The Religious Land Use and Institutionalized Persons Act—recent Decisions and Developments

• Library: At the Cutting Edge: Land Use Law from The Urban Lawyer (ABA) (2014 Ed.)

Daniel P. Dalton^*

IN 2000, CONGRESS PASSED THE RELIGIOUIS LAND USE AND INSTITUTIONALIZED PERSONS ACT,¹ ("RLUIPA") in an effort to level the playing field between religious and nonreligious institutions in the areas of land use and zoning. Before RLUIPA's passage, there was an alarming and rising trend in the United States in which religious entities were being subjected to unequal treatment by municipalities enforcing local land use regulations when compared with similar secular counterparts. Municipalities historically have treated religious institutions more poorly than secular entities for a number of reasons, ranging from the fact religious institutions are exempt from paying property taxes and thus inhibit a municipality's ability to raise revenue, to more blatant and intentional discrimination based on the views of certain religious sects. Because of this discrimination, Congress realized that religious liberty was at a crossroads and it was vital to take vigorous action to curb this disparate treatment. Now, RLUIPA requires local land use decisions that burden religious exercise to satisfy the demanding "strict scrutiny" standard of review in order to be upheld.

In the thirteen years that RLUIPA has been in effect, federal courts have come to a general consensus that the Act is constitutional. From there, however, courts have been far more varied in interpreting and applying the specific principles contained in RLUIPA's land use provisions. Since RLUIPA litigation is a relatively new area, the body of case law interpreting the Act is constantly developing and changing. Below are summaries of various noteworthy RLUIPA decisions from courts across the country issued in the last 18 months that provide a general synopsis of the dynamic and evolving area of religious land use litigation.

I. Equal Terms Cases

One of the most frequently litigated provisions of RLUIPA is what is known as the "equal terms" clause. The clause specifically prohibits a governmental entity from treating a religious institution on "less than equal terms with a nonreligious assembly or institution."² Below are some decisions from the past year that interpreted the equal terms clause.

A Washington district court applied the similarly-situated standard in applying RLUIPA's equal terms clause in Victory Center v. City of Kelso.³ The Victory Center, a non-denominational Christian congregation operating an educational and cultural center sought to move its premises to a vacant store front in the City's center.⁴ At the same time, Kelso was attempting to update its zoning ordinances to create a four-block pedestrian-friendly commercial area in the same area.⁵ The City's new ordinances specifically prohibited several uses, including "religious facilities," but allowed "educational, cultural, or governmental uses."⁶

After Victory Center signed a lease for a building in City center,⁷ it received notice from the City that its presence violated the new zoning ordinances. Victory Center responded that it was not a church, but a "cultural and educational center," which the regulations permitted.⁸ The City ultimately determined the Center was operating as a "community center," which violated the new zoning code, and the City Hearing Examiner agreed.⁹ In response, Victory Center filed suit alleging violations of RLUIPA and the First and Fourteenth Amendments of the United States Constitution.¹⁰

In addressing Victory Center's RLUIPA claims, the district court first determined that the City's zoning regulations did not substantially burden¹¹ Victory Center's religious exercise.¹² Victory Center could choose to move its facility anywhere outside the City's four-block commercial zone, which equated to less than one percent of zoned land within the City, without substantially impeding its ability to engage in its religious activities.¹³

However, the court further held that the question remained to be decided as to whether the City treated Victory Center differently than secular institutions, in violation of RLUIPA's equal terms clause.¹⁴ The court applied the Ninth Circuit's standard that states a violation exists if the City's land use ordinances treat Victory Center "on a less than equal basis with a secular comparator, similarly situated with respect to an accepted zoning criteria."¹⁵ The City's new zoning ordinances specifically excluded a variety of secular comparators from the same zone, including club houses, recreation facilities, and fitness centers. However, the code made specific exceptions for "educational, cultural, or governmental" uses, without more thoroughly explaining which entities qualify as such uses.¹⁶ Without further explanation, the court found that questions of fact remain with respect to Victory Center's equal terms claim, and thus summary judgment was not proper.¹⁷

