Since January, 2010, I have flown 30256 around the United States helping religious entities in religious land use disputes. And this weekend I was reminded why RLUIPA matters at the Becket Funds’ Annual Dinner for Religious Freedom.
Unfortunately, there are a lot of misunderstandings, and perhaps hostility, about how religious entities should be handled when it comes to land use. Primarily, what I do is help religious entities navigate the path of approval of a religious use, or in the event the use is denied and the community violates the law, I litigate land use claims on behalf of religious entities throughout the United States. The primary tool that I rely upon is RLUIPA – the Religious Land Use and Institutionalized Persons Act. According to the legislative history, this law was passed to protect religious organizations from a real or perceived trend of being treated differently than commercial land use. This was likely motivated by the fact that most religious land use is tax-exempt. RLUIPA is the great equalizer in land use law; it truly levels the playing field for religious entities.
So why is there such animosity to religious land uses and why does RLUIPA matter? There are three main reasons (1) they do not generate property taxes resulting in the argument that Churches are a “drain’ on public resources; (2) there is a belief that Churches take up valuable space of prime real estate in the community, and (3) there is downright religious discrimination. But these arguments must be rejected. Social scientists have been researching the issue of the impact of religious institutions on communities in their role as a connector of people. Social science confirms that when they work together, religious institutions and community leaders do indeed strengthen society. Research confirms that religious organizations provide jobs for the community and support a variety of local businesses. They bring in individuals from surrounding areas to the community where the church is located, and these individuals provide economic support to local establishments. Much like strong school systems, many families and individuals consider the presence of local religious organizations when making decisions about moving to communities and purchasing property. This, in turn, helps support local businesses and contributes to community growth, job creation, and overall economic vitality.
Beyond these economic benefits, churches also provide social benefits that have economic value. Churches help community’s complete vitally important social projects, for which the government would need to fund if churches did not provide such support. In a recent detailed study of churches in Philadelphia, the researchers found if it were not for the impressive collective effort of some 2,100 local religious congregations, life in Philadelphia would be extremely harsh. For example, religious affiliation and religious behavior increased community volunteering as well as intra-church volunteering. The study found that religious entities contributed volunteers to 3 organizations on average, though some churches provide dozens of volunteers to different projects. Because it can be difficult to quantify the exact value of the volunteering and community building benefits churches provide to local areas, these scholars referred to the replacement value of volunteering. The replacement value was calculated by adding monetary donations and in-kind support, staff and congregant volunteer hours, utilities, and the value of space. In the Philadelphia study, scholars valued community services at $115,009 per congregation and $230,018,400 for all the religious congregations in the city. More significantly, this is much greater then the taxable value of the land.
RLUIPA recognizes that generally applicable zoning ordinances that are applied to individual parcels of land through a discretionary, case by case, assessment of the proposed use of land will be balanced carefully by the Court. As a result, under RLUIPA’s balanced approach to judicial review of land use decisions, first assessing the plaintiff’s religious land use arguments then objectively reviewing the community’s decisions, the zoning ordinance itself is subject to deferential rational basis review, while the application of the zoning ordinances to an individual parcel of property through an individualized assessment is subject to strict subject review.
RLUIPA’s approach to judicial review of land use regulation harkens back to the facial/as applied dichotomy established by the Supreme Court in its earliest zoning cases. Under this approach, facial challenges to zoning ordinances are reviewed under Euclid’s highly deferential rational basis review, while as applied challenges are more strictly scrutinized under Nectow to ensure that a zoning decision is substantially related to a legitimate governmental interest. By reviving this facial/as applied dichotomy, RLUIPA provides a framework through which to review all as applied land use decision and encourages more meaningful review of those decisions.
The success of RLUIPA suggests that when Courts have expressed a constitutional aspiration by expounding a rights protective doctrinal test that they do not fully enforce, the judicial decisions to delegate constitutional enforcement to Congress, followed by Congress’ re-delegation back to the courts to apply a constitutional enforcement to the Court, that it originally created, might spur Courts to pursue the more vigorous enforcement of background rights they had previously resisted due to concerns about the manageability of the task.
RLUIPA is a valuable legislative tool that not only levels the playing field, but also promotes the viability of social growth in the community. I hope this message has caused to you to see RLUIPA and the inclusion of religious land use in your communities as a more positive thing. At the very least, I hope that I have helped you understand the framework better to allay some of your fears and so that you can avoid unnecessary and costly litigation.
Regards, Dan
