In 1988 the Supreme Court denied American Indian groups, led by the Northwest Indian Cemetery Protective Association, bid to prevent the construction of a roadway for harvesting timber on Chimney Rock Mountain, California. The site had been a sacred place of worship for local Native tribes for hundreds of years. Native American rights advocates, as well as religious liberty supporters, saw the decision as a huge defeat. The Chimney Rock incident, among others, stoked Congressional concern that local land use decisions were often harming minority or more unfamiliar religious groups. Initially passed with unanimous Congressional approval in 1993, the Religious Land Use and Institutionalized Persons Act (RLUIPA), is a federal civil rights statute that aims to protect religious groups and individuals from unduly burdensome land use decisions and regulations.

What’s Covered Under RLUIPA?

All zoning boards and planning authorities must comply with RLUIPA. It protects a wide class of religious actors and organizations. Houses of worship such as churches and synagogues are the archetypal covered entity, but religious schools, hospitals, shelters, soup kitchens, and other institutions are also protected. Even prayer groups meeting in private homes can fall within RLUIPA.

Activities protected under RLUIPA are widely construed to include “religious exercise,” whether or not required by or central to the practice of any religion. This means zoning and planning officials cannot escape RLUIPA by arguing that the religious activity being regulated isn’t compulsory. It nearly always protects the “use, building, or conversion of real property for the purpose of religious exercise.”

Substantial Burdens on Religious Exercise.

RLUIPA prohibits any land use decision or regulation that imposes a “substantial burden” on a person or institution’s exercise of their religion.

Any “individualized assessment” triggers the protections afforded under the “substantial burden” provision. These occur whenever a land use official makes a decision based on subjective factors related to a particular parcel. Conversely, decisions made based on objective, mechanical criteria aren’t covered. Decisions subject to “substantial burden” scrutiny include variance requests, rezoning, special use permits, conditional use permits, occupancy permits, site plans approvals, and sometimes things like environmental regulations or sewage requirements, among others.

What constitutes a “substantial burden” is fact-dependent and the subject of much litigation. Courts take into account factors such as the financial standing of the claimant, availability of alternative property, and good faith of the officials. 

Burdens on religious uses found to be substantial can still be upheld, but only if the authority shows that its decision furthered a “compelling” state interest and that it took the least restrictive means of achieving that interest. These are terms of art, which mean that if an authority passes an unreasonable restriction on religious uses, they’d better have a damned good reason. Things like pressing health or safety concerns might qualify. Not wanting to undermine the revenue base with a tax-exempt organization would not. Courts view generalized concerns about traffic or noise levels with high skepticism.

Non-discrimination Provisions.

Under RLUIPA, any zoning rule must not affect religious institutions less favorably than other similarly situated religious or non-religious institutions. Under the “equal terms” provision, a zoning rule cannot treat groups or persons differently based on religious denomination. For instance, a zoning scheme that allows a community center, but not a temple, or a temple, but not a mosque, this would likely run afoul of RLUIPA. An overlapping provision prohibits any discrimination by the authority on the basis of religion.

Officials also cannot perpetuate policies that totally exclude religious organizations from a given jurisdiction, nor can they unreasonably limit religious assembly. This rule was enacted so that decisions that either totally or effectively exclude a religious activity from an entire jurisdiction are codified in federal law as being an affront to the First Amendment.

Enforcement.

RLUPIA violations can be enforced by either private lawsuit or the U.S. Department of Justice. Usually, religious individuals or groups must first apply for approval and appeal a denial through the ordinary channels before bringing an action under RLUPIA. There’s limited exceptions for when such application would be obviously futile or where the application process itself is blatantly discriminatory.

If an official makes any statement, advertent or not, that can be construed as prejudicial or indicative of bias against a sect or group, that the official then makes a negative determination against, the statement it can be probative of discrimination in a RLUIPA proceeding. Officials should know that RLUIPA plaintiffs don’t need to show intentional discrimination. Just because a zoning or planning decision has a perfectly neutral and non-prejudicial justification, doesn’t preclude it from creating a violation.

Conclusion.

The concerns that provided the impetus for RLUIPA are perhaps more pressing today than ever before. Between 2010 and 2016, 38 percent of zoning related RLUIPA claims involved mosques or Islamic schools, compared to 1 percent of Americans who self-identify as Muslim. This gives cause for worry that Muslims receive disparate treatment from local officials, compared to other religious groups.

RLUIPA provides important protection for religious minorities. But it can be a huge problem for local officials who make decisions affecting religious institutions without considering its implications. For compliance guidance or to file a RLUIPA claim, go to justice.gov/crt/religious-land-use-and-institutionalized-persons-act, or contact an experienced land use attorney.  

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