Bridging the Cultural Gap with Religious Entities

What role does religion play in land use? Imagine these scenarios:

• A local Church encourages its members to host small group Bible studies to develop close relationships within the church family. A family begins to host a few people for weekly prayer and discussion in their home. The group later turns into 50 people arriving twice a week resulting in parking and traffic issues in the quiet residential neighborhood.

• A group of Hindu residents purchased a residential property. They sought and obtained special land use approval to use the residential property for religious use. At first the temple is sparingly used for individual prayer, meditation and reflection. However, one weekend the Temple hosts a festival. 3750 devotees from the United States and Canada arrive at the property flooding the residential streets with cars and people.

• A congregation of Muslim families purchases a former church and converts it into a Mosque. The City approves the religious use as grandfathered in, but, the neighbors complain as they are awoken every morning at 3:00 a.m. for the daily call to prayer.

Each one of these scenarios are true cases of religious uses that conflicted with land use matters involving zoning and land use designations that resulted in litigation. In bridging the cultural gap of religion and land use, each case involved an aspect of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 USC 2000 cc. RLUIPA, passed by a unanimous Congress in 2000, was enacted by Congress in response communities who use zoning to exclude or limit the use of land available for religious use. The law, cosponsored by Senators Hatch and Kennedy, leveled the playing field with respect to religious land use matters and provide for the following five separate causes of action:

1. Substantial Burden. Congress provided 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 the imposition of the burden on that person, assembly or institution is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. §§ 2000cc (a)(1) and (2)(c).

2. 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. 42 U.S.C. § 2000cc (b)(1).

3. 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. 42 U.S.C. § 2000cc (b)(2).

4. Exclusions. No government shall impose or implement a land use regulation that totally excludes religious assemblies from a jurisdiction42 U.S.C. §§ 2000cc (b)(3)(A)

5. Unreasonable limitations. No government shall impose or implement a land use regulation that unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. 42 U.S.C. §§ 2000cc (b)(3)(B).

Congress mandated a broad interpretation of the Act as RLUIPA should be interpreted “in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of RLUIPA and the Constitution” and the “use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.” The penalty for violating RLUIPA includes damages, attorney fees and injunctive relief allowing a Court to Order the religious use approved.

In striking the balance of the aforementioned case, each religious use remained but reasonable restrictions were enacted to carefully allow the religious necessity of the use with the neighborhood concerns. Calls to prayer were permitted at 3:00 a.m. but the caller could not use a speaker to amplify sound. The temple was permitted, but, festivals were precluded. The small group continued, but, parking was moved to a local school with a shuttle used to transport group members.

RLUIPA is just one of many tools that can be used to balance the cultural gap of religious uses and conflicting community issues.