I. Introduction

     In recent years, local government attorneys and land use planners have witnessed the increased presence of the federal government in local planning. Five years ago, Congress passed the Telecommunications Act of 1996 (TCA), limiting the ability of state and local governments to regulate the placement, construction, and modification of personal wireless service facilities, or "cell towers" as they have come to be called. [1]  Contrary to the brazen claims of many in the wireless industry, however, local governments that comply with the procedural and evidentiary requirements of the TCA are finding that their authority to guide the placement of these facilities has, for the most part, been left undisturbed. Similarly, in 2000, Congress passed new preemptive legislation that limits state and local governments' ability to regulate religious uses. [2]  The Religious Land Use and Institutionalized Persons Act, or RLUIPA, represents the latest volley in an ongoing battle between the federal legislative branch and the judiciary. [3]

     Although RLUIPA addresses the free exercise of religion by institutionalized persons, this article focuses only on those provisions regarding the regulation of religious uses, particularly in the context of local planning processes. It will familiarize the reader with how RLUIPA came to be, the key components of the Act with which the local land use attorney should be familiar, and the scant case law that so far has emerged under RLUIPA. It is, at some levels, curious that so many in Congress felt the need for this type of legislation. [4]  It is rare, though clearly not unheard of, that local governments act in a manner that prohibits religious exercise generally, or even substantially burdens religious exercise as protected by the Constitution. [5]  In fact, in Florida, governing bodies are well versed in matters of land use equity and administration and generally are sensitive to the range of interests implicated in the decisions they make. RLUIPA, however, stems less from a concern that pervasive discrimination against religious uses is widespread on local planning boards, than it does from the growing presence of religion in American politics. Nonetheless, local governments in Florida can comply with RLUIPA without undermining their traditional comprehensive planning objectives and regulatory procedures. This article will give the local practitioner a basis for understanding RLUIPA and for maintaining proper vigilance when the local bodies we represent make land use decisions that may affect religious uses.

II. Background

     RLUIPA has a long and tortured history. The short form is as follows. In Sherbert v. Verner, the U.S. Supreme Court held that although incidental burdens on the free exercise of religion were reasonable in some cases, if those burdens imposed a substantial burden on a person's free exercise of religion, the Court would strike it down unless the government could show that the burden was justified by a compelling governmental interest. [6]  Furthermore, should a compelling interest be found, the government had the additional burden of showing that no alternative means of regulation existed that would not burden the party's free exercise protections. [7]  The decision was clearly a shot in the arm for religious organizations, as it presumably invalidated any governmental restriction, whether generally applicable or not, except where the government could identify some "grave abuse" of the public interest that might accrue without the restriction. [8]

     However, in 1990, the Supreme Court limited Sherbert's rigid standard when it decided Dept. of Human Resources of Oregon v. Smith. [9]  In Smith, the Court narrowed the application of the "compelling governmental interest" standard, refusing to apply it except in cases where a law, or an exemption to a law, was specifically applied to an individual. [10]  The Court distinguished such specific applications of a law from "generally applicable prohibitions of socially harmful conduct." [11]  The Court refused to allow an individual to be exempt, by way of the free exercise clause, from neutral laws that were otherwise valid protections of health, safety, and welfare of the general public. Religious and civil liberties organizations criticized the Smith ruling, claiming that it undermined the protections of the free exercise clause. [12]  Congress responded to these criticisms in 1993, by enacting the Religious Freedom Restoration Act, or RFRA, the title itself implying that Congress was stepping in to rectify the harm done by the Supreme Court to religious exercise. [13]

     Inevitably, after significant litigation in the federal courts, the Supreme Court got the opportunity to decide the validity of RFRA. In City of Boerne v. Flores, the Court struck down RFRA as an unconstitutional exercise of Congress' authority under Section 5 of the Fourteenth Amendment. [14]  The Court held that RFRA lacked a "congruence between the means used and the ends to be achieved." [15]  Congress had failed to demonstrate any "widespread pattern of religious discrimination" that would justify RFRA's diminution of local government's authority to regulate land uses. [16]  Lacking this connection, Congress had exceeded its Section 5 authority to enact laws that prevent unconstitutional behavior, and rather had unconstitutionally "attempted a substantive change in constitutional protections." [17]

