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<br />without the need for a variance or special use
<br />approval, so too should.a religious institution
<br />(Digrugilliers v. Consolidated City of
<br />Indianapolis, 506 F.3d 612 C7th Cir. 2007)).
<br />There is no question that RLUIPA commands
<br />that religious institutions be given, at a mini-
<br />mum, whatever zoning rights govem the location
<br />of these secular assemblyuses and that it
<br />essentially compels planners to review. existing
<br />zoning codes and compare the treatment of reli-
<br />gious institutions with comparable secular
<br />assembly uses. Using the Nprthbrook example,
<br />the village's 1988 zoning code allowed "mem-
<br />bership organizations" to locate in its industrial
<br />district by right, but required religious institu-
<br />tions to obtain a rezoning and special use
<br />approval. After the passage of RLUIPA, the viilage
<br />recognized that it needed to modify its code to
<br />equalize treatment-even though most religious
<br />institutions had been successful in obtaining the
<br />necessary legislative approvals. After much con-"
<br />sideration, Northbrook detemnined that neither
<br />religious nor secular assembly uses should be
<br />allowed in industrial districts and it amended its
<br />code accordingly. At the same time, it modified
<br />its code to allow religious uses to operate in cer-
<br />tain residential districts as of right, and in certain
<br />business and commercial districts as a special
<br />use. The Seventh Circuit court of appeals found
<br />that these changesput all assembly uses on the
<br />same footing and brought the code into compli-
<br />ance with RLUIPA's Equal Tenms provision (Petra
<br />Presbyterian Church v. Village of Northbrook,
<br />489 F.3d 846 C7th Cir. 2007)).
<br />To ensure that there is no distinction in the'
<br />treatment of religious and secular assembly
<br />uses, some municipalities have done away with
<br />"church" or "religious institution" as a separate
<br />category of use. For example, the Villa~e of Long
<br />Grove, Illinois, enacted a public assembly ordi-
<br />nance that places the same maximum square
<br />footage restriction on all assembly uses, and
<br />links the maximum square footage to the size
<br />of the property and type of roadway to which
<br />the property has access. Again, this type of
<br />equal treatment was upheld by the courts
<br />(Vision Church, United Methodist v. Village of
<br />Long Grove, 468 F.3d 975 C7th Cir. 2006)).
<br />Some courts have suggested that the defini-
<br />tion of"nonreligious assembly or institution" is
<br />broader and includes theaters, restaurants, and
<br />bars where people assemble for commercial or
<br />entertainment purposes. We do not believe that
<br />RLUIPA was intended to give religious institutions
<br />the same zoning rights as restaurants and other
<br />retail uses. In zoning terms thes'e uses have never
<br />
<br />been thought of or categorized as assembly uses.
<br />This is one area where planners can play an
<br />important role in educating the courts as to the
<br />distinctions between true assembly uses (char-
<br />acterized by exclusivity and noncommercial
<br />operation) and retail and commercial uses
<br />where people happen to gather in groups. The
<br />good news is that the courts that have charac-
<br />terized restaurants and other retail uses as
<br />assembly uses have also concluded that the
<br />exclusion of religious institutions from purely
<br />commercial districts is not a violation of RLU I PA,
<br />because there is no unequal treatment when
<br />taking into consideration the purpose of the dis-
<br />tinction-such as the creation of a district.
<br />devoted solely to economic development
<br />
<br />2. Larger institutions may be required to provide
<br />open space or Iimdscaping, especially if located
<br />in or near residential areas. Larger institutions
<br />should be also expected to provide adequate
<br />parking and have access to appropriate second-
<br />ary or collector roads~ .
<br />
<br />3. Because of land-use conflicts, assembly
<br />uses may be inappropriate for, and wholly
<br />excluded from, certain areas of the municipal-
<br />ity, including manufacturing districts, enter-
<br />tainment districts, and business development
<br />districts.
<br />
<br />4. Although no land must be made available as
<br />of right, planning staff should be prepared to
<br />affirmatively identify sites that are appropriate
<br />
<br />
<br />(lighthouse Institute for Evangelism, Inc. v. City
<br />ofLong Branch, 510 F.3d 253 (3rd Cir. 2007)).
<br />Of course, even if the d.ecision is made to
<br />treat all assembly uses in the same manner, the
<br />question becomes, where should they go? There
<br />.is no one right answer to this question as it de-
<br />pends on jurisdiction-specific facts such as size
<br />ofthe community, development trends, the loca-
<br />tion of existing assembly uses, and the commu-
<br />nity's land-use and economic development goals.
<br />We offer the following planning principles to
<br />. provide guidance:
<br />
<br />1. Different areas of the municipality may be
<br />appropriate for differently sized assembly uses
<br />(as measured by square footage, f1oor-area-
<br />ratio, number of seats, or parking), with smaller
<br />institutions acceptable in traditional neighbor-
<br />hood locations and larger uses more appropri-
<br />ate for nonresidential locations.
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<br />for the institutio~ in question, especially if the
<br />institution's preferred site is considered
<br />unavailable or inappropriate.
<br />
<br />While compliance with RLUIPA's Equal.
<br />Terms provision is somewhat mechanical and
<br />can be achieved by a review of, and edits to,
<br />zoning codes, compliance with RLUIPA's sec.
<br />ond provision is a bit more complicated be-
<br />cause it is triggered by individualized review
<br />of zoning applications.
<br />RLUIPA's Substantial Burden provision
<br />(42 U.s.c. ~2000cc(a)) prohibits a municipal-
<br />ity from impOSing or implementing a "land-
<br />use regulation" (further defined as "a zoning
<br />or landmark law or the application of such
<br />law") in a manner that imposes a "substantial
<br />burden" on "religious exercise." The phrase
<br />substantial burden is not defined, but reli-
<br />gious exercise is defined to include "the use,
<br />
<br />ZONING PRACTICE 9.08
<br />AMERICAN PLANNING ASSOCIATION I page 5
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