Zoning and Religious Entities
The U.S. Constitution
The First Amendment to the U.S. Constitution states in pertinent part: ‘‘Congress shall make no law respecting an establishment of religion [Establishment Clause] or prohibiting the free exercise thereof [free exercise clause].’’ In effect, these clauses limit the constitutionally allowed scope of local regulation and decision making vis-a`-vis religious structures, uses, and displays. In Lemon v. Kurtzman (1971), the U.S. Supreme Court devised a three-part test to determine whether a law or government action violated the Establishment Clause. The so-called Lemon test states that to be constitutional, a law or governmental action must (1) have a secular purpose that neither advances nor prohibits religion—commonly referred to as the purpose prong; (2) have a direct and immediate effect that neither advances nor inhibits religion—commonly referred to as the effect prong; and (3) avoid excessive entanglement with religion—commonly referred to as the entanglement prong. Thus, to be constitutionally valid, a law or governmental activity must satisfy all three prongs.
Privately owned land is held subject to restrictions imposed by the state (through its police power), the common law, or other individuals (in some combination). One of the state’s restrictions is implemented via zoning ordinances. These ordinances are justified as protecting the health, safety, morals, or welfare of the public by restricting land use and development.
American modern zoning is a creation of the City Beautiful Movement in the 1890s—a movement of private citizens seeking to improve the appearance and comfort of their communities. In 1916, New York City passed the country’s first zoning ordinance. As a result, zoning spread to the entire United States throughout the 1920s and 1930s. A city’s ability to zone must be created by the state passing a ‘‘zoning enabling act.’’ The Standard Zoning Establishment Act (SZEA) and the New York City plan provided the template upon which most—if not all—fifty states first based their zoning enabling law(s). The SZEA was published in 1923 by the U.S. Department of Commerce. The first step is to adopt a comprehensive (or master) plan for the entire city. Under this plan, various uses within the city are determined and located/pinpointed within specified zones or zoning districts—fixed geographic areas in a somewhat checkerboard pattern. Examples of categories of use are single-family housing; multifamily housing; light industrial; retail; commercial; recreational/parks; agricultural; height, bulk, and area restrictions; and open space. The comprehensive plan serves as a present and future guide for development: it has been described ‘‘as a planning, thinking document.’’
In general, three separate governmental bodies within a city effectuate zoning: the city council (the legislative body that can amend the zoning code and its ordinances); the planning commission (providing expert advise as part of the legislative process); and the board of zoning adjustment (a quasijudicial body that decides applications from individual landowners for relief from the zoning ordinances).
In 1955, the New Jersey State Supreme Court aptly stated that ‘‘the essence of zoning is territorial division in keeping with the character of the lands and structures and their peculiar suitability for particular uses, and uniformity of use within the division.’’
In state courts, most of the cases involving both free exercise and land use arise from issues concerning zoning ordinances. Although the majority of state decisions hold that zoning may not ban churches from a particular residential area, in practice, churches are permitted in residential zones through the granting of a special permit. A key underlying question is whether a particular structure or activity at a particular location amounts to the exercise of religion.
The Supreme Court and Congress: A ‘‘Battle’’ over Religion
By 2005, the U.S. Congress and the U.S. Supreme Court had been in a rhetorical battle over the free exercise clause and government interference with or limitation of this right for approximately fifteen years. The first in what would lead to an exchange of actions (both judicial and legislative) was taken by the Court in its decision in the case of Employment Division v. Smith (1990).
The Smith case involved the firing of two men (Smith and Black, respondents) from their jobs as a result of their use of peyote (a cactus plant that when chewed or ingested has hallucinogenic effects)—which was considered a controlled substance. The respondents stated that they ingested the drug as part of a religious service and as a sacrament of their church, the Native American Church. The respondents later applied for unemployment compensation through the State of Oregon (petitioner) and were denied due to ‘‘work-related misconduct.’’ The Court ultimately held in the Smith case that it was not a violation of the free exercise clause for a state to determine that sacramental and ceremonial peyote use was in violation of its drug control laws, and therefore, deny unemployment compensation for firing for this drug use. Thus, neutral, generally applicable laws that—in application or enforcement—burden a person’s free exercise of religion, do not violate the free exercise clause. In addition, the refusal by the government to grant special accommodation to people who are incidentally burdened does not require strict scrutiny review. Prior to Smith, the Court had generally held that a law of general applicability may violate the free exercise clause where the law, as applied, (1) significantly burdens religious beliefs or practices, (2) is not justified by a Compelling State Interest, and (3) is not the least restrictive means available.
