The effect of RLUIPA's land use provisions on local governments.

• Author: Weinstein, Alan C.
• Position: Religious Land Use and Institutionalized Persons Act

Introduction A. The Legal Context for RLUIPA B. The Social Context for RLUIPA C. The Land Use Regulation Context for RLUIPA I. RLUIPA Basics A. Coverage and Claims B. Constitutionality C. RLUIPA Litigation D. Role of the Beckett Fund and the U.S. Justice Department in RLUIPA Litigation II. The Effect of RLUIPA on Local Governments A. What We Do Know--and What We Don't--About RLUIPA Litigation 1. Amount of Litigation 2. Outcomes of RLUIPA Litigation B. How RLUIPA Has Changed Local Land Use Regulation Conclusion INTRODUCTION

1. The Legal Context for RLUIPA

   The past three decades have seen startling changes in the way courts approach disputes involving claims by individuals or religious institutions that local land use regulations have infringed on rights protected by the First Amendment's guarantee of religious freedom. (1) Prior to 1983, no federal court of appeals had considered a case involving land use regulation of religious institutions. (2) Such litigation was confined almost totally to state courts, which analyzed challenges to land use regulations based on a substantive due process analysis. (3) State courts split on the issue of whether religious institutions should be treated the same as any other institution, with land use controls subject only to rational basis review when challenged, or whether religious institutions should be entitled to preferential treatment, with challenges to land use controls subjected to heighted scrutiny. The majority of states favored the latter approach. (4)

   In 1983, the Sixth and Eleventh Circuit Courts of Appeal each applied a balancing test based on the Supreme Court's free exercise cases to uphold a zoning regulation that excluded a house of worship from a particular zoning district. (5) In the wake of those decisions, zoning disputes increasingly shifted to the federal courts and several states reconsidered their doctrinal approach to such disputes, either modifying the due process analysis to eliminate preferential treatment for religious institutions or shifting to a free exercise balancing test. (6)

   The next significant change came in 1990, when the U.S. Supreme Court unexpectedly abandoned its strict scrutiny standard for free exercise claims. In that year's Smith decision, the Court announced that courts should not grant exemptions from neutral laws of general applicability, such as land use regulations, even where these laws substantially burden religious freedom. (7) The Smith decision was widely denounced by religious groups, which lobbied for Congressional action to "restore" the strict scrutiny standard that the Court had discarded in Smith. (8) That effort led to the enactment of the federal Religious Freedom Restoration Act (RFRA) in 1993; (9) however, RFRA proved to be short-lived. In 1997, the Court held that the Act was unconstitutional as it applied to state and local governments, ruling that it exceeded the authority of Congress under the enforcement clause of the Fourteenth Amendment and violated separation of powers principles. (10) Although RFRA was gone, a number of states had enacted their own religious freedom statutes in reaction to Smith and these were, of course, unaffected by the Court's action. (11)

   In 2000, after two failed efforts, (12) Congress enacted a new religious freedom statute, the Religious Land Use & Institutionalized Persons Act (RLUIPA), which was explicitly drafted to cure the constitutional defects that had doomed RFRA. (13) As opposed to the broad reach of the Religious Liberty Protection Acts that had been rejected in 1998 and 1999, RLUIPA, as its name indicated, applied in only two contexts: land use and prisons. (14) As regards land use, it restored the strict scrutiny test for land use regulations that impose a substantial burden on religious expression and added prohibitions on discriminating against or excluding religious institutions. (15) This Article examines the effect of RLUIPA's land use provisions on local governments. (16)

2. The Social Context for RLUIPA

   The past three decades have seen significant changes to the social context in which disputes occur over the application of local zoning and historic preservation ordinances to houses of worship and other "religious" property. These disputes have become more prevalent. (17) Obviously, the enactment of RLUIPA itself has played a major role in that escalation, (18) but there are larger factors at work that predate RLUIPA.

