Agenda - Planning Commission - 10/02/2008

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The Zoning of Religious Institutions in the Wal<e of RLUIPA-A Guide for Planners By Adam Kingsley and Thomas Smith Since it was signed into law in 2000, the Religious Land Use and Institutionalized Persons Act (RLUIPA) has forced municipalities to rethink the way they plan for and zone religious institutions, as well as the manner in which they review discretionary applications regarding the siting or expansion of religious facilities. Court decisions have provided some guidance as to what is and what is not acceptable under the law, but these cases are often fact-specific and leave many questions unanswered. One theme that does emerge from these decisions is the importance of sound planning. Courts recognize that even with RLUIPA in place religious iristitutions are not entitled to locate wherever they want or build whatever they want, and an outcome where a religious institu- tion is denied its preferred location or site plan~ may be perfectly legal. However, when a munic- ipality denies the requested zoning relief, that decision is subject to serious scrutiny arid must be justified by a well-supported planning rationale. This artic:le explains why sound plan~ ning has become the best defense to a RLUIPA challenge and discusses what constitutes . sound planning in the c:ontext of RLUIPA. THE ORIGINS OF RLUlPA In 1998, a select group of clergymen and attorneys for various religious institutions were invited to Washington, D.C., to testify before Congress regarding their experiences in obtaining land-use approval from cities and towns for new or expanded religious institu- tions. They told tales of rampant "hostility" to religious institutions, "discrimination" against religious institutions,. and "arbitrary" cleci, sions in the application of local zoning regula- tions. Each and every denial ofa zoning charge. variation, or special use permit was presented as additional conclusive proof of a nationwide roadblock tothe exercise of reli- gious freedom. Members of Congress were led to believe that religious institutions were facing near-insurmountable obstacles in their 86 attempts to find appropriate sites and fulfill their religious missions. The testimony at these hearings was largely one-sided, with municipal advocacy groups such as the National League of Cities barely rec- ognized: If given the opportunity, municipal offi- cials would have likely told a very different story-th~t religious users and institutioris were welcome in their cities and towns but should be expected to navigate the same zoning and plan- ning concems and constraints as secular users. For example, the officials would probably have mentioned long-recognized planning concems such as conflict among uses, the desire for eco- nomic development, issues associated with traffic and 'parking, and aesthetic preferences. They might have continued by listing regulatory constraints including a limited number of potential locations, intensive special use (or conditional use) review and processing, input from elected officials, and community curiosity. .In other words, the fact that religious institu- tions are required to go through the same zon" ing process as other uses and, like other uses, are sometimes disappointed or frustrated by tha~ proc:es~ is not evidence of "hostility" or "discrimination." Ins,tead, it is part and parcel of the community development and zoning approval process. For better orworse, Congress largely accepted the version of events offered by reli- gious institutions. This congressional "fact- finding" became the evidentiary basis for RLUIPA. The empirical debate over the preva- lence of religious discrimination in municipal zoning decisions (both then and now) was not truly resolved before the passage of RLUIPA. In fact, it continues to this day. To illustrate, attomey'Daniel Dalton writes in the April 2007 issue of Planning & Environmental Law about his frustrating experience representing a church seeking to relocate to a vacant office building in Southfield, Michigan, while attor. ney Dwight Merriam, FAICP, and planner Graham Billingsley, AICP, discuss the planning basIs for Boulder County's decisions regarding the proposed development of a large religious complex in a rural setting. ZONINGPRACTICE 9.08 AMERICAN PLANNING ASSOCIATION I page 2