Congress responded by passing the Religious Freedom Restoration Act of 1993 (RFRA) (42 U.S.C.A. sections 2000bb–2000bb-4); the act was signed into law by then-President Clinton. Congress’s findings stated that in Smith, ‘‘the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral towards religion.’’ Further, the purpose of this federal law was, in part, to ‘‘restore the compelling interest test ... and to guarantee its application in all cases where free exercise of religion is substantially burdened.’’ As a result, the act requires a compelling governmental interest and the least restrictive means. Notably, the RFRA applied retroactively (‘‘this chapter applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after November 16, 1993’’).
In addition, as a direct reply to the Smith decision (and citing Smith in its findings), in 1994, Congress amended the American Indian Religious Freedom Act of 1978 (AIRFA) (42 U.S.C.A. section 1996a) to specifically exempt Indians who for ‘‘bona fide traditional ceremonial purposes in connection with the practice of traditional Indian religion’’ in relation to their religious sacrament use, possess or transport peyote from being prosecuted under federal drug laws.
Four years after the passage of RFRA, in City of Boerne v. Flores (1997), the Court struck down the provisions of RFRA as they apply to the states. This case involved the denial of a building permit (to expand and renovate the current church building) to the Catholic archbishop due to local historic preservation zoning ordinances (namely, the building had been designated a historic landmark). The Court held that (1) Congress had exceeded its enforcement powers in the passage of RFRA, (2) RFRA was a considerable congressional intrusion into State action, and (3) the Court found that there had been no pervasive religious bigotry requiring RFRA’s sweeping application. Justice Kennedy, writing for the majority, described RFRA as ‘‘the most demanding [strict scrutiny] test known to constitutional law.’’ Contrarily, religious leaders and supporters of RFRA stated that this action ‘‘left religious groups in general, and religious minorities most particularly, without the constitutional protections that have made religious experience in America so unique and remarkable.’’ In sum, the Boerne case has been labeled ‘‘the most important religious freedom case the Supreme Court has ever had to decide [to date].’’
The first congressional response to Boerne came two years later. The Religious Liberty Protection Act of 1999 (RLPA) was passed by the House of Representatives (1999 U.S. H.B. 1691), but failed in the Senate (RLPA expired in committee). RLPA was criticized as being too broad—in the same manner as RFRA.
In the next legislative session (the 106th Congress), the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) was introduced and ultimately passed by Congress and signed into law by then- President Clinton (PL 106-274, 114 Stat. 803; 42 U.S.C.A. sections 2000cc–2000cc-5). Based on congressional fact finding, the hearing record states that ‘‘churches 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.’’ The ‘‘general rule’’ as stated in RLUIPA is that ‘‘no government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person including a religious assembly or institution’’ without demonstrating that the burden furthers a compelling governmental interest in the least restrictive way. It should be noted that RLUIPA purposely patterns RFRA, but is limited in scope/application to religious land uses and the free exercise of religion rights of institutionalized people. The limited scope is specified in section 2000cc(a)(2) to where
(A) the substantial burden is imposed on a program or activity that receives Federal financial assistance...
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes...
(C) the substantial burden is imposed in the implementation of a land use regulation...
The Christian Law Association in a post-RLUIPA publication titled, A Major Threat to Churches: Zoning Law,’’ advises that when appearing for a zoning hearing churches address the following issues: (1) whether the church will diminish the surrounding property values, (2) whether the church will cause excessive traffic for the community, (3) whether there be ample off-street parking for the church, and (4) whether the church will be operating a mission on church property.
As a way to ensure compliance with RLUIPA, some local jurisdictions have created and are utilizing the so-called Religious Land Use Plan (RLUP). In general, the RLUP seeks to explain legal principles, including RLUIPA, state and local zoning laws, and constitutional issues.
Challenges to zoning ordinances under RLUIPA are beginning to be litigated through the court system. As of May 2005, the Court had not taken up or decided on the constitutionality of RLUIPA’s zoning-related provisions. Based on the fifteen-year history of this debate, the Court will undoubtedly be heard on this issue once again.
CYNTHIA G. HAWKINS-LEO´ N
References and Further Reading
- American Atheists. Flashline: Supreme Court Strikes Religious Freedom Restoration Act, June 25, 1997. https://www.atheists.org/flash.line/rfra2.htm.