     In response, and after a failed attempt in 1999, [18] Congress, with Senators Hatch and Kennedy in the lead, enacted RLUIPA on July 27, 2000. President Clinton signed the Act into law on September 22, 2000. Essentially an articulation of the pre-Smith free exercise standard, RLUIPA deems void land use regulations, including generally-applicable neutral regulations, which substantially burden a person's exercise of religion, unless the government can demonstrate that the regulation furthers a compelling governmental interest and is the least restrictive means of doing so. [19]  Additionally, government is prohibited from imposing a land use regulation in a manner that treats a religious organization "on less than equal terms with" a nonreligious organization or a regulation that discriminates against an organization on the basis of religion. [20]  And, finally, government may neither "totally exclude" from nor "unreasonably limit" religious organizations in its jurisdiction. [21]  The asserted bases of this legislative imposition of strict scrutiny, derive from the Spending Clause, the Commerce Clause, [22] and the general power of Congress to enact legislation to enforce the provisions of the Fourteenth Amendment to the U.S. Constitution. [23]  When a case eventually wends its way to the Supreme Court, the gravamen of the Court's inquiry likely will remain whether Congress had the authority to enact RLUIPA in the first place.

III. Key Terms of RLUIPA

     There are several key terms that stand out in the text of RLUIPA, and which will represent the subject matter of most litigation under the Act. The local practitioner should be familiar with these terms and their relevance to board decision-making in order to avoid a credible claim under RLUIPA. Accordingly, local government attorneys and their staffs must develop a thorough record in support of board decisions affecting religious uses.

A. Land Use Regulation
 
     First, RLUIPA applies to any state or local government land use regulation where the plaintiff can demonstrate a substantial burden on the free exercise of religion. [24]  However, the legislative history behind RLUIPA states that the "Act does not provide religious institutions with immunity from land use regulation..." [25]  In order to address the Boerne limitations on its exercise of Section 5 authority, Congress limited the applicability of RLUIPA to land use regulations, where RFRA presumably applied to any act of government. The federal courts likely will give a broad reading to what constitutes a land use regulation. [26]  In fact, most non-prisoner cases decided under RFRA involved regulations that fairly could be categorized as land use regulations.

B. Substantial Burden

     Second, although an eventual plaintiff would bear the burden of persuasion in court, the local attorney should ask whether existing or pending regulations or their application to a particular party might "substantially burden" the exercise of religion. [27] According to legislative history, RLUIPA supporters did not intend to create a new definition of "substantial burden." [28]  Under existing law (much of which resulted from RFRA, which also prohibited "substantial burdens"), incidental burdens on religious exercise or mere inconveniences to that exercise do not amount to a substantial burden. [29]  In fact, in Boerne, the Supreme Court recognized the distinction between an incidental burden on a particular facet of religious exercise and a substantial burden on the ability to practice that religion generally. [30]  Historically, the definition of substantial burden turned, at least to some degree, on whether or not the burdened activity was central to the exercise of the particular religion. However, RLUIPA attempts to dispense with this inquiry by defining religious exercise as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." [31]  Although published opinions with significant discussions of RLUIPA still are hard to come by, several cases have discussed the significance of this language to the "substantial burden" inquiry. [32] 
In a recent case, the district court in Murphy v. Town of Milford enjoined the Town from enforcing a cease and desist order issued against homeowners who held weekly prayer meetings in their home. [33]  This case marks the most significant foray into the land of RLUIPA by the federal judiciary to date. Here, the plaintiffs had held weekly prayer meetings at their home every Sunday afternoon since 1994. [34]  The meetings generated significant traffic problems, mostly related to parking, and the Town eventually issued a cease and desist order, holding that prayer meetings with more than twenty-five guests violated the zoning ordinance. The Murphys sought a preliminary injunction against the enforcement of the order. The court found, based on evidence from the preliminary injunction hearing, that the cease and desist order did substantially burden the Murphys exercise of religion. [35]

