RLUIPA Religious Land Use and Institutionalized Persons Act Linda I. Dunlavy January 10, 2012

RLUIPAReligious Land Use and

Institutionalized Persons Act

Linda I. DunlavyJanuary 10, 2012

RLUIPA BACKGROUND

After almost three years of hearings in 1998, 1999, 2000, Congress found:‘”massive evidence” that [c]hurches in general, and new, small or unfamiliar churches in particular, [were] frequently discriminated against on the face of zoning codes and also in the…processes of land use regulation”.

More Congressional Findings

• Governments enacted zoning codes that often excluded “churches in places where they [otherwise] permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes.”

• Governments frequently allowed churches only after authorization from a zoning board had been secured and “zoning boards use[d] that authority in discriminatory ways.

WHAT DOES RLUIPA PROHIBIT

THROUGH REGULATION OF LAND USE ?

1)Imposing substantial burdens on religious exercise without compelling governmental interest in the least restrictive way possible; or

Substantial Burdens

Unequal Treatment

2) Treating, facially or in application, religious assemblies or institutions on less than equal terms than non-religious assemblies or institutions;

Discrimination

3) Implementing land use regulations that discriminate on the basis of religion or religious denomination;

Exclusion or Unreasonable Limitation

4) Total exclusion or unreasonable limitation of religious assemblies, institutions or structures from a jurisdiction.

What is a “land use regulation” under RLUIPA

• “zoning or landmarking law…that limits or restricts …use or development of land”

• Not fire codes, sewer connections, landlord tenant laws, property tax laws, or condemnation laws

• Definitely applicable to use permit regulations

“Religious exercise”

• “any exercise of religion whether or not compelled by, or central to, a system of religious belief”

• Cannot avoid the force of RLUIPA by presuming the place of a particular belief and whether or not it is something a religious group wants to do vs. must do

“Substantial burdens”

• Factually specific—ie context, size and resources, alternatives, current limits etc

• Coercion or pressure to forego religious practice or to adhere to religious conduct

• Exclusion of particular property for religious use

• Significant delay, uncertainty or expense

“Compelling governmental interest”

• Interests in revenue, economic development, traffic congestion not compelling

• Local government had burden of proving compelling interest

• Not sure what would be considered compelling enough to override burden on religious exercise

Consequences of Prohibited Action

• “appropriate relief against a government”—RLUIPA

• Prevailing party may collect legal fees and costs Section 1988 of Civil Rights Act

• Injunctive relief

Most feared consequence—money damages!

• Damages against governmental entity:-Civil rights damages such as damage to

reputation, personal humiliation, mental pain and suffering-lost income- real estate taxes for property it can not use-costs of having to find alternate place to

conduct worship-damages for loss of money for members

and potential members

So What do We Do as a Practical Matter?

• Review the provisions of our zoning ordinances to determine if there are any “facial problems”

• Recommend to Council any identified changes needed to current regulations

• Not make decisions based on the denomination of the place of worship before us

• Not decide whether to recommend grants of use permits based on other than standards set forth in the ordinance that apply to religious and non-religious uses

• Refrain from any statements on the record concerning the religious exercise of the applicant

Contact Details

• Linda Dunlavy 1026 B Atlanta AvenueDecatur, Georgia 30030

404-371-4101ldunlavy@dunlavylawgroup.comwww.dunlavylawgroup.com