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RLUIPA FAQ - Impact on zoning and land use PDF  | Print |  E-mail

RLUIPA – What does it really mean in the zoning land use context?

By Michael W. Newcomb
Newcomb Law Group

The following discussion is intended to educate the reader on the RLUIPA (Religious Land Use and Institutionalized Persons Act) as it applies to zoning restrictions and actions that impact religious institutions.

Question: What does RLUIPA make illegal?

Answer:  RLUIPA is a law passed by the Federal Government that, in part, makes it illegal to unreasonably discriminate against religious institutions[1].  RLUIPA makes certain zoning practices illegal under the following provisions:

Substantial Burden Provision.  When making an individualized assessment, a governmental entity cannot “substantially burden[2]” a religious institution unless it (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.[3]    

Equal Terms Provision. 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.[4]   

Exclusion Provision. Prohibiting a religious institution or unreasonably limiting such institutions from a jurisdiction (i.e. City or County) or discriminating against a particular belief system (e.g. Protestants are acceptable, but not Catholics, Jews, or Muslims).[5] 

Religious institutions and assemblies, include not only churches, but religious schools and other institutions.

Question: Does RLUIPA make it illegal to prohibit churches from a particular zone?

Answer: No.  An argument often made by those supporting religious institutions is that RLUIPA makes it illegal to prohibit religious institutions within a zone.  This is not accurate and such a broad application of RLUIPA was never intended by the original drafters of the law[6] and has been rejected by the courts on numerous occasions.

The court in Petra Presbyterian Church v. Village of Northbrook (2007)[7] said it best:

The ban on churches in … a … zone cannot in itself constitute a substantial burden on religion, because then every zoning ordinance that didn't permit churches everywhere would be a prima facie violation of RLUIPA.

The Substantial Burden Provision

Question: What is a “Substantial Burden”?

Answer: A ‘substantial burden’ must place more than an inconvenience on religious exercise; it must be ‘oppressive’ to a ‘significantly great’ extent. That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or onus upon such exercise.”[8] 

Question: Does RLUIPA’s “Substantial Burden” Provision apply when a zoning law does not allow churches within a zone?

Answer: No, with a potential exception.  Fundamentally the substantial burden provision only applies when “… a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.”[9]

Thus, a zoning law that states: “Certain uses are allowed and all other uses are disallowed” will not violate the substantial burden provision.  If a religious institution were to purchase land within the zone and attempt to convert a building or erect a church, there would not be a violation of the substantial burden clause if the government denied the application, without making any individualized assessments of the project.

If on the other hand, the zoning law stated: “Certain uses are allowed and all other uses are disallowed, unless a conditional use permit has been approved” then the substantial burden provision would apply because the non-conforming use would be subject to an individualized assessment of the details of the project.[10]

Just because the substantial burden provision does not apply, it is important to note that a violation of the Equal Terms provision may have occurred, depending on the nature of the allowed uses within the zone at issue.

Question: What is the potential exception to the substantial burden provision?

Answer: Based on case law, it appears the courts will consider a generally neutral zoning law to violate the substantial burden provision if the religious institution can prove that there is no other suitable land or properties within the city or county.[11] Thus, a religious institution would have to prove that it must be located within the particular zone because it cannot be located in those areas where churches are allowed.[12]

Question: What is a “compelling government interest” under the substantial burden provision?

Answer: The courts of appeal have yet to specifically define a bright line rule as to what is a “compelling government interest” under the substantial burden provision within the zoning context.   Health and safety concerns, such as, preservation of human life [12.1], including children [12.2] has been found to be a compelling interest in other contexts.  As such, laws that limit the location of schools from major highways, industrial areas that use toxins and large agricultural users would likely be deemed a compelling interest.[12.3]

Under constitutional law, a "compelling interest" is not a general interest but must be particular to a specific case; namely, the interest requires the infringement of a particular right due to an interest of the highest order.[13]

The district court in Grace Church of North County v. City of San Diego (S.D.Cal.,2008)[14], recognized:

One way to evaluate a claim of compelling interest is to consider whether in the past the governmental actor has consistently and vigorously protected that interest. See Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 547, 113 S.Ct. 2217 (“A law cannot be regarded as protecting an interest of the highest order ... when it leaves appreciable damage to that supposedly vital interest unprotected.”).

