Agenda - Planning Commission - 08/29/2002

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request only if certain administratively defined state interests are involved. By contrast, New Jersey administrative rules authorize the state planning commission to provide "letters of c!arification" interpreting the state development and redevelopment plan, but the commission may not issue opinions regarding the application of the state plan to specific parcels of land or that seek to either "validate" or "invalidate" a specific code, ordinance, administrative rule, regulation, or other instrument of pla'n implementation. . Nlaryland's interest in intervening in local land-use proceedings could be a harbinger of the next wave ofsrate planning and growth management legislation, or a recognition of the flaws in existing legislation. Propelled by the groundswell of interest in smart growth, this next generation of laws might directly provide for state agency intervention in local land-me decisions as states seek ro reconcile the objectives of stare planning with local governments' interpretation of these objectives. NEWS BRIEFS Federal District Court Upholds Constitutionality of RLUIPA in the first ruling of its kind, a federal district court in Pennsylvania in May upheld the constitutionality ofOe c. ontroversial federal Religious Land Use and institutionalized Persons Act of Z000 (tLLUIPA). The law prohibits federal, state, and local governments, with certain exceptions, from imposing or implementing any land- use regulation that places a "substantial burden" on religious activity (see Land Use Law & Zoning Digest, January 2001). U.S. District Court Judge Stewart Dalzell of the Eastern District of Pennsylvania also certified his decision for immediate review by the Third Circuit of the Federal Court of Appeals, given the importance of the issue in the case. · RLU[PA, sponsored by Senators Orrin Hatch (R-Utah) and Edward Kennedy (D-Mass.), was intended to replace the federal Religious Freedom Restoration Act of 1993 (RFP, A), which the UiS. Supreme Court &dared unconstitutional in 1997 as it applied to states and local governments. In the decision, C/ty of Boer~e v. P.F. Flores, the Court held that Congress had exceeded its enforcement authority under the Fourteenth Amendment to justify what the Court believed to be an intrusion into its prerogatives to interpret the Constitution. RFRA was enacted to undo an earlier Supreme Court decision holding that the application of neutral laws of general applicability, like zoning ordinances, to :religiously motivated conduct was not subject to a "compelling governmental interest test" to justify their use. The federal district court ruling, Freedom Baptist Church of Delaware County v. Township of Middletown, involved a challenge to a township's attempt to ban the church from holding regular services in a leased office building, since the chapel was located in a commercial zone that did not allow for any houses of worship. Claiming First Amendment and RLU[PA violations, the church filed suit in state and federal court. Through a settlement in state court, it won the right, to stay in the office building. But it proceeded with the £ederi/l claim because ir is seeking both monetary damages and attorney fees, which federal courts can award under the statute. The towm;hip zoning ordinance, the church alleged, contains 17 use districts, none of which allow religious uses as of right. A religious use may be established through aI~ondirional use procedure in some districts, but subject ro a five-acre minimum site requirement and parking standards, both of which the 4 church contends are "onerous." The church argued that schools are treated less stringently than religious uses. The zoning ordinance, the church maintained, has the effect of"shutting our any religious group from locating within the [t]ownship." The township responded that RLUIPA "impermissibly advances . religion, lit] clearly shows favoritism for chose in a religious organization over those ;aho are not part of one." Charging that the law violates the Constitution's Establishment Clause, the township asserted RLUIPA "represents congressional intent for a 'religious preference.' RLUIPA arms religious entities with almost blanket . immunity from land-use requirements, while providing no such immunity or protection to nonreligious entities." Judge Dalzell rejected the township's argument. RLUIPA did not violate the ~tablishment Clause, he said, but simply embodied U.S. SuFreme Court case law on the free exercise of religion. The law, he said, served as a bar to %rates and municipalities that treat religious assemblies 'on less than equal terms' than secular institutions or which 'discriminate' against them based on their religious affiliation." Dalzell quoted at length from a joint statement issued by Senators Hatch and Kennedy that summarized hearings before Senate and House committees and subcommittees on the need for the act. Their joint statement, issued when the legislation was introduced, said "[4hutches in general, and new, small, or unfamiliar churches in particular, are frequently discriminated against on the face of zoning codes and also in the highly individualized' and discretionary processes of' land-use regulation. Zoning codes frequendy exclude churches in places where they. permit theaters, meeting halls, and other places where large groups of people assemble for secular purposes. Or the codes permit churches only with individualized permission from the zoning board, and zoning boards use that authority in discriminatory ways: Dalzell also upheld RLUIPA as an application of Congress's power to enact legislation under the Commerce Clause. "Whatever the true percentage of cases in which religious organizations have improperly suffered at the hands oflocat zoning authorities," he wrote, "we certainly are in no position to quibble with Congres~'s ultimate judgment that the undeniably low visibility of land regulation decisions may well have worked to undermine the Free Exercise rights of religious organizations around the country." RLUIPA, Judge Dalzell concluded, "places a statutory thumb on the side of religious free exercise in zoning cases.". The American Planning Association (APA), says J=on Jordan, its government affairs coordinator, opposes RLUIPA as a preemption of local land-use authority and believes the law to be unconstitutional. APA will likely participate in .an appeal ora RLUIPA decision at some point, he said, but it has not yet determined whether it will file a brief in the Freedom Bapristcase when it is heard by the Federal Third Circuit. A.PA is currently reviewing other RLUIPA litigation nationwide for opportunities to support a challenge to the-law's constitutionality. Stzu~rr Meck, Zoni,g News is a monthly ncwslctKr published by thc American Planning A~sociazinn. - Subscripuuns are available far .$60 (U.S.) and $82 (foreign). W. Paul Farmer, ^l(::r,, Director; William IL Klein, ^~c& Director of Research. Zomng New~ is produced at APA. Jim Schwab, ^~c/', and Michael Davidson, Editors: Barry Bain, ^~(:p, Heather Campbell, Fay Dolnick, Nato Hutchesan, Sanjay .leer, ^lc/', Megan Lewis, Mary^ Morris, ^Icy, Lynn Ross, Rcportcrs; Sherric M~tthews, Assistant Editor; Lisa l~ar[on, Design and Production. C~pyright 02002 by American Planning Association, 122 S, Michigan Ave., Suite 1600, Chicago, IL 60603. The American Planning Association also ha~ offices at [776 Ma.uachmctts Ave., N.W.~ Washinglon, DC 20036: wvnv.p!anning.org All rights reserved. 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