|The Planning and Zoning Pyramid of Discretion|
“It has got to be up there with one of the stranger titles for federal legislation,” says land use and loss control attorney Jed Burkett.
RLUIPA is important to cities because it constrains cities’ ability to zone religious institutions in certain ways. (We’ll get to the part about “institutionalized persons” later.)
Cities most often find themselves on the wrong side of RLUIPA in two ways:
• By putting “substantial burden” upon the religious exercise of a person or institution—i.e. creating excessive hoop-jumping targeting religious institutions.
• By violating the equal terms provision—cities have to treat religious institutions on the same terms as other places of assembly such as the Kiwanis Club, bowling alleys and union halls.
A review of your city’s zoning laws in relation to RLUIPA may be particularly timely, said Burkett. Zoning laws drafted mid-century may serve the classic model of a church in a residential zone just fine. But the emergence of “mega-churches” with parking and traffic issues similar to large commercial buildings as well as small storefront-style places of worship that establish themselves outside of residential zones may strain those retro ideas of where people worship.
Is it time for your city to review compliance with RLUIPA? The information memo “Zoning for Religion” can get you started. This topic and other zoning issues impacted by complex federal law are also the focal point of land use sessions at this year’s spring Safety & Loss Control workshops. League staffers are also happy to answer questions any member city may have.
About the rest of RLUIPA’s name: “It’s not obvious why land use and institutionalized persons—prisoners—would be the subject of the same statute,” said Burkett. “There’s a very long backstory involving constitutional law and struggles between the Supreme Court and Congress that led to Congress wanting to do something about prisoner’s abilities to exercise religious rights. I think that was just a happy coincidence for folks who wanted to restrict city zoning abilities, so they tacked these two issues together.” So there you have it.
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