Generally speaking, the more specific and direct the interest, the more compelling that interest may be.  For example, the general protection of industrial or agricultural lands may not be compelling, especially if the municipality allows uses that fail to narrowly target the supposed “compelling use” or fails to consistently deny applications that seek non-conforming uses/variances within the applicable zone.  In contrast, the protection of vineyards and wineries within a recognized, historical wine region that provides economic benefits and identity to the community is likely a compelling interest, as long as, the municipality is “consistent and vigorous” in the application of its rules by prohibiting all nonconforming uses.

Question: Would the protection of agricultural lands used for vineyards be considered a “compelling government interest” under the substantial burden provision?

Answer:  While no published court case has had the opportunity to determine whether legitimate attempts to protect agricultural lands (let alone vineyards) from nonconforming uses equate to a “compelling interest;” an excellent argument exists that it does.

California, for example has recognized the importance of protecting agricultural lands and open spaces through the adoption of the California Land Conservation Act of 1965 (aka the Williamson Act)[15] and defines “Prime Agricultural Land” as “Land planted with … vines … which will normally return during the commercial bearing period on an annual basis from the production of unprocessed agricultural plant production not less than two hundred dollars ($200) per acre.”[16]

Municipalities that craft their agricultural land zoning rules to conform to the use standards set forth in the Williamson Act[17], should have little trouble defending an RLUIPA claim that denied a non-conforming religious use.

For example, Napa County prohibits religious institutions from within its Agricultural Preserve (see, the Napa County Code § 18.16.010 (2010)), and articulates the following intent in its “Agricultural Preserve District:”

The AP district classification is intended to be applied in the fertile valley and foothill areas of Napa County in which agriculture is and should continue to be the predominant land use, where uses incompatible to agriculture should be precluded and where the development of urban-type uses would be detrimental to the continuance of agriculture and the maintenance of open space which are economic and aesthetic attributes and assets of the county.

Likewise, other counties, such as Riverside have similar laws that allow agricultural related uses and discourage all other non-conforming uses, including churches[18].

The Equal Terms Provision

Question: Does RLUIPA’s “Equal Terms” Provision apply when a zoning law does not allow churches within a zone?

Answer: Maybe, it depends on the allowed uses within the zone.  The equal terms provision simply requires that religious institutions or assemblies be treated no less than equally with nonreligious institutions or assemblies.  It therefore follows that if nonreligious institutions/assemblies are disallowed within a zone, it would be perfectly legal to treat religious assemblies and institutions the same.

The problem and what the courts have been struggling with, is what constitutes a “nonreligious assembly or institution?” Over the years the courts have adopted two different approaches:

  1. The Literalist Approach (11th Circuit) - good for Religious Institutions
  2. The “Similarly Situated” Approach (3rd, 7th, 9th and 10th Circuits) – good for Municipalities

If this were a baseball game, the score would be:

Religious Institutions

Municipalities

1

4

 

Question: What is the Literalist Approach under the “Equal Terms” Provision?

Answer: The literalist approach as articulated by the 11th Circuit in Midrash Sephardi, Inc. v. Town of Surfside (11th Cir.2004), holds that a zoning ordinance that permits any “assembly,” as defined by dictionaries, to locate in a district must permit a church to locate there as well.  The literalist approach ignores any differences in size of the uses, differing negative impacts, etc., and essentially holds that if a 10 person book club is allowed to assemble within the zone, so must a 3,000 person mega-church.

The literalist approach is what religious institutions (and their lawyers) argue is the correct standard under the Equal Terms provision; and if the zoning authority is in Florida, Alabama and Georgia (11th Circuit), this appears to be the rule.

Question: What is the “Similarly Situated” Approach under the “Equal Terms” Provision?

Answer: The “Similarly Situated” approach attempts to interject a modicum of reasonableness into the analysis.  Under this approach a court must determine what exactly is an appropriate nonreligious assembly or institution to use as a comparator by asking whether the nonreligious uses and impacts are “similar” to the religious use and impacts.  The courts that have adopted the “similarly situated” approach have rejected the Midrash literalist approach as leading to absurd results.

3rd Circuit Test: In Lighthouse Institute for Evangelism, Inc. v. City of Long Branch (2007), the court ruled that “a regulation will violate the Equal Terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose.”[19]

9th Circuit Test: In Centro Familiar Cristiano Buenas Nuevas v. City of Yuma (D.Ariz. 2009), the court adopted the Lighthouse test.[20]

7th Circuit Test: River of Life Kingdom Ministries v. Village of Hazel Crest, Ill.(2010), adopted a modified Lighthouse test which replaced the focus on “regulatory purpose” to that of “accepted zoning criteria.”  Thus, the River of Life test is: a regulation will violate the Equal Terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to accepted zoning criteria.[21]

10th Circuit Test: Rocky Mountain Christian Church v. Board of County Commissioners of Boulder County, Co. (July 19, 2010) affirmed a lower court’s jury instruction that required a finding that the comparators (a high school v. church) were “similarly situated.”[22] Given the facts of the case, the court was not asked to consider and did not discuss the “regulatory purpose” or “accepted zoning criteria,” but nonetheless, declined to follow the 11th Circuit’s literalist approach.

