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Religious Land Use Act Upheld in Zoning Case

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  • Peter Weschler
    The following article is a topic that was discussed in the Spring 2001 Environmental Law class and was probably also discussed in fall. It is an issue that
    Message 1 of 1 , May 17, 2002
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      The following article is a topic that was discussed in the Spring 2001
      Environmental Law class and was probably also discussed in fall. It is an
      issue that all planners should be aware of ... and proof that the democratic
      system of making law requires constant surveillance as it subject to
      partisan politics. While the article below is not a particularly compelling
      example, keep your eye on the ball; this law: "effectively exempts religious
      groups from most local zoning rules unless a community can show a
      "compelling" need to impose the restrictions."
      Religious Land Use Act Upheld in Zoning Case

      Suit involves first test to federal RLUIPA law

      Shannon P. Duffy
      The Legal Intelligencer
      May 10, 2002

      When zoning officials in Middletown Township in Delaware County, Pa.,
      discovered that a 25-member church was holding regular services in an office
      building, they ordered it shut down since the makeshift chapel was located
      in a strictly commercial zone that does not allow for any houses of worship.

      But Freedom Baptist Church of Delaware County and its pastor, Chris Keay,
      took the township to court, arguing that the zoning code violates the First
      Amendment rights of the church and its congregation.

      The lawsuit also invoked a relatively new and so-far untested law -- the
      Religious Land Use and Institutionalized Persons Act -- which effectively
      exempts religious groups from most local zoning rules unless a community can
      show a "compelling" need to impose the restrictions.

      Middletown Township's lawyers responded to the suit by attacking the law
      itself, arguing that RLUIPA is unconstitutional because it requires
      "preferential treatment" for religious organizations.

      Now, in the first decision of its kind, a federal judge on Wednesday upheld
      the constitutionality of RLUIPA, finding that the new law does not suffer
      from the same flaws that prompted the U.S. Supreme Court to strike down key
      provisions of the Religious Freedom Restoration Act (RFRA).

      In his 46-page decision in Freedom Baptist Church of Delaware County v.
      Township of Middletown, U.S. District Judge Stewart Dalzell of the Eastern
      District of Pennsylvania found that Congress was acting within its powers
      under the Commerce Clause.

      The ruling is a victory for the church's lawyer, L. Theodore Hoppes of
      Shields & Hoppes and Becket Fund attorneys Anthony R. Picarello and Roman P.

      The church originally filed suit in the Delaware County Court of Common
      Pleas and, in a settlement, won the right to stay in the office building.
      Dalzell found that the state court settlement didn't moot the federal suit
      since the church is seeking monetary damages for the costs of the state
      court litigation, as well as attorney fees if it wins the federal suit.
      Dalzell rejected defense arguments that RLUIPA is an improper attempt by
      Congress to overturn recent Supreme Court decisions.

      Instead, Dalzell concluded that Congress carefully avoided the problems that
      had proven fatal to RFRA. For the most part, Dalzell found that RLUIPA
      simply "codifies" the right to freedom of religion as it has played out in
      case law from the high court.

      To the extent that the law goes further, Dalzell found that since its scope
      is limited to land use decisions -- where governments often make "individual
      assessments" -- Congress was following the Supreme Court's lead in
      distinguishing between neutral laws of general applicability and those
      "where the state has in place a system of individual exemptions," but
      nevertheless "refuse[s] to extend that system to cases of 'religious

      Middletown Township's lawyer, Jennifer Holsten, argued that RLUIPA violates
      the Establishment Clause.

      "RLUIPA impermissibly advances religion. RLUIPA clearly shows favoritism for
      those in a religious organization over those who are not part of one,"
      Holsten wrote.

      As a result, she said, the law "is not an example of Congress' intent to
      provide 'religious protection.' To the contrary, it represents congressional
      intent for a 'religious preference.' The RLUIPA arms religious entities with
      almost blanket immunity from land use requirements, while providing no such
      immunity or protection to non-religious entities. This favoritism violates
      the Establishment Clause."

      Dalzell disagreed, saying RLUIPA doesn't implicate the Establishment Clause
      at all, but instead it must be analyzed under the Free Exercise Clause since
      its goal is to protect churches and religious institutions from

      But Dalzell also rejected the arguments of Justice Department lawyers who
      said RLUIPA did nothing more than reiterate the rights and remedies already
      available in a civil rights suit under Section 1983.

      Instead, Dalzell concluded that RLUIPA "in fact places a statutory thumb [on
      the scale] on the side of religious free exercise in zoning cases."

      But since Congress was acting to remedy a problem, Dalzell found that the
      thumb was properly on the scale.

      Sens. Ted Kennedy and Orrin Hatch, the two co-sponsors of RLUIPA in the U.S.
      Senate, stated that they had compiled "massive evidence" that churches and
      synagogues were routinely denied the right to build, buy, or rent space -- a
      right they termed "an indispensable adjunct of the core First Amendment
      right to assemble for religious purposes."

      Their joint statement said that "churches in general, and new, small, or
      unfamiliar churches in particular, are frequently discriminated against on
      the face of zoning codes and also in the highly individualized and
      discretionary processes of land use regulation. Zoning codes frequently
      exclude churches in places where they permit theaters, meeting halls, and
      other places where large groups of people assemble for secular purposes. Or
      the codes permit churches only with individualized permission from the
      zoning board, and zoning boards use that authority in discriminatory ways."

      Holsten argued that Congress exaggerated the problem and that, for
      federalism's sake, Dalzell should reject a law that upset the traditional
      divisions of power in which zoning decisions are left to local governments.

      Dalzell disagreed, saying it was not his place to second-guess Congress.

      "Whatever the true percentage of cases in which religious organizations have
      improperly suffered at the hands of local zoning authorities, we certainly
      are in no position to quibble with Congress's ultimate judgment that the
      undeniably low visibility of land regulation decisions may well have worked
      to undermine the Free Exercise rights of religious organizations around the
      country," Dalzell wrote.

      "And the mere fact that zoning is traditionally a local matter does answer
      Congress's undoubtedly broad authority ... to regulate economic activity
      even when it is primarily intrastate in nature."
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