan to acknowledge and
make provisions for different types and sizes of
religious institutions. Collect data and conduct
studies to determine how to accommodate
religious uses without harming surrounding
property owners.
Review your historic preservation and landmark
ordinances
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Do everything possible to ensure that
procedures are administered fairly and in a
nondiscriminatory manner.
Incorporate strong findings into the record
Be extremely cautious about departing
from well-established precedents
Require full mutual releases before
settlement
Consider training
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Use Common Sense
Be Fair
Do Not Discriminate