The Exclusion Provision

Question: Does RLUIPA make it illegal to prohibit churches from a jurisdiction?

Answer: Yes.  A city, municipality or county cannot prohibit churches from their entire jurisdiction.  Thus, the City of San Diego could not pass a law that states: “Churches are prohibited in the City of San Diego.”  This would violate the exclusion provision of the RLUIPA law.  Please note that reference to “jurisdiction” is the City, County, municipality, etc., and not merely a zone.  The exclusion provision is not violated when a jurisdiction exercises its zoning authority to allow some uses but not other uses in certain zones.



End Notes

[1] Religious Freedom and Restoration Act of 2000, 42 U.S.C. §§ 2000cc–2000cc-5 (2006); 42 U.S.C. § 2000cc (2006).

[2] [F]or a land use regulation to impose a ‘substantial burden,’ in the 9th Circuit it must be ‘oppressive’ to a ‘significantly great’ extent. That is, a ‘substantial burden’ on ‘religious exercise’ must impose a significantly great restriction or onus upon such exercise.” San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, (9th Cir. 2004), see also Guru Nanak Sikh Soc. of Yuba City v. County of Sutter, 456 F.3d 978, 988 (Cal. 9th Cir. 2006)

[3] 42 USC § 2000cc(a)(1).

[4] 42 USC § 2000cc(b).

[5] 42 USC § 2000cc(b)(3).  Section (b)(2) also prohibits discrimination on the basis of religious denomination.

[6] 146 CONG. REC. S7776 (2000) (joint statement of Sens. Hatch and Kennedy)  “[t]his Act does not provide religious institutions with immunity from land use regulations, nor does it relieve religious institutions from applying for variances, special permits or exceptions, hardship approval, or other relief provisions in land use regulations, where available without discrimination or unfair delay.

[7] Petra Presbyterian Church v. Village of Northbrook (2007) 489 F.3d 846, citing, Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 760-62 (7th Cir.2003); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d at 1226-28 (11th Cir.2004),; San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034-35 (9th Cir.2004);

[8] Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 615 F.Supp.2d 980, 989 (D.Ariz.,2009), citing, Guru Nanak Sikh Soc'y v. County of Sutter, 456 F.3d 978, 988 (9th Cir.2006), Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir.2004)), and San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004)).

[9] 42 USC § 2000cc(a)(2)(C).  This subsection applies in any case in which - the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

[10] See, Guru Nanak Sikh Soc. of Yuba City v. County of Sutter, 456 F.3d 978, 986, (Cal. 9th Cir. 2006)

[11] International Church of Foursquare Gospel v. City of San Leandro, 632 F.Supp.2d 925, N.D.Cal., December 22, 2008 (Church failed to meet substantial burden because Church failed to prove that no other suitable properties existed in the City); San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, (9th Cir. 2004) (College failed to meet substantial burden because city's actions had not lessened the possibility that the college could find a suitable property (“[There is] no evidence in the record demonstrating that College was precluded from using other sites within the city.”); and Hillcrest Christian School v. City of Los Angeles, 2007 WL 4662042 (School failed to meet substantial burden because School did not demonstrate that it would not be successful if it attempted to build a second campus on another parcel or significantly scaled back its current project.  The court distinguished Guru Nanak stating that “expansion and existence certainly differ in degree.”)

[12] Guru Nanak Sikh Soc. of Yuba City v. County of Sutter, 456 F.3d 978 (Cal. 9th Cir. 2006)  (Substantial burden found because City denied two applications, even after Temple accepted mitigated conditions.  Evidence demonstrated pattern of denial that made future attempts by Temple likely futile.  The Temple sought to build in a “General Agricultural” area, which allowed churches with CUP).

[12.1] Washington v. Glucksberg, 521 U.S. 702, 728 (1997) (quoting Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 282 (1990).

[12.2]See Gonzales v. Carhart, 550 U.S. 124, 145 (2007) (citing Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 846 (1992)); see also Roe v. Wade, 410 U.S. 113, 146, 163 (1973).

