This Tuesday, September 22, 2020, will be the 20th anniversary of President Bill Clinton signing into law the Religious Land Use and Institutionalized Persons Act, also known as RLUIPA. The law was passed by a unanimous Congress to enforce, by statutory right, four different constitutional prohibitions related to the development of land by religious entities which were blocked by local governments throughout the United States.
We consider it an honor to have been chosen by our clients to serve as their guide to successfully develop land for religious assembly purposes through the planning and zoning stage, or if necessary through the litigation process. Our clients have achieved the use of property for religious assembly in nearly every state and as a result, hundreds of Churches, Schools, Chabad’s, Synagogues, Mosque, Temples have been built enlarging faith communities throughout the United States.
And, we have literally written the book on RLUIPA.
It is an exciting time to be at the forefront of this issue. We have helped schools in San Diego, California; Madison, Wisconsin; St. Louis, Missouri; Somers, Connecticut, Tampa, Florida and other locations around the United States build, renovate and expand their campus’s. We have worked with Churches in New Jersey, California, Texas, Michigan and 23 other states buy, build, secure site plan approval and renovate properties. Many other Chabad’s, Mosques, Temples, Synagogues as well as homeless shelters, pregnancy care centers, soup kitchens and other related places of religious activity have also been approved and built through our work with them by applying RLUIPA.
Yet with all of the successes, we continue to battle the same issues throughout the nation. We continue to work with religious institutions who are being persecuted by local municipalities who use “parking requirements,” to close down ministries. Local government officials often deny religious uses for schools and wedding facilities whom they deem to be not “religious enough,” to be declared by themselves, a religious organizations. Chabad’s, Temples and Synagogues face the daily pressure and religious discrimination against Orthodox Jews that are all too familiar within this country.
Many religious institutions – and governmental entities – have no idea that RLUIPA even exist. As familiarity with the entirety of the RLUIPA law is essential to the success of many religious land use cases, we thought it would be helpful to review the components of the law so that if you are running into issues related to the development of land for religious purposes, you have the knowledge of the law and the law firm to contact to guide you through the process.
- Substantial Burden claims.
Section (a)(1)of RLUIPA provides that no state or local 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 imposition of the burden on that person, assembly, or institution is both “in furtherance of a compelling governmental interest” and “the least restrictive means” of furthering that interest.
Of important note is that Congress deliberately chose not to define the term “substantial burden” but rather intended the term to be defined by applicable Supreme Court decisions. The effect of not defining the term was that courts were left to decide which definition of “substantial burden” they wanted to apply to a pending matter. As a result, there is no uniformity across the United States as to what a “substantial burden” on religious exercise is. This, in turn, has resulted in many different definitions across the federal and state courts, which have led to confusing and contradicting decisions.
- Equal Terms claims
Section (b)(1),commonly known as the “equal terms” prong of RLUIPA, prohibits governmental entities from imposing or implementing land use regulations “in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” The intent of this provision is to codify the Supreme Court’s decision that the Free Exercise Clause forbids the government to pursue its interests only against conduct that is motivated by religious belief.
- Nondiscrimination claims
Section (b)(2), commonly known as the “nondiscrimination” prong of RLUIPA, prohibits governmental entities from imposing or implementing land use regulations in a manner that “discriminates against any assembly or institution on the basis of religion or religious denomination.” Congress enacted this section to codify the antidiscrimination principles of the Free Exercise, Establishment, and Equal Protection Clauses, with the understanding that this section will overlap to some degree with Section (b)(1).
- Exclusions and Unreasonable Limitations claims
Section (b)(3), known as the “exclusions and unreasonable limitations” prong of RLUIPA, prohibits governmental entities from imposing or implementing a land use regulation that “totally excludes religious assemblies from a jurisdiction” or “unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.” Congress included this part of RLUIPA with the intent that it would codify decisions prohibiting both total or effective exclusions of First Amendment activity from an entire jurisdiction and unreasonable restrictions on First Amendment activities in that jurisdiction.
- Miscellaneous Components of RLUIPA
It is very important to review the statute in its entirety when evaluating a RLUIPA claim or defending the same. For example,
- Congress mandated that RLUIPA must be broadly construed;
- Congress provided for judicial relief to an aggrieved person;
- Congress established the burdens of persuasion, and;
- Congress established how standing is to be established.
In addition, Congress defined a “land use regulation” as:
A zoning or land marking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.
Under this definition, a government entity or agency implements a land use regulation when it acts pursuant to a zoning law that limits the manner in which a claimant may develop or use property in which the claimant has an interest.
In addition, Congress provided the following definition of “religious exercise” as:
(A) In general. The term “religious exercise” includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
(B) Rule. The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.
Remedies: Damages, Equitable Relief and Attorney Fees
The interests and goals of the religious organization that puts forward RLUIPA claims are typically much broader than those of a typical client seeking monetary damages. In fact, many RLUIPA clients might not have suffered a significant economic loss. That is why being familiar with RLUIPA’s remedies is integral.
- Appropriate Relief
RLUIPA’s provision that authorizes a cause of action states that “[a] person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” While the phrase “appropriate relief” may seem simple enough, these two words have turned out to be more problematic than one would imagine.
- Injunctive Relief
It appears to be universally accepted that RLUIPA’s remedy provision that provides for “appropriate relief” includes injunctive relief. The question that many courts have is whether it includes damages.
- Money Damages
Because there is such a great conflict among federal district courts regarding the availability of damages in a RLUIPA action, the only truly reliable reasoning can be found in Congress’s legislative history. It is clear that when it enacted the controversial statute in 2000. Congress’s use of the term of art “appropriate relief” in RLUIPA, enacted against the backdrop of Franklin and Burlington, can only mean that Congress intended monetary damages to be one of the remedies available to successful RLUIPA plaintiffs. Indeed, it would be especially ironic if Congress’s use of a term of art that underscores the breadth of available relief prompted the courts instead to narrow the scope of that relief.
Although Congress’s use of a term of art that encompasses damages, particularly in the context of other reinforcing statutory provisions, provides sufficient clarity about Congress’s intent to allow for damages, RLUIPA’s legislative history provides additional confirmation. The detailed analysis of RLUIPA’s provisions included in the Congressional Record states that the remedy provisions “track RFRA, creating a private cause of action for damages, injunction, and declaratory judgment, and creating a defense to liability, and providing for attorneys’ fees.”