AN INTRODUCTION TO 
THE RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT (“RLUIPA”) AND PRACTICE POINTERS FOR PLANNERS

Nancy E. Stroud 
Weiss, Serota, Helfman, Pastoriza & Guedes, P.A.
Fort Lauderdale, Florida

I. 	Religious Land Use and Institutionalized Persons Act (RLUIPA) -- 42 U.S.C. Section 2000cc et seq. (2000) (Attachment A).

	A. 	Land Use Provisions of the Act

		1.	Provides religious institutions a federal cause of action.

2.	Prohibits local governments from imposing or applying zoning or landmarks laws in a manner that imposes a “substantial burden” on religious exercise by a person or religious institution.

3.	If a substantial burden on religious exercise is found, then the regulation must further a compelling governmental interest, using the least restrictive means of furthering that interest.

4.	The Act applies in cases where: 

(a) the government implements land use regulations under “individualized assessments” of the proposed uses for the property involved; or

(b) the substantial burden affects interstate commerce or commerce with foreign nations, including if the burden results from a “rule of general applicability;” or 

(c) a federally financially assisted program or activity is involved, including if the burden results from a “rule of general applicability.”

5.	“Land use regulation” is a zoning or landmarking law that limits or restricts a claimant’s use of development of land “if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract of option to acquire such an interest.”

6.	The Act requires the equal treatment of religious and nonreligious entities, and prohibits the exclusion of religious institutions from the jurisdiction. 

7.	 If a plaintiff produces a prima facie evidence to support its claim, then the government bears the burden of persuasion on any element of the claim.

8.	The Act provides for attorneys’ fees to successful plaintiffs.	

9.	The Act is to be broadly construed in favor of the protection of religious exercise.

B.	Legislative history, to be found in the Congressional Record, July 27, 2000, page S776 (Joint statement of the Managers Senator Hatch and Senator Kennedy). (Attachment B).

1.	Religious institutions must pursue variances or hardship provisions, just like other historic property owners. 

2.	Church commercial or revenue-generating activity does not automatically come within the scope of the Act.

3.	What is a “substantial burden” on religious exercise is determined by reference to existing Supreme Court jurisprudence.

4.	Local governments may offer an accommodation, and the claim then may proceed only if the accommodation is unreasonable or ineffective.

II.	Background

A. 	Sherbert v. Verner, 374 U.S. 398 (1963).  Claimant’s right to unemployment benefits was not abrogated by a refusal to work on Saturday due to religious beliefs. If governmental action substantially burdens religious practice, the action must be justified by a compelling governmental interest.

B.	The Court receded from Sherbert in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595 (1990).  Employee claimed that he could not be denied unemployment benefits where he was dismissed because of his use of peyote, where that use was protected religious exercise.  “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.”  494 U.S. at 878-79, 110 S. Ct. at 1600.  

C.	The Religious Freedom Restoration Act of 1993, 42 U.S.C. Section 2000 bb et seq. (RFRA), attempted to overrule Smith and to restore the compelling interest test in cases where neutral laws of general applicability substantially burden an individual’s religious practices.

D.	City of Boerne v. Flores, 521 U.S. 507, 117 S. Ct. 2157 (1997) declared RFRA unconstitutional as applied to the states, finding that Congress had exceeded its enforcement power under the Fourteenth Amendment.  In this case, a church attacked the city’s efforts to designate the church structure as historically significant, thereby preventing alterations or demolition.  The church claimed that the designation interfered with its free exercise rights and violated RFRA, in part because its ability to derive income from the operation of a church was impaired by the cost of maintaining the historic structure.  The court stated “it is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals.  When the exercise of religion has been burdened in an incidental way by a law of general application, it does not follow that the persons affected have been burdened anymore than other citizens, let alone burdened because of their religious beliefs.”  Id. at 535.

E.  	Many states then enacted state versions of RFRA, including Florida.  See Section 761.01 et seq., Florida Statutes (2002), the “Religious Freedom Restoration Act of 1998.”  

F.	Congress then enacted RLUIPA.

III.	Practice Pointers for Planners

A.	Review local codes to ensure:

(1)	There are enough zoning districts and/or land area available to permit religious institutions to locate in the jurisdiction.  Where those institutions and uses are excluded completely, either explicitly or by effect, there will be a problem.

(2)	Review criteria to ensure that religious uses are treated similarly under the code as other similar uses.  For example, where theatres or other places of assembly are permitted or must be reviewed under certain criteria, it is generally advisable to review places of religious assembly to be reviewed in the same way.

(3)	Review special permit/conditional use criteria to ensure that they do not have the effect of precluding religious uses completely from the jurisdiction, and also that they are as objective as possible (i.e., parking standards, heights, and so forth are set out with specific criteria, not subjective criteria whenever possible).

B.	Other useful ideas

(1)	Advise the local governing body and its members about RLUIPA and its application to religious land uses.

(2)	Work with religious uses where possible and early in the process, to give advice on design, location, and other planning factors that might reduce negative impacts to the community but help the religious use achieve its land use goals.  Encourage the religious uses to work with neighbors to resolve impact concerns.

(3)	When presenting the land use application to the decision-making body, prepare substantial competent evidence support the planning recommendation.  The facts count a great deal in the caselaw; be sure they are the most complete and accurate in the planning record.