Land Use Regulation Of Religious Uses

BY

Brandon L. Bowen
Jenkins & Olson, P.C.
15 South Public Square
Cartersville, Georgia 3020
(770) 387-1373

The rights of conscience we never submitted, we could not submit.  We are answerable for them to our God.  The legitimate powers of government extend to such acts only as are injurious to others.  But it does me no injury for my neighbour to say there are twenty gods, or no god.

-Thomas Jefferson, Notes on the State of Virginia, in Jefferson, Writings, 285-286 (The Library of America, 1984).

It seems that when First Amendment issues are raised in zoning and land use disputes, most often the use in issue involves adult entertainment or outdoor advertising.  But, of course, the First Amendment also encompasses the right that many historians would argue most significantly contributed to the formation of our nation:  the freedom of religion.¹ And, perhaps because of the mega-church phenomenon or changes in societal views towards religious observance, religious institutions may more frequently than in the past be looked upon by some as a use that should be regulated and restricted.  The hot issue in courtrooms in this area over the last few years has been the Religious Land Use and Institutionalized Persons Act of 2000- RLUIPA for short.

This federal statute was adopted with the stated intention of protecting the free exercise of religion and of combating perceived local government attempts to zone out churches, either selectively or as a whole.  Counsel for both local governments and religious organizations should be familiar with RLUIPA's terms; at the same time, it is important to remember the various State and federal constitutional provisions that RLUIPA was adopted to vindicate.  With that in mind, this paper will explore the Georgia and federal constitutions' treatment of the freedom of conscience, as well as RLUIPA.

I.          The First Amendment to the United States Constitution

Congress shall make no law respecting an establishment of religion, or    prohibiting the free exercise thereof…

We are all familiar with this bedrock statement in the Constitution, and that, while it specifically is directed to Congress, it was made applicable to the States by the Fourteenth Amendment to the United States Constitution.  In its two directives, the First Amendment requires a policy of neutrality:  the government may neither establish a religion nor prevent the exercise of any religion.  These two clauses have generated considerable litigation.  Since land use regulations restricting churches are most likely to confront the free exercise clause, this paper will focus on that provision, leaving the establishment clause for another day.

The U.S. Supreme Court decision Employment Div., Dept. of Human Resources of Oregon v. Smith is the modern starting point for any discussion of the free exercise clause. ² The issue there was whether a law prohibiting peyote use violated the free exercise rights of certain Native Americans. After recognizing that the free exercise clause first protects the right to believe in the religion of one's own choosing, the Court went on to demonstrate that it also protects the right to act consistently with those religious beliefs:

But the "exercise of religion" often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It    would be true, we think (though no case of ours has involved the point), that a      State would be "prohibiting the free exercise [of religion]" if it sought to ban such   acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display.³

The challenged law in that case was a criminal statute applying generally and neutrally to everyone, and was not aimed at religious believers as a group.  The Court declined to apply the strict scrutiny test – which asks whether the challenged regulation is narrowly tailored to achieve a compelling governmental interest – to such a law of general applicability.  Thus, a law that may incidentally burden an individual's religious exercise, but which is generally applicable rather than aimed at religious exercise, will normally not run afoul of the free exercise clause.

The Court revisited this issue in Church of the Lukumi Babalu Aye v. City of Hialeah, which involved a ban on ritual slaughter of animals.⁴ While reaffirming the rule that a neutral law of general applicability would not be subjected to the strict scrutiny test, the Court, after considering the circumstances surrounding the adoption of the ordinance, found that it was not neutral as to religion, but was instead directly aimed at regulating Santeria religious exercise.  "If the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral."⁵ The Court then applied the compelling governmental interest test:

A law burdening religious practice that is not neutral or not of general application        must undergo the most rigorous of scrutiny. To satisfy the commands of the First      Amendment, a law restrictive of religious practice must advance interests of the           highest order and must be narrowly tailored in pursuit of those interests.⁶

Finally, before striking the ordinance down, the Court provided the following guidance to local legislators:

The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to   remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must   ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to   persecute or oppress a religion or its practices.⁷

These U.S. Supreme Court decisions show us that land use laws that burden religious exercise, like other laws, must be neutral and of general applicability in order to avoid strict scrutiny.  Of course, there appears to be significant room to argue whether a law is neutral and of general applicability, and in many cases that will likely come down to a factual, rather than a facial, determination.

Congress added a new dimension to this issue by adopting the Religious Freedom Restoration Act of 1993 (RFRA), which attempted to impose the strict scrutiny test on all laws burdening religious exercise, regardless of whether or not they were neutral or generally applicable.⁸ RFRA was short-lived, however; it was struck down by the U.S. Supreme Court as violating Congress' Fourteenth Amendment Enforcement Power in City of Boerne v. Flores.⁹ Congress replied with the Religious Land Use and Institutionalized Persons Act of 2000.

