If your religious organization is considering a RLUIPA challenge to local zoning laws, it should consider the following actions before filing a lawsuit.
1. Select a small control group within the church to make legal decisions. Litigation is hard, expensive, time consuming and overwhelming at times. Decisions need to be made on a daily basis and sometimes these decisions result in unintended outcomes. If a religious organization takes the spiritual leader away from his or her core mission, division or rancor within the church may result. Use a control group that reports to the spiritual elder and the board on a regular basis, leaving the board or spiritual leader to address significant decisions, only.
2. Plan for growth. Plan out what the growth vision of the church is 10 to 15 years from the date of the plan. Once a lawsuit is filed, and the church prevails, you can expect hostility from your local government when you wish to expand in the future.
3. Prepare for ALL of the cost. The cost of litigation needs to be fully understood and appreciated by all members of the religious organization before suit is filed. The financial cost is unpredictable and expensive. In many cases, the trial date of a case could be 18 months after suit is filed, and a final decision could be several years after an appeal is completed. The other cost to consider as well is the loss of support and membership in the community and religious organization. Most people seek religion as a refuge from the daily grind and attending a service where litigation is present may not be what they want to hear. Prepare for the loss of members, staff, and support in the community.
4. Research the local politics, ordinances, and master plan. Many communities have a reputation for being not friendly toward religious organizations and that will not change once a lawsuit is filed. If a community is “studying the loss of tax base” due to the number of churches within its borders, which many do, it will give a proposed religious use a very difficult time in obtaining favorable site plan review or zoning variances. Be prepared for the local politicians who control the public relations battle through their weekly comments at board meetings and favorable relationships with the press. They will pressure the community code enforcement and building officials to “code the building to death” if they do not want the religious organization within their borders. A religious organization cannot, and should not, discount the impact of the local politician in a RLUIPA action. Before filing suit, review minutes of the city council, planning commission and zoning board of appeals meetings, concerning approvals or denials of religious organizations, in order to understand what a religious organization will face when appearing before those bodies.
A religious organization should also work with its planners to review land use ordinances to determine if they permit a church to use its property as of right, by special permit, or not at all. If the community land use plan does not allow the religious organization to use the property as of right, the organization should be cognizant of local rules and restrictions. The master plan of the entire community, in general, and in the specific area of the community where the proposed religious land use is located, must be reviewed to determine the community’s “vision for growth” of the land. Look at the portions of the master plan regarding studies of traffic patterns, subdivision development, future need for public facilities, population trends, employment trends, preservation of open space, and the like to determine if a religious use is at all contemplated.
5. Define the religious exercise you are seeking. A community may attack a proposed religious use by finding that the use is not religious at all. A church should educate the community on what it intends to do within a building. Be clear and honest up front as to what the use is going to be. Likewise, a community should understand that arguing that any particular accessory use is not a “religious use” is, at best, problematic. Courts have determined that the following uses are permissible “accessory uses” to the religious use of the property: parochial schools, day care centers, playgrounds, baseball or softball fields, homeless shelters, administrative buildings, cemeteries, and coffee houses. Other courts have broadly defined “religious use” to extend to any conduct that has a religious purpose.
In other words, be prepared. Challenging the government is an uphill battle, but knowledge and preparation will help you level the playing field in order to fight this important fight.
Dalton & Tomich, PLC is the national leader in successfully helping churches, other religious institutions and their insurers defend their rights in land use and zoning matters under RLUIPA, the Religious Land Use and Institutionalized Persons Act. We have helped clients win cases against municipalities and other local government bodies from coast to coast, with experience serving both as general counsel and special litigation counsel.
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