Thou Shalt Not Zone: the Overbroad Applications and Troubling Implications of Rluipa's Land Use Provisions

• Publication year: 2006

SEATTLE UNIVERSITY LAW REVIEWVolume 29, No. 4SUMMER 2006

Thou Shalt Not Zone: The Overbroad Applications and Troubling Implications of RLUIPA's Land Use Provisions

Daniel P. Lennington(fn*)

I. Introduction

Imagine that you live in a peaceful, quiet neighborhood and that the house next door to you has just been sold. But curiously, you hear rumors that the house has not been purchased by a family or individual, but by a church of all things. Being a conscientious yet perplexed neighbor, you walk next door to meet your new neighbors and inquire into their intentions.

The church's pastor greets you in the front yard and excitedly explains, "Yes, this is just the perfect site. Our members are so happy. Once we tear down this old house, we'll build our dream church in its place."

"But sir, this is a residential neighborhood. I don't think they'll let you have a church here," you laugh nervously.

"Yes, I can see that the parking might be a bit tight here on Sundays, but it won't be that bad. Believe me. We've looked everywhere, and this is the best location for us."

Next imagine that the local zoning board understandably denies the church's request for a special use permit, citing traffic concerns and the small lot size. According to your local government at least, the church cannot build next door to you.

The reality of this situation is that, according to numerous courts throughout the United States, the local zoning board just violated a federal statute by placing a "substantial burden" on the church's "religious exercise."

Since its enactment in 2000, the Religious Land Use and Institutionalized Persons Act (RLUIPA)(fn1) has been used by many courts to strike down reasonable and nondiscriminatory attempts by local governments to apply zoning ordinances to churches and other religious uses of real property. However, this overbroad application is at odds with Congress' intent in passing RLUIPA, which was aimed at preventing local governments from intentionally discriminating against religious land uses.(fn2) Moreover, the troubling trend in the caselaw interpreting RLUIPA is that churches may very well become immune from local zoning laws-if they are not already.

Even so, the problem is not necessarily with the courts. The problem is with the overly broad plain language of RLUIPA, which prohibits the application of any land use regulation that places a "substantial burden" on a "religious exercise," unless that land use regulation can meet the nearly insurmountable standards of strict scrutiny.(fn3) Although this is a problem, it is a problem that can easily be fixed.

With five years of caselaw interpreting RLUIPA and a split among the courts regarding the breadth of the statute, now is an appropriate time to examine the statute's track record and consider its future. This Article will first examine RLUIPA's background, its text, and exactly what Congress intended when it passed the statute. Next, this Article will explain how courts have split on the application of RLUIPA's land use provisions, and in some cases, made it nearly impossible to zone churches, synagogues, mosques or any other religious land uses. Finally, this Article will propose a simple solution-an amendment to RLUIPA, which will restore congressional intent while allowing local zoning authorities to do their job of enforcing order through zoning ordinances.

II. RLUIPA's Reactionary Beginnings

A. Congress and the Courts Play Tug of War with the Free Exercise Clause

RLUIPA is the latest skirmish in a tug of war between Congress and the Supreme Court over the meaning and application of the Free Exercise Clause of the United States Constitution.(fn4) As explained in this section, while the Supreme Court has narrowly interpreted the right to Free Exercise, Congress has reacted by passing legislation, like RLUIPA, that aims at granting more (or different) rights than those recognized in the Constitution.

These skirmishes between Congress and the Supreme Court started in 1990, when the Supreme Court held that generally applicable laws were constitutional, even if they substantially burdened a person's religious exercise.(fn5) In Employment Division v. Smith, the Supreme Court upheld the constitutionality of a state law banning the possession of the hallucinogenic substance peyote, even though peyote was frequently incorporated into Native American religious practices.(fn6) The statute was generally applicable, and did not provide an exception for religious use of the substance.(fn7) According to the Court in Smith, so long as a state law was generally applicable, any incidental impediments on religious exercise did not violate the Free Exercise Clause of the Constitution.(fn8)

Congress did not agree with the Court's decision. In 1993, Congress set out to overturn Smith by passing the Religious Freedom Restoration Act, or RFRA.(fn9) This was Congress' first attempt to provide more protection of free exercise than the courts were allowing. In particular, under RFRA Congress required courts to apply strict scrutiny to generally applicable laws that interfered with a person's exercise of religion, even though Smith only required rational basis scrutiny of generally applicable laws.(fn10) More specifically, RFRA broadly prohibited states and the federal government from placing a "substantial burden" on a religious exercise, without the government first demonstrating that the action was in furtherance of a compelling governmental interest and the least restrictive means of furthering that compelling interest.(fn11) A direct response to Smith (and a blatant attempt to re-write constitutional standards), RFRA provided that even laws of general applicability would be subject to strict scrutiny.(fn12)

After Congress enacted RFRA, the Supreme Court tugged back by invalidating the statute in City of Boerne v. FloresP (fn13) At its core, City of Boerne was a zoning case-local zoning authorities denied a church's request for a building permit.(fn14) The church sued under RFRA, claiming that the denial of the permit was a substantial burden on its religious exercise.(fn15)

The Supreme Court ruled against the church and invalidated RFRA as an unconstitutional exercise of power.(fn16) In essence, the Court told Congress that it did not have the power to rewrite the Constitution. Congress had relied on Section Five of the Fourteenth Amendment when it enacted RFRA.(fn17) That section permits Congress to enforce the provisions of the Fourteenth Amendment, which according to an earlier Court case incorporates the Free Exercise Clause.(fn18) Consequently, Congress may protect the right to free exercise by enacting appropriate legislation.(fn19)

The Court rejected Congress' authority to pass RFRA and explained that Section Five of the Fourteenth Amendment gives Congress the power to remedy and prevent unconstitutional behavior.(fn20) However, Congress must make findings concerning the unconstitutional behavior, and the law must appropriately address that unconstitutional behavior.(fn21) Justice Kennedy wrote for the Court, "[t]he appropriateness of remedial measures must be considered in light of the evil presented .... Strong measures appropriate to address one harm may be an unwarranted response to another, lesser one."(fn22)

RFRA was not so narrowly tailored.(fn23) In fact, to the Court RFRA looked like an express attempt to overturn Smith (which it was) and to redefine the Free Exercise Clause. The Court wrote: Regardless of the state of the legislative record, RFRA cannot be considered remedial, preventative legislation, if those terms are to have any meaning. RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections.(fn24)

According to the Court, although Congress may have remedial power to enforce the Constitution under Section Five of the Fourteenth Amendment, Congress could not rewrite what the Constitution says.(fn25) And what the Constitution says, according to the Court, is that laws of general applicability are not subject to a strict scrutiny analysis.(fn26)

In summary, the Smith decision was restored by the Supreme Court, and Congress' attempt to broadly define Constitutional standards was struck down. However, many in Congress saw some remaining hope in the City ofBoerne decision and decided to go back to the drawing board and create a statute that protected religious liberties while meeting the Supreme Court's approval.

B. Back to the Drawing Board: Congress Passes RLUIPA

With RFRA out the window, Congress did what it does best-it held hearings. In fact, Congress held hearings on how it should respond just three weeks after the City ofBoerne decision was handed down.(fn27)

The hearings produced mountains of evidence of religious discrimination throughout American society.(fn28) In particular, Congress compiled evidence of religious discrimination in the zoning context. The hearings revealed that "[c]hurches in general, and new, small, or unfamiliar churches in particular, are frequently discriminated against on the fact of zoning codes and also in the highly individualized and discretionary processes of land use regulation."(fn29) Although this...