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Yale Law Journal Highlights How RLUIPA Can Help Churches Create Affordable Housing

The Yale Law Journal recently published an article entitled Churching Nimbys:  Creating Affordable Housing on Church Property by Rev. Patrick E. Reidy, C.S.C. The article explains how existing religious liberty protections  may prove useful in combatting the affordable-housing crisis. Father Pat Reidy, who serves as an Associate Professor of Law at Notre Dame Law School, draws from his groundbreaking work as the Faculty Director of the Church Properties Initiative—which Notre Dame recently launched to help churches better steward their properties.

As the article points out, churches across the country have felt called by their religious beliefs to help address the affordable housing crisis. From microhomes to senior housing, churches are finding new and creative ways to use their underused buildings, vacant parcels, and sprawling parking lots. This movement runs counter to the “Not In My Backyard” motto that haunts so many affordable housing initiatives. Instead, the movement has adopted the more positive motto: “Yes, In God’s Backyard.”

Despite this positive message and laudable goal, churches are running into an all-too-common  barrier—zoning and land use regulations. As many have pointed, exclusionary zoning has become a major problem for all sorts of development—including affordable housing. Some, like Professors Joshua Braver and Ilya Somin, have recently argued that exclusionary zoning is not even constitutional. But until the Supreme Court agrees to re-examine its zoning precedents and provide some meaningful limits to the scope of municipal zoning powers, churches will need to look elsewhere for help. Enter religious liberty protections.

Father Pat Reidy makes a strong case that a federal law known as the Religious Land Use & Institutionalized Persons Act (RLUIPA) may be the key to helping churches overcome the burdensome land use regulations that are preventing their affordable housing initiatives. To make his point, he draws from RLUIPA cases in which churches successfully challenged land use regulations that were substantially burdening their religious exercise. He also delves into specific data from properties held by the Roman Catholic dioceses in Chicago, Illinois and Oakland, California. Rightly applied, RLUIPA could very well help turn the tide and open up a many existing church properties for affordable housing developments.

At Dalton & Tomich, we have used RLUIPA to help many faith communities overcome unequal and burdensome land use regulations that were impeding their religious exercise. If your church needs help on this front, please contact us.

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