Religious Land Use and Institutionalized Persons Act of APA Idaho Chapter October 14, 2010

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1 Religious Land Use and Institutionalized Persons Act of 2000 APA Idaho Chapter October 14, 2010

2 Review the Act and significant cases Review actions local governments can take to avoid RUIPA litigation

3 Religious Land Use and Institutionalized Persons Act of 2000 sponsored by Edward Kennedy and Orrin Hatch Purpose is to protect religious institutions from unduly burdensome or discriminatory land use regulations

4 No government Shall apply or implement Land use regulations That impose substantial burden On religious exercise unless imposition Furthers compelling governmental interest and Is the least restrictive means

5 What is a land use regulation? What is religious exercise? What is a substantial burden? What is a compelling governmental interest? What are the least restrictive means?

6 Land use regulation any zoning or landmarking law that limits or restricts use or development of land, including the structure affixed to land

7 Narrower definition: plain language of statute Not mandatory sewer connection (Second Baptist Church v. Gilpin Township, 2004, 3 rd Circuit) Not annexation (7 th Circuit) Not eminent domain (Hawaii) Not development of street right-of-way (6 th Circuit) 9 th Circuit, California Environment Protection Act, San Jose Christian College

8 Religious exercise any exercise of religion whether or not compelled by or central to a system of religious belief Use, building or conversion of real property for purpose of religious exercise shall be considered religious exercise

9 Generalizations from court rulings to date: Focus on activity, not actor Traditional activities: prayer, preaching, worship Activities not exclusively religious must be for religious purpose (day care, education, social services, coffee shop) Do objective observers take particular use proposed to be religious in nature?

10 No definition within RLUIPA. In the past, U.S. Supreme Court has defined substantial burden as requiring a religious actor to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion.on the other hand. U. S. Supreme Court has not heard RLUIPA case to date.

11 In CLUB (2003), 7 th Circuit defined substantial burden as: A land use regulation that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise including the use of real property.. effectively impracticable. In San Jose Christian College (2004), 9 th Circuit determined a substantial burden on religious exercise must impose a significantly great restriction or onus upon such exercise.

12 In Guru Nank Sikh Society (2006): The applicant with a congregation of 75 members submitted two applications and was denied both times, even through applicant was willing to mitigate any adverse impacts in accordance with staff recommendations. The Board of Supervisors failed to explain why mitigation was not satisfactory or suggest actions available to applicant to allow approval. Arbitrary denial.

13 Saints Constantine and Helen Greek Orthodox Church (2005). Court found substantial burden due to delay, uncertainty, and expense when city denied original application for rezoning and PUD, recommended CUP, and then recommended PUD. Reaching Hearts International (2208). Church filed at least three applications over two years trying to meet regulations. Supervisor involved in decision making. Existing leased facility did not allow church to perform baptisms, weddings, funerals.

14 Generally, health and safety interests Must be least restrictive means, e.g., Murphy v. Zoning Commission (D. Conn. 2003). Town issued desist order as to prayer meetings rather than addressing volume of traffic outside home. Other issues such as tax base may not be compelling. However, consider Centro (2009), where redevelopment of downtown area was compelling.

15 Religious and secular assemblies and institutions shall be treated equally Land use regulations shall not discriminate between religious institutions No land use regulations shall exclude religious assemblies from a jurisdiction No land use regulation shall unreasonably limit religious assemblies, institutions or structures

16 In Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County (2006), 11 th Circuit defined three types of equal terms violations: Statute facially differentiates between religious and nonreligious assemblies or institutions Neutral statute used to place burdens on religious as opposed to nonreligious assemblies or institutions Truly neutral statute selectively enforced

17 Zoning ordinance prohibited religious assemblies but allowed private clubs and lodges in zone, Midrash Sephardi (2004) Ordinance prohibiting slaughtering of animals except for food processing, Lukima (1993) Conditional use permit for expansion of megachurch denied when expansion of public school allowed previously in same zone, Rocky Mountain Christian Church (2010)

18 Provisions of RULIPA apply if: Substantial burden is imposed in program or activity receives Federal assistance or Substantial burden affects interstate commerce Substantial burden is imposed by implementation of land use regulation under which government makes individualized assessment of proposed use

19 Compelling interest test does not defeat local governments Purpose is not to exempt religious assemblies from land use regulations To prevent discrimination towards religious assemblies and institutions Evidence of lack of fairness, arbitrariness and capriciousness, and unequal treatment defeats local governments

20 Establishment Clause Congress shall make no law respecting an establishment of religion or Free Exercise Clause Or prohibiting the free exercise thereof.

21 Religion.you do the best you can, we all make the same mistakes.. Elton John, lyrics from Religion How not to make the same mistakes when reviewing religious institutions under RLUIPA

22 Identify the future needs of the religious institutions in your community Consider these needs in your comprehensive planning Notify religious institutions of comprehensive plan workshops and public hearings Identify critical community issues affecting public assembly uses, such as off-site impacts

23 Review land use regulations carefully for unequal treatment of similar secular and religious uses Seriously consider eliminating conditional use permits or other discretionary procedures Base conditional use permits on impact rather than type of use Develop and use objective criteria for review and approval Be careful about restricting operation of churches such as hours, number of worshippers

24 RELATE STANDARDS TO SIZE AND IMPACT

25 Consistently apply standards and policies Tie decision to facts of individual application If policy changes, change written regulations If decision makers do not follow recommendations of staff, assure record provides standards upon which decision was made

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28 Assure front office staff understands RLUIPA Work with applicants early in application process before large sums are expended Put pre-application agreements in writing and ask for response if not accurate Prepare strong findings and document governmental interest in conditions Offer and document alternatives

29 Consider mediation Assure records including s have been retained Require full mutual release of all liability including attorney s fees before settlement Assure settlement agreements comply with statutory requirements for public notice Do not fold; look at issues objectively

30 Courts have taken conservative approach to RLUIPA Fairness, as with procedural due process, is the standard Equal treatment for similar uses Consistency in applying regulations Narrowly tailor regulations to satisfy the governmental interest