Daily Development for Tuesday, February 12, 2008 by: Patrick A. Randolph, Jr. Elmer F. Pierson Professor of Law UMKC School of Law Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu ZONING AND LAND USE; USE RESTRICTIONS; RELIGIOUS ACTIVITIES; RLUIPA: Where City's redevelopment plan prohibits church uses in a downtown redevelopment area because state law restricts drinking alcohol in proximity to such churches and the plan calls for an entertainment district with bars and restaurants, the city does not violate the federal RLUIPA law because the City policy isneutral and applied evenly to all uses that are not likely to further the municipality's goal of a revitalized downtown. The Lighthouse Institute For Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3rd Cir. N.J. 2007) A church rented space within a municipality's central commercial district. Six years later, it submitted an application for a zoning permit to use the property as a church. The application was denied because the proposed use was not a permitted use in the zone. The church filed suit challenging the ordinance upon which the denial was based, alleging a violation of the federal free exercise clause of the First Amendment and a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). While the litigation was proceeding, the municipality adopted a Redevelopment Plan that strictly limited the properties within a corridor in which the property was located. The Plan superseded the challenged ordinance. The plan allegedly was established to set up a vibrant and vital downtown community in which restaurants, bars, and clubs were permitted, but churches, schools, or government buildings were not. Notably, the governing council ultimately concluded that the existence of a church in that zone would compromise its intention that the area be focused on for entertainment and recreation because New Jersey law prohibited the issuance of liquor licenses within two hundred feet of a house of worship. The U.S. District Court held that neither the ordinance nor the plan violated RLUIPA or the Free Exercise Clause of the United States Constitution. The church appealed the entry of summary judgment for the municipality and the denial of its motion for partial summary judgment with respect to its free exercise and RLUIPA claims. In the appeal, the Court of Appeals made a number of interpretations of RLUIPA. Because that statute is quite remarkable, the editor has elected to set forth salient parts of it here: a) SUBSTANTIAL BURDENS- (1) GENERAL RULE-No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution- (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. (b) DISCRIMINATION AND EXCLUSION- (1) EQUAL TERMS-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. (2) NONDISCRIMINATION-No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination. (3) EXCLUSIONS AND LIMITS-No government shall impose or implement a land use regulation that- (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. The District court had held for the City on the claim of discrimination under 2 (b) (2), above, on the grounds, inter alia, that if the City has discriminated specially against churches, the church still had the burden to show that the discrimination had a substantial impact on the plaintiff church. The Third Circuit disagreed, holding that the substantial impact test did not apply when there was a specific discrimination. But the Third Circuit disagreed with this interpretation. No substantial burden must result from a discrimination for a claim to arise under the statue. As to the proving of discrimination, the District Court had held that the plaintiff church is required to show a specific comparator that is not adversely affected by the statute even though it generates the same combination of uses. But the appeals court ruled that the plaintiff need not find a comparator that did exactly the same thing. But it did hold, contrary to the position of the plaintiff, and contrary to Eleventh Circuit authority, that the plaintiff must show a nonreligious comparator not affected by the regulation that presents the same impacts on the governmental regulatory objectives. Thus, for instance, if the regulated conduct is assemblies, the City could prohibit large religious assemblies but still permit ten member book clubs, if the book clubs don't present the same density issues that are the target of the regulatory concern. Ultimately, the court concluded that the original zoning ordinance did not focus on plaintiff as a church, but simply as anassembly hall. In other words, the ostensible regulatory objective to avoid churches that wouldsqueeze out purveyors of alcohol could not be viewed as the objective of the ordinance. Since, otherwise, there was not much basis for discriminating againstassemblies of the sort represented by the church, and still permit restaurant and bar assemblies, the ordinance was a RUILPA violation. This finding gave the plaintiff some attorney's fees, but otherwise the impact of the ordinance was moot in light of the subsequent redevelopment plan. The Court found that the municipality's redevelopment plan, which superseded the ordinance, did not violate the equal protection guarantee of RLUIPA given that a church's presence in the redevelopment corridor would hinder the issuance of liquor licenses. As to the free exercise clause of the First Amendment under the United States Constitution, the Court held that a religious claimant must explain in what way the inability to locate in a specific area by reason of a zoning regulation affects its religious exercise. In the instant matter, the Court found no violation of the clause on account of the redevelopment plan. In fact, the church's minister indicated that he could move four blocks away and still provide services to the impoverished residents of the municipality. Thus, the Court ruled that the redevelopment plan, in preventing religious organizations from locating in a downtown area, was neutral and applied evenly to all uses that were not likely to further the municipality's goal of a revitalized downtown. Therefore, it was not adopted to infringe on religious practices. The Court remanded the matter to address claims for compensatory damages and attorneys' fees based on the original ordinance's violation of RLUIPA before implementation of the redevelopment plan. A dissenter, in a lengthy dissenting opinion, strongly challenged the finding that the Plan was valid under RLUIPA. The critical part of the dissent's analysis is that it refused to accept the notion that local government had a legitimate neutral regulatory objective in avoiding the impact of the state lawno alcohol curtilage. In the view of the dissent, theno alcholol curtilage was also a government created characteristic, the government can't bootstrap a church into an avoidable nuisance by dressing it up with special protections, then using those protections to restrict its activities. In general, the dissent would abandon any requirement forcomparators. The question to the dissent was whether there is special negative treatment afforded churches. Here, of course, there was. Most other public assemblies do not have the no alcohol curtilage, and so only churches and schools are restricted from the zone. This was not acceptable to the dissent. In fact, it was exactly the conduct, in the view of the dissent, that RLUIPA is supposed to prevent. Comment 1: It is difficult for the editor to condense a tightly written forty pages of legal analysis into a few paragraphs here. If you are a RLUIPA maven, you should read this one. It appears that the dissent argues that when a church is disadvantaged in terms of land use rights specifically because it is a Church, that violates the rule in section B(1) above: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. The editor emphasizes that it is the discrimination, not any adverse burden, that is found offensive. The church was only renting, and could rent space only two blocks away to serve it's congregation. The rules didn't really injure its religious practices in any way. Comment 2: Churches and bars; bars and churches. They're certainly not compatible, and if government wants to encourage the development of one use, it probably wants to restrict the development of the other use. Certainly it would be able to do this as a matter of general Constitutional law and land use law. But does RLUIPA say that you can't do it in the way things were done here - by excluding churches because another government policy creates a curtilage around them? Is the answer that you can't get there from here - that you can never deny churches the ability to locate where they want on the basis of any characteristic that is unique to churches? 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