     First, the court cited testimony that participants in the prayer group were afraid they would be arrested if they attended the meetings, even while the court acknowledged that such a fear was entirely unfounded in a zoning case. [36]  Second, the court found persuasive the plaintiff's testimony that prayer was "an important part of his life...," as distinguished from an important part of his religious exercise. [37]  Third, the court cited testimony that the Town's requirement that the prayer group be limited to twenty-five people "would defeat 'the whole intent of [the] prayer group...,'" as distinguished from a finding that it would defeat ability to exercise his religious beliefs generally. [38]  Finally, the court found that the twenty-five person limitation "could have a significant impact on the purpose of the prayer sessions" forcing the plaintiffs "to modify their religious practices." [39]

     The court relied heavily on the definition of "religious exercise" as modified by Congress through RLUIPA, one that does not require a showing of centrality. The court cites no evidence that would indicate that the Town's twenty-five person requirement would substantially burden the plaintiffs' ability to practice their general system of religion. Rather, the court rests its holding on the fact that the requirement substantially burdened one component of the plaintiffs' religious practice. Interestingly, the court, as presumably were the plaintiffs, was unable to cite any cases in support of this line of reasoning, instead relying only on the language of RLUIPA itself and the congressional record. The D.C. Circuit recently denied a petition for rehearing based on the fact that RFRA's definition of "religious exercise" had been amended to be identical to RLUIPA's broader definition. [40]  The court's defense of "the propriety of inquiring into the importance of a religious practice when assessing whether a substantial burden exists," contradicts the Murphy court's analysis. Whether future RLUIPA cases will hold with the D.C. Circuit, of course, remains to be seen, but is a critical question with regard to local government's ability to implement zoning requirements without running afoul of RLUIPA.

     Certainly, a broadening of the substantial burden requirement will make it more difficult for local governments to head off a claim based on a plaintiff's failure to show a substantial burden. If the test will be whether a land use regulation has substantially burdened merely one component of a overall system of religious beliefs, local governments must demonstrate that regulations affecting that one component advance a compelling interest and that they constitute the least restrictive means of doing so.

C. Compelling Governmental/Least Restrictive Means
 
     Traditional land use regulations have generally been held to serve a compelling governmental interest. [41]  Indeed, the Murphy court accepted, without bothering to cite its basis of authority, that the Town of Milford had a compelling interest in adopting and enforcing its zoning code to ensure the safety of its residential districts. [42] Rather, the court focused its inquiry on whether the Town had adopted the least restrictive means of furthering their legitimate public interests. As is mentioned above, if courts in future RLUIPA claims follow the broad reading the Murphy court gave to the "substantial burden" requirement, the "least restrictive means" requirement may be the one that either makes or breaks the case for local government. Murphy offers helpful analysis in this regard.
Having found a compelling governmental interest in protecting the sanctity of residential neighborhoods, the court found that the Town had failed to employ the least restrictive means of furthering that interest. [43]  The court found that the Town employed means unrelated in nature to the ends it sought to achieve. [44]  Specifically, the court found an incongruity between the limitation on "the number of people present" and stated objectives of traffic control. The court held: "Here, defendants are directly intruding into activities within plaintiffs' home when the reason given for the interference is activities that take place outside the plaintiffs' home, that is, the increased traffic levels on the street." [45]  The court seemed to say that the Town should have required compliance with parking and traffic standards instead of directly limiting attendance at the prayer meetings. [46]

IV. Where Do We Go From Here?

     Murphy and several other cases that discuss the merits of RLUIPA must less thoroughly give some indication of how local governments can regulate religious uses without running afoul of the provisions of RLUIPA.

     First, although the message is a bit unclear, where risk aversion is high, the local government should apply the broad substantial burden analysis applied by the court in Murphy. Clearly, that case will not be the last word, but it probably represents what will be the extreme position on the matter; specifically, that where land use regulations burden merely one aspect of a property owner's exercise of his or her religious beliefs, the compelling governmental interest should be articulated and the least restrictive means employed.

