rluipa land use claims: latest litigation trends and key...

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Presenting a live 90-minute webinar with interactive Q&A

RLUIPA Land Use Claims: Latest Litigation

Trends and Key Case Law Developments Strategies for Local Governments to Avoid or Defend RLUIPA

Actions Amid a Changing Litigation Landscape

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

WEDNESDAY, FEBRUARY 22, 2017

John F. X. Peloso, Jr., Partner, Robinson & Cole, Stamford, Conn.

Karla L. Chaffee, Esq., Robinson & Cole, Boston

Evan J. Seeman, Esq., Robinson & Cole, Hartford, Conn.

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Thanks for having us

www.RLUIPA-Defense.com

6

Evan Seeman

(Hartford)

Karla Chaffee

(Boston)

John Peloso

(Stamford)


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History & Intent

Sherbert v. Verner (1963)

Employment Div. v. Smith (1990)

Church of Lukumi Babalu Aye v. City of Hialeah (1993)

Religious Freedom Restoration Act of 1993

City of Boerne v. Flores (1997)



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RLUIPA Provisions

The Basics:

Substantial Burden

42 U.S.C. § 2000cc(a)

Equal Terms

42 U.S.C. § 2000cc(b)(1)

Nondiscrimination

42 U.S.C. § 2000cc(b)(2)

Exclusions and

Limitations

42 U.S.C. § 2000cc(b)(3)



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When Does RLUIPA Apply?

“[A] zoning or landmarking 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.”

24 U.S.C. 2000-5(5)

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10 10

What is a “Land Use Regulation”?

Building & Safety Codes – No. Salman v. City of Phoenix (D. AZ 2015).

Affordable Recovery Housing v. City of Blue Island (N.D. Ill 2016)

Environmental Review – Possibly. Fortress Bible Church v. Feiner (2d Cir. 2012).

Eminent Domain – Maybe, but probably not. St. John’s United Church of Christ v. City of Chicago

(7th Cir. 2007); Congregation Adas Yerim v. City of New York (E.D.N.Y. 2009).



11 11

What is Religious Exercise?

• “The term ‘religious exercise’ includes any

exercise of religion, whether or not compelled by,

or central to, a system of religious belief.”

• “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.”



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Examples of Religious Uses

o Soup kitchen

o Food pantry

o Provision of clothes

o Medical services

o Home bible study

o Cemeteries



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What is NOT Religious Exercise?

If “beliefs” are not sincerely held but are instead

meant to circumvent zoning regulations. Church of

Universal Love & Music v. Fayette County (W.D. PA

2008)

Is mixed-use religious exercise? See Chabad

Lubavitch of Litchfield County, Inc. v. Borough of

Litchfield (use of the “segmented” approach)



14 14

Ripeness

Finality Requirement Religious Institutions and

Assemblies Must Exhaust All Local Quasi-Judicial Appellate Avenues to Establish Ripeness

Motion to Dismiss

Failure and Refusal of Religious Institutions to File Land Use Applications St. Vincent de Paul Place,

Norwich, Inc. v. City of Norwich (2d Cir. 2013)



15 15

What is a Substantial Burden?

• Congress intentionally left the term “substantial

burden” undefined.

• The term ‘substantial burden’ as used in this Act is not

intended to be given any broader definition than the

Supreme Court’s articulation of the concept of substantial

burden or religious exercise. Joint Statement, 146 Cong.

Rec. 16,700 (2000)



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Where Might a Substantial Burden

Claim Arise?

Complete or partial denial of application for zoning relief (special permit, rezone, site plan, etc.)

Approval of application for zoning relief subject to conditions

Order from local official (i.e., cease and desist order, notice of violation, etc.)

Text of zoning regulations



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What constitutes a “substantial burden”

on religious exercise?

Very Likely Yes

Nowhere to locate in the jurisdiction.

Unable to use property for religious purposes.

Imposing excessive and unjustified delay, uncertainty or expense.

Religious animus expressed by City Officials.

Very Likely No

Timely denial that leaves other sites available.

Denial that has a minimum impact.

Denial where no reasonable expectation of an approval.

Personal preference, cost, inconvenience.



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Substantial Burden Developments

Both Holt and Hobby Lobby may impact how courts

evaluate whether a governmental interest is

“compelling” and furthered by “the least restrictive

means” available.



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Impact of Hobby Lobby And

Holt v. Hobbs?

The Seventh Circuit has concluded that Holt and

Hobby Lobby articulated a substantial burden

standard “much easier to satisfy” than that

previously used in the circuit.

Is C.L.U.B. v. City of Chicago (7th Cir. 2003) still

good law?



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Compelling Interests

MERE SPECULATION, not compelling; need

specific evidence that religious use at issue

jeopardizes the municipality’s stated interests

Compelling interests are interests of the highest

order (public health and safety)



21 21

Examples of Compelling Interests

Preservation of a municipality’s rural and rustic

single family residential character of a

residential zone. Eagle Cove Camp Conf. Ctr.

v. Town of Woodboro (7th Cir. 2013)

Ensuring the safety of residential

neighborhoods through zoning. Harbor

Missionary Church Corp. v. City of San

Buenaventura (9th Cir. 2016)

Traffic? Possibly. Westchester Day Sch. v.

