Interfaith Design’s Knowledge Resources Committee is pleased to present the first in an occasional series of articles on the practice of interfaith architecture. Patrick Perry is a real estate and environmental attorney practicing in Los Angeles. This month, Patrick shares some of his experience with the unique land use and zoning concerns for religious organizations. Please enjoy and share!
In 1992 the Missionaries of Charity Brothers, a religious order founded by Mother Teresa, acquired a historic property in a densely populated neighborhood southwest of downtown Los Angeles where they established an outreach ministry to homeless youth and young adults. The ministry operated from 9:00 a.m. until 2:00 p.m. on Mondays, Wednesdays, and Fridays. Young, mostly immigrant, individuals who lived primarily on the streets in the surrounding community were given the opportunity to come inside, take showers, use the telephone, do laundry, send and receive mail, read, watch television, and generally spend time away from the street. Volunteers from parishes throughout the region prepared food for a noon meal and donated clothing. A room on the ground floor was consecrated as a chapel for the preservation of the Eucharistic Host where a local priest heard confessions and celebrated Mass on a monthly basis.
Unbeknownst to the Brothers at first, the property was located in an area zoned R3, multi-family residential, where religious institutions are only permitted pursuant to approval by the City of a conditional use permit. As the neighborhood began to gentrify, new owners attracted by the opportunity to reside in other of the historic properties in what had otherwise long been regarded as a less than desirable neighborhood, reported the Brothers' activities to local authorities, and in 2001, the City issued an Order to Comply, requiring the Brothers to either obtain the necessary conditional use permit or cease operating the ministry.
The Brothers' application for a conditional use permit was denied by the City Zoning Administrator. An appeal to the City Area Planning Commission was similarly denied, and the City Council declined to call the application up for consideration. The Brothers accordingly filed an action against the City of Los Angeles in Federal District Court alleging a violation of the Free Exercise Clause of the First Amendment of the United States Constitution, and violation of the recently enacted Federal Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. §§ 2000cc et seq., commonly referred to as RLUIPA.
RLUIPA is the culmination of a long history of efforts to define the parameters of the legal framework for the regulation of religious uses by local jurisdictions, a process which was prompted by the decision of the United States Supreme Court in the case of Employment Division v. Smith, 494 U.S. 872 (1990), in which the Court upheld the denial by the State of Oregon of unemployment benefits for two employees dismissed from their jobs for ingesting peyote for sacramental purposes as part of a Native American religious ceremony on the grounds that the Free Exercise Clause "does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" (Id. at 879, quoting United States v. Lee, 455 U.S. 252, 263, n. 3 (1982).) In response to the Court's decision in Employment Division v. Smith, in 1993 the United States Congress enacted the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq., otherwise known as RFRA, which provides in pertinent part that the government may not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability unless the government demonstrates that application of the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.
The constitutionality of RFRA was challenged in a case involving the denial by the City of Boerne, Texas of a building permit to enlarge an existing church located in a City-designated historic district, and in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court agreed with the City that RFRA was not a proper exercise of the power of Congress "'to enforce' by 'appropriate legislation' the constitutional guarantee that no State shall deprive any person of 'life, liberty, or property, without due process of law' nor deny any person 'equal protection of the laws'" under the Fourteenth Amendment to the Constitution. (Id. at 517.) The Court accordingly found the application of RFRA to State and local governments to be invalid as an impermissible "congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens." (Id. at 534.)
The enactment of RLUIPA in 2000 was therefore a further attempt by Congress to restrict the ability of State and local jurisdictions to regulate religious exercise. Rather than encompass any burden on the part of a State or local government on an individual's free exercise of religion, RLUIPA applies more specifically, as the title suggests, to burdens imposed by land use regulations or on persons residing in or confined to an institution such as a prison. As such, RLUIPA echoes RFRA insofar as it provides that the government may not impose or implement a land use regulation in a manner that imposes a substantial burden on a person's exercise of religion even if the burden results from a rule of general applicability unless the government demonstrates that imposition of the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. RLUIPA goes farther, however, to provide that the government may also not impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
Religious institutions seeking land use approvals for the construction of new or expanded facilities accordingly have the ability to assert that the government may not deny an application for such an approval unless the government can demonstrate that the denial of the application furthers a compelling governmental interest and is the least restrictive means of furthering that interest. Moreover, in certain cases where a local regulation permits certain types of assembly uses but restricts or prohibits religious assemblies or institutions within the same zone, a religious institution may also be able to assert that the local regulation impermissibly treats the religious assembly on less than equal terms with the nonreligious institution or assembly.
The Supreme Court has held that RLUIPA is constitutional is the context of prisoners' rights. (See, Cutter v. Wilkinson, 544 U.S. 709 (2005).) The Court has not, however, directly addressed the constitutionality of RLUIPA as it applies to the regulation of religious land uses. Various Federal Circuit Courts of Appeals have nevertheless upheld the constitutionality of RLUIPA as it applies to religious land uses, and the Supreme Court has so far declined to certify any of such cases for review, thereby allowing the decisions of the lower Courts to stand. (See, e.g., Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2d Cir. 2007); Guru Nanak Sikh Society v. County of Sutter, 456 F.3d 978 (9th Cir. 2006); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004) cert. denied, 543 U.S. 1146 (2005).) RLUIPA has therefore been determined by the Courts to be a valid restriction on the authority of local jurisdictions to regulate religious land uses.
In the Brothers' case, the Court denied the claim under the Free Exercise Clause of the First Amendment because such claims are still subject to the standard enunciated in Employment Division v. Smith that the Free Exercise Clause does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability. The Court nevertheless acknowledged the validity of the Brothers' claim under RLUIPA that the City had not demonstrated that its denial of their conditional use permit furthered a compelling governmental interest or was the least restrictive means of furthering that interest. The Brothers were accordingly able to continue their ministry without interruption notwithstanding its inconsistency with City land use regulations.