FEATURE STORY, JULY 2008

THE CLASH OF RELIGION AND ZONING LAWS
What is the Religious Land Use and Institutionalized Persons Act and how does it affect you?
Steven M. Silverberg

Silverberg

What do the Cambodian Buddhist Society of Connecticut in Newtown, the Westchester Day School in Mamaroneck, New York, the Okemos Christian Center in Michigan, the Church of Universal Love and Music of Fayette County, Pennsylvania, and Chabad Lubavitch of Litchfield County, Connecticut, have in common? The answer is they are all involved in a struggle between the right of municipalities to create zoning laws regulating the uses permitted in their communities and the rights of religious organizations to practice religion.

The vehicle for this struggle is the Religious Land Use and Institutionalized Persons Act (RLUIPA) adopted by Congress in 2000. While a coalition of liberal and conservative members of Congress sponsored and adopted the legislation with the intention to shield religious organizations from discriminatory land use practices, RLUIPA has fostered litigation which many communities view as a threat to their ability to regulate land use and establish their own vision of appropriate community development.

Whether it is the tiny Village of Pomona, New York, which is litigating a RLUIPA claim over the ability of a religious group to build housing for rabbinic students and their families that could more than double the population of the village, or Salisbury Township in Pennsylvania, which wants to amend its zoning to restrict churches in its agricultural district and has already been told by church groups it will violate RLUIPA, the issue of religion versus zoning is in the news and the courts throughout the country. The decision by the Village of Mamaroneck, New York, to pay $4.75 million to settle a claim by the Westchester Day School over the denial of a special permit is an example of just how serious this issue is for many municipalities.

The problem that many communities face is proposed uses of property that would not, under ordinary circumstances, be permitted by secular groups. The mere fact that a zoning regulation does not permit a large place of assembly such as a church, school or community center in a particular area does not mean that a claim cannot be made to build such a structure for a religious organization if RLUIPA is invoked. The Westchester Day School may be an anomaly because it involved expansion of a use that had been in place for more than 60 years. But the case highlights the fact that municipalities believe they are no longer on an even playing field with religious organizations. If a court finds a municipality was wrong, RLUIPA allows for the collection of potentially enormous attorney’s fees and damages.

Some on the side of religious organizations argue that RLUIPA actually does even the playing field by granting religious groups the ability to collect damages. Yet, others argue that unless there is a demonstration of actual discrimination, or at least bad faith on the part of a municipality, taxpayers should not be forced to pay for an error in judgment or a decision to hold a religious organization to the same standard as anyone else. Eventually the Supreme Court will probably resolve the debate.

RLUIPA states that implementation of land use regulations by a municipality that would “substantially burden” religious exercise violates RLUIPA, unless the municipality can demonstrate a compelling state interest in the regulation or decision. Complicating the issue is that RLUIPA defines “religious exercise” vaguely, stating that religious exercise “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” So one RLUIPA lawsuit is reported as involving an argument over whether the group at issue, the Church of Universal Love and Music, should be granted a special permit, which the municipality denied. In that case, the church claims that music is a central aspect of its religious exercise and the church is being denied the right to practice its religion. In response to the lawsuit, the county attorney has reportedly claimed that the church is not a recognized institution and is instead involved in an attempt to have amplified concerts that circumvent local zoning regulations.

Recently the Connecticut Supreme Court in the Cambodian Buddhist Society of Connecticut v. Planning and Zoning Commission of the Town of Newtown, took a position that varied from other courts by holding that an application for a special exception permit does not even fall within the ambit of RLUIPA. It appears that some of these issues may be coming to the ultimate showdown as it is reported that in at least two instances groups will be seeking review of RLUIPA decisions by the United States Supreme Court. There are some who claim that RLUIPA is overbroad and violates the constitutional prohibition against establishment of religion. The argument on that side is that by allowing religious organizations to establish uses where secular groups could not, the law fosters the establishment of religion in violation of the United States Constitution. On the other side, there are religious groups that argue some courts have been construing RLUIPA too narrowly. If the Supreme Court accepts one or more of these cases for review, we may soon know just how far RLUIPA will alter the zoning landscape in this country.

Steven Silverberg is a partner in the White Plains, New York, law firm, Silverberg Zalantis LLP, where he practices zoning, land use and municipal law.

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