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Churches can level the playing field with local government

A land usage act enacted by Congress in 2000 can help resolve conflicts between churches and communities.

By Daniel Dalton

It is unfortunate, yet not uncommon, that many local communities oppose the efforts of religious organizations who desire to build or expand their property for religious purposes. The irony is that these opposing communities, the same ones who ask religious organizations to step in and provide services to the community, choose not to provide, or will not provide these services, based on political or financial concerns. Recognizing this problem, in 2000, Congress stepped in by enacting the Religious Land Use and Institutionalized Persons Act, commonly referred to as RLUIPA, to level the playing field between local governments and religious entities in the context of land use and zoning.

In resolving the conflict between local government and a church that seeks to expand or use property for religious purposes, RLUIPA requires a court to balance the substantial burden on the church against the governmental interest in imposing a restriction. Essentially, the law provides that if a local government imposes a restriction on one particular church and no other use, thereby making an individualized assessment, and that restriction “substantially burdens” the church’s religious exercise, or core function, and is neither in furtherance of a compelling governmental interest nor the least restrictive means of furthering a compelling governmental interest, it violates RLUIPA.

RLUIPA specifically defines a “land use regulation” as a zoning or land use law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a building affixed to land), if the church has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.

Case law relevant to the area wherein the church is located dictates the application of the balance of the terms in the Act. For example, some courts have defined “compelling governmental interests” as those that promote the public welfare. Others have defined the term “least restrictive means” as “there are no alternative forms of regulation” that would further the alleged governmental interest. The most puzzling term is substantial burden. In the Sixth Circuit Court of Appeals, the court recently held that it would not define the term, but advised the parties that in a particular case, no substantial burden was present.

Equal terms violation

The second action available under RLUIPA is an “equal terms” claim. There are four elements of an equal terms violation: (1) the plaintiff must be a religious assembly or institution, (2) subject to a land use regulation, that (3) treats the religious assembly on less than equal terms, with (4) a nonreligious assembly or institution. The first two elements are easily satisfied: the plaintiff must be a religious institution subject to a community’s land use restrictions. Likewise, the third and fourth elements are satisfied when a religious organization is not being treated equally because the restriction completely precludes a church from using its property on less than equal terms with a comparable secular use. If all four elements exist, a RLUIPA claim may be asserted.

If a church prevails on a RLUIPA claim, it may be entitled to (1) use the land as it desires, (2) obtain injunctive relief precluding the unlawful community zoning action, and (3) recover reasonable attorney fees and cost.

Giving rise to a claim

In general, however, a community cannot successfully advance a compelling interest argument in simply “not wanting” a particular religious exercise or in deeming it “undesirable,” as these interests do not involve the gravest abuses or endanger paramount interests. Likewise, a community’s enactment of a land use regulation, in a manner in which a religious entity is denied the right to develop or use property in which it has an interest, can give rise to a RLUIPA claim.

And the failure to allow a religious use, which is fundamental to a church’s mission, violates the substantial burden portion of RLUIPA. The law is far from clear at this moment as to what types of uses are and are not permitted under RLUIPA. It is important to study the case decisions from your local jurisdiction to find out if your proposed use has been judicially addressed.

If a religious organization is considering a RLUIPA challenge to local zoning laws, it should consider the following actions before filing a lawsuit.

Select a small control group within the church to make legal decisions.  Litigation is hard, expensive, time-consuming and overwhelming at times. Decisions need to be made on a daily basis and sometimes these decisions result in unintended outcomes. If a religious organization takes the spiritual leader away from his or her core mission, division or rancor within the church may result. Use a control group that reports to the spiritual elder and the board on a regular basis, leaving only the board or spiritual leader to address significant decisions.

Plan for growth. Plan out what the growth vision of the church is 10 to 15 years from the date of the plan. Once a lawsuit is filed, and the church prevails, you can expect hostility from your local government when you wish to expand in the future.

Prepare for all of the cost. The cost of litigation needs to be fully understood and appreciated by all members of the religious organization before suit is filed. The financial cost is unpredictable and expensive. In many cases, the trial date of a case could be 18 months after suit is filed, and a final decision could be several years after an appeal is completed. The other cost to consider as well is the loss of support and membership in the community and religious organization. Most people seek religion as a refuge from the daily grind and attending a service where litigation is present may not be what they want to hear. Prepare for the loss of members, staff and support in the community.

Research the local politics, ordinances, and master plan. Many communities have a reputation for being not friendly toward religious organizations and that will not change once a lawsuit is filed. If a community is “studying the loss of tax base” due to the number of churches within its borders, which many do, it will give a proposed religious use a very difficult time in obtaining favorable site plan review or zoning variances.

Be prepared for the local politicians who control the public relations battle through their weekly comments at board meetings and favorable relationships with the press. They will pressure the community code enforcement and building officials to “code the building to death” if they do not want the religious organization within their borders. A religious organization cannot, and should not, discount the impact of the local politician in a RLUIPA action. Before filing suit, review minutes of the city council, planning commission and zoning board of appeals meetings, concerning approvals or denials of religious organizations, in order to understand what a religious organization will face when appearing before those bodies.

A religious organization should also work with its planners to review land use ordinances to determine if they permit a church to use its property as of right, by special permit, or not at all. If the community land use plan does not allow the religious organization to use the property as of right, the organization should be cognizant of local rules and restrictions.

The master plan of the entire community, in general, and in the specific area of the community where the proposed religious land use is located, must be reviewed to determine the community’s “vision for growth” of the land. Look at the portions of the master plan regarding studies of traffic patterns, subdivision development, future need for public facilities, population trends, employment trends, preservation of open space, and the like to determine if a religious use is at all contemplated.

Define the religious exercise you are seeking. A community may attack a proposed religious use by finding that the use is not religious at all. A church should educate the community on what it intends to do within a building. Be clear and honest up front as to what the use is going to be.

Likewise, a community should understand that arguing that any particular accessory use is not a “religious use” is at best, problematic. Courts have determined that the following uses are permissible “accessory uses” to the religious use of the property: parochial schools, day care centers, playgrounds, baseball or softball fields, homeless shelters, administrative buildings, cemeteries and coffee houses. Other courts have broadly defined “religious use” to extend to any conduct that has a religious purpose.

In other words, be prepared. Challenging the government is an uphill battle, but knowledge and preparation will help you level the playing field in order to fight this important fight.

Daniel Dalton is an attorney at Tomkiw Dalton, Royal Oak, MI. [tomkiwdalton.com]

Religious land use case EXAMPLES

There is a small but growing body of case law providing guidance as to the types of uses and programs run by religious organizations that may be entitled to protection under RLUIPA. Most courts have noted that just because something is run by a religious organization does not automatically make it a religious use. Some recent examples are:

School facilities, when used for secular and religious education, are religious. Westchester Day School  (2nd Cir, 2007).

A building to be used for a spiritual retreat that would lodge guests is a religious exercise. DiLaura v. Ann Arbor (6th Cir. 2002).

Expansion of a building for church day care facilities is not deemed religious. Grace United Methodist Church v. City of Cheyenne (10th Cir. 2006).

An assisted living apartment building operated by a church is not a religious use. Greater Bible Way Temple of Jackson v. City of Jackson (Mich. S. Ct. 2007).

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