     Second, local government must scrutinize its actions, whether legislative or administrative, to ensure that they address the specific planning objective to be accomplished by the action. They should not prohibit or unreasonably restrict a proposed religious use entirely, where some lesser limitation on use will address satisfactorily the concern. For example, if a variance to a parking or setback requirement will adequately address a stated planning objective, particularly where the alternative is to prohibit religious use of the property entirely, then that lesser restriction may be the secret to avoiding litigation under a RLUIPA claim. [47]  Remember too, that these types of individualized determinations are subject to the compelling governmental interest standard, both under RLUIPA and earlier decisional law. [48]
 
     Third, RLUIPA provides that government may avoid a violation under the Act where it (1) changes the regulation that substantially burdens religious exercise, (2) exempts the burdened religious exercise from application of the regulation, (3) provides exemptions as a matter of policy for religious uses, or (4) employs any other means of eliminating the substantial burden imposed on the exercise of religion. [49]  Pursuant to these terms, a district court in Illinois recently refused to apply RLUIPA where the defendant City had amended its ordinance to remove the alleged substantial burden on religious exercise. [50]  In fact, in Murphy, the court was frustrated that the Town and the Murphys were unable to reach an amicable solution without resorting to court action. Invoking passages from the New Testament, the court paid deference to a higher power, noting that since the plaintiffs were "enjoined by religious teachings to 'do unto others' as they would have done unto them, it is not unreasonable to expect the parties to be able to agree on means of reducing the impact of weekly prayer meetings on this small cul-de-sac...." [51] 

     Fourth, local regulations should treat religious uses in a manner consistent with nonreligious uses of similar impact and character. For example, zoning ordinances that allow nonreligious places of assembly (e.g., movie theaters, civic clubs, and assembly halls) in a particular land use district, yet prohibit religious uses in those same districts should be amended to either allow or prohibit both. Similarly, ordinances should not allow nonreligious places of assembly as-of-right in a particular district, while allowing religious uses only by special exception or special use permit in the same district. Clearly, ordinances must be drafted or amended to ensure that religious uses are not totally excluded or unreasonably limited from the jurisdiction. [52]

     Finally, local governments regulating religious uses will be well served by developing a strong record demonstrating compliance with RLUIPA. From the staff report to the final decision of the governing body, thorough findings should be made to demonstrate that regulations are being tailored to avoid substantially burdening religious exercise, to serve a compelling governmental interest, and to further that interest through the least restrictive means available. Identify the goals, objectives, and policies of the comprehensive plan that are being advanced by the regulatory act. When making individualized determinations regarding a religious use, make sure that any special conditions would be equally applicable to a nonreligious use of similar character, like a civic club. Local boards should be educated on the provisions of RLUIPA and its impact on the decisions they make.

V. What's Happening in the Eleventh Circuit?

     Although there are no Eleventh Circuit opinions as yet, a complaint has been filed against Volusia County alleging a violation under RLUIPA. Dunamis Community and Outreach Ministries, Inc., represented by the Liberty Counsel, has filed suit against the County alleging, among other Constitutional claims, a violation of RLUIPA. Here, the Planning Commission denied the church's application for a special exception to construct a house of worship and the County Council upheld the denial. [53]  The church alleges, inter alia, that the denial substantially burdens plaintiffs' religious exercise, treats the plaintiffs on less than equal terms with nonreligious organizations, discriminates against the plaintiffs on the basis of religion, and totally excludes the plaintiffs from "a zoning jurisdiction." [54]

     There was also a fourteen-count complaint recently filed in Huntsville, Alabama, where the historic preservation commission denied the Temple B'nai Sholom a demolition permit, even though a city housing official had ordered the structure to be repaired or demolished due to its deteriorated and unsafe condition. [55]  The complaint alleges, inter alia, that the City has substantially burdened the plaintiffs exercise of religion, discriminated against the plaintiffs on the basis of religion, treated the plaintiffs on less than equal terms with nonreligious organizations, and has unreasonably limited the plaintiffs' assemblies, institutions, and structures within the historic district and the jurisdiction. [56]  Both of these cases may provide some guidance for local government in Florida as the litigation develops.

