The Connecticut Supreme Court Reaches the Right Decision In a Case Under the Religious Land Use and Institutionalized Persons Act

By MARCI HAMILTON
Tuesday, Feb. 05, 2008

The Connecticut Supreme Court recently decided an important religious land use case. The case, Cambodian Buddhist Society of Conn. v. Planning and Zoning Comm'n of the Town of Newtown, addressed what has become an increasingly serious problem in the era of the Religious Land Use and Institutionalized Persons Act: an ambitious religious project wanting to locate its facilities in a residential neighborhood.

The decision is most remarkable for its solid common sense. Two of the most contentious issues in RLUIPA cases have been as follows: First, what land use laws are "individualized assessments"? This question is significant because the terms of the statute require that an extremely demanding legal test -- strict scrutiny - be applied to individualized assessments. Second, and relatedly, do special exception and special permit requirements inherently trigger RLUIPA's strict scrutiny requirement?

The Connecticut Supreme Court provided correct and sensible answers to both questions.

The Connecticut Supreme Court's Ruling, and Why This Case Was Typical

Advocates for religious entities have argued fervently that virtually every land use determination is an "individualized assessment," according to the language of the statute, because land use laws require the law to be applied to an individual applicant. In addition, they have contended, in particular, that special use or exception permits are always "individualized assessments."

The Court in this case held that a neutral, generally-applicable land use law does not become an "individualized assessment" simply because its application requires case-by-case analysis. Therefore, it reasoned, special exception and special permit requirements do not necessarily trigger RLUIPA's strict scrutiny.

This case is emblematic of RLUIPA cases in general, because it presents three typical elements: a religious landowner choosing a residential neighborhood for its ambitious building project; a land use authority applying standard land use criteria, such as traffic intensity, to assess whether the plan is compatible with the requirements of the law; and a religious entity claiming discrimination after its application was denied based simply on the application of just such standard criteria.

The scenario itself is evidence of the Congress's myopia with respect to RLUIPA. Members did not even begin to inquire into the impact of a federal RLUIPA on residential neighborhoods, and they assumed, with little on record, that there was widespread discrimination against religious entities among land use officials. In reality, the impact has been most difficult and burdensome on residential neighborhoods, and discrimination against religious entities (thankfully) is hard to find. Unfortunately, despite the scarcity of genuine discrimination against religious entities, claims of such discrimination are capable of being made indiscriminately, whenever a religious entity is denied permission to expand due to neutral criteria such as, for example, increased traffic.

Why the Connecticut Supreme Court Found No "Individualized Assessment"

In Cambodian Buddhist Society, the Court found no evidence of discrimination. Rather, it found that the relevant authority had evenhandedly applied land use principles to an applicant applying for a standard-special exception permit. (In the end, the court did not agree with every conclusion of the lower courts regarding the plan, but differences were due to judgment, not an assumption of discrimination.) Most importantly, the Court held that RLUIPA's strict scrutiny provisions simply did not apply in this case, because the law at issue did not require an "individualized assessment."

In reaching that conclusion, the Court reasoned as follows: Granted, the land use authorities were required to consider this particular, individual plan. However the law did not give those same authorities latitude to apply the law to some applicants, and not to others, and, thus, in this sense, there was no individualized determination. According to the Court,

"[A] zoning regulation that is applicable without discrimination to all property owners in a jurisdiction and is intended to protect the public health and safety does not constitute an 'individualized assessment' under existing first amendment jurisprudence. . . . [W]e conclude that [RLUIPA's strict scrutiny] provision applies only when the government has the discretion to apply a land use regulation in a manner that discriminates against religious institutions in general or against a particular religion or denomination."

In so reasoning, the court noted that a number of other courts had reached the same conclusion.

This conclusion was surely the correct one, because individualized assessments are not a problem because they are individual, but rather because they permit the government broad latitude to choose the criteria for its decisions -- a point that the U.S. Supreme Court made in its decision in Employment Div. v. Smith. Here, however, the criteria were set forth in advance and echoed standard land use criteria applied across the country.

The Connecticut Supreme Court Decision's Other Interesting Aspects

Not only did the Connecticut Supreme Court rule wisely, but it also made some interesting observations along the way. More than once, the Court correctly pointed out that before RLUIPA, a church building was not treated by the courts as a religious exercise in the first place. Rather, religious landowners were treated like all other landowners in the process, and were subject to the same criteria - so that their buildings, like all other buildings, were assessed regarding zoning rules and impacts on the environment, traffic, noise and light impact, just to name a few criteria. Building size, too, was taken into account for secular and religious landowners alike. Yet RLUIPA modified this universe of equal treatment to create special privileges for religious landowners. Thus, it is always entertaining for me to hear those defending RLUIPA as a "civil rights statute." In fact, it is an "extra rights" statute.

The Court also had cause to interpret Connecticut's Religious Freedom Act, which was passed, like the federal Religious Freedom Restoration Act, following the U.S. Supreme Court's decision in Employment Div. v. Smith. There, the Supreme Court held that neutral, generally applicable laws (such as laws setting unemployment compensation and prohibiting the use of certain drugs) do not violate the Free Exercise Clause, even if they result in "incidental burdens" on religious conduct.

Interestingly, unlike RFRA and RLUIPA, Connecticut's Religious Freedom Act did not include the term "substantial" modifying the description of the burden necessary to trigger the act's coverage. The applicant argued that the absence of "substantial" meant that any burden triggered strict scrutiny in Connecticut. The Connecticut Supreme Court, however, was not persuaded that the Connecticut legislature could have intended such a radical alteration of the law, especially given that, when the Connecticut statute was enacted, religious land use was not even considered a form of religious exercise.

Why this Decision Is Likely to Have a Strong, Positive Impact

The Connecticut Supreme Court's opinion rests in every particular on its obvious knowledge and familiarity with longstanding land use principles. It is particularly helpful in the RLUIPA arena, because it was decided by a state court familiar with land use law. Federal judges are generalists in every sense, and thus they spend precious little time on land use law in particular, which until the federal RLUIPA came onto the scene, was viewed as a quintessentially state and local issue. Typically, a federal judge may only have addressed local housing law via the federal Fair Housing Act, where the focus is upon discrimination according to certain categories, not whether, say, a setback is reasonable. In contrast, state courts are where land use disputes were heard, before RLUIPA federalized this inherently local issue by adding a novel arena to the federal courts' docket.

Thus, the Connecticut Supreme Court added valuable perspective to the debate thanks to its knowledge of the history of land use regulations. Indeed, it emphasized that history by ending with an assessment and discussion of the local authorities'conclusions. Before RLUIPA, that review would have been the entire opinion, and that was surely a better state of affairs, given that, in fact, pre-RLUIPA discrimination against religious landowners by zoning boards and land use authorities was rare.

That should not be surprising - this is a country where over 85% are religious believers, which means these RLUIPA disputes have believers on both sides, including on zoning and planning boards. Neighbors and authorities are not as interested in the religious identity of the big-box church, synagogue, or temple proposing to move into their neighborhoods as they are about the big-box nature of the proposed project. The key to getting these cases right is understanding that crucial distinction, as the Connecticut Supreme Court has just shown with Cambodian Buddhist v. Planning and Zoning Comm'n.


Marci A. Hamilton is a Visiting Professor of Public Affairs and the Kathleen and Martin Crane Senior Research Fellow at the Program in Law and Public Affairs at Princeton University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Professor Hamilton's forthcoming book, which will be published this spring is entitled Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). Professor Hamilton's email address is Hamilton02@aol.com.

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