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Religious Land Use update

Written by Daniel P. Dalton on June 18, 2012 Category: Equal Terms, RLUIPA, Substantial Burden, Unreasonable Limitations

There has been a string of recent decisions concerning religious land use that significantly impact religious land decisions in the United States. A sample of the cases follow:

  • In Liberty Temple Full Gospel Church, Inc. v. Village of Bolingbrook, No. 11C2173, 2012 WL 1230728 (N.D.Ill. Ap. 12, 2012), the court held that a church stated a claim whether the Village of Bolingbrook imposed a land use regulation that created a substantial burden on the plaintiff without demonstrating that doing so furthered a compelling government interest, and in the least restrictive means necessary, in violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Before leasing the parcel in question, the church consulted the village zoning code and map and saw that the parcel had no zoning designation and was not partitioned from the zoning designation in which churches were explicitly permitted. Accordingly, the church was surprised when the village denied its application for a building permit and claimed the church would need a Special Use Permit (SUP). The village also claimed parking was inadequate, but later recanted this. When the church took its case to the mayor, he said that he “did not want any more churches in Bolingbrook” because “churches do not produce any tax revenue.” The mayor also said that “the village would not back any zoning ordinance allowing the church to operate at the site.” When the church sued, the court held that it was not “obligated to bang its head against a wall and apply for a permit it was told it would never get” as a precondition for litigation. The court held that there were enough facts for the jury “to find that the Village had no compelling reason to refuse to consider the drawings and the church’s building permit application, or to demand a SUP, and that doing so created a substantial burden upon the small congregation by forcing it to file suit and incur legal fees.”

  • In Roman Catholic Diocese of Rockville Centre, N.Y. v. Inc. Village of Old Westbury, Case No. 09 CV 5195, 2012 WL 1392365 (E.D.N.Y. Ap. 23, 2012), the court held that the diocese stated a claim against the village under the substantial burden prong of RLUIPA, as a result of enacting certain amendments to the Village Code called the Places of Worship (“POW”) law in the wake of another trial court ruling annulling the board of trustees’ denial of the diocese’s application for a special use permit to develop a cemetery. On appeal, the trial court’s ruling was reversed to the extent it directed the board to issue a special permit to the diocese upon remittitur. The appellate court found that the diocese’s proposed use was subject to environmental review. In this litigation, the diocese argued that defendants “abused virtually every device and mechanism available to prevent the development” of the cemetery for eight years. When the Board finally granted a special exception permit it contained conditions the diocese claimed made the project impractical and “unjustifiably more expensive.” The court granted the diocese’s motion to amend its pleading to assert that the conditions imposed by the resolution would significantly restrict the diocese’s use of their property for religious burial purposes and to allege that the resolution’s requirements were “imposed … arbitrarily, capriciously, or unlawfully” in violation of RLUIPA’s “substantial burden” claim and the Free Exercise clause. The court likewise held that the diocese adequately alleged a claim under the equal terms prong of RLUIPA by claiming that it was subjected to more stringent setbacks, landscape and property maintenance requirements, and groundwater testing requirements than properties within the village used for secular purposes including golf courses, polo grounds and public gardens. Additionally, the court allowed the church to amend its pleading to claim an equal protection violation, a claim challenging the constitutionality of the POW law on its face, and a First Amendment retaliation claim; it granted absolute immunity to the public officials with respect to the POW law, but not the adoption of the resolution.

  • And in Victory Center v. City of Kelso, No. 3:10-cv-5826-RBL, 2012 WL 1133643 (W.D. Wash. Ap. 4, 2012), the court ruled that the plaintiff stated a claim under the equal terms provision of RLUIPA against the defendant as to whether the plaintiff, “an entity arguably engaged in educational and cultural pursuits,” is treated on less than equal terms with secular educational and cultural institutions. The court said there was a question of fact whether all similarly situated secular organizations are barred from the area unless retail in character. The city decided that the plaintiff’s use of facilities was prohibited in the area as a community center, rather than permitted as a cultural and educational center. Nevertheless, the court rejected the plaintiff’s argument that the city’s zoning scheme substantially burdened the plaintiff’s religious exercise inasmuch as the plaintiff failed to advance any compelling reason why this particular location is better suited for its religious practices than any other. The court found that the city’s land use regulations do not constitute “more than an inconvenience on religious exercise” and do not offend the Free Exercise, Free Speech, Due Process or Equal Protection clauses, as they are neutral, generally applicable, equally disadvantage nonreligious entities, and because the plaintiff is not part of a suspect class. The court granted qualified immunity to Kelso city officials.

These cases teach us that the law concerning religious uses continues to evolve and religious entities need to be vigilent in staying current with the contours of the law to see how they impact their land use decsions.

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