VI. Conclusion

     RLUIPA appears to signal the continued presence of the federal government in local planning. This author does not believe that widespread discrimination against religious uses is commonplace among planning staffs or elected bodies, and to that extent, does not believe that there is adequate basis for Congress' intrusion. The Constitution is protection enough. However, local government practitioners, planners, and elected and appointed officials should be aware of RLUIPA's provisions, and must prepare a thorough record that establishes compliance with those provisions. Similarly, ordinances should be reviewed to ensure that, on their face, they do not violate RLUIPA, particularly with respect to the exclusion and equal treatment provisions. While the constitutionality of RLUIPA is debatable, in most cases, the terms of the Act can be met without undermining the integrity of the planning process and of Florida's Growth Management Act. However, so long as the Act stands, federal courts will to inquire into the purpose behind a particular regulation that impacts religious uses to ensure that the regulation is closely tied to the stated planning objective.

 

Endnotes:

* Mr. Smith is an associate with Freilich, Leitner & Carlisle in Kansas City, Missouri, where he maintains a national practice in land use and municipal law. Mr. Smith is a member of the Florida Bar.
[1]  47 U.S.C. §332(c)(7) (1996).
[2]  42 U.S.C. §2000cc (2000).
[3]  Note FLA. STAT. §761.01, et seq., the Religious Freedom Restoration Act of 1998. These provisions apply strict scrutiny to generally applicable acts of local government that substantially burden a person's exercise of religion. This statute constitutes a separate cause of action and is not discussed in this article.
[4]  RLUIPA was passed by a voice vote without significant opposition in either the House or Senate.
[5]  In City of Boerne v. Flores, where the U.S. Supreme Court struck down a predecessor to RLUIPA, discussed infra, the Court noted that testimony before the House subcommittee indicated that "deliberate persecution is not the usual problem in this country." 521 U.S. 507, 117 S.Ct. 2157, 2169, 138 L.Ed.2d 624 (1997).
[6]  Sherbert v. Verner, 374 U.S. 398, 403-08, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963).
[7]  Id. at 407.
[8]  Id. at 406.
[9]  Dept. of Human Resources of Oregon v. Smith, 494 U.S. 874, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).
[10]  Id. at 884.
[11]  Id. at 885.
[12]  See Amanda Hiller, Zoning of Religious Land Uses: The Impact of the Religious Land Use and Institutionalized Persons Act of 2000, in TRENDS IN LAND USE LAW FROM A TO Z, at 97, 101 (ABA 2001).
[13]  42 U.S.C. §§2000bb to 2000bb-4 (1996).
[14]  See Boerne, 117 S.Ct. 2157.
[15]  Id. at 2169.
[16]  Id.
[17]  Id. at 2170. Note, however, that federal courts subsequently have found RFRA to remain constitutional as applied to federal acts, as opposed to local or state regulations. See Kikumura v. Hurley, 242 F.3d 950, 959 (10th Cir. 2001), see also Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C. Cir. 2001).
[18]  In 1999, the Religious Liberty Protection Act passed the House but failed to gain the approval of the Senate. H.R. 1691, 106th Cong. (1999).
[19]  47 U.S.C. §2000cc-2(a)(1).
[20]  See id. §2000cc-2(b)(1)&(2).
[21]  See id. §2000cc-2 (b)(3).
[22]  See Mayweathers v. Terhune, 2001 WL 804140 at *2, *7 (E.D. Cal. 2001) (rejecting a prisoner's challenge of Congress's authority to enact RLUIPA under the Spending and Commerce Clauses of the U.S. Constitution).
[23]  47 U.S.C. §2000cc-2(a)(2).
[24]  See id. §2000cc-4.
[25]  146 Cong. Rec. S7776 (daily ed. July 27, 2000) (Additional Discussion on Intended Scope on Land Use Provision).
