Knowing RLUIPA more important as communities get more diverse

By Lora Lucero, 
Guest contributor


Land use regulation, property rights, and religion – a potentially volatile mix in any community. Add to the brew the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) and, depending on who you talk to, there’s either an explosion or a celebration.  Some consider RLUIPA a shield to protect religious land use applicants (particularly minority religions) from the abusive, exclusionary zoning practices of local officials. Others view RLUIPA as a sword wielded by bullying applicants who want special treatment or want to avoid the land use regulatory process altogether. The truth probably rests somewhere in the middle.

RLUIPA was enacted by Congress in 2000. This year, Boulder County, Colorado has declared its intention to file a petition for certiorari to the U.S. Supreme Court asking the Justices to declare the statute unconstitutional. Boulder County v. Rocky Mountain Christian Church. This will certainly be the case to watch if the Court accepts review.

RLUIPA cautions local governments not to “substantially burden” a religious land use applicant’s right to free exercise, but provides little guidance about what actions might constitute a substantial burden. Congress failed to define ‘substantial burden.’

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that [the land use regulation is] in furtherance of a compelling governmental interest [and] is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc(a)(1).

Religious land use applicants have prevailed in “substantial burden” claims less than 25% of the time - pretty good odds from the local government’s perspective! The statistics, however, fail to account for two important factors: (1) the very high monetary judgments that the local government might have to pay if unsuccessful, and (2) the number of municipalities that capitulate when threatened with RLUIPA litigation to avoid the risk. In that regard, Congress stacked the deck in favor of the religious land use applicant because RLUIPA authorizes attorney fees for the prevailing land use applicant, but none for the local government when it successfully defends itself against a RLUIPA challenge.

Planners and local government officials must be informed about, and sensitive to, RLUIPA issues and proactively plan for the needs of religious land uses in their communities, just as they do for other types of development.  The RLUIPA Reader – Religious Land Uses, Zoning, and the Courts is a good, practical resource. (Michael S. Giaimo and Lora A. Lucero, eds. RLUIPA Reader – Religious Land Uses, Zoning, and the Courts, ABA and APA (2009).)

In Chapter Ten, Vivian Kahn, FAICP, shares the top ten tips for planners to remember.

           

*          Understand and appreciate RLUIPA’s scope and purpose.

*          Plan for religious land use comprehensively.

*          Audit your comprehensive plan and land use regulations.

*          Work with applicants early in the development review process.

*          Ensure that design regulations do not conflict with religious values and traditions.

*          Incorporate strong findings in the record.

*          Treat every land use applicant fairly.

*          Don’t unduly burden religious practices.

*          Provide alternate means of relief.

*          Hold practice sessions.

Lora is a city planner and land use attorney in Albuquerque, New Mexico.  She is Editor of Planning & Environmental Law and, along with Michael S. Giaimo (Robinson and Cole LLC), edited RLUIPA Reader: Religious Land Uses, Zoning, and the Courts published by the American Bar Association and American Planning Association in April 2009. 


In January 2011, Lora will be teaching “Current Trends in Land Use Law,” in the Bloustein Online Continuing Education Program.   The course provides a thorough discussion of RLUIPA and how planners and local government officials should prepare themselves to successfully address religious land use applications in their zoning regulations and development review processes.