Religion and ZoningProfessor Lora A. Lucero

Planning & Environmental Law

Fall 2011

RLUIPA: Church & State

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Two religion clauses Establishment clause is focused on organized

religion and prevents government from acting to favor one religion over another.

Lemon v. Kurtzman (1971) three-part test: The law must have a secular purpose The primary effect must neither advance nor

inhibit religion The law must not foster “an excessive

government entanglement with religion.”

Free Exercise Clause protects the individual’s rights.

Strict scrutiny test (1963 – 1990) Employment Division v. Smith (1990) – U.S.

Supreme Court decided neutral, generally applicable laws could not be challenged under Free Exercise Clause

FIRESTORM

Pre-RLUIPA history• Religious and civil rights groups head to

Congress.

• Religious Freedom Restoration Act (RFRA) invalidated City of Boerne v. Flores, 521 U.S. 507 (1997).

• Congress introduced Religious Liberty Protection Acts of 1998 and 1999 (RLPA).

• Religious Land Use & Institutionalized Persons Act (42 U.S.C. sec. 2000cc).

RLUIPA: The Elements• Government may not place a “substantial burden” on

the right of an individual (religious assembly, institution) to exercise religious freedom.

• “least restrictive means” of furthering a• “compelling government interest.”

• RLUIPA does not apply in land use context unless there is a “substantial burden” imposed where the government makes an “individualized assessment.”

RLUIPA’s Equal Terms Provision

“No government shall impose or implement 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.”

RLUIPA’s Unreasonable Limitations Provision

“No government shall impose or implement a land use regulation that – . . . (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.”

Big Box RLUIPA case

Rocky Mountain Christian Church

v.

Board of County Commissioners of Boulder County,

Colorado

Rocky Mountain Christian Church 1984 – Rocky Mountain

Christian Church founded 1993 – Church building has

reached about 50,000 sq.-ft. 1994–2003 – Boulder County

Commissioners approved five requests to expand the size and use of church facilities.

2003 – The church is over 100,000 sq.-ft. with a sanctuary holding more than 1,400 people and academy serving 380 students (K – 8th)

2004 – Church applied to add 152,200 sq.-ft. and increase student enrollment by 160.

2006 – County approves increasing sanctuary seating from 1,400 to 1,550 people & permanent school building to replace existing modular school. Denies the rest of the request. Church sues.

November 2008 – Jury decides County did not violate the Constitution, but violated RLUIPA.

Jury’s Decision• County Commissioners

did not discriminate against the church.

• County violated RLUIPA because it did not treat church equally to a non-religious institution; it placed a substantial burden on church.

• No damages awarded to church.

In the 10th Circuit APA argued a “substantial burden” under

RLUIPA is not shown by failure to approve a larger church facility in an agricultural zone

Protecting agricultural and open space lands through a comprehensive plan is a compelling governmental interest.

http://www.planning.org/amicus/pdf/rockymountainchurch.pdf

Boulder County argued: RLUIPA should be interpreted as only

codifying “Free Exercise” jurisprudence, If Court construes RLUIPA as granting

greater protection of religious exercise beyond First Amendment protections, then it is unconstitutional as applied because it violates the Establishment Clause and exceeds Congress’ authority under Section 5 of the Fourteenth Amendment.

10th Circuit decision 613 F.3d 1229 (2010)

Did not consider “substantial burden” Held that Boulder County violated RLUIPA’s

“equal terms” provisions. U.S. Supreme Court denied cert. Questions:

Is RLUIPA constitutional in land use context? What advice should we give communities today? Does land use control belong at the federal level?