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NLC Compiles Criteria for a Successful RLUIPA Challenge.

After several detailed discussions with the internal legal staff, constitutional experts, and panelists who participated at a legislative workshop entitled, "Federalism, Takings, and Local Land Use", NLC has arrived at a list of criteria to help cities in their efforts to successfully challenge the Religious Land Use and Institutionalized Persons Act (RLUIPA).

Last September, former President Bill Clinton signed RLUIPA into law. The law, (P.L. 106-274) bars a local government from imposing a land-use regulation in a manner that limits or restricts a religious assembly or institutions, unless there is a compelling government reason. As enacted, the law interferes with and preempts the traditional and historic rights of local governments and goes far beyond what is necessary to preserve the free exercise of religion.

Background

In 1997, the Supreme Court ruled the Religious Freedom Restoration Act unconstitutional, in the case of City of Boerne v. Flores. In the Boerne case, the Court held that no intent to discriminate is found in local ordinances that are generally applicable to the population at large. In explaining its ruling, the Supreme Court said, "when the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious belief."

Congress passed RLUIPA in response to the Boerne decision in the hopes that it would pass constitutional muster and not impede the Court's authority. Thus, RLUIPA makes no mention of zoning, but made clear reference to "land-use regulation" which it defined as "zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use of land ..."

Why RLUIPA Should Be Challenged

"RLUIPA goes far beyond what is needed to protect religious freedom; instead, it saddles municipal governments with federal restraints on their ability to foster physical and social harmony," states Anthony Foxx, counsel on the House Committee on the Judiciary. RLUIPA takes away municipal governments' historic authority to decide land use issues such as parking, building height, size and setbacks, landscaping, historic preservation, and traffic within their own communities. Under RLUIPA, religious facilities would be effectively immune from local zoning restrictions, an exemption that, for example, a secular soup kitchen or meeting hall would not enjoy. RLUIPA also forces cities to permit religious facilities to disregard local open space regardless of that city's zoning requirements, thereby flying in the face of aesthetics and enjoyment of the community at large, as well as environmental laws.

According to William Kearns, general counsel for the New Jersey State League of Municipalities, "RLUIPA is a fundamental attack on local zoning authority, and is wholly inconsistent with the established principles of federalism. It preempts local zoning and land use laws, an area traditionally within the purview of state and local governments, by providing religious institutions with preferential treatment for their structures and activities. The law is patently unfair, because religious facilities have immunity from zoning requirements placed on non-religious facilities similarly situated in a community."

Kearns also warns that RLUIPA places a chilling effect upon a local government's ability to regulate such important land use features as parking, building height, size and setbacks, landscaping and traffic which have traditionally been governed by local land use and zoning regulations. "It is through the regulation of such features, that local governments are able to preserve their citizens' individual property rights and protect the integrity, beauty and harmony of local communities," he adds.

Finally, RLUIPA encourages religious institutions to bypass local appeals processes and go directly to federal court thereby encouraging litigation. This increase in litigation means that taxpayers will face an increased financial burden each time a lawsuit is filed.

RELATED ARTICLE: Criteria For a Successful RLUIPA Challenge

* A city that has a clear history of treating applicants in a non-discriminatory manner. Discovery will not show past pattern of discrimination in any form, but in particular discrimination against religious-based institutions.

* A city that has a clear, streamlined application process that avoids a cumbersome paper or appeals process.

* The "good actor" -- A city with a good history of land use decisions (preferably in a church friendly town).

* Preferred litigants -- mega churches that devote a small part of their land use for worship functions and a greater part of the structural use is for their commercial enterprises. The bigger the structure, the better the case. Noise, traffic, safety concerns are raised.

* A city seeking to control for smart growth or environmental impact. A city trying to avoid a development that would upset a 10-year growth plan.

* A case where the city offered a reasonable compromise that was rejected by the institution. For example, statements by a plaintiff church that "God's law" is higher than "man's law" and a determination to do whatever the church pleases regardless of the neighbors.

* A public safety issue -- such as egregious traffic safety issues. For example a new building forces long lines of car that are stuck at dangerous intersection.

* History of church's refusal to obey reasonable land use regulations.

* Noise pollution in the sense of loud activities at night in residential neighborhood.
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Title Annotation:Natinal League of Cities; Religious Land Use and Institutionalized Persons Act
Author:Pluviose-Fenton, Veronique
Publication:Nation's Cities Weekly
Article Type:Brief Article
Geographic Code:1USA
Date:Apr 2, 2001
Words:858
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