What Religious Organizations Need to Know About Permitting and Zoning

"[W]herever the souls of men are found, there the house of God belongs."¹

There is no doubt that churches and ministries are vital pillars to their communities. However, local governments have not always been welcoming to this reality. While municipalities have the right to regulate zoning ordinances for the general welfare of their citizens, some municipalities have utilized zoning ordinances and land use regulations to discriminate against or be hostile to houses of worship. For example, Cornerstone Bible Church in Hastings, Minnesota was zoned out of town and left without a place to worship.² The district court upheld exclusionary zoning, equating the zoning rights of churches with the zoning rights of pornographic movie theaters. Local governments have similarly invoked zoning laws to restrict churches' use of their property and prevent churches and houses of worship of all faiths from being built at all in new suburban communities.³

What is RLUIPA?

The Religious Land Use and Institutionalized Persons Act ("RLUIPA") seeks to remedy problems like these. Passed in 2000, RLUIPA provide comprehensive statutory protection against the inequities of subjective land use decisions by local communities who routinely deny religious entities the right to use land for religious assembly but allow commercial assembly to occur. RLUIPA serves as a vital tool for churches and ministries, particularly when purchasing or leasing property for ministry use or expanding existing ministry facilities.

RLUIPA⁴ provides four areas of protection for churches and ministries.

1. Substantial Burden

First, RLUIPA"s "Substantial Burden" prong provides that a government may not impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a religious assembly or institution. However, if the government can show that imposition of the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest the burden will stand. Courts have found substantial burdens in violation of RLUIPA when: a zoning board subjected a church via the permitting process to "delay, uncertainty, and expense"⁵, a zoning board limited the size of a church's current facilities and the subsequently denied a permit to expand prohibiting the entire congregation from worshipping together at one time⁶, when a city denied use permits to a religious institution in bad faith⁷, and when a zoning board required a church to sell its current property and search for other sites within the city.⁸‍

2. Equal Terms

Second, RLUIPA's "Equal Terms" prong prohibits the government from imposing or implementing a land use regulation in a manner that treats religious institutions and ministries on less than equal terms with nonreligious institutions. For example, the equal terms provision is violated when a municipal zoning code provision permits "religious organizations" only upon the granting of a conditional use permit while permitting numerous other uses as of right.⁹

3. Non-Discrimination

The third area of protection provided under RLUIPA is the "Non-Discrimination" clause. This section provides that a local government may not make a land use determination that discriminates against any church or religious institution on the basis of religion or religious denomination. This prong implicates scenarios where zoning provisions or decisions discriminate against religious assemblies - for no discernible reason other than their religious nature.

4. Exclusions and Unreasonable Limitations

The final area of protection under RLUIPA is the "Exclusions and Unreasonable Limitations" clause. This prong prohibits local governments from imposing or implementing a land use regulation that: either totally excludes religious assemblies from a jurisdiction or unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. This is the least litigated prong of RLUIPA, but it protects churches and ministries in situations where there is an ordinance that excludes religious uses from a zoning district (unless a special land use permit is obtained), while private clubs, lodge halls, and similar organizations, including assembly or rental halls and even funeral homes are all permitted as of right.

Churches and ministries should note that while RLUIPA provides broad protection against discrimination and hostility for religious institutions in the land use context, it does not operate as a get out of jail free card. Churches must still comply with all applicable permitting and approval processes. However, RLUIPA does protect against discrimination in this process.

Courts are required to construe RLUIPA "in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution."¹⁰ Accordingly, since its inception, places of worship and religious organizations have successfully utilized RLUIPA to litigate matters involving construction of ministry facilities, building and land use permits, land use variances, and other similar matters. Where a violation of one of RLUIPA's prongs is established, RLUIPA provides money damages and injunctive relief as remedies.

Religious exercise is not free when churches cannot locate to new communities, are denied leasing opportunities, or are limited in their mission by local governments. RLUIPA serves as a vital legal tool for churches and religious organizations in combatting discriminatory and unfair practices against religious organizations. If your church or ministry needs assistance navigating the purchase or lease of a new facility, expansion of current facilities, or zoning and/or special use permits, Tyler Law is here to help.

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Sources:

¹ O'Brien v. City of Chicago, 105 N,E 2d 917,920 (Ill. App. Ct. 1952).
² Cornerstone Bible Church v. City of Hastings, Minn., 740 F. Supp. 654 (D. Minn. 1990), affd in part, rev'd in part sub nom, Cornerstone Bible Church v. City of Hastings, 948 F,2d 464 (8th Cir. 1991).
³ See Guru Nanak Sikh Soc. of Yuba City v. County. of Sul/er, 456 F.3d 978,989 (9th Cir. 2006).
⁴ Found at 42 U.S.C. 2000cc.
⁵ Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895,901 (7th Cir. 2005). 6 Cotlonwood Christian Ctr. v. Cypress Redevelopment Agency, 218 F, Supp. 2d 1203, 1226 (C.D. Cal. 2002).
⁷ Guru Nanak Sikh Soc. of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 989 (9th Cir. 2006).
⁸ Lighthouse Cmty. Church of God v. City of Southfield, No. 05-40220, 2007 WL 30280, at *8 (E,D. Mich. Jan. 3, 2007).
⁹ Centro Familiar Crisliano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1171 (9th Cir. 2011).
¹⁰ 42 U.S.C. § 2000cc-3(g).

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