The Unintended and Extraordinary Consequences of Congress' Decision, in RLUIPA, To Favor Religious Landowners Over All Others

By MARCI HAMILTON
hamilton02@aol.com
----
Thursday, Jan. 26, 2006

In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA). It bestows upon religious landowners the benefit of "strict scrutiny" of land use laws, thus granting them most-favored-land-user status.

In so doing, RLUIPA has radically altered the landscape of land use planning, for it gives churches the power to threaten federal litigation (in which a loss may trigger an award of attorneys' fees payable by the city) if they are treated like everyone else in the land use process. Having represented parties adverse to religious institutions in land use disputes, I can testify that the playing field is now dramatically tilted in these institutions' favor.

Congress surely did not intend this radical transformation of local land use law, in large part because the members did not know what they were enacting. Indeed, the Act's legislative history reveals that Congress passed a law severely regulating local law, without bothering to educate itself about the nuts and bolts of that law. The result is that homeowners are victims created by Congress.

How RLUIPA Works in Practice: Secular Landowners' Plight

How does RLUIPA work in practice?

Suppose the government wants simply to enforce its general zoning rules on a religious institution - say, a church. That ought to be a routine matter. But not under RLUIPA. Under RLUIPA, a town must give a compelling reason for simply enforcing its zoning rules, and it must also show that enforcing them is the least restrictive means to regulate the land use of this particular church. In short, for religious institutions, the federal government has robbed local land use law of its power to protect the residential character of any neighborhood - rich or poor, grand or modest.

For example, say that, years ago, you bought a home with a fabulous view of the ocean. Wisely, you plunked down your money (indeed, a lot of money) only after you had investigated the local zoning rules and satisfied yourself that no one would be permitted to build in such a way as to ruin your view. You paid dearly for the view, but you were more than willing, because it was a daily pleasure. When those zoning rules were passed, the land use rules would have been an iron-clad promise: Your view was ensured.

Not so under RLUIPA. Now, a church intent on adding a story, a steeple, or an "events" hall, can invoke RLUIPA to argue that the city has no compelling interest in such merely "aesthetic" concerns as your view, which pale in comparison to the church's divinely inspired building plan. If you are so bold as to insist on your view, which after all you procured under generally-known, fair rules, you will very probably be accused of anti-religious bias. Yet, in truth, your only bias is in favor of the residential character of the neighborhood you voluntarily chose, and the land use laws you reasonably relied upon, before RLUIPA put those neighborhoods at risk.

How RLUIPA Is Hurting Neighborhoods in Washington and Wisconsin

Now for some real-life examples - which more than match the unfairness of our hypothetical. In the state of Washington, a "tent city" of a hundred homeless men has been wandering from church property to church property, usually in residential neighborhoods. The pattern has been remarkable. When the residential neighbors awake one morning to find the tent city on the boundary of their properties, they appeal to the government (their city government), pointing out that the tent city lacked the necessary permits and was an obviously inconsistent use in a residential neighborhood. They ask for enforcement of the laws on the books. But in response to these perfectly reasonable complaints, one church after another has waved RLUIPA in their neighbors' faces as long as the "tent city" desired to stay, and then it has leapt into the next community. And city after city has caved.

So much for expecting the religious building next door to be a "good neighbor," or expecting the city to stand up for the larger good when RLUIPA looms above it. While services for the homeless are obviously a very good thing, the objection to the "tent city" was more than reasonable. It only asked the city to enforce rules it had set down long ago, and to honor the promise that residential neighborhoods would be, well, residential.

In other communities, like New Berlin, Wisconsin, churches are wielding RLUIPA to demand that the city re-zone properties from residential to institutional zoning, even though the residential zoning can afford them the uses they request either through a conditional use permit, planned unit development, or variance. The difference is that institutional zoning means that later the churches will either be able to add intense uses prohibited in a residential zone - such as an assisted living center -- or they will simply be able to sell the land for a higher price.

The result of such conversions, however, is that the master plan is radically transformed so that residential zones become "Swiss cheese zones" with institutional uses embedded in them. And the holes in the "cheese" only grow: When one church obtains the right to ignore zoning restrictions in a residential neighborhood, all future church applicants make identical demands, and cry "discrimination" if the city starts to awaken and say, "Enough is enough."

The New Character of Church Land Use: Commercial

It is easy to say, "What's wrong with that? Churches are beneficial uses. So what if they want to build a few additions?"

The answer, though, is that while churches may have been benign, park-like presences in residential neighborhoods decades ago, the character of church use has changed dramatically. It is now more akin to commercial or institutional use. Churches now in effect may also serve as day care centers, soup kitchens, schools, halls for wedding and funeral services, homeless shelters, and meeting places for clubs of all kinds; some want to serve as all of the above, and more. It is that intensity of use that threatens the character of residential neighborhoods.

Secular Landowners Need To Mobilize to Put RLUIPA Amendment on the Agenda

The truth is that when Congress decided to pass RLUIPA in 2000 (and President Clinton decided to sign it) at the behest of religious entities, neither ventured to ask how a law that would give religious landowners special privileges to challenge land use laws would affect their neighbors - even though the many landowners among Congress' members must be well aware that the rights of one's neighbors powerfully affect one's own property.

There is no excuse for our elected representatives' taking a pass on this one, because it is no secret that many churches have residential neighbors; that churches have been increasing their building use; or that homeownership in a residential neighborhood is a deeply-held value to the vast majority of their constituents.

Sadly, many members of Congress are only dimly aware that they even passed RLUIPA in the first place. Many were not even in town when it was passed, at the moment the summer 2000 recess was called. Moreover, the outrageous "unanimous consent" procedure employed meant that virtually no one had to be present for both Houses to agree to enrich religious organizations at the cost of their neighbors. Far from a roll call or even a voice vote, RLUIPA received a vote with a mere handful of your elected representatives present. If you're looking for integrity in the RLUIPA history, you will not find it in Congress.

RLUIPA Authorizes Takings Just as Troubling as Those At Issue in Kelo

It's ironic, to say the least that the same Congress that seriously harmed homeowners via RLUIPA, through carelessness, ignorance, or recklessness, has been up in arms about the Supreme Court's Kelo decision. That controversial decision, readers may recall, involved the government's taking of Connecticut private homes, to make way for development.

In the wake of Kelo, we've heard repeated salutes to the fundamental American values of homeownership and private property. After they handed down that decision, the Justices were soundly castigated for letting private homes be taken for "public use" under the Takings Clause. Meanwhile, though, Congress ignores the thousands of homeowners now dealing with remarkably aggressive churches, who are embracing RLUIPA to justify any use they deem religious, regardless of the impact on their neighbors.

RLUIPA amounts to a taking by the government of homeowners' private property for the benefit of religious institutions. The statute violates the principles of federalism - what area is more properly left to local authorities than land use? After all, land does not move, so it is, by definition, "intrastate." And the statute violates the separation of church and state. But, more importantly, as I wrote in a 2003 column, RLUIPA deflates the American Dream.

You can't blame the religious groups for asking; the culprits here are your elected representatives, who sold out your local zoning rights so that churches could ignore them. It's time for a campaign to abolish or dramatically amend RLUIPA.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Hamilton02@aol.com. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).