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by Stuart Lieberman
International Real Estate Digest
Don’t get me wrong. I am not a house of worship basher. In fact I am a member of a religious congregation and I am very pro houses of worship.
But, houses of worship must comply with local zoning requirements. While there are seldom justifications for them to receive special zoning board treatment, that is exactly what is routinely now happening all over the US. And I think we all need to understand this issue.
Houses of worship sometimes want to expand or move to a new building. They are not immune from the need to appear before local planning and zoning boards; sometimes they win and sometimes they lose. A new federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA, means they will win more often. It effectively changes the playing field in favor of houses of worship. And, it is making planning and zoning boards cringe in fear.
The federal law was adopted in 2000. RLUIPA provides that a government cannot impose or implement a land use regulation in a manner that imposes a substantial burden on a religious assembly or institution unless the government demonstrates that the imposition of the burden furthers a compelling governmental interest and is the least restrictive means of furthering the compelling government interest.
Furthermore, under the law no government may impose or implement a land use regulation that treats a religious assembly or institution on less-than-equal terms with a nonreligious assembly or institution.
Where houses of worship claim there has been a violation of this law, they may proceed in Federal Court in a lawsuit against the allegedly offending government. In addition, the law provides that if the house of worship prevails, it can be awarded attorney’s fees.
In Elsinore Christian Center vs. City of Lake Elsinore, a Judge ruled that a portion of the law was unconstitutional because it will cause many land use decisions in the United States to be invalidated despite the fact that they are legitimately motivated and generic in effect. The Judge was concerned that this improper result would be caused by the simple fact that the applicant is a house of worship.
The facts in the Elsinore case are much the same as those in similar cases that are being filed at a rather rapid rate all over the United States. Elsinore Christian Center had been renting downtown space for over 12 years but it outgrew the building and sought to relocate to a more suitable area. It wanted to move in the same geographic area so that it could continue to serve the religious needs of the downtown community. This resulted in the center entering into an agreement to purchase a naval and military school.
A conditional use permit was required by the local planning board for conversion of the school into a church to occur. While the Board staff consented to the application, when the full Planning Board met it denied the application and that resulted in the lawsuit.
The Church relied on RLUIPA to support its contention that the Planning Board was legally required to grant approval for its application. This is a common position now taken or threatened by houses of worship facing local land use denials.
Ruling for the municipality, the Judge found much of the law to be unconstitutional because it utilizes a different standard of review than that which has historically been used in similar church land use laws. In other words, the federal law took away too much discretion from planning and zoning boards that may have good intentions and may want to act fairly.
Here is the problem: this was one Judge’s opinion. Many have already ruled to the contrary. And planning boards and zoning boards won’t say it aloud, but they are really afraid of this law. As far as they see it, a move against a church or temple will inevitably result in a costly lawsuit. And municipalities cannot afford to be in court all of the time.
Undeniably, many communities in the United States take measures to avoid houses of worship from locating either entirely within their confines or in certain neighborhoods. Clearly, that kind of wrongful conduct needs to be avoided and a remedy must be in place for these situations.
Land use laws throughout the United States have always required that planning boards and zoning boards not act in a discriminatory manner and that they not be arbitrary, capricious and unreasonable in the manner in which they decide the cases. And the First Amendment has always provided protection against those who seek to prevent or penalize houses of worship.
But houses of worship should not be entitled to any kind of super priority. Planning boards and zoning boards should not be bullied into engaging in unfair or bad land use policies simply because they cannot afford another lawsuit. Because when that happens, we all really lose in the long run.
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