[12.3] For example, California's Education Code § 17213, subd. (b) and (c), essentially prohibits a school within one-fourth of a mile of “large agricultural operations” that “might reasonably be anticipated to emit hazardous air emissions, or to handle hazardous or extremely hazardous materials, substances, or waste.”

[13] Reaching Hearts Intern., Inc. v. Prince George's County  584 F.Supp.2d 766, 788 (D.Md.,2008), citing, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993)

[14] Grace Church of North County v. City of San Diego, 555 F.Supp.2d 1126, 1140 (S.D.Cal.,2008).  The court stated:

The facts of this case belie Defendants' claim that they have a “compelling interest” in preserving industrial lands in the industrial park where Grace Church has secured its property. The zoning provisions applicable to the Rancho Bernardo Industrial Park expressly permit specific non-industrial uses, including church use. The City received a proposal from its Economic Development Department to eliminate all non-industrial office uses from areas zoned as the RBIP is, but that proposal was never adopted. ( See Todd Decl., Ex. K at 68:3-9, 87:15-16; Ex. O; Ex. P.) These facts reflect a conscious decision to permit non-industrial uses within this industrial park, which lessens the force of Defendants' claim that preserving industrial lands is a “compelling interest.”

Additionally, consistent with zoning that expressly permits specified non-industrial uses, several parcels within the industrial park have been occupied by non-industrial uses. Of the approximately 600 acres in the Rancho Bernardo Industrial Park, roughly 100 are slated for office (i.e., non-industrial) uses. ( See Todd Decl., Ex. K at 56:24-57:10.) The parcel that Grace Church seeks to use has been vacant for several years, and the adjacent property is a 150,000 square foot Class A office building that replaced a 45,000 square foot industrial building. (Todd Decl., Ex. L; see id., Ex. V at 126:17-22.)

[15] California Government Code §§ 51200, et. seq.

[16] California Government Code § 51201, Subd. (c)(4).

[17] California Government Code § 51238.1, which provides in relevant part:

(a) Uses approved on contracted lands shall be consistent with all of the following principles of compatibility:

(1) The use will not significantly compromise the long-term productive agricultural capability of the subject contracted parcel or parcels or on other contracted lands in agricultural preserves.

(2) The use will not significantly displace or impair current or reasonably foreseeable agricultural operations on the subject contracted parcel or parcels or on other contracted lands in agricultural preserves. Uses that significantly displace agricultural operations on the subject contracted parcel or parcels may be deemed compatible if they relate directly to the production of commercial agricultural products on the subject contracted parcel or parcels or neighboring lands, including activities such as harvesting, processing, or shipping.

(3) The use will not result in the significant removal of adjacent contracted land from agricultural or open-space use.

[18] Riverside County Code, Section 14.71

[19] Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir.2007).  Under this test, the City of Long Branch’s “redevelopment plan” that excluded churches was upheld because allowing a church to enter the zone would thwart the ability of commercial businesses within 200 feet to obtain liquor licenses.

[20] In Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 615 F.Supp.2d 980 (D.Ariz. 2009).  The City argued that allowing churches in the Old Town District would prevent the issuance of liquor licenses to restaurants, dance halls, etc., because of a state law that prevents the issuance of liquor licenses within 300 feet of a church or school

[21] River of Life Kingdom Ministries v. Village of Hazel Crest, Ill., --- F.3d ----, 2010 WL 2630602, C.A.7 (Ill.), 2010, stating: “The problems that we have identified with the Third Circuit's test can be solved by a shift of focus from regulatory purpose to accepted zoning criteria. The shift is not merely semantic. “Purpose” is subjective and manipulable, so asking about “regulatory purpose” might result in giving local officials a free hand in answering the question “equal with respect to what?” “Regulatory criteria” are objective-and it is federal judges who will apply the criteria to resolve the issue.”

[22] RMCC presented ample evidence of similarities between the projects at trial. … the total resulting square footage of the two projects was similar (Dawson School resulted in 196,000 square feet and RMCC would have totaled 240,800) [citation omitted].  Both proposals would have expanded existing uses, both would have built gymnasiums of roughly the same size, both would have expanded their student bodies by 120 students, and both properties were located in Agricultural Districts and designated as agricultural lands of importance.[citation omitted] The Dawson School and RMCC applications also proposed similarly sized “buffers” (the distance between the building and the property line). [citation omitted]. Although the two proposed expansions were not identical, the many substantial similarities allow for a reasonable jury to conclude that RMCC and Dawson School were similarly situated.