One recent trend in religious land use issues that we have found is when a community effectively excludes a religious use through zoning. The typical scenario occurs when a community permits zoning in a district knowing that there is no land available to build a religious use or the land is undesirable for a religious community.
Within the context of First Amendment and RLUIPA concerns, a federal court would employ a “reasonableness” test to determine the actual effect that the proposed Ordinance amendment will have on religious uses. The legislative history of the RLUIPA evidences that “[w]hat is reasonable must be determined in light of all the facts, including the actual availability of land and the economics of religious organizations.” In determining reasonableness, a court will evaluate whether the number of sites available under the new zoning scheme provides a reasonable opportunity for religious expression. This is a method employed in the context of First Amendment free expression challenges to zoning ordinances. While “[t]he calculation of the number of sites is a question of fact,” reasonableness is a question of law. This type of analysis is consistent with the analysis used in First Amendment actions, as well as that proposed by Congress, as evidenced by the legislative history of RLUIPA.
Thus, the issue in dispute is whether the City Ordinance unreasonably limits alternative avenues of religious expression. In finding whether the Zoning Ordinance leaves open reasonable alternative avenues of expression, the Court must answer two questions: 1) what is the actual number of sites available and 2) do these sites provide a reasonable opportunity for expression. To undertake this analysis, courts have, amongst other things (the number of lots or buildings available in the district for these uses, the physical size of the municipality and acreage available for these businesses, the ratio of these establishments per population in the municipality, and the market demand for opening such enterprises), looked to the percentage of accessible land in a given municipality available for the expression. The available land need not be presently available for sale or lease. Courts “have generally found the number [of sites] to be inadequate if fewer than a dozen sites, or under 1% of the city acreage, is potentially available.”
The City bears the burden of proffering the number of sites which are legal for religious uses under the challenged regulations. While it is true that religious assemblies cannot complain when they are subject to the same marketplace for property as are all land users, religious assemblies are not participating in the same marketplace when they are required to aggregate anywhere from the number of properties as the average land user and required to obtain more frontage than any other non-residential uses in the same district. Consequently, the application of a zoning ordinance to a parcel of land imposes unreasonable limitations upon religious assembly in violation of section (b)(3)(B) of the RLUIPA, and will violate a religious entities Freedoms under the First Amendment if the zoning precludes the use.