United States: New Federal Law Limits Application Of Land Use Controls To Religious Institutions

A recently enacted federal law may dramatically affect local zoning and land use planning. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) is a more narrowly defined offspring of the Religious Freedom Restoration Act of 1993 (RFRA). The United States Supreme Court found RFRA unconstitutional in 1997. City of Boerne v. Flores, 521 U.S. 507 (1997). RLUIPA, signed into law in September 2000, attempts to correct the constitutional deficiencies of RFRA.

RLUIPA is an effort to protect churches and synagogues from overreaching land use laws.¹ Like the struck-down RFRA, where a person, including a religious assembly or institution, makes a prima facie showing that a government land use regulation substantially burdens their religious exercise, RLUIPA requires the government to demonstrate that regulation is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. This is the most demanding test known to constitutional law.

Supporters of RLUIPA praise the Act's goal of alleviating land use conflicts where churches have been refused the ability to locate in a community or otherwise use their land for religious purposes.² Opponents of RLUIPA assert that it suffers from the same constitutional flaws of its predecessor: RLUIPA was not enacted in response to a pattern of "widespread and persisting" constitutional violations by the states and the legislative solution is not "proportional and congruent" to those violations.³ In City of Boerne, the Supreme Court observed that "[t]he history of persecution [of religious institutions] in this country detailed in the hearings mentions no episodes occurring in the past 40 years" and that RFRA's universal application to all federal and state law was "a considerable congressional intrusion into the State's traditional prerogatives and general authority to regulate for the health and welfare of their citizens."

Although RLUIPA applies to a smaller field of governmental actions, its potential impact could be significant. The Act goes beyond protecting those activities central to religious belief and applies to "[t]he use, building, or conversion of real property for the purpose of religious exercise." Under RLUIPA, land use regulations may not totally exclude religious assemblies from a jurisdiction or "unreasonably limit" religious assemblies, institutions, or structures within a jurisdiction. Challenges likely to arise include questions of the validity of use limitations, setback requirements, parking restrictions, storm drainage requirements, and any other aspect of land use regulation perceived as unreasonably limiting religious assembly or the location, use, or expansion of religious structures. Governments found in violation of RLUIPA may be subject to attorneys' fees.

1. RLUIPA also addresses protection of religious exercise of institutionalized persons. However, this article is limited to the impacts of RLUIPA on land use regulation.

2. Press Release of U.S. Senator Orin Hatch, Hatch Wins Battle to Protect Religious Freedom (July 27, 2000).

3. Letter from Marci Hamilton (on behalf of the National League of Cities), Professor, Cardozo School of Law, to the United States Senate (July 24, 2000). See also, letter from Larry E. Naake, Executive Director, National Association of Counties, to the Unites States Senate (July 20, 2000).

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