The Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq (“RLUIPA”), was enacted to protect churches and houses of worship from the covert discrimination often embedded in land use regulations. The proverbial “bread and butter” of RLUIPA actions are claims brought under its substantial burden and equal terms provisions. This piece will discuss the hallmarks of a substantial burden claim to help you and your organization better evaluate whether you have a claim.
The substantial burden provision of RLUIPA states:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution . . . is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest
42 U.S.C. § 2000cc(a)(1)
It is particularly noteworthy that RLUIPA defines “religious exercise” extremely broadly to include the “use, building, or conversion” of real property. This means actions by local governments which prevent religious organizations from using their property for their religious purpose or building on that property can be the basis for a RLUIPA claim.
What constitutes a “substantial burden” under RLUIPA is the crux of any substantial burden claim. Different federal courts apply different standards, which is why it is important to consult an experienced lawyer, which can vary drastically. Here I’ll summarize, at a general level, the two approaches used by federal courts.
The first approach applies the standard courts developed for the institutionalized persons context to land use claims. Under this test a substantial burden exists if either: (1) the government law or decision forces the adherent to violate their religious beliefs or (2) forces the individual to choose between receiving a generally available benefit and following their religious beliefs. Adkins v. Kaspar, 393 F.3d 559, 567 (5th Cir. 2004). While this test is seemingly easy to satisfy, in practice it is very difficult for religious organizations to demonstrate a land use regulation does either of the above. This is because the courts which apply this test read it to require the religious organization to show the government actually forced the organization to violate its beliefs. In the prison context this is easy to show because the government has near total control over every aspect of the prisoner’s life. For example, if the prison only serves pork and does not offer any kosher or halal options a Jewish or Muslim prisoner is forced to choose between eating and following their religious beliefs. Conversely the government does not exert similar control over religious organizations.
The second approach applies various factors to determine whether the government imposed a substantial burden. Generally, the factors, however formulated, ask whether: (1) feasible, or readily available, alternative locations exist; (2) whether the religious organization has, or will, suffer substantial, delay, uncertainty, and expense due to the government action; and (3) whether the religious organization imposed the burden upon itself. See United States v. City of Troy, 592 F. Supp. 3d 591, 608 (E.D. Mich. 2022).
The first factor essentially asks whether there is another property available located in the same general area and similarly equipped to accommodate the religious organization. This factor will have great weight when the layout of the property is unique and that unique layout facilitates the religious use or was a driving factor in acquiring the property.
The second factor looks at things like the amount of time which has passed while the city reviewed the application; the amount of money spent on applications, drafting plans, and acquiring the property; and whether the local government keeps “changing the goalposts” such that it is not clear what, if anything, must be done to obtain approval.
The last factor is the one which varies the most depending on what court you are in. In some courts it is sufficient to show the church had a reasonable expectation of receiving approval. Conversely, in others a burden will be self-imposed if the religious organization had even the slightest indication that they might not be able to use the property for their religious purpose.
Under either test the facts of your situation matter immensely. All RLUIPA cases are extremely fact specific and things which appear insignificant could make or break your case. In order to provide the strongest case possible, document all interactions with local government officials during the land use process. For this reason it is recommended to contact an attorney who specializes in religious land use as early as possible in the process. This way they can guide you through the administrative pitfalls and make sure the record generated will not prejudice your claims.
It is important to note here that a regular land use attorney is more than capable of handling most of this. However, the biggest difference with religious land use disputes is the ability to bring RLUIPA claims in federal court. Typically land use decisions must be appealed to state courts where the standard of review is heavy skewed to the government. Conversely, RLUIPA claims bypass this process and may be filed in federal court. This distinction is the biggest point you must be aware of if you decide to retain someone more versed in state law land use disputes.
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/
