The Constitution, RLUIPA and Disputes Regarding the Zoning of Religious Institutions
July 30, 2007
Adam Kingsley - Chicago
Overview
Unlike most zoning and land use decisions, which are decided with reference to state law, zoning decisions that affect religious institutions (e.g., churches, temples, mosques, home-worship centers) implicate the United States Constitution, most no tably the Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. Historically, when a municipality denied zoning relief to a religious institution, that decision could be, and occasionally was, challenged by a disappointed applicant under a Free Exercise or Equal Protection theory.
In the wake of Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) this trickle turned into a torrent of litigation. Seven years after passage of RLUIPA, municipalities continue to find their zoning and land use decisions challenged by religious institutions. This litigation continues to put municipalities at risk for injunctive relief, large monetary damages and attorneys’ fees.
The emerging trend in RLUIPA litigation is characterized by a rejection of the argument that virtually all municipal re strictions on a church’s ability to build what it wants, where it wants, are violations of RLUIPA and/or the Constitution. Rather, while RLUIPA and the litigation it has spurred should cause municipalities to take extra care in their land use decisions when those decisions affect religious institu tions, neither RLUIPA nor the Constitution requires that municipalities give up their right to regulate the location and size of religious institutions, so long as those zoning decisions are based upon sound planning and not upon anti-religious bias.
Opportunities for Litigation
Like most other zoning litigation, church-related disputes usually involve an individual’s or organization’s desire to locate and operate at a site, and a municipality’s decision to regulate land use in a contrary manner. In this context, religious institutions have challenged both municipal zoning schemes as a whole, and specific zoning decisions. The two basic types of challenges can be classified as: (i) “facial” challenges to a municipality’s overall zoning code – based upon allegations that the municipality’s zoning scheme as a whole makes it too difficult for the religious institution to find suitable property in the municipality, or that the code favors secular assembly uses over religious uses; and (ii) as-applied challenges to site-specific zoning decisions – in cluding the zoning of a particular site or failure to rezone; denial of a special use permit, conditional use permit, or variance; application of building codes and life safety codes to churches; and condemnation of property associated with religious activity.
RLUIPA, the Free Exercise Clause and the Equal Protection Clause
With respect to land use and zoning claims, RLUIPA has two main sections, each of which roughly tracks a provision of the Constitution.
The Free Exercise Clause and RLUIPA’s “Substantial Burden” Test
The Supreme Court, in the Smith case, held that the Free Exercise Clause does not require municipalities to exempt religious behavior from neutral and generally applicable laws. Under the Smith rule, neutral and generally applicable laws should be evaluated under a rational basis test even if the burden placed on the individual’s exercise of religion is “substantial.” But the Court also made reference to a mu nicipality’s use of “individualized government assessment[s]” and noted that a municipality may not “refuse to extend that system to cases of religious hardship.” The Supreme Court also suggested that a law that unduly burdens the exercise of religion is subject to strict scrutiny if the law is not neutral or not generally applicable or if it “targets” a particular religion or religious conduct. More recently, in the Locke case, the Supreme Court held laws that distinguish between religious and nonreligious activity should be evaluated under the rational basis test, unless the plaintiff can show, by reference to the “history,” “text” or “operation” of the law, that the law was passed with “animus toward religion.”
When a church plaintiff makes a Free Exercise challenge to a municipal ordinance or zoning decision, the plaintiff is required to prove that the ordinance or decision that limits or prevents development of a religious institution is a product of animus on the part of the municipality toward a specific religion, or religion in general. Courts have gener ally held that a Free Exercise violation occurs only when the plaintiff can demonstrate that the zoning ordinance or zoning decision was designed to target an institution because of its religious practices or beliefs. As a corollary, when a municipality’s zoning ordinance, or its denial of zoning relief, is motivated by legitimate land use concerns, the denial does not violate the church’s Free Exercise rights. This is true even if the zoning ordinance in question was enacted to address land use issues associated with a particular religious institution.
Section (a) of RLUIPA is generally referred to as the “sub stantial burden” provision. It prohibits a municipality from imposing or implementing a “land use regulation” (further defined as “a zoning or landmark law or the application of such law”) in a manner that imposes a “substantial burden” on “religious exercise.” The term “substantial burden” is not defined, but “religious exercise” is defined to include “the use, building, or conversion of real property for the purpose of religious exercise.”
RLUIPA’s “substantial burden” test appears to deviate from the Free Exercise Clause, as the Supreme Court interpreted that provision in Smith. That is, RLUIPA’s “substantial bur den” provision provides more protection to religious institu tions than the Constitution itself because RLUIPA focuses on the degree of burden rather than the neutrality of the law. The question of whether or not RLUIPA’s “substantial burden” provision is constitutional (i.e., whether it deviates too far from the constitutional standard) is an important one. For now, however, the constitutional question has taken a back seat.
Rather than address the constitutional question, most courts have focused on a statutory question: in the zoning and land use context, what constitutes a “substantial burden” on “reli gious exercise”? Fortunately for municipalities, the majority of courts answering this question have rejected the argument that virtually any denial of zoning approval is a “substantial burden” on their religious exercise. Federal appellate courts have generally held that a church’s inability to locate, ex pand or develop accessory facilities at a particular location is not a “substantial burden” on its exercise of religion.
