RLUIPA is a bridge too far: inconvenience is not discrimination.

• Author: Hamilton, Marci A.
• Position: Religious Land Use and Institutionalized Persons Act

Introduction I. The Pre-Existing Constitutional Protections for Landowners in the Land Use Process, and the Movement Under RLUIPA Toward Making Cost and Convenience Sufficient to Avoid Local Land Use Laws A. Due Process for Ali Land Developers: Inconvenience and Cost Are Insufficient to Overcome Land Use Law.. B. Free Exercise for Religious Landowners: There Is a Split in Authority Regarding Whether Inconvenience and Expense are Sufficient to Prove a Substantial Burden on Religious Exercise 1. Under the First Amendment, Inconvenience and Expense Have Been Insufficient to Prove a Substantial Burden on Religious Exercise in Land Use Cases 2. After RLUIPA, More Courts Have Held That Inconvenience and Expense Are Sufficient Proof of Substantial Burden in Land Use Cases II. Permitting Religious Landowners to Avoid Local Land Use Laws Because They Cause Expense or Inconvenience Violates Federalism and the Establishment Clause A. The Criteria of Inconvenience and Cost to Establish a Substantial Burden in the Land Use Context Violate Federalism B. The Criteria of Cost and Inconvenience in the Land Use Context Violate the Establishment Clause Conclusion "[N]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid ali religions, or prefer one religion over another." (1)

INTRODUCTION

The Supreme Court and lower federal courts following Supreme Court doctrine have held consistently that local land use priorities are most appropriately decided by local governments. (2) Local land use regulation is a crucial element of the federalism that is a fundamental basis of the United States' constitutional structure. (3) After all, if there is anything that is truly local, it is land use. In addition, the Supreme Court repeatedly has ruled that financial preferences for religious organizations violate the Establishment Clause. (4) Neither of these two lines of cases is in serious question, yet, when Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000, (5) it managed to cross both constitutional boundary lines without taking either into account.

Congress ran roughshod over the Supreme Court's established doctrine on local land use and the Establishment Clause when it enacted RLUIPA, which applies the heavy hand of the federal government to manufacture new and special privileges for religious landowners to override local land use priorities and interests. It is a "free exercise" statute that too often strong-arms local governments to prioritize a particular religious applicant's private vision over all other interests in the community.

RLUIPA purportedly was passed to redress religious discrimination in the land use process. The Conference Report stated:

Churches in general, and new, small or unfamiliar churches in particular, are frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation. Zoning codes frequently exclude churches in places where they permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes. Or the codes permit churches only with individualized permission from the zoning board, and zoning boards use that authority in discriminatory ways. (6) Regardless of its proponents' outlandish claims, this is a statement with a pro-religion bias and few facts to support it. In a previous article, I discredited the notion that there was meaningful evidence of discrimination against churches in the land use process before Congress when it decided to intermeddle in ordinary local land use disputes involving religious landowners with RLUIPA. (7) There was no alleged evidence of discrimination offered by anyone other than a self-interested religious organization. (8) The idea that religious institutions have been especially discriminated against in the land use context is certainly not an assumption that everyone takes for granted. (9) For instance, there is evidence that what Congress has termed "religious discrimination" is no different than the burdens that secular land users face "navigating the discretionary zoning process." (10) That stands to reason in a society that is as solicitous of religious exercise as the United States has been. (11)

Even putting the lack of actual evidence of discrimination aside, RLUIPA was always a cure in search of a disease. The First Amendment was and continues to be more than satisfactory to punish and deter the type of discrimination that supposedly spurred Congress to take action. Moreover, RLUIPA has proven dangerous, providing religious plaintiffs an outside advantage in zoning disputes to the detriment of local communities, neighbors, and residential neighborhoods.

In this Article, I will demonstrate how lower courts struggling to interpret RLUIPA's reach have transformed it into a weapon against mere inconvenience and expense. This result--wherein religious developers utilize the statute to avoid generally applicable zoning and land use regulations by claiming that compliance would be expensive or time consuming--is not just a violation of federalism in the one arena that is truly local. (12) It is also an unjustifiable financial boon to religious land developers, and therefore a violation of the Establishment Clause. (13)

The threshold question in every free exercise case, whether statutory or constitutional, is whether the law imposes a "substantial burden" on religious exercise. The believer or organization bears the burden of proving that the law imposes a substantial burden. (14) The RLUIPA legislative history states that the term was intended to hold the same meaning under RLUIPA as it does under the Free Exercise Clause.

The Act does not include a definition of the terra "substantial burden" because it is not the intent of this Act to create a new standard for the definition of "substantial burden" on religious exercise. Instead, that term as used in the Act should be interpreted by reference to Supreme Court jurisprudence.... The term "substantial burden" as used in this Act is not intended to be given any broader interpretation than the Supreme Court's articulation of the concept of substantial burden or religious exercise. (15) Before the Religious Freedom Restoration Act (RFRA) (16) and RLUIPA, the vast majority of courts concluded that the religious claimant could not prove a "substantial burden" merely by showing inconvenience or increased expense flowing from a government regulation or law. Since these two statutes have been inserted into free exercise doctrine, however, there has been a significant increase in the number of cases where courts have found a "substantial burden" based on mere inconvenience and cost. The thesis of this Article is that this interpretation of "substantial burden" is unconstitutional.

1. THE PRE-EXISTING CONSTITUTIONAL PROTECTIONS FOR LANDOWNERS IN THE LAND USE PROCESS, AND THE MOVEMENT UNDER RLUIPA TOWARD MAKING COST AND CONVENIENCE SUFFICIENT TO AVOID LOCAL LAND USE LAWS

   Land developers facing barriers in the land use process have had several theories on which to rely, including due process. Religious landowners also have been able to rely upon the First Amendment. The record behind RLUIPA ignored due process and misleadingly downplayed the First Amendment. (17) RLUIPA's proponents have engaged in hyperbole while ignoring the availability of state and federal arguments against arbitrary or irrational decisionmaking in the land use context.

   The focus of this Article is on the prerequisite to free exercise claims in both the constitutional and statutory arena: whether the law imposes a "substantial burden" on the believer or organization. (18) A de minimis (19) or incidental burden (20) is insufficient to trigger free exercise protection. In numerous land use cases, the defense against application of land use laws is that it would result in inconvenience or cost. This defense has been rejected in the due process cases, while there is a split in authority in the free exercise cases.

   1. Due Process for All Land Developers: Inconvenience and Cost Are Insufficient to Overcome Land Use Law

      Religious landowners, like all other landowners, can invoke due process when they face barriers from local land use decision-makers. No landowner has carte blanche to shape the land use plan or law to their private ends, but governments may not act arbitrarily under state law (21) or under federal due process cases. (22) Courts have been cautious in interfering with local zoning decisions unless the locality's action "has no foundation in reason and is a mete arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare." (23) If the landowner can establish a protected interest in property, (24) he can challenge a denial if it is arbitrary and capricious, (25) fails rational basis review, (26) if there is significant animus, (27) or if it shocks the conscience. (28)

      As one might expect, land developers have bristled at the inevitable delays and costs of the land use process, which routinely requires applications, studies to justify circumventing land use requirements, application fees, and public hearings. (29) In addition, the land use plan, which takes into account multiple interests and values in the community, may well decrease property values, disappoint expectations about re-zoning, or impose requirements that keep the property from achieving its highest valuable use. Thus, there has been a line of cases addressing the argument that local governments may not impose in convenience or expense on developers without reference to the developers' identity.

      In these cases, inconvenience and expense arguments have been insufficient for landowners seeking to overturn negative zoning or land use decisions. Ali landowners object to...