II.        RLUIPA

RLUIPA differs from RFRA in that it is much more limited in scope; as its title indicates, rather than affecting all regulations, it applies to land use restrictions and separately to the treatment of institutionalized persons.  However, it is evident from the very first provision of RLUIPA that it, like RFRA before it, is intended to remove the neutral / generally applicable qualifier from the Smith case:

1) General rule

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, unless the government demonstrates that      imposition of the     burden on that person, assembly, or institution--

1. is in furtherance of a compelling governmental interest; and
2. is the least restrictive means of furthering that compelling governmental interest.

¹⁰

There is no mention of an exclusion for neutral laws of general applicability; if the restriction places a substantial burden on religious exercise, then it must survive strict scrutiny.  Congress sought to survive where RFRA failed by placing jurisdictional limitations in the following subsection:

This subsection applies in any case in which—

(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;

(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, even if the burden results from a rule of general applicability; or

(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.¹¹

Thus, RLUIPA is limited to situations where Congress can act within the scope of its power to regulate the recipients of federal funding, under its power to regulate interstate commerce, or consistent with the U.S. Supreme Court's Smith and Lukumi cases, the regulation involves an individualized assessment and therefore is not a law of general applicability.

Why did Congress feel that is was necessary to go to such lengths to adopt a statute that obviously seeks to direct the courts' interpretation of the First Amendment, specifically in the context of zoning and land use regulations?  To answer that question, it is helpful to review the legislative record.  It is replete with testimony and studies providing examples of local governments discriminating against churches in general, or against specific denominations.  Actions cited in the Congressional record as justifications for this act include the following:

*                Orthodox Jews in Hancock Park, California could not obtain an exemption from the residential zoning ordinance in order to use a private home as a synagogue, after a homeowner's association objected;

*                A small Christian church was barred from meeting in storefronts in Rolling Hills Estates, California, in areas that had been zoned for commercial activity;

*                A Mormon church in a Boston, Massachusetts suburb could not erect its steeple, which neighbors objected to as out of character for the neighborhood.¹²

This shows a belief that local governments across the country are cloaking regulations substantially burdening the free exercise of religion in generally applicable zoning ordinances in order to avoid challenge under the Smith case.

To combat this perceived evil, RLUIPA has several substantive provisions, the first of which is discussed above, subjecting any land use regulation substantially burdening religious exercise to strict scrutiny.  Substantial burden is not defined by the Act.  The Eleventh Circuit has supplied the following definition:

The combined import of these articulations leads us to the conclusion that a "substantial burden" must place more than an inconvenience on religious exercise; a "substantial burden" is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly. Thus, a substantial burden can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct.¹³

As the Eleventh Circuit went on to hold, in light of the other substantive provisions of RLUIPA, this does not mean that a zoning ordinance places a substantial burden just because it limits churches to certain zoning classifications.¹⁴ Similarly, the Eleventh Circuit has held that requiring a religious institution to apply for a special use permit does not constitute a substantial burden.¹⁵ Therefore, although the issue of what does and what does not constitute a substantial burden has not yet fully been fleshed out, it appears that more is required than simply subjecting a religious institution to land use regulation.

The next substantive provision is the equal terms provision, and it is where many land use regulations will fail:

No government shall impose or implement a land use regulation in a manner that       treats a religious assembly or institution on less than equal terms with a   nonreligious assembly or institution.¹⁶

On first reviewing this ordinance, it appears to be a restatement of the equal protection clause; however, in the context of facial challenges, the Eleventh Circuit has interpreted it more broadly, because it does not include the similarly-situated language familiar from equal protection jurisprudence.  Instead, it applies to all assemblies and institutions, which are assigned their common meaning:

An "assembly" is "a company of persons collected together in one place [usually] and usually for some common purpose (as deliberation and legislation, worship, or social entertainment)," Webster's 3d New Int'l Unabridged Dictionary 131 (1993); or "[a] group of persons organized and united for some common purpose." Black's Law Dictionary 111 (7th ed.1999). An institution is "an established society or corporation: an establishment or foundation esp. of a public character," Webster's 3d New Int'l Unabridged Dictionary 1171 (1993); or "[a]n established organization, esp.one of a public character····" Black's Law Dictionary 801 (7th ed.1999).¹⁷

Under this interpretation, the Eleventh Circuit found that a zoning ordinance that prohibited churches in zoning districts where private clubs and lodges were allowed violated the equal terms provision.

The Eleventh Circuit recently discussed the various ways that a zoning ordinance could violate the equal terms provision in Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County.¹⁸ The Court listed three separate equal terms claims,

beginning with the facial unequal treatment exemplified by the Midrash case above, where the ordinance treats religious assemblies less favorably than secular assemblies.  Second, an ordinance that does not violate the equal terms provision on its face might still be void if is shows "religious gerrymandering."  The Court pointed to the Lukumi case as example of an ordinance that was facially neutral, but which hid an animus against religious exercise.  In order to prove such a case, the plaintiff "would have to show that the challenged zoning regulation separates permissible from impermissible assemblies or institutions in a way that burdens 'almost only' religious uses."¹⁹ The third potential claim is that a facially-neutral regulation is applied in a discriminatory manner, such as if a regulation required variances for all assemblies, but in practice variances are only granted to secular uses, or if a