Although the appellate courts have not agreed on a single definition of “substantial burden,” the varying nuances of defining “substantial burden” is less important than the general consensus on the outcomes in RLUIPA litigation. This consensus begins with the idea that RLUIPA is not a “free pass” that allows religious institutions to escape the difficulties that many land owners face in finding suitable (or affordable) land and in obtaining zoning approval. Nor is RLUIPA a guaranty that a religious institution will be able to locate or expand at its favored site, even when denial of that site will cause inconvenience, disappointment or a loss of congregants. Rather, courts have been focusing on objective questions such as: the amount of land in the city or town potentially available for religious use, the ability of the religious institution to find other suitable locations, and the size of the facility that the municipality is willing to allow as compared to what is reasonably necessary for the institution’s purposes.
However, when denial of zoning relief is accompanied by a set of facts that demonstrate bad faith on the part of the municipality, e.g., because the municipality’s reasons for denial appear disingenuous, illogical, or unsupported by planning principles, courts have found a RLUIPA “substan tial burden” violation. In essence, these decisions combine RLUIPA’s focus on the burden to the religious institution with the Free Exercise Clause’s focus on municipal conduct that is unexplainable by sound planning principles and, therefore, supports a strong inference that a particular reli gion or religious institution was “targeted” by the municipal ity. These cases are also marked by municipal decision-mak ing that can best be characterized as giving the applicant the “run around. “ While a secular application would be unlikely to obtain federal relief for such municipal decision-making, RLUIPA’s “substantial burden” provision has, functionally, provided an avenue of relief for religious institutions where municipal zoning decisions are not wholly irrational (in the constitutional sense), but, nevertheless, lack common sense or a sound planning justification.
The Equal Protection Clause and RLUIPA’s “Equal Terms” Test
Religious institutions also rely on the Equal Protection Clause and the corresponding section of RLUIPA as an alternative constitutional theory. The Equal Protection Clause of the Fourteenth Amendment generally prohibits municipalities from treating similar types of institutions dif ferently, unless the municipality has a rational reason for this difference in treatment. For example, traditionally, many municipal zoning codes classified “Churches” or “Religious Institutions” as a distinct use and had a different set of zon ing criteria for nonreligious assembly uses, such as meeting halls and private clubs.
In recent cases, religious institutions have argued that there is no reason to distinguish between religious and secular assembly uses, and that the Equal Protection Clause man dates identical treatment of churches and equivalent secular assembly uses. Two crucial questions in any Equal Protection case are: (i) whether the uses or situations being compared are “similarly situated”; and (ii) if so, what is the level of scrutiny applied to the divergent classifications? With respect to the first question, secular assembly uses are not necessarily similarly situated to religious assembly uses and courts take a hard look at the allegedly similar use before reaching the conclusion that the two uses are equivalent. With respect to the second question, religious institutions are generally not entitled to heightened scrutiny for Equal Protection purposes.
RLUIPA complicates the matter by establishing a standard that may or may not parallel the Constitutional standard. Section (b)(1) of RLUIPA is generally referred to as the “equal terms” provision. It prohibits a municipality from imposing or implementing a land use regulation in a manner that “treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” As with the “substantial burden” provision, there is an argu ment that the “equal terms” provision deviates too far from the constitutional standard embodied in the Equal Protec tion Clause, as the statutory scheme replaces the Constitu tion’s rational basis test with either strict scrutiny or strict liability.
In practice, courts have applied the “equal terms” provision aggressively when no obvious distinctions exist between the allegedly comparable secular and religious uses. One appellate court found a violation of RLUIPA’s “equal terms” provision where the municipal zoning codes distinguished between religious institutions and secular assembly uses, such as “private clubs,” “social clubs,” or “community cen ters.” The court considered these secular uses to be function ally identical to churches but for the religious content of the topics under discussion. Another court used the “equal terms” provision to invalidate an ordinance that limited home worship when similar secular meetings (such as Boy Scout meetings) were not equally regulated. However, courts recognize that when a church-plaintiff asserts that a secu lar applicant has received preferred treatment, to prove an “equal terms” violation, the plaintiff must demonstrate that the two applicants were “similarly situated” in all relevant respects. Thus, where real differences between applicants are present, a municipality need not approve a church’s zoning application merely because it has approved the application of a secular assembly use.
In light of these cases, municipalities need to reevaluate their zoning codes and determine whether distinctions between religious assembly uses and comparable secular as sembly uses are rooted in sound planning principles. Indeed, some municipalities have eliminated “Religious Institution” or “Church” as a distinct zoning category and have opted for the neutral term “Assembly Use.” This type of re-codifica tion may not be absolutely necessary, but it does provide a safe harbor against an “equal terms” claim. With respect to as-applied challenges (e.g., to the issue or non-issue of special use permits, re-zonings or variances), municipali ties should be careful to apply the same neutral criteria to religious and secular assembly alike.
Conclusion
Undoubtedly, RLUIPA has increased court scrutiny of church-related zoning decisions and has forced munici palities to re-evaluate some of their traditional planning presumptions regarding the zoning of religious institutions. RLUIPA has not, however, robbed municipalities of their ability to regulate religious land use, even when the mu nicipality denies zoning approval for a church’s preferred site. Rather, when municipal decisions are backed by solid planning analysis, municipalities can still be confident that courts will uphold their zoning decisions.
For more information, e-mail Adam Kingsley at
adam.kingsley@hklaw.com or call toll free, 1-888-688-8500.