- Blaesser, Brian W., and Alan C. Weinstein, eds. Land Use and the Constitution: Principles for Planning Practice. Chicago: Planners Press, 1989.
- Boyer, Ralph E., Herbert Hovenkamp, and Sheldon F. Kurtz. The Law of Property: An Introductory Survey. 4th ed. St. Paul, Minn.: West Publishing, Co., 1991.
- Chemerinsky, Erwin, Court Adds Class Actions, Religion to Docket, Trial 41 (2005): 66–68.
- Christianity Today. ‘‘The End of Church Zoning Disputes?’’ Christianity Today, September 4, 2000. https://www.christianitytoday.com/ct/2000/010/12.25.html.
- Christian Law Association. A Major Threat to Churches: Zoning Laws. 1999–2001. https://www.christianlaw.org/zoning_threat.html.
- Connor, Susan Marie, Zoning and Matters of Age: Tots, Teens, and Seniors, Probate and Property January/ February (2005): 61–66.
- Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003), cert. granted, 125 S.Ct. 308 (2004).
- Dukeminier, Jesse, and James E. Krier. Property. 5th ed. New York: Aspen Publishers, 2002.
- Hiller, Amanda. ‘‘Zoning of Religious Land Uses: The Impact of the Religious Land Use and Institutionalized Persons Act of 2000.’’ In Trends in Land Use Law from A to Z: Adult Uses to Zoning, edited by Patricia E. Salkin, 97–124. Chicago: American Bar Association, 2001.
- Johnson v. Martin, 223 F.Supp.2d 820 (USDC, W.D. Mich. 2002).
- Katobimar Realty Co. v. Webster, 20 N.J. 114 (1955).
- Mauk, John, and Wendy Smith. ‘‘Locals Risk Lawsuits over Church Zoning.’’ American City and County, 2004. https://www.americancityandcounty.com/mag/government_locals_risk_lawsuits.
- Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004).
- Nolon, John R., and Jessica A. Bacher. Westchester Day School v. Village of Mamaroneck, April 21, 2004. https://www.law.pace.edu/landuse/DaySchool.html.
- Paisner, Michael, Boerne Supremacy: Congressional Responses to City of Boerne v. Flores and the Scope of Congress’s Article I Powers, Columbia Law Review 105 (2005): 537–82.
- Pelham, Thomas G. ‘‘The Church Next Door: Zoning Religious Uses.’’ In Sex, Religion and the Press: First Amendment Law for Local Government and Land Use Lawyers. Tallahassee: The Florida Bar, 2000.
- Rathkopf, Arden H., and Daren A. Rathkopf. The Law of Zoning and Planning. Vol. 2. St. Paul, MN: Thomson/ West, 2003, and 2004 supplement.
- Stein, Gregory M., Early Land Use Cases, Continued Uncertainty. Probate and Property January/February (2005): 38–43
- Stoebuck, William B., and Dale A. Whitman. The Law of Property. 3rd ed. St. Paul, MN: West Group, 2000.
- Willis, Clyde E. Student’s Guide to Landmark Congressional Laws on the First Amendment. Westport, CT: Greenwood Press, 2002.
- Young, Kenneth H. Anderson’s American Law of Zoning. 4th ed., vol. 2. Deerfield, IL: Clark Boardman Callaghan, 1996, and 2004 supplement.
Cases and Statutes Cited
- American Indian Religious Freedom Act Amendments of 1994, Pub. L. No. 103-344, 108 Stat. 3125 (1994), 42 U.S. C.A. section 1996a
- City of Boerne v. Flores, 521 U.S. 507 (1997)
- Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)
- Lemon v. Kurtzman, 403 U.S. 602 (1971)
- Religious Freedom Restoration Act of 1993, 42 U.S.C.A. sections 2000bb–2000bb-4
- Religious Land Use and Institutionalized Persons Act of 2000, PL 106-274, 114 Stat. 803; 42 U.S.C.A. sections 2000cc–2000cc-5
- Religious Liberty Protection Act of 1999, 1999 United States House Bill No. 1691 (as passed by the U.S. House of Representatives; and later denied by the U.S. Senate)
See also Accommodation of Religion; Application of First Amendment to States; Compelling State Interest; Defining Religion; Drugs, Religion, and Law; Establishment of Religion and Free Exercise Clauses; State Constitution Distinctions