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Under guise of religious freedom bill would undercut local zoning.

Congress is preparing to act on legislation to preempt historic and crucial municipal zoning powers as it applies to religious-based uses of land, such as churches and synagogues. The bill, known as the Religious Liberty Protection Act of 1998, (RLPA) is sponsored by Representative Charles Canady (R-Fla.).

The House Subcommittee on the Constitution passed the bill by voice vote on August 6, 1998. The full House Judiciary Committee expects to take the preemption bill up this month. The bill is a fundamental attack on state and local authority and seeks to overturn a key Constitutional victory for the National League of Cities by the United States Supreme Court last year.

If passed as drafted, RLPA will have a chilling effect on a city's ability to regulate religious-based uses through its zoning ordinances. Most importantly, Section 3 of RLPA as currently drafted, would wreak havoc with local zoning ordinances, because no government could enact a land use regulation which would:

* Substantially burden religious exercise, except when a government can show that to do so would promote a compelling governmental interest; and that the the "burden" is the least restrictive way for a government to promote the compelling governmental interest;

* Deny religious assemblies a reasonable location in the jurisdiction; or

* Exclude religious assemblies from areas in which nonreligious assemblies are permitted.

The bottom line for cities is that zoning ordinances would essentially be inapplicable to churches, synagogues or other religious-based uses wishing to locate or expand in a particular locality. Under RLPA, religious assemblies cannot be denied a reasonable location in a jurisdiction.

Pursuant to the provisions of RLPA, religious assemblies could successfully argue that they are exempt from neutral zoning regulations such as parking, historical preservation and lot size restrictions under the guise that application of these rules would "substantially burden" religious exercise.

It is also important to note that RLPA contains a provision for the waiver of sovereign immunity and for the awarding of attorney's fees, thus providing an incentive to bring litigation under the Act.

RLPA is a reincarnation of the former Religious Freedom Restoration Act of 1993 ("RFRA") which was struck down as unconstitutional by the United States Supreme Court last year in its decision of Boerne v. Flores, 117 S. Ct. 2157 (1997).

* In the Boerne case, a church located in a historic district, applied to the City of Boerne for a building permit to enlarge the church. The City of Boerne denied the request for the permit based upon the application of its historic district ordinance to the church. The Church then challenged the City of Boerne's authority to deny the permit based in part upon the statutory provisions of RFRA.

The Supreme Court held in Boerne that RFRA violated the Constitution on two grounds. First, RFRA violated the separation of powers doctrine. Second, in a key victory for the nation's cities, the Court held that RFRA placed an unconstitutional restriction upon state and local governments' abilities to enforce their laws against religious-based uses.

The Court specifically ruled that "when the exercise of religion has been burdened in an incidental way by a law of general application [such as by a zoning regulation], it does not follow that the persons affected have been burdened any more than other citizens, let alone burdened because of their religious beliefs." Boerne at 2176.
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Title Annotation:proposed Religious Liberty Protection Act would limit local control of zoning regulations
Author:Parnas, Susan M.
Publication:Nation's Cities Weekly
Date:Sep 14, 1998
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