[26]  RLUIPA defines a land use regulation as "zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use or development of land (including a structure affixed to the land)..." 47 U.S.C. §2000cc-8(5).
[27]  See id. §2000cc-2(a)(1) & 4(b).
[28]  146 Cong. Rec. S7776 (daily ed. July 27, 2000) (Additional Discussion on Intended Scope on Land Use Provision).
[29]  Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 1432 (1981); Sherbert, 374 U.S. at 404; Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 680, 110 S.Ct. 688, 107 L.Ed.2d 796 (1990); Woods v. Evatt, 876 F.Supp. 756, 762 (D.S.C.1995); Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir. 1995).
[30]  See Boerne, 117 S.Ct. at 2171.
[31]  47 U.S.C. §2000cc-8 (7)(A) (emphasis added).
[32]  See e.g., Kikumura, 242 F.3d at 960-61.
[33]  See Murphy v. Town of New Milford, 148 F.Supp. 2d 173, 176 (D.Conn. 2001).
[34]  See id.
[35]  See id.
[36]  See id. at 188.
[37]  See id. at 189.
[38]  See id (citing testimony at the preliminary injunction hearing).
[39]  See id. (emphasis added).
[40]  47 U.S.C. §2000cc-7. See Henderson, 265 F.3d at 1074.
[41]  Christian Gospel Church, Inc. v. City and County of San Francisco, 896 F.2d 1221 (9th Cir. 1990).
[42]  Murphy, 148 F.Supp. 2d at 189-90.
[43]  See id. at 190.
[44]  See id.
[45]  See id. at 190-91.
[46]  This is reminiscent of the Supreme Court's admonition in Dolan v. City of Tigard, that where mere prohibition on use without conveyance of title would accomplish the stated planning goal, the government failed to make proper findings that would to justify actual dedication of the land. 512 U.S. 374, 394, 114 S.Ct. 2309 (1994).
[47]  Note that the Murphy court rejected the Town's assertion that the plaintiffs were required to pursue an administrative appeal of the cease and desist order in order to ripen their case. Rather, the court found that since RLUIPA did not require an appeal prior to judicial review, merely alleging substantial burden was enough, Murphy, 148 F.Supp. at 182-87.
[48]  See, e.g., Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537, 113 S.Ct. 2217 124 L.Ed.2d 472 (1993).
[49]  47 U.S.C. §2000cc-5(e). Practitioners should remain cognizant of the potential for a violation of the Establishment Clause in this regard. The Act specifically states that it is not intended to modify the law regarding the First Amendment prohibition against the establishment of religion, See id. §2000cc-§6.
[50]  See C.L.U.B. v. City of Chicago, 157 F.Supp.2d 903 (N.D. Ill. 2001). There have been several instances around the country, including at least one case in Georgia, where the local government and the religious use applicant have resolved their differences without extensive litigation. See e.g., Haven Shores Community Church v. City of Grand Haven, File no. 1:00-cv-175 (W.D. Mich.)(consent judgment). In many of these cases, the potential plaintiff has been represented by attorneys from the Beckett Fund for Religious Liberty. For information regarding these cases, see the Beckett Fund website, at www.rluipa.org.
[51]  See Murphy, 148 F.Supp.2d at 191 (footnote omitted).
[52]  47 U.S.C. §2000cc-2(b)(3).
[53]  Dunamis Community and Outreach Ministries, Inc. v. Volusia County, Case No. ____ (M.D. Fla. 2001) (complaint filed May 31, 2001).
[54]  See id. The meaning of jurisdiction, on the face of the Act, seems to contemplate the political jurisdiction of the city or county. However, there likely will be plaintiffs that assert a broader reading and will allege, as this plaintiff may be, that RLUIPA prohibits exclusion or unreasonable limitation of religious uses within any particular zoning district, see also Haven Shores, File no. 1:00-cv-175.
[55]  Temple B'nai Sholom v. Huntsville, Civ. Act. No. CV-01-S-1412-NE (N.D. Ala. 2001) (amended complaint filed October 23, 2001).
[56]  See id.