rluipa religious land use and institutionalized persons act linda i. dunlavy january 10, 2012
TRANSCRIPT
RLUIPA BACKGROUND
After almost three years of hearings in 1998, 1999, 2000, Congress found:‘”massive evidence” that [c]hurches in general, and new, small or unfamiliar churches in particular, [were] frequently discriminated against on the face of zoning codes and also in the…processes of land use regulation”.
More Congressional Findings
• Governments enacted zoning codes that often excluded “churches in places where they [otherwise] permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes.”
• Governments frequently allowed churches only after authorization from a zoning board had been secured and “zoning boards use[d] that authority in discriminatory ways.
1)Imposing substantial burdens on religious exercise without compelling governmental interest in the least restrictive way possible; or
Substantial Burdens
Unequal Treatment
2) Treating, facially or in application, religious assemblies or institutions on less than equal terms than non-religious assemblies or institutions;
Discrimination
3) Implementing land use regulations that discriminate on the basis of religion or religious denomination;
Exclusion or Unreasonable Limitation
4) Total exclusion or unreasonable limitation of religious assemblies, institutions or structures from a jurisdiction.
What is a “land use regulation” under RLUIPA
• “zoning or landmarking law…that limits or restricts …use or development of land”
• Not fire codes, sewer connections, landlord tenant laws, property tax laws, or condemnation laws
• Definitely applicable to use permit regulations
“Religious exercise”
• “any exercise of religion whether or not compelled by, or central to, a system of religious belief”
• Cannot avoid the force of RLUIPA by presuming the place of a particular belief and whether or not it is something a religious group wants to do vs. must do
“Substantial burdens”
• Factually specific—ie context, size and resources, alternatives, current limits etc
• Coercion or pressure to forego religious practice or to adhere to religious conduct
• Exclusion of particular property for religious use
• Significant delay, uncertainty or expense
“Compelling governmental interest”
• Interests in revenue, economic development, traffic congestion not compelling
• Local government had burden of proving compelling interest
• Not sure what would be considered compelling enough to override burden on religious exercise
Consequences of Prohibited Action
• “appropriate relief against a government”—RLUIPA
• Prevailing party may collect legal fees and costs Section 1988 of Civil Rights Act
• Injunctive relief
Most feared consequence—money damages!
• Damages against governmental entity:-Civil rights damages such as damage to
reputation, personal humiliation, mental pain and suffering-lost income- real estate taxes for property it can not use-costs of having to find alternate place to
conduct worship-damages for loss of money for members
and potential members
So What do We Do as a Practical Matter?
• Review the provisions of our zoning ordinances to determine if there are any “facial problems”
• Recommend to Council any identified changes needed to current regulations
• Not make decisions based on the denomination of the place of worship before us
• Not decide whether to recommend grants of use permits based on other than standards set forth in the ordinance that apply to religious and non-religious uses
• Refrain from any statements on the record concerning the religious exercise of the applicant