Judicial review of local land use decisions: lessons from RLUIPA.

AuthorOstrow, Ashira Pelman

This Article questions whether traditional judicial deference to local land use regulators is justified in light of the highly discretionary, and often corrupt, modern system of land use regulation. In 2000, Congress determined, first, that unlike other forms of economic legislation, land use regulation lacks objective, generally applicable standards, leaving zoning officials with unlimited discretion in granting or denying zoning applications, and second, that this unlimited discretion lends itself to religious discrimination. Congress therefore enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), which requires courts to apply strict scrutiny review to land use decisions that impact religious land uses.

Since its enactment, the constitutionality of RLUIPA has been debated extensively. Many scholars maintain that the statute is an overly broad exemption that creates a privileged class of land users and allows religious institutions to avoid a community's reasonable land use concerns. In contrast, this Article argues that in enacting RLUIPA, Congress identified a global flaw in land use regulation that impacts all land users, but limited its remedy to religious land users. While RLUIPA's strict scrutiny review is clearly inappropriate for land use cases that involve neither fundamental rights nor suspect classes, traditional judicial deference is equally inappropriate in light of the discretionary nature of modern zoning. Fortunately, the Supreme Court established the appropriate standard of review in its earliest zoning cases. This Article thus maintains that RLUIPA is significant because it highlights a fundamental flaw in local land use regulation, and because its bifurcated approach to judicial review of zoning decisions revives an early facial/as-applied dichotomy in land use jurisprudence and encourages more meaningful judicial review of all as-applied land use decisions.

INTRODUCTION I. JUDICIAL DEFERENCE AND THE DISCRETIONARY NATURE OF LOCAL LAND USE REGULATION A. The Rise of Zoning and the Origins of Judicial Deference B. Judicial Deference in Light of Discretionary Modern Zoning Practice II. RLUIPA's LAND USE PROVISIONS AND THE "INDIVIDUALIZED ASSESSMENTS" DOCTRINE A. The History and Purpose of RLUIPA's Land Use Provisions B. The "Individualized Assessments" Doctrine C. RLUIPA's Bifurcated Framework for Judicial Review 1. Zoning Ordinances "As Applied" Through Individualized Assessments 2. The Facial/As-Applied Dichotomy III. LOOKING BEYOND RELIGIOUS LAND USE A. Religious Discrimination or Zoning as Usual? B. Judicial Review of As-Applied Land Use Decisions: Euclid and Nectow CONCLUSION INTRODUCTION

In 2000, the city of New London, Connecticut, undertook a redevelopment project designed to rejuvenate the economically depressed Fort Trumbull portion of the city. As part of that plan, the city condemned several private homes and transferred them to a private developer. In what is now a wellknown story, the Supreme Court, in Kelo v. City of New London, (1) upheld the transfer as a valid public use under the Takings Clause. (2) The Kelo decision sparked a public outcry, with many worrying that it cast all private property rights into doubt. (3) In the year following Kelo, twenty-nine states acted to restrict the use of the eminent domain power. (4) In light of this tremendous resurgence of private property rights protection in the eminent domain arena, it is surprising that so little attention has been paid to a more common threat to private property rights: local zoning. (5) This Article seeks to bridge that gap by focusing more broadly on judicial review of local land use regulation.

In the United States, zoning has traditionally been a function of local governments. (6) Despite the universality of local control, as the pace and complexity of development has increased in recent decades, both scholars and planning experts have begun to question the value of localism in the context of land use regulation. (7) In fact, there is a growing belief that excessive reliance upon local governments to regulate land use has not only failed to achieve satisfactory results, but has also created problems such as exclusionary zoning, (8) fiscal zoning, (9) environmental degradation, (10) and conflicting land uses at municipal borders. (11) At the same time, scholars and planning experts have realized that local governments are often unable to resolve intra-local land use disputes fairly and rationally. (12)