Another recent case addressed the effect of a City ordinance that facially distinguishes between religious and nonreligious entities with respect to RLUIPA's equal terms clause. In Opulent Life Church v. City of Holly Springs,¹⁸ the United States Court of Appeals for the Fifth Circuit determined that a Mississippi district court erred in denying the Church's motion for a preliminary injunction in a RLUIPA ac-tion.¹⁹ Opulent Life Church, a small Christian congregation, wished to expand its membership and occupy a larger facility within Holly Springs.²⁰ The Church found a suitable facility in the City's main business district and executed a lease agreement for it.²¹ Soon after, the City's Planning Commission denied the Church's renovation permit application on the basis that the application failed to meet certain zoning ordinance requirements, which applied only to churches.²²

In response, the Church filed suit alleging provisions of the zoning ordinance were facial and as-applied violations of RLUIPA because they only applied to churches.²³ The Church also sought an injunction to enjoin the City from enforcing the contested zoning provisions.²⁴ The district court denied the injunction, after concluding that the Church did not "show a substantial threat of irreparable harm."²⁵

The night before oral argument before the Fifth Circuit, the City amended its zoning ordinance and replaced the language that barred only "churches" from the courthouse district to now exclude "churches, temples, synagogues, mosques and other religious facilities."²⁶ The Fifth Circuit, in addressing the denial of the Church's preliminary injunction application, determined the Church had established a prima facie case that the City violated RLUIPA's equal terms clause by facially differentiating between religious and nonreligious land uses in its zoning ordinance.²⁷ The Court then articulated its approach for determining when a religious entity has been treated on "less than equal terms" with a similarly situated secular comparator.

[W]e must determine: (1) the regulatory purpose or zoning criterion behind the regulation at issue, as stated explicitly in the text of the ordinance or regulation; and (2) whether the religious assembly or institution is treated as well as every other nonreligious assembly or institution that is "similarly situated" with respect to the stated purpose or criterion.²⁸

While the City conceded that its older ordinance provisions clearly violated the equal terms clause, the Fifth Circuit further held that the new ordinance, which excludes "churches, temples, synagogues, mosques and other religious facilities," also is a prima facie violation.²⁹ Even though the new ordinance no longer specifically singles out "churches," it still differentiates between religious and nonreligious institutions.³⁰ After establishing this prima facie case, the burden shifts to the City to identify a valid purpose for the ban. Acknowledging that the City never argued the ban's justifications, the Fifth Circuit remanded the case to give the City an opportunity to rebut the prima facie violation found to lie within the newly amended ordinance.³¹

The Fifth Circuit concluded that the Church sufficiently demonstrated it would suffer irreparable harm if an injunction was not issued.³² The Court emphasized that "[t]he loss of First amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,"³³ and noted this standard applies to RLUIPA, which was adopted for the purpose of enforcing the First Amendment's broad protection of religious exercise.³⁴ This case is another example of courts' high regard for religious liberty and land use rights under both the Constitution and RLUIPA. It also demonstrates how the preliminary injunction is a powerful tool for religious entities in RLUIPA or Constitutional cases.

In another recent equal terms decision, Chabad Lubavitch of Litchfield County v. Borough of Litchfield,³⁵ the United States District Court for the District of Connecticut found no RLUIPA equal terms violations when a Jewish congregation was denied a certificate of appropriateness to build in an historic district.³⁶ Chabad Lubavitch purchased a 19th-century home in order to house its expanding congregation.³⁷ In order to preserve its historical character, the Borough had established a Historic District Commission to control construction and modification of historical structures.³⁸

After purchasing the historic home, Chabad proposed various renovations and modifications, including the addition of three stories and 17,000 square feet to the 2,600 square foot structure.³⁹ The Historic Commission denied the application, but permitted Chabad to resubmit an application to include an addition that was not larger than the original house.⁴⁰ Instead of resubmitting its proposal, Chabad filed suit under RLUIPA, seeking declaratory relief and damages based on the purported discriminatory behavior of the Borough, the Historic District Commission, and various members of the Commission.⁴¹ In response, Defendants moved for summary judgment on all the counts filed against them.⁴²

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