As an attorney representing public agencies, I experienced firsthand the variable issues that municipalities face when navigating through the legal complexities and unchartered territory of the Religious Land Use and Institutionalized Persons Act (RLUIPA).
This federal law is fairly new (enacted in 2000), not clearly defined, and within the land use arena has yet to be tested before the U.S. Supreme Courtthough I like to think we came close in a case that I handled on behalf of the City of San Leandro when it was sued by the International Church of the Foursquare Gospel after the City denied its rezoning application. (Click here to read a previous posting about this case).
Over the last decade, perplexed cities and towns of all sizes and demographics have been finding themselves in the midst of courtroom battles with local religious groups. While RLUIPA has been described as designed to be a protective shieldin actuality it has been used as an aggressive hammer by many religious groups. This has only been heightened when religious institutions obtain pro bono legal counsel who seek large damage awards and put in play the prospect of hefty attorney fees awards. These fiscal realities can wreak havoc on local governments limited budgets.
Of course, retrospect is inevitable whenever a lawsuit emerges, i.e. if only we did this or thankfully we did this etc. It is typically at this stage where best practices are crystallized and then passed on to others who may be at risk for the same situation.
Here are some tips I offer to my clients when asked how they can comply with RLUIPA and best address concerns and potential pitfalls:
1. Review and revise, if needed, your zoning code to insure that its classifications of place of assemblies are constitutionally sound in comparison to other assembly uses.
2. Review and inventory available site locations for religious facilities. This should be done on an annual basis to make sure your inventory is up to date and is not a zone out. Land use issues as to limiting sites to particular zones should be proactively addressed.
3. Offer training to planning commissioners, city councilmembers, and staff. Remember that your officials need to be prepared ahead of time and familiar with this unique federal law.
4. Once you are in a lawsuit, be mindful that if the property is no longer in play for the religious facility, then the remedy will be limited to monetary damages.
5. Retain an outside planning consultant to assist and to help build the land use basis to establish compelling government interests. Also, be aware that what constitutes a compelling government interest is still up for debate and will mandate close monitoring of case law from across the country.
6. Spend time on the front end to brainstorm a comprehensive list of compelling government interests and work such findings into staff reports and other relevant documents.
There is no immunization against RLUIPA lawsuits and in the current legal landscape with the ever present possibility of costly outcomes for cities and counties, being proactive (and prepared) remains the best defense.
*Deborah J. Fox is not affiliated with Robinson & Cole LLP and the views she expresses in this commentary are her own and not those of Robinson & Cole LLP.