This Month’s Topic:

ALL ABOUT RLUIPA: THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT

The Religious Land Use and Institutionalized Persons Act, or RLUIPA is a federal law that grants certain land use protections to religious organizations of all faiths with regard to land use decisions made at the local government level. 42 U.S.C. §§ 2000cc et seq. RLUIPA precludes local governments from substantially burdening the religious exercise of houses of worship and their members, and also requires that houses of worship be treated on equal terms as compared to similarly situated land uses. The second portion of the law applies to imprisoned persons who believe they have been denied the free exercise of their religion.

Most commonly, the plaintiffs in a religious land use matter include a religious organization. The defendant typically is a local governmental entity, such as a city or township, whose decision with regard to a land use matter is being disputed. RLUIPA claims are subject to a four-year statute of limitations and these cases are litigated in federal court.

As these cases are filed in federal court, the Federal Rules of Civil Procedure apply. Typically, the parties exchange written discovery before depositions are taken. After depositions are completed, the parties may retain expert witnesses to bolster their arguments. Prior to trial, the parties very likely will attempt to resolve the matter using a neutral mediator. If that fails, the matter proceeds to trial.

Typically a RLUIPA case is initiated after the land use applicant has received a final decision from the pertinent local governmental body with respect to its land use matter. This is done to ensure the exhaustion of administrative remedies. Once a lawsuit is filed in federal court, these cases can take several years or longer from the time of filing to a resolution via trial or settlement.

The statute identifies three core claims that can be brought under RLUIPA:

Substantial Burden: RLUIPA states that no 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.” Such a substantial burden is permitted, however, if the government can show that the burden was imposed in the furtherance of a “compelling governmental interest, and the government has pursued the least restrictive means of furthering that compelling governmental interest. Courts engage in fact intensive inquiries to determine whether a burden was substantial and, if so, then determines whether a compelling governmental interest was served.

Examples of actions that some courts have found to constitute a substantial burden on religious exercise under RLUIPA include:

>Effectively barring use of a particular property for religious activity;
>Imposing a significantly great restriction on religious use of a property; and
>Creating significant delay, uncertainty, or expense in constructing or expanding a place of worship, religious school, or other religious facility.

Equal Terms: RLUIPA’s Equal Terms provision establishes that “[n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1). The plaintiff asserting an Equal Terms claim must show (1) it is a religious assembly or institution, (2) subject to a land use regulation, which regulation (3) treats the religious assembly on less than equal terms with (4) a nonreligious assembly or institution. The offending zoning ordinance may be upheld if the defendant establishes that the conduct is a narrowly tailored means of achieving a compelling governmental interest.

A zoning ordinance that, on its face and before it is applied to an applicant, requires a religious land use to obtain special permits while not requiring that of similar non-religious assemblies has repeatedly been found to be an equal terms violation. Equal terms violations are also found when a zoning ordinance allows public and private educational institutions and private clubs in a zoning classification that bars religious uses.

Nondiscrimination: The nondiscrimination provision of RLUIPA provides “No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.” 42 U.S.C. § 2000cc(b)(2); The nondiscrimination provision bars discrimination on the basis of religion or religious denomination, which can be proven without reference to a “religious analogue.”

Where a challenged ordinance is neutral on its face, a plaintiff seeking to establish a nondiscrimination claim under RLUIPA must put forth evidence of the government’s “discriminatory intent.”  Accordingly, courts assessing discriminatory intent consider a multitude of factors, including the series of events leading up to a land use decision, the context in which the decision was made, whether the decision or decision-making process departed from established norms, statements made by the decision-making body and community members, reports issued by the decision-making body, whether a discriminatory impact was foreseeable, and whether less discriminatory avenues were available. 

RLUIPA allows for a person to assert a violation of RLUIPA and obtain “appropriate relief” against a government, although the statute does not define what appropriate relief means. To date, courts have taken this to mean that religious organizations can obtain not only injunctive relief – such as the award of a previously denied permit – but also economic damages. This includes all classes of damages that are recoverable under 42 USC 1983, including economic and noneconomic damages. Punitive damages are also recoverable.

Notably, RLUIPA includes a safe harbor provision that allows the government to “avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.” In other words, when a RLUIPA claim arises the government has an opportunity to voluntarily cease the conduct alleged to violate RLUIPA prior to formal litigation.

RLUIPA specifically provides that the prevailing party is entitled to recover their attorney fees from the opposing party. This consideration should be taken into account by both the plaintiff and the government.

RLUIPA is not a blanket exemption from zoning laws. As a general matter, religious institutions must apply for the same permits, follow the same requirements, and go through the same land use processes as other land use applicants. RLUIPA prohibits a local government from applying zoning laws or regulations in a way that substantially burdens religious exercise without a compelling justification pursued through the least restrictive means, or from that government treating religious uses less favorably than similarly situated nonreligious assemblies and institutions.

Because RLUIPA relates to the free exercise of religion, many RLUIPA cases involve state and federal First Amendment claims, such as Free Exercise and Free Assembly claims. Additionally, a RLUIPA plaintiff might allege Equal Protection violations under the Fourteenth Amendment.

If you believe you might have a claim under RLUIPA or related First Amendment protections, please contact Daniel Cortez if you wish to discuss this further.