Vill. of Mamaroneck (2d Cir. 2004)



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Least Restrictive Means

“We do not doubt that cost may be an important factor in

the least restrictive means analysis … Government may

need to expend additional funds to accommodate

citizens’ religious beliefs.” Burwell v. Hobby Lobby (2014)

“‘The least-restrictive-means standard is exceptionally

demanding,’ and it requires the government to ‘sho[w]

that it lacks other means of achieving its desired goal

without imposing a substantial burden on the exercise of

religion by the objecting part[y].’” Holt v. Hobbs

(2015)(quoting Hobby Lobby)



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More On Least Restrictive Means

Denial of zoning application without consideration of any conditions or alternatives fails this test. Westchester Day Sch. (2d Cir. 2007)

“But nothing in the Court’s opinion suggests that prison officials must refute every conceivable option to satisfy RLUIPA’s least restrictive means requirement.” Holt v. Hobbs (2015) (Sotomayor, J., concurring) (emphasis added)

Must strike “delicate balance” between religious practice and governmental interest. Jova v. Smith (2d Cir. 2009)



24 24

Equal Terms: More Circuit Variability

secular comparator, similarly

situated with respect to an

accepted zoning criteria (7th Cir.,

River of Life Kingdom)

a church and school were

insufficiently comparable,

given that the properties

sought different forms of

zoning relief from different

land use authorities applying

"sharply different" criteria. (11th

Cir., Primera Iglesia )

secular assemblies that are similarly

situated as to the regulatory purpose.

(3rd Cir., Lighthouse)

(1) the regulatory purpose or zoning criterion behind the regulation,

as stated explicitly in the text of the ordinance or regulation; and (2)

whether the religious assembly or institution is treated as well as

every other nonreligious assembly or institution that is "similarly

situated" with respect to the stated purpose or criterion. (5th Cir.,

Opulent Life Church)



25 25

The Equal Terms Tests

• Dictionary Definition Test: Midrash Sephardi,

Inc. v. Town of Surfside (11th Cir. 2004)

• Regulatory Purpose Test: Lighthouse

Institute for Evangelism, Inc. v. City of Long

Branch (3d Cir. 2007)

• Accepted Zoning Criteria Test: River of Life

Kingdom Ministries v. Vill. of Hazel Crest

(7th Cir. 2010)



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Types of Assembly Uses

Clubs

Meeting halls

Community centers

Auditoriums and theatres

Recreational facilities

Schools

Municipal uses



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Nondiscrimination Provision

“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. Section 2000cc(b)(2)



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Exclusions & Limits Provision

No government shall impose or implement a land use

regulation that—

(A) totally excludes religious assemblies from

a jurisdiction; or

(B) unreasonably limits religious assemblies,

institutions, or structures within a jurisdiction.

42 U.S.C. Section 2000cc(b)(3)



29 29

Individual Liability

RLUIPA creates an express private cause of action allowing relief against a government. 42 U.S.C. § 2000cc-2(a).

In Sossamon v. Texas (2011), the Supreme Court held that sovereign immunity forecloses the availability of money damages as a remedy against states and state actors in their official capacities under RLUIPA. Does this holding extend to land uses cases?

A resounding yes from the Sixth Circuit



30 30

RLUIPA’s “Safe Harbor” Provision

“A government may 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.”

42 U.S.C Section 2000c-3(e)



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Safe Harbor Provision

Rarely used, but should be invoked more

Feared admission of fault

Recent example:

Riverside Church v. City of St. Michael (D. Minn. 2016)



32 32

Avoiding a RLUIPA Claim

Assess your zoning code

How are all assembly uses treated?

Do distinct standards apply to places of worship?

What other RLUIPA provisions are commonly a part

of facial claims?



33 33


When an application under your zoning code is

filed by a religious organization, perform a RLUIPA

analysis

Determine the reasons for the application (i.e. what burdens

on religion now exist)

Attempt to identify and measure the burden that might be

imposed if the application is denied in whole or in part

Compare the nature and extent of the application to that of

other applicants that could be regarded as comparators

Attempt to determine the risk of an equal terms claim if

application is denied in whole or in part



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Invite the applicant to propose a less intensive use

(can municipal goals be met in a less restrictive

manner?)

Negotiate a new location

Plan for religious use (inventory of all sites where

religious use permitted)

Educate local officials NOW

Insure that RLUIPA claims are covered under your

governmental liability policy



35 35

Defending a RLUIPA Claim

Invariably Expensive

Time and Money – lawyers, coincident environmental

proceedings, experts (land use, damages, environmental)

Probably document intensive

Equal terms, free exercise, facial, and as-applied challenges

usually involve extensive documentation

Document Intensive

Cases are fact intensive



36 36

Defending a RLUIPA Claim

Once brought, difficult to settle

Legal fees

Strong emotions on both sides

Difficult to defend at trial

Usually a jury trial

God vs. Government bias potential

Cross-examination of church officials requires tact not

ferocity

Jury instructions invariably confusing

Federal judiciary rarely has RLUIPA or land use

experience



37 37

Time for Trial

Strategies

• Choice of Forum

• Jury or Bench Trial

• Be prepared for discovery and potentially

unflattering documents

• Politics/media

• Dispositions Short of Trial



38 38

Time for Trial

More Strategies

Expert Witnesses

Focus Groups/Mock Trials

Post-Trial Matters

Finding the Right Balance Aggressive Defense vs.

Respect for Religion



39 39

RLUIPA DEFENSE BLOG

Visit https://www.rluipa-defense.com/



https://www.rluipa-defense.com/




40 40

FUTURE DEVELOPMENTS

Increased use of safe harbor provision?

DOJ Enforcement under new administration

State of Washington v. Donald J. Trump (9th Cir.

2017)

Implications for religious land use disputes?



41 41

Thanks for having us!

John F. X. Peloso Jr.: 203.462.7503 | [email protected]

Karla L. Chaffee: 617.557.5956 | [email protected]

Evan Seeman: 860.275.8247 | [email protected]



42 42

Questions

Religious Land Use and

Institutionalized Persons Act

Claims

Strategies for Local Governments to Avoid or Defend RLUIPA Actions



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