   First, houses of worship today are more likely to be perceived as inflicting negative effects on neighboring properties. New churches, and older ones seeking to expand an existing use, are often significantly larger than the churches of earlier eras and use their facilities more intensively. In addition to religious services, many churches sponsor schools, day-care centers, adult education classes, a variety of programming serving different age groups, and various faith-based "support" groups. (19) Some churches also provide shelter for the homeless and meals for the indigent. (20) Many houses of worship also have venues where wedding receptions or bar/bat mitzvah celebrations are held late into the night on weekends. As church activities expand to twelve or more hours per day, seven days a week, neighbors become increasingly concerned about the negative effects of the increased traffic, parking, noise, and late-night activity on property values.

   Of course, any new or expanded "non-residential" development proposed for a residential neighborhood--the traditional locale for houses of worship--is likely to be opposed by neighbors. But the classic "NIMBY" phenomenon (21) poses additional difficulties with respect to houses of worship because of recent changes in the manner in which Americans worship. Where previous generations attended houses of worship in their own neighborhoods, commentators have noted that today, "religious institutions serve populations that are less and less centered in the geographic communities in which they are located." (22) Thus, a proposed house of worship is likely to be seen by its neighbors as providing few benefits--since most of them will not be members--while imposing burdens such as increased traffic, parking difficulties, noise, and the potential for negative effects on property values.

   The rapidly increasing scope of our religious diversity may also be a factor in some land use disputes involving religious institutions. Traditionally, the major religious institutions in most American communities were those affiliated with the Catholic Church or "mainstream" Protestant denominations such as Lutheran, Baptist, Methodist, and Presbyterian, with larger cities also home to a variety of Jewish, Eastern Orthodox, and smaller Christian denominations. (23) In contrast, today's fastest-growing religious groups--Mormon, Evangelical Christian, Orthodox Muslim, Hindu, Sikh, Buddhist, and ultra-Orthodox Jewish (24)--which were previously either geographically isolated (e.g., Mormons in Utah and ultra-Orthodox Jews in New York City) or only a minor presence until their numbers were swelled by recent immigrants (e.g., Hindus, Buddhists, Sikhs, and Muslims)may be found in almost any American community. (25)

   At times, the entry of such "nonmainstream" groups into a community--or the local community's reaction to it--can lead to land use conflicts. A 1999 study of all then-reported cases in the zoning and land use context claims that its findings "strongly suggest that a high percentage of cases are being contested by religious groups comprising a very small percentage of the total population." (26) This pattern appears to be continuing in the cases brought under RLUIPA. (27) Why is this so? On the one hand, the arrival of a new religious denomination--if it is small and impecunious--can lead to conflict if the members of the fledgling congregation seek to worship or study regularly in a private home, (28) rented storefront, (29) or an industrially-zoned building (30) and the neighbors or local officials claim the property is not zoned for use as a house of worship.

   On the other hand, when a well-funded religious denomination arrives and seeks approval for a new, large house of worship--a Mormon temple (31) or a "big box church" (32) being paradigmatic cases--neighbors or local officials may again object, citing such traditional zoning concerns as effect on property values, traffic, parking, landscaping, et cetera, as the basis for their opposition. Local officials may also be concerned about erosion of the city's tax base if too much property is acquired by tax-exempt religious institutions. (33) Regrettably, conflict may sometimes arise as a result of citizens' and local officials' antipathy for, and resulting discriminatory actions toward, the newly arrived or rapidly expanding denomination. (34)

3. The Land Use Regulation Context for RLUIPA

   Although a lengthy description or discussion of local regulation of land use is well beyond the scope of this Article, (35) it will be helpful to make some observations about the topic to provide a context for the discussion that follows in subsequent sections. First, a major goal of almost all zoning ordinances has been, and remains, to segregate "incompatible" land uses, with a focus on ensuring that single-family residential uses are shielded from more intensive multi-family residential, institutional, commercial and industrial uses. (36) Second, many, if not most, zoning decisions that actually apply an ordinance to a specific request for a zoning approval have some degree of subjectivity. (37) Third, disputes over land use approvals can be seen as fitting into two broad categories that I will call "plan disputes" and "neighbor disputes"; the categories are not mutually exclusive. By "plan dispute," I mean a dispute that arises when the zoning for a particular property allows "x" and the property owner or developer seeks approval for "y," with "x" and "y" referring to...