Buy now and get paid later (RLUIPA and religious institutions)

The Religious Land Use and Institutionalized Persons Act (RLUIPA) was enacted in 2000 to protect religious institutions from discriminatory land use regulations. The law was passed after Congress found that these institutions were disproportionately affected by local land use ordinances and restrictions.

RLUIPA does not exempt religious institutions from local land use laws. They still must apply for the same permits and go through the same processes as secular institutions. A city can still apply traditional zoning limitations to religious institutions as it does to secular institutions as long as it does so in a uniform manner and does not create an unjustified substantial burden.

RLUIPA protects religious institutions in five ways:

Substantial burden: RLUIPA prohibits a city from placing a substantial burden on religious institutions, unless it is in furtherance of a compelling government interest and the burden is the least restrictive means of furthering that compelling interest. 42 U.S.C.A. § 2000cc(a)(1)-(2).

Equal terms. Religious institutions must be treated as well as comparable secular institutions. 42 U. S. C. § 2000cc-1(b)(2).

Nondiscrimination. RLUIPA bars discrimination among religions. 42 U. S. C. § 2000cc-1(b)(2).

Exclusions. Zoning ordinances may not totally exclude religious institutions. 42 U. S. C. § 2000cc-1(b)(3)(B).

Unreasonable limitations. RLUIPA forbids laws that unreasonably limit houses of worship. 42 U. S. C. § 2000cc-1(b)(3)(B).

In the recent New Harvest Christian Fellowship v. City of Salinas case (2022 DJDAR 2768 (9th US Circuit Court of Appeals, No. 20-16159)), an evangelical church purchased a two story building on Main Street in downtown Salinas. The building was in the Downtown Core Area, which was designed to encourage pedestrian-oriented uses such as services, shops and entertainment. The city’s zoning code prohibited places of religious assembly from operating on the ground floor of buildings facing Main Street. New Harvest requested an amendment to permit assembly on the ground floor. City staff recommended that the church submit a modified application that would include an active use such as a café or bookstore at the front of the building and have the worship in the back. New Harvest sued and both parties filed cross motions for summary judgment. The district court granted the city’s motion.

The question on review was whether the city’s restrictions posed a substantial burden on the church. The city argued that there was no substantial burden because there were feasible alternative locations and the church knew about the restrictions before buying the building.

The 9th Circuit agreed that New Harvest failed to demonstrate a substantial burden for 3 reasons:

1. New Harvest declined the city’s proposed modification to reconfigure the first floor, which would have permitted religious assembly and complied with the zoning requirements,

2. New Harvest was free to conduct services in almost any other part of the city, and

3. New Harvest knew of the restrictions and purchased the building anyway.

The court then looked at the equal terms provision of RLUIPA, which inquires whether the government imposes a land use regulation on a religious institution was different than that of a secular institution. New Harvest showed that it did so, and the burden shifted to the city to show (1) that the zoning criterion was acceptable and (2) the religious institution was treated the same as secular institutions. The court agreed that promoting pedestrian oriented neighborhoods was an acceptable purpose. However, the court found that Salinas treated religious institutions differently than secular institutions. The court noted that churches are open to the public and attract pedestrian traffic and it would fit in the definition of a pedestrian friendly neighborhood. The court concluded that the city’s ordinance violated the equal terms provision of RLUIPA.

The 9th Circuit remanded the case to adjudicate New Harvest’s damages and attorneys’ fees. The question is how much those damages and fees will amount to.

In a similar case, after five years of federal litigation, International Church of Foursquare Gospel settled their RLUIPA case against the City of San Leandro. After an adverse ruling at the district court level, the city settled for $2.3 million (C 07-3605 PJH). In 2013, the City of San Diego settled with Academy of Our Lady of Peace after a jury verdict of $1.1 million. Academy of Our Lady of Peace v. City of San Diego, 835 F. Supp. 2d 895 (S.D. Cal. 2011).

There are two lessons to be learned from these RLUIPA cases. If city staff reject a CUP or zone amendment from a religious institution, it is imperative to provide reasonable alternatives so as to avoid a substantial burden claim. The second is that city ordinances need to be carefully crafted so they do not single out religious institutions in name or application.