Congress enacted the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq (“RLUIPA”), to protect churches and houses of worship from the covert discrimination often embedded in land use regulations. One way RLUIPA does this is through its Equal Terms provision. The Equal Terms provision prevents local governments from “impos[ing] or implement[ing] a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1).
In most federal courts Equal Terms claims are evaluated under a four-part test which requires the plaintiff to show (1) it is a religious organization (2) subject to a land use regulation that (3) treats the religious organization on less than equal terms compared with (4) a nonreligious organization. Typically, the first and second items are easily satisfied. The third and fourth elements are the most strongly contested. However, a good general rule is that the religious organization is treated on “less than equal terms” if a comparable secular use is able to locate as of right in a zoning district, but the religious use must seek a condition use permit or special use permit.
When considering whether your organization has an Equal Terms Claim it is important to know there are two potential avenues to stating a valid claim. First, is a Facial claim. Under a facial claim, only the text of the ordinance is considered, not whether there are actually any uses existing in the zoning districts. Conversely, an As-Applied claim considers the actual facts of the situation, namely whether any comparable nonreligious use exists in the zoning district where the religious use wants to locate.
For example, courts have recognized theaters and civic centers as comparators for a church in an Equal Terms claim. Thus, a Facial Equal Terms claim likely exists if the zoning code allows theaters and civic centers to locate as of right in a particular zoning district while requiring a church to seek a special use permit to locate in the same district. This is true regardless of whether any theater or civic center actually exists. Similarly, if a theater is physically present in a particular zoning district but the municipality won’t allow a church to locate in the same zoning district, there would likely be an As-Applied claim.
One of the reasons RLUIPA is particularly impactful is that its provisions protect any religious use, not just traditional Sunday worship. For example, RLUIPA applies to protect faith-based drug and alcohol rehabilitation centers, homeless ministries, soup kitchens, and religious schools. In these instances, the necessary comparator will likely be different than that of a church because the comparator looks at the activity occurring at the property. For instance, a comparator for a faith-based rehabilitation center could be a secular rehabilitation center. Or if the use is a homeless shelter, the comparison would look for other transient housing uses. In these situations, it is important to consult with an experienced attorney to determine whether your organization has a claim.
About Dalton + Tomich
Established in 2010, Dalton + Tomich PLC is comprised of religious liberty, land use, denominational trust law, and business law attorneys. Our team are experts in RLUIPA claims and ready to fight for your rights. Learn more about our services at https://www.daltontomich.com/
