I recently sat down with Shaine Alleman, an experienced land use attorney in our Phoenix office to discuss the basics of a very important law which can protect a church from unreasonable government interference in the use of its campus. This law is referred to as “RLUIPA,” or Religious Land Use and Institutionalized Persons Act.
Brown: Can you give us a brief history of why RLUIPA was needed in the first place?
Alleman: In 1926, the Supreme Court decided in Euclid v. Ambler Realty Co. that municipalities have the power to apportion their lands into land use “zones” to promote the health, safety and welfare of that community. This decision led municipalities to adopt zoning ordinances and maps that prohibited land uses to decrease nuisances such as pollution, smell, traffic, noise and religious uses.
Brown: Religious uses?
Alleman: Yes. Believe it or not, cities and towns used (and still use) zoning powers to justify the exclusion of religious uses. Over the past several decades, Congress and the courts have attempted to correct some of the overreaching of this power, especially as it applies to the exclusion of religious land uses. This ultimately led to Congress passing the Religious Land Use and Institutionalized Persons Act of 2000 (or RLUIPA, pronounced “ruh-LOOP-uh”).
Brown: What is the general purpose of RLUIPA?
Alleman: Generally, RLUIPA is to be construed “in favor of broad protection of religious exercise” (42 U.S.C. § 2000cc-5(7)(A),(B)). This purpose leads RLUIPA to providing regulations that prohibit governmental actions that “substantially burden” the free exercise of religion unless the government can show that the burden is “in furtherance of a compelling governmental interest” and is “the least restrictive means of furthering that governmental interest” (42 U.S.C. § 2000cc(a)(1)).
Brown: What is considered a “religious exercise”?
Alleman: The “free exercise of religion” is a statement that is derived from the United States Constitution. Regarding this Constitutional statement, the courts have stated that “[t]he free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires, [and] courts are not permitted to inquire into the centrality of a professed belief to the adherent’s religion or to question its validity in determining whether a religious practice exists.”(Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 574 (2d Cir. 2001).
For churches and ministries to be protected under RLUIPA, the land use activity must be considered a “religious exercise.” To categorize if a religious exercise exists, the courts determine whether the religious exercise is related to a “sincerely held belief” and how much that religious exercise is related to a commercial, secular enterprise.
On the outset, the definition of “religious exercise” may seem to be very broad. However, there are limits to this definition under RLUIPA. For instance, one court stated that the “activities or facilities that are owned, sponsored or operated by a religious institution do not automatically fall within RLUIPA’s definition of religious exercise.” (146 Cong. Rec. S7774-01, S7776 (daily ed. July 27, 2000)
Brown: What is an example of how the courts have defined a “religious exercise”?
Alleman: In Cathedral Church of the Intercessor, the Village of Mamaroneck placed regulations on the church that required additional enhancements and structural components that caused the church to spend money it did not expect to spend. The church argued that the village’s regulation was a substantial burden upon its exercise of religion under RLUIPA.
However, the court found that a church’s expansion was not considered a religious exercise and thus, did not fall within RLUIPA’s protection (Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d 338, 348 (2d Cir. 2007). The court made this determination by comparing the percentage of uses that were dedicated to religious use and to secular, administrative offices. Since the secular offices took up a majority of the building, RLUIPA did not apply. This is one example that guides how government defines a religious exercise.
Brown: What does RLUIPA require governmental entities to do?
Alleman: These are the most important requirements found within RLUIPA:
- Land regulations cannot use any form of religious discrimination.
- Both religious and nonreligious institutions must be given equal treatment in the land use regulations.
- Land use regulations cannot entirely exclude religious buildings or assemblies.
- Religious buildings or assemblies cannot be unreasonably limited within a municipality.
The key words within the actual statute are “substantially burden.” For a plaintiff to prevail on a RLUIPA legal claim, they must demonstrate that the land use regulation has substantially burdened the religious exercise of a person, religious assembly, or an institution.
Brown: What is an example of how have courts defined a “substantial burden”?
Alleman: In a recent case, Bethel World Outreach Ministries of Montgomery County, a church had reached its building capacity and was attempting to build another large church in a rural area to accommodate its parishioners. In this rural area, the County did not provide public water and sewer service. However, property owners could request an exception and the County had the authority to approve public water and sewer under certain circumstances. Prior to Bethel purchasing the subject property, an exception had been granted to the previous owner and was pending with the County.
When Bethel came to the County to activate the pending exception permit, the County denied the previous exception and then went on to approve an amendment to its land use regulations to: 1) categorically prohibit all public water and sewer service to those rural areas, 2) limit the size of private water and sewer services on these properties, and 3) prevent any private institutional facilities from being built in these rural areas. These regulations essentially obliterated Bethel’s ability to construct its religious facility on the rural property.
The court found that the County’s regulations were a substantial burden on Bethel because it had a reasonable expectation of being able to build a church at the time Bethel purchased the property (Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548, 550 (4th Cir. 2013). Through its regulations, the County had essentially prevented Bethel from building any church at all, not just the size that the church wanted to build.
In conclusion, because the definitions of “religious exercise” and “substantially burden” within RLUIPA are so fact-driven and are determined on a case-by-case basis, it is important that religious institutions understand their rights and legal remedies. When it comes to land use regulations, it becomes much easier to deal with the issues from the outset rather than waiting and wasting time and money attempting to comply with what may be discriminatory and arbitrary actions of a municipality.
If you feel that a governmental entity has discriminated against your religious institution when it comes to land use regulation, contact Alleman or me immediately for further consultation regarding RLUIPA.
Robert Erven Brown is an attorney who works with nonprofits and churches all over the country, helping them manage key operations connected with their missions, visions and causes. Bob is author of Legal Realities: Silent Threats to Ministries, which describes his Campus Preservation Planning© initiative — a comprehensive program designed to manage the wide array of risks facing non-profit organizations. He can be reached by email or by calling 602.744.5748. RHL is located at 201 North Central Ave., Suite 3300, Phoenix, AZ 85004. Monica J. Stern, Certified Public Accountant, can be reached by email or by calling 602.744.5748.