Daily Development for Wednesday, May 28, 2003
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS
ACT (RLUIPA): Where Church is denied day care license and brings
claim under the Religious Land Use and Institutionalized Persons Act
(RLUIPA), 42 U.S.C. 2000cc, et seq., Church must demonstrate that
City's land use regulation imposes a substantial burden on its exercise of
Grace United Methodist Church v. City of Cheyenne, 2002 U.S. Dist.
LEXIS 24189 (D. Wyo. 2002).
Church was located in a "Low Density Residential Established
neighborhood" (LR-1) in the City of Cheyenne. The zoning ordinance
permitted the construction of churches in residential areas, but not day
care facilities over a certain size, unless a variance was granted. Day
care centers were allowed in several other zones.
The Church planned to build an addition and use the addition for a child
care center. It applied to the City for a day care license, but the City
denied the Church's application, and the Church appealed to the Board of
Adjustment. The Board denied the appeal on the following grounds: the
facility could not be operated in the residential area because it was not a
church, school, or similar use permitted in the LR-1 area; the Board was
without discretion to grant a variance for the day care; the day care was
incompatible with the neighborhood; the denial did not impose a
substantial burden upon the Church's religious exercise; and the City had
a compelling interest in protecting the integrity and safety of the
neighborhood. The Church filed suit arguing that the City had violated
RLUIPA and 42 U.S.C. 1983 by depriving the Church of its First
Amendment and Fourteenth Amendment rights.
RLUIPA's general rule provides that "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 government interest." 42
U.S.C. 2000cc(a)(1). The statute limits its applicability to cases in
which "(A) the substantial burden is imposed in a program or activity
that receives Federal financial assistance, even if the burden results from
a rule of general applicability; (B) the substantial burden affects
(interstate) commerce, even if the burden results from a rule of general
applicability; or (C) the substantial burden is imposed in the
implementation of a land use regulation or system of land use
regulations, under which the government makes, or has in place formal
or informal procedures or practices that permit the government to make
individualized assessments of proposed uses for the property involved."
42 U.S.C. 2000cc(a)(2)(A)-(C).
In order to establish a prima facie case under RLUIPA, the plaintiff must
show that the land use regulation (1) imposes a substantial burden (2) on
the religious exercise (3) of a person, institution or assembly. The
burden then shifts to the government to demonstrate that the land use
regulation furthers a compelling government interest and that the
regulation is the least restrictive means of furthering that interest.
The court denied the Church's motion for summary judgment and held
that the Church did not meet its burden of establishing the prima facie
case. The court found, first, that there was a genuine issue of material
fact as to whether operating a day care with a religious component
constitutes religious exercise under RLUIPA. Second, there was a
genuine issue of material fact as to whether the land use regulation
substantially burdened the Church's exercise of religion. For a
regulation to substantially burden religious activity, it must have a
tendency to coerce action that is contrary to religious belief. This
regulation did not pressure the Church to modify its behavior or to
violate its beliefs; it merely placed a restriction on one of the ways in
which the Church could religiously educate children. Finally, there was a
genuine issue of material fact as to whether the operation of the day care
was a true exercise of religion as there was evidence that the day care
was really commercial, rather than religious, in nature.
Given that conclusion, the court had little difficulty analyzing the
church's Constitutional claims. In analyzing the Free Exercise claim, the
court found that the City's zoning regulation was facially neutral and
generally applicable. A law that is neutral and of general applicability
need only be rationally related to a legitimate governmental interest, even
if the law has the incidental effect of burdening a particular religious
practice. There was, at most, an incidental burden on the Church's
religious conduct, because the Church had the option of operating the day
care in another part of the City that was properly zoned or operating the
day care on a much smaller scale in its present building.
In examining the Free Speech claim, the court noted that the regulation
was also content neutral as to speech, and that the City did not restrict the
Church's ability to communicate or associate with its members, not did it
exclude the Church from any area of the City. Because, the City has an
important governmental interest in preserving the character of specific
areas of the City and the zoning regulation is unrelated to the suppression
of speech and does not burden speech more than is necessary to further
that governmental interest, the zoning regulation survived intermediate
The court held that the City's zoning regulations bore a substantial
relation to the general welfare of the City's residents and were therefore
constitutional under the Due Process Clause. Similarly, since the
ordinance made no classification based based upon a fundamental right
or suspect class, the statute is subject to the rational basis test, in which
the legislation must merely be rationally related to a legitimate state
interest. The court applied the rational basis test and held that the City's
ordinance was rationally related to its promotion of the general welfare
of its citizens.
Comment 1: Of course, the RLUIPA claim was of greatest interest,
since there have been few federal appellate decisions in the land use area
since the statute was reenacted following the judicial invalidation of a
prior version in City of Bourne v. Flores, 521 U.S. 507, 117 S.Ct. 2157
(1997). The court's virtually reads the statute out of existence when it
concludes that the religious institution must show that the "substantial
burden" imposed by the questioned ordinance be one that "has a
tendency to coerce action that is contrary to religious belief." Wow!
There are few land use ordinances that would do this. Most would
simply make the practice of the belief more expensive because the belief
would have to be carried out at another more expensive location.
Comment 2: For a case in which a child care was a church activity
entitled to the "least offensive alternative" requirement, see Millington
Baptist Church v. The Planning Board of the Township of Bernards,
SOM-L-1615-99 (N.J. Super. Law Div. 2001), Unpublished; January 19,
2001), the DIRT DD for 4/25/01. It was not clear in Millington that the
child care in question would be a semi-commercial day care activity.
Homeless housing was a religious activity and therefore a valid accessory
use in Henley v. Youngstown Board of Zoning Appeals, 735 N.E.2d 433
(90 Ohio St.3d 142 (2000))., the DIRT DD for 7/20/02 (not a RLUIPA
In a recent exchange on DIRT DIRTer C.R. Davis provided the following
"handy hints" for lawyers representing Churches proposing to seek
(1) Check the local ordinances carefully (of course). (2) Make
certain that the primary use (the church proper) and the planned
accessory uses (church school, church parish house, parking) are
on the same zoning lot. (3) Make certain that the proposed
accessory uses are related appropriately (size, intensity of use,
etc.) to the permitted primary use on the lot in question. Size of
the facilities for the accessory use may not be specified in the
local ordinances, but you can be fairly sure that the local officials
will want to make certain that the accessory use is of size
appropriate to the use already being made (allowing for
reasonable projected growth of such use) of the building (and of
any likely near-term additions thereto) in which the permitted
primary use is conducted. "Tail wagging the dog"
(disproportionate size of the accessory use) would [likely no be
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