The original advocates of zoning believed that local legislatures would create fixed plans of development that zoning officials would have little discretion in implementing. (13) Modern zoning, however, is far removed from its theoretical underpinnings. In place of substantive planning, municipalities have adopted a "wait and see" approach to zoning, designed to maintain flexibility and to allow localities to deal with property owners on an individual basis. (14) Under this modern approach, local zoning officials, who generally lack any training or experience with land use planning, (15) have no objective standards against which to measure individual zoning requests. Thus, in most jurisdictions, standard zoning decisions are made through subjective, case-by-case assessments of the proposed use of the property. (16)

Historically, local control over land use planning has been reinforced by a deferential standard of judicial review. Land use decisions, made by local administrative or legislative bodies, are accorded a formal presumption of rationality and constitutionality, and are upheld unless unreasonable. (17) Although perhaps justifiable under the original conception of zoning, the discretionary nature of modern zoning does not warrant such judicial deference. In fact, judicial deference to subjective zoning decisions has made it difficult to remedy even the most egregious abuses of zoning power. (18) Moreover, where remedies do exist, they are applied inconsistently within and across jurisdictions. (19)

It is within this context that Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) to provide a uniform and meaningful judicial remedy to religious land users. Prior to enacting RLUIPA, Congress held nine hearings over a three-year period and compiled evidence of religious discrimination in land use regulation. (20) Congress determined that, in contrast to other forms of economic legislation, land use regulations lack objective, generally applicable standards, leaving zoning officials with virtually unlimited discretion in granting or denying zoning requests. Congress further concluded that this highly discretionary context readily lends itself to religious discrimination. (21) In passing RLUIPA, Congress sought to prevent such discrimination by requiring courts to apply strict scrutiny review to local land use decisions that impose a substantial burden on religious exercise if such decisions are made through "individualized assessments" of the proposed use of the property. (22)

Since its passage, the constitutional validity of RLUIPA has been extensively debated. (23) Although the Supreme Court has upheld RLUIPA's institutionalized persons provisions against an Establishment Clause attack, (24) it has yet to pass judgment upon the constitutionality of its land use provisions. (25) It seems likely that as RLUIPA's land use cases continue to make their way through the federal courts, the Supreme Court will be called upon to resolve the debate.

Regardless of the statute's ultimate fate in the courts, this Article argues that in enacting RLUIPA, Congress identified a fundamental flaw in the zoning process and that RLUIPA is significant because its bifurcated approach to judicial review of religious zoning decisions provides a framework for reviewing all land use decisions. Specifically, RLUIPA distinguishes between objective zoning ordinances and the subjective application of such ordinances to individual parcels of land through a system of individualized assessments. (26) The application of a zoning ordinance in a particular case requires more meaningful judicial review because a subjective system of individualized assessments readily lends itself to abuse. (27)

Under RLUIPA, facial challenges to zoning ordinances, or challenges to objective, generally applicable ordinances, are decided using a deferential standard of judicial review. In contrast, challenges to a zoning ordinance as applied (28) to a particular piece of property through a subjective, individualized assessment, are strictly scrutinized to ensure that the decision is the least restrictive means of achieving a compelling government interest. (29)

The strict scrutiny review mandated by RLUIPA is clearly inappropriate for as-applied land use decisions that impact neither fundamental rights nor suspect classes. Yet, given RLUIPA's recognition of the discretionary nature of local land use regulation, traditional judicial deference seems equally inappropriate. Fortunately, the Supreme Court provided the correct standard of review in its earliest land use decisions. Indeed, after announcing a highly deferential standard of review for zoning ordinances in Village of Euclid v. Ambler Realty Co., (30) the Court explicitly limited its holding to facial challenges and warned that the application of a zoning ordinance to a particular piece of property might be found unreasonable. (31)

Less than two years later, in Nectow v. City of Cambridge, (32) the Supreme Court reviewed such an ordinance as applied to a particular property. Although Nectow involved neither a fundamental right nor a suspect class, the Court engaged in a more rigorous review of the underlying record and ultimately concluded that the ordinance, as applied, violated the property owner's due process rights because it lacked a substantial relationship to the public health, safety, or welfare. The facial/as-applied dichotomy that...

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