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RLUIPA abuse: a real problem in the United States

by: Stuart Lieberman, Esq

President Clinton had backed a bill which was designed to provide prisoners and houses of worship with certain protections. The bill, which became law, is called RLUIPA.

As to prisoners, RLUIPA is designed to make sure that prisons don't unnecessarily deprive prisoners of their rights to pursue their religious beliefs. That makes a lot of sense, and that has nothing to do with this article.

But the other part of RLUIPA invalidates any land-use decision that creates a special burden on houses of worship. This article concerns these land-use aspects of RLUIPA. I believe that there is a tremendous potential for abuse of RLUIPA. And I wish via this article to urge planning boards and land-use boards throughout the country to stick up for their rights and to be willing to fight the necessary fight in order to stop RLUIPA abuse.

The good part of RLUIPA is that it certainly prevents unnecessary, inappropriate land-use decisions that keep houses of worship out of communities. I don't really think this is much of a problem as this country generally supports freedom of religion.

However, it is clear that in certain limited instances planning boards and zoning boards have taken arbitrary and capricious actions to block houses of worship in certain communities. Where these actions are without basis in fact or law, we can all agree that they are improper and that courts should reverse them.

Indeed well before there was a federal law that required reversal, courts throughout the United States have always had the ability to invalidate arbitrary and capricious land-use decisions. Most courts have had no problem whatsoever in setting aside land-use decisions that make no sense whatsoever, or, even worse, unfairly discriminated against groups because of their religious beliefs or whatever other reason.

On the rare occasion where land-use boards improperly denied a house of worship the right to build or to expand, there has always been a remedy at both the state court and the federal court levels. And it's clear that when state courts have failed to act, federal courts have, at least in contemporary history, had no problem asserting their role to insure freedom of religious beliefs.

The value of RLUIPA, in the land use context, is certainly questionable in my mind. The concept that an act which creates a substantial burden on a house of worship should be invalidated is one which in the abstract makes a lot of sense. But I'm not aware of many actions that create substantial burdens on houses of worship. Clearly, if you can find one for me, I would have no problem in agreeing that the courts should reverse a special burden. Houses of worship should not be subject to burdens that are greater than those imposed on anyone else.

The problem with RLUIPA is that it carries with it substantial monetary penalties, which simply scare that heck out of land-use boards and planning boards. This threat, which can bankrupt many municipalities, causes local zoning boards and planning boards to take actions that they otherwise never would take. And I have seen cases where planning board members have been sued individually!

In other words, the threat associated with losing a RLUIPA case has seemingly forced planning boards and zoning boards to act in an arbitrary and capricious manner by approving house of worship land-use applications that would otherwise not be approvable. I believe that in this regard RLUIPA has been in many instances completely counterproductive.

The question of what is and what is not a special burden is still one that has not been clearly answered. Different courts from different parts of the country have answered this in different ways.

Hopefully, at some point the US Supreme Court will provide us with a definitive view of what a substantial burden is in this context. But in my view, a substantial burden needs to be something that is unfairly limiting in the context of a house of worship's ability to perform its functions.

We are all exposed to land-use decisions. And all land-use decisions impose burdens of one kind or another. Every land-use decision denial doesn't necessarily mean that it has caused a substantial burden. And every application by a house of worship doesn't necessarily mean that a substantial burden will be imposed if the land-use application is denied.

There are well funded pro - RLUIPA lawyers traveling across this country using RLUIPA in a most , in my view, menacing manner. What was designed to be a good law which should have helped houses of worship in cases where there is true prejudice, has now become in some cases a free pass, which turn ordinary and routine land-use decisions into a guaranteed ?yes? vote in favor of the house of worship, often at the expense of innocent neighbors.

In land-use there are many very good reasons for saying yes. And there are many good reasons for saying no. Houses of worship have to live within our traditional land-use context. Not every vote to deny a house of worship application should be turned into a federal lawsuit. But that is what some of these lawyers seem to be advocating.

In short, RLUIPA is certainly important, and certainly must be maintained. But the scare aspect of RLUIPA must be taken away. Land-use boards have to be free to apply their land-use laws in free and evenhanded ways, which inevitably mean yes, sometimes and no sometimes.

For zoning boards and land-use boards throughout the United States, the message is clear. If you have improperly denied an application for a house of worship, you should expect that you might be sued under RLUIPA, and you might lose. That is a good thing.

But if your decision does not impose a substantial burden on a house of worship and indeed was predicated on upon a fair and evenhanded application of the land-use laws, then stick to your guns. We need to establish some case law through out the country which demonstrates that RLUIPA does not always mean yes.

We need to turn the pendulum back in the direction of evenhandedness and fairness so that houses of worship, and communities that surround houses of worship each have a level playing field. I ask you, what?s wrong with that?

We need to turn the pendulum back in the direction of evenhandedness and fairness so that houses of worship, and communities that surround houses of worship each have a level playing field. I ask you, what?s wrong with that?