WHEN LAND USE ISSUES ARE ALSO RELIGIOUS FREEDOM ISSUES:
The Religious Land Use And Institutionalized Persons Act Of 2000 And The Four Constitutional Commandments Of Zoning

By ANTHONY PICARELLO AND ROMAN STORZER

Wednesday, Jan. 30, 2002

Why do zoning officials repeat this mantra? It might seem to be a shrewd, concerted media strategy designed to distract attention from what is really a prohibition on religious exercise. (After all, zoning officials often rely on their well-funded lobbying groups, ranging from the National League of Cities to the American Planning Association, for coordinated advice on media relations and other issues of common concern.) However, our experience in these cases suggests that the typical reaction of zoning officials is less deliberate and more a matter of culture, a shared, pernicious mindset.

In short, zoning officials have grown too accustomed to operating with virtual impunity in their own municipal fiefdoms. As they see it, so long as the case falls within the sacrosanct category of "land-use dispute," they are acting within the realm of their legitimate authority and need not worry about running afoul of the Constitution.

The reality is far different. Since virtually the dawn of zoning in the early Twentieth Century, zoning laws and officials have been subject to various constitutional limitations, including those that protect religious freedom. Because zoning officials so often forget this basic fact - willfully or otherwise - Congress recently passed the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") as a helpful reminder.

RLUIPA restates the four straightforward constitutional principles that have always applied in religious land-use cases. The cases we are currently litigating at The Becket Fund help to illustrate the application of each.

Thou Shalt Not Ban Entirely

First, the Supreme Court's free speech jurisprudence makes clear that zoning authorities may not totally exclude houses of worship from their jurisdiction, just as they may not totally exclude adult theaters or bookstores. (It is more than a little ironic that churches must rely on First Amendment precedent set in cases involving strip clubs.)

One of our cases, Unitarian Universalist Church of Akron v. City of Fairlawn, shows the no-exclusion rule in action. There, the City's zoning ordinance allowed houses of worship in only one type of district, and the City refused to institute any districts of that type. Soon after being reminded of its constitutional obligations - now reinforced and clarified by RLUIPA - the City settled.

Thou Shalt Not Be Irrational

Second, zoning authorities may not impose unreasonable restrictions on houses of worship. This principle reflects the familiar constitutional precept that government actions must have a rational basis.

In Congregation Kol Ami v. Abington Township, for example, our client, a Reform Jewish congregation near Philadelphia, confronted irrational zoning and won on summary judgment. The Township's ordinance allowed various assembly and institutional uses - including libraries, country clubs, municipal office buildings, police barracks, train stations, and bus shelters - to locate in its most exclusive residential zone by special exception. By contrast, houses of worship like Kol Ami were not permitted to enter these neighborhoods under any circumstances; they could not even apply for a special exception.

The Township claimed this blanket prohibition served the public welfare by curtailing traffic, noise, and light. But the court found that the connection between the Township's ban and its justification was too attenuated at best, and contradictory at worst.

Even if traffic, noise, and light might be a reason to exclude a particular house of worship, this was no reason to preclude special exception applications from all houses of worship.

Moreover, banning houses of worship from a residential neighborhood could not possibly serve the public welfare, because - as courts have routinely held over the last fifty years - houses of worship tend to serve the public welfare, especially when they are located in residential areas where worshippers live.

Although the court did not rely on RLUIPA in striking down the ordinance, the Act codifies the very same prohibition on irrational zoning laws.

Thou Shalt Not Discriminate

Third, zoning authorities may not discriminate in zoning based on religion. Unconstitutional discrimination can take the form of either the zoning authority's disfavoring a use because of the user's religion, or its favoring secular uses over analogous religious uses. This nondiscrimination principle pervades the Supreme Court's religious freedom jurisprudence and applies no less when zoning law is at issue.

The dispute over Hale O Kaula Church in Hawaii illustrates the first type of discrimination, where a land use is disfavored out of hostility to the (often minority or unfamiliar) religion of the users. Neighboring land-owners opposed Hale O Kaula's application for a permit to use its property for worship, maligning the church out of suspicion and ignorance as a "cult," a "commune," and a "so-called church." Rather than reject and condemn these irrational prejudices, zoning officials lent them the force of law by granting the neighbors' request to deny the permit.

Meanwhile, in another case, Castle Hills First Baptist Church (another Becket Fund client) has become the latest victim in a broader campaign by local authorities in Castle Hills, Texas to drive out houses of worship of whatever denomination - thus illustrating the second type of discrimination of disfavoring religious uses generally.

Thou Shalt Not Impose Discretionary Burdens

Fourth, zoning officials face strict scrutiny when imposing substantial burdens on religious exercise under a system of "individualized assessments" - that is, a system involving exceptions and discretion. This principle codifies what remains of the "substantial burdens" test under the Free Exercise Clause after the Supreme Court's 1990 landmark decision, Employment Division v. Smith.

Because few types of law involve more exceptions and discretion than zoning, exacting scrutiny applies in most religious land-use cases. Nevertheless, zoning officials rarely hesitate to suppress religious exercise - even for the flimsiest of reasons - so long as they believe they are acting within their power under local law.

In our Hale O Kaula case, for instance, the church's beliefs require using farmland for religious worship and practice, but agricultural zones require special use permits for churches. Although zoning officials had discretion to grant this permit, they denied it as the result of neighborhood opposition.

Such ad hoc judgments bear a great risk of discrimination, and do not reflect generally applicable rules. Accordingly, courts commonly reject the bald preferences of neighbors as a wholly insufficient cause to prohibit religious exercise.

Again, RLUIPA neither adds to nor subtracts from this general rule but simply restates it to facilitate enforcement.

Nothing New Under the Sun: RLUIPA As Constitutional Restatement

In sum, RLUIPA reflects little that is new in the law protecting religious land uses from unconstitutional government action. It is important as a restatement and reminder that the Constitution governs all government action, including the action of zoning authorities. The Free Exercise Clause is no less alive in a land-use dispute than in, for example, a dispute over whether a Muslim government employee may be fired for wearing a hijab.

Thus, RLUIPA does not, as some would have it, represent an earth-shattering disruption of the balance of federalism; the Constitution has long contemplated substantial federal limits on this particular local power.


Anthony Picarello and Roman Storzer are General Counsel and Director of Litigation, respectively, at The Becket Fund for Religious Liberty in Washington, D.C., which sponsors a website dedicated exclusively to RLUIPA. They represent numerous religious individuals and institutions in RLUIPA cases and recently co-authored The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices, 9 Geo. Mason L. Rev. 929 (2001).

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