June 2009

Religious Institutions Update: June 2009

Holland & Knight Update
Nathan A. Adams IV

Timely Topics

In many parts of the country, Religious Institutions have difficulty expanding or finding sites for new facilities. In most communities, areas zoned specifically for churches with adequate space are exceptional. As discussed below, zoning regulations more commonly require Religious Institutions to obtain conditional use permits. For the most part, courts have upheld this permit approval process and required Religious Institutions to exhaust it before suing. But in unusual cases, where there is no practical place at all for a Religious Institution to locate in a community or where Religious Institutions are discriminated against in comparison to similar secular land uses such as movie theatres or clubs, the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) may provide a remedy.

RLUIPA states that “[n]o government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.” It adds that “[n]o government shall impose or implement a land use regulation that: (a) totally excludes religious assemblies from a jurisdiction; or (b) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.” RLUIPA also prohibits a land use regulation that imposes a substantial burden on the religious exercise of a person, unless the government demonstrates that imposition of the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. But, as shown below, meeting this standard can prove difficult.

Key Cases

Homeless Shelter and Congregation Must Exhaust Their Zoning Remedies

A Florida district court of appeal recently held that imposition of Palm Beach County’s Unified Land Development Code on a church’s homeless shelter by requiring it to obtain a conditional use permit did not violate either RLUIPA or the Florida Religious Freedom Restoration Act (RFRA) by substantially burdening the church’s religious exercise. Westgate Tabernacle, Inc. v. Palm Bch. County, No. 4D07-3792, 2009 WL 1393429 (Fla. 4th DCA May 20, 2009). After receiving a notice of violation and a 180-day extension on applying for the permit, the church submitted the application but withdrew it, was fined for its period of noncompliance, then filed suit. The court held that “’[t]he mere requirement that one apply for a special exception from an ordinance restricting the use of property is not a substantial burden.” According to the court, this was grounds enough to affirm judgment against the church that it failed to exhaust its administrative remedies. In addition, the court found that the church “did not show that running a homeless shelter at its specific location was fundamental to its religious exercise.” Although the church put on evidence to show that operation of the shelter was mandated by its religious beliefs, there was testimony that church officials had identified a suitable alternative location for the shelter, but were unable to purchase it.

RLUIPA was also at issue in Congregation Etz Chaim v. City of Los Angeles, No. 97-5042 CAS, 2009 WL 1293257 (C.D. Cal. May 5, 2009), in which a California court held that the case was not ripe for review until the City of Los Angeles took final action on the Congregation’s second conditional use permit application. Los Angeles denied its first application, whereupon the Congregation sued, alleging a violation of RLUIPA, among other provisions. The City and the Congregation settled the case, but several homeowners filed a separate suit against both parties, seeking a declaration that the settlement agreement was invalid because it did not conform to applicable zoning laws. The federal appeals court agreed that the City could not waive or consent to a violation of its zoning laws unless the settlement agreement was required to remedy an actual violation of federal law. The appeals court sent the case back to the lower court for a decision on this issue. Meanwhile, the Congregation applied for a second conditional use permit. Consequently, the lower court found that the case was not ripe for review. The court reasoned that the Congregation was not in immediate jeopardy because the City had not taken any action to enforce the original denial of the conditional use permit. Furthermore, although neighbors in a third suit received a temporary injunction against use of the Congregation’s property as a public or private nuisance, they had not yet received a permanent injunction.

Nondiscrimination Requirement Enforceable Against Religious Group


A federal district court has issued an opinion saying that the University of Montana School of Law may refuse to recognize the student chapter of Christian Legal Society based on its faith commitment at odds with two policies of the School: (1) an “open membership” policy requiring all SBA organizations to be “open to all members of the School of Law,” and (2) a nondiscrimination policy stating that “[s]tudents have the right to be free from discrimination, harassment, or intimidation based on actual or perceived ….age, sex, nationality, creed, religion, race, sexual orientation … or other purely arbitrary criteria.” Christian Legal Soc. v. Eck, No. CV-07-154-M-RFC, 2009 WL 1439709 (D.Mont. May 19, 2009). The district court relied on Christian Legal Soc. Chapter of Univ. of Cal. v. Kane, 2006 WL 997217 (N.D. Cal. 2006) (unpublished), in which a California court rejected arguments that the imposition of the policies violated the group’s free speech, free exercise, free association and equal protection rights. Due to the group’s access to facilities and channels of communications, the district court found that the non-discrimination policy “burdens Plaintiffs’ express activity, if at all, in only an incidental manner, while at the same time furthering the important legitimate interest of providing all law students with the opportunity to participate in the full range of student activities supported by the UM Law School.”

Religious Institutions in the News

President Obama has nominated a sixth member of the Catholic Church to the United States Supreme Court. SeeDoug Kmiec on a Court Packed with Catholics” and “The Catholic Court.”

Financially ailing parochial schools are converting nationwide to charter schools. See "Secular Education, Catholic Values."

The Association of Theological Schools reports that job listings for ministerial positions are down by about one-third at major seminaries serving both evangelical and mainstream Protestant denominations. See "Economy Intrudes on a Haven of Faith."

Glades Correctional Institution in Belle Glade, Florida has become a faith-based penitentiary. See "Florida prison becomes faith-based penitentiary" and "Florida expanding faith-based prisons."

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