54 RI Bar J., No. 2, Pg. 5 (September/October 2005). Zoning Regulation of Religious Activities: The Impact of Federal Law.

• Author: Roland F. Chase, Esq.

Rhode Island Bar Journal

Volume 54.

54 RI Bar J., No. 2, Pg. 5 (September/October 2005).

Zoning Regulation of Religious Activities: The Impact of Federal Law

September/October 2005 pg. 5 Zoning Regulation of Religious Activities: The Impact of Federal LawRoland F. Chase, Esq.Roland F. Chase is of counsel to Miller Scott & Holbrook in Newport and an adjunct professor at Roger Williams University School of Justice Studies.

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), (fn1) 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. (fn2)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." (fn3)

Basic provisions

The RLUIPA, which has been upheld as constitutional insofar as it applies to land use (fn4) by most (fn5) but not all (fn6) federal courts, imposes a "strict scrutiny" standard of review on land use laws that substantially burden religious exercise. (fn7)

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...." (fn8)

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. (fn9)

The RLUIPA contains a special burden-of-persuasion provision. The church or other plaintiff bringing a suit under the Act (fn10) has the burden of proving that the government regulation imposes a substantial burden on the plaintiff's exercise of religion. (fn11) If the plaintiff produces prima facie evidence to support its claim, (fn12) the burden then shifts to the government to carry the very difficult burden (fn13) 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. (fn14)

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 religion (fn15) or causes inconvenience to the plaintiff. (fn16) 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, (fn17) or compel action or inaction with respect to the sincerely held belief. (fn18) It means something more than having a greater burden than is imposed on secular institutions. (fn19) 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." (fn20)

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." (fn21) 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. (fn22) Imposing an approval process that will unreasonably delay the construction of a church has been held to violate the substantial burden provision. (fn23)

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. (fn24) 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. (fn25)

The substantial burden claimed by the plaintiff in a RLUIPA case must be on a "sincerely held" religious belief or exercise of religion. (fn26) This is a question of fact, (fn27) which obviously requires more than a mere allegation of sincere religious belief. (fn28)

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." (fn29) Specifically, the use of real property, or the building or conversion of a structure on real property, (fn30) 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. (fn31)

Clearly this expansive (fn32) - and perhaps revolutionary (fn33) - definition of "religious exercise" covers more than the use of a building for group worship (fn34) and even a weekly home Bible study that congests a residential street. (fn35) 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, (fn36) although some courts may balk at going this far. (fn37) 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. (fn38)

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, (fn39) and it must be a genuine interest, not one manufactured to thwart religious development of property. (fn40) As to specific interests, the government may have a compelling interest in enforcing its zoning regulations and ensuring traffic safety in residential neighborhoods, (fn41) but eliminating blight (fn42) and generating revenue (fn43) 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. (fn44) 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. (fn45)

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. (fn46) 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. (fn47) 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. (fn48)

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," (fn49) or "discriminates against any assembly or institution on the basis of religion or religious denomination." (fn50)

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, (fn51) for example, or to complete an onerous application process, (fn52) 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...