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What Constitutes a `Substantial Burden' <br />Under RLUIPA? <br />By Lora A. Lucero <br />Thanks to a proposal to build an Islamic center two blocks from the former site of <br />the World Trade Center in Manhattan, the Religious Land Use and Institutionalized <br />Persons Act of zoo° (RLUIPA) has come to the attention of a much wider audience. <br />LLQ In 2oo7, a California appellate court held that the city of Los Angeles did <br />not substantially burden the Scottish Rite Cathedral Association's religious <br />beliefs by revoking its certificate of occupancy, because the cathedral rents <br />its building out to performance entertainment to help pay the bills. <br />RLUIPA cautions local governments not to <br />"substantially burden" a religious land - <br />use applicant's right to free exercise, but <br />provides little guidance about what actions <br />might constitute a substantial burden. <br />Congress failed to define "substantial <br />burden." <br />No government shall impose or implement a <br />land use regulation in a manner that imposes <br />a substantial burden on the religious exercise <br />of a person, including a religious assembly <br />or institution, unless the government dem- <br />onstrates that [the land use regulation is] in <br />furtherance of a compelling govemmental <br />interest [and] is the least restrictive means <br />of furthering that compelling governmental <br />interest. 42 U.S.C.§ 2000cc(a)(t). <br />The religious land -use applicant has <br />the initial burden of demonstrating that a <br />land -use decision or regulation is a "sub- <br />stantial burden," but the local government <br />then has an opportunity to explain what <br />compelling governmental interest exists and <br />how the local government used the least re- <br />strictive means. Therefore, a finding that an <br />applicant has been substantially burdened <br />is not the end of the inquiry. <br />Religious land -use applicants have <br />prevailed in "substantial burden" claims less <br />than 25 percent of the time —pretty good odds <br />from the local government's perspective. The <br />statistics, however, fail to account for two <br />important factors: (i) the very high monetary <br />judgments that the focal government might <br />have to pay if unsuccessful and (2) the num- <br />ber of municipalities that capitulate when <br />threatened with RLUIPA litigation to avoid <br />the risk. In that regard, Congress stacked the <br />deck in favor of the retigious land -use appli- <br />cant because RLUIPA authorizes attorney fees <br />for the prevailing land -use applicant but not <br />for the focal government when it successfully <br />defends itself against a RLUIPA challenge. <br />Monetary judgments and settlements <br />can be astronomical and should be a caution- <br />ary note for local governments. Mamaroneck <br />Village in New York agreed to pay Westchester <br />Day School $4.75 million to settle a dispute <br />concerning the OrthodoxJewish school's <br />expansion project. The settlement agree- <br />ment allowed the school to proceed with <br />construction. More recently, Richmond, <br />Hew Hampshire, agreed to a $1.15 million <br />settlement with the Saint Benedict Center, <br />following two state court orders in favor of the <br />church. The court determined that the condi- <br />tions imposed by the town on the proposed <br />new church and school made completion of <br />construction impossible and constituted a <br />substantial burden. A separate settlement <br />agreement makes completion of the church <br />and school building possible. <br />102 <br />ZONINGPRACTICE ao.a0 <br />AMERICAN PLANNING ASSOCIATIONIpage 2 <br />