The fourth and fifth prongs of RLUIPA are the unreasonable limitations and exclusions clauses found at 42 USC 2000cc (2)(b)(2). In order establish a claim under these parts of RLUIPA, religious institutions must establish that religious assemblies have been totally excluded from a jurisdiction or that they have been unreasonably limited.
Although simple in terminology, the application of this provision has proven to be difficult given the multiple definitions of what is “excluded” and what is “unreasonably limited.” In some judicial circuits, Courts have ruled that while the fact that religious uses are not “permitted uses” within any district of a community municipality does not automatically prove “exclusion” exist where special permits or variances are available to religious organizations. Other judicial circuits have concluded that communities claimed interest in preserving property values cannot be used to justify a complete exclusion of a religious institution from the City’s jurisdiction. As to “unreasonable limitations” on religious uses, the legislative history explains that “[w]hat is reasonable must be determined in light of all the facts, including the actual availability of land and the economics of religious organizations.”
A case in point is In Elsinore Christian Center v. City of Lake Elsinore, 291 F. Supp. 2d 1083 (C.D. Cal. 2003) rev’d on other grounds 197 Fed. Appx. 718 (9th Cir. 2006) (holding RLUIPA constitutional), the City denied a church’s conditional use permit. During its hearing on the matter, the Lake Elsinore City Council articulated three principal bases for its denial: 1) maintaining needed services provided by the Site’s current tenant (a discount food store and recycling center); 2) preventing loss of property tax revenue by replacing a commercial tenant with a non-commercial user; and 3) the possible inadequacy of on-site parking for the Church’s proposed use, and potential adverse consequences on the parking needs of adjacent users.
The U.S. District Court found that “the maintenance of property tax revenue is a potentially pretextual basis for decision-making that appears to have been a specific target of RLUIPA.” 291 F. Supp. 2d at 1093. The court went on to state: “The Act’s drafters were concerned that where, as here, a church is required to seek a permit, “[t]he zoning board [does] not have to give a specific reason [for denying the permit]. They can say it is not in the general welfare, or they can say you are taking property off the tax rolls.” Indeed, if a city’s interest in maintaining property tax levels constituted a compelling governmental interest, the most significant provision of RLUIPA would be largely moot, as a decision to deny a religious assembly use of land would almost always be justifiable on that basis.” (citations omitted) 291 F. Supp. 2d at 1093.
These claimed interests were also shot down in Vietnamese Buddhism Study Temple, where the City of Garden Grove’s ordinance (“GGZO”) permitted nonreligious assemblies to operate as a matter of right in zones where religious assemblies were completely forbidden. 460 F. Supp. 2d at 1166. One of these zones was the office professional zone where the Temple’s property was located. The Temple was forced to completely shut down, and sought a preliminary injunction against the Garden Grove to allow the congregation to assemble and practice their faith on the property. The court found that the Temple put forth sufficient evidence to make a prima facie claim of an equal terms violation, and thus the city’s facial differentiation between religious and nonreligious assemblies subjected its ordinance to strict scrutiny.
The primary concerns raised in the City Planning Commission’s denial of the Temple’s applications were increased traffic, increased on-street parking, and loss of revenue. The court found that “[t]hese three concerns simply do not justify facially unequal treatment between a church and a private club.” Id. at 1174. The court reasoned: “[I]f a tax exempt non-profit private organization decides to purchase property in the office professional zone, the City would suffer the same loss of revenue as it would if a religious association operated the property as a church. The City has not shown that a church or religious assembly would have a demonstrably different impact on the office professional zone than would a private club or lodge. This strongly suggests that the zoning ordinance impermissibly pursues Garden Grove’s interests only against conduct motivated by religious belief.” Id. at 1175.
The court preliminarily enjoined the city from enforcing those provisions of the GGZO against the Temple.
In sum, where there is an ordinance that excludes religious uses from a zoning district (unless a special land use permit is obtained), while private clubs, lodge halls, social and similar organizations, including assembly or rental halls and even funeral homes are all permitted as of right an exclusion or unreasonable limitations claim may arise.
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