Agenda - Planning Commission - 10/02/2008

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THE LASTING IMPAa OF RLUiPA ON TrlE PLANNING COMMUNllY Eight years after it was enacted into law, ques- tions regarding whether RLUIPA Was truly neces- sary and should have oeen passed in the first place are'interesting, but beside the point. The fact is RLUIPA has forced municipalities to change the way they evaluate and respond to proposed religious uses. With an aggressive set of attomeys uncluding the United States Department of Justice) ready to support religious institutions, the threat of a lawsuit hangs over almost every zoning and planning decision that relates to the location, size, or operation of a reli- gious institution uncluding accessory uses). While RLUIPA is by no means the first intrusion of federal law into the local zoning process (e.g., cell tower regulation, adult uses, the Fair Hous- ing Act, and the National Environmental Policy Act, to name a few), the sheer number of zoning applications involving religious institutions arguably makes RLUIPA the most ubiquitous fed- erallaw impacting local govemment today. Because of the implicit (and often explicit) threat of litigation that attaches to a religious-use zoning applications, and because the exact con- tours of RLUIPA are still being debated byattor- neys and judges, many municipalities seek the input of theifattorney at an early stage of the zon- ing process. Legal consultation and advice is cer- tainly justified.'However, what may be overlooked by lawyers and planners is the important role that sound planning plays in defending against a RLUIPA lawsuit. More and more courts are coming to the conclusion that zoning codes or decisions that deny religious institutions their preferred location or site plan do not violate !<LUIPA if those individual decisions, as well as the ml,lnicipality's overall plan for religious institutions, are sup- ported by legitimate planning principles. Many legal commentators suggest that sound planning is a defense to zoning and land- use litigation, but courts generally afford cities and towns great deference in their zoning deci- sions. Moreover, depending on the state, the, legal standard for what constitutes sound plan- ning is sometimes akin to "any rational justifica- tion," a standard very generous to municipali- ties. This is especially true in the typical federal case involving zoning decisions where the legal standard is usually "rational basis." However, RLUIPA has upped the ante. as a distinct and unique use. Thanks i~ large part to Clarence Perry's monograph on the neigh- borhood unit in the 1929 Regional Plan of New York, planners often considered religious institu- tions to bea crucial component of a complete neighborhood. Writing for the journal of the American Institute of Planners in 1954, William Clair said that churches, like city or town halls, should be given prominent locations "near the center of the community or neighborhood activ- ity" and "on the natural travel pattern of the community." Planners considered religious insti- The sheer number of zoning applications involving religious institutibnsarguably makes RLUIPA the most ubiquitous federal law impacting local government today. The law has instructed courts to assume that unsupported planning decisions are the product of anti-religious bias. This hard-look approach has forced municipalities to defend their land- use decisions with teal facts rather than assump- tions, speculation, or blind deference to commu- nity concems. The good news is that those communities that have marshaled the facts and done the hard planning have, more often than not, prevailed in RLUIPA litigation. The remainder of this article explains the constraints and limita- tions that RLUIPA has imposed on planners, and gives suggestions as to what "sound planning" means in the context of RLUIPA. THE ZONING OF RELIGIOUS USES- A BRIEF HISTORY Historically, many zoning codes categorized reli- gious institutions-often identified as churches- tutions to be appropriate for large, preferably cor- ner, lots either within a residential district or serving as a buffer between residential and busi- ness districts. The prototypical example of the place (both physical and spiritual) that churches played in the community might be the City of Chicago, where people of a certain age often identify themselves not by geographic neighbor- hood, but by the name of their Catholic parish, which served as a proxy. The traditional way of thin king about the proper location of religious institutions has been buffeted by a series of changes over the last half-century including: o increased religious diversity in formerly homogenous communities o the divergent size of congregations (from the home-based or "storefront" churcl-) to the megachurch) ZONINGPRACTlCE 9.08 AMERICAN PlANNING ASSOCIATION I page 3 87