On June 8, 2015, I participated in a webinar hosted by the International Municipal Lawyers Association with co-blogger Karla Chaffee and Michael Giaimo of Robinson & Cole. If Mike’s name sounds familiar, it should – he is the co-editor of The RLUIPA Reader; Religious Land Use, Zoning, and the Courts, and he filed an amicus curiae brief on behalf of the American Planning Association in this important Ninth Circuit decision.
Mike, Karla, and I discussed the different approaches developed by the courts to address substantial burden and equal terms claims brought under the Religious Land Use and Institutionalized Persons Act (RLUIPA). One recent development that was discussed was the Seventh Circuit’s decision in Schlemm v. Wall (7th Cir. 2015) – a prisoner case – and how that case may change the Seventh Circuit’s analysis of substantial claims (see our prior post about Schlemm here). We also discussed how the Supreme Court’s decisions in Burwell v. Hobby Lobby Stores, Inc. and Holt v. Hobbs are being relied on by more and more plaintiffs in RLUIPA suits. One example of this that we examined is in the pending Ninth Circuit case Harbor Missionary Church v. City of San Buenaventura, California (see our prior post about this case here).
We also discussed preemptive action that local governments may wish to consider to avoid facial challenges to zoning codes:
- planning for religious uses by creating a surplus of land for religious use
- reviewing zoning codes to ensure that religious uses are treated no worse than other secular assembly uses
- providing compelling interests in the code itself to justify any differential treatment
To avoid and defend as-applied challenges under RLUIPA, we noted the importance of (1) understanding the religious needs of the applicant; (2) whether there are any alternatives available to the applicant; (3) whether similar religious or secular assembly uses have been allowed in the jurisdiction; and (4) whether a local decision truly hinders the religious applicant’s ability to exercise its religion or if it is instead a matter of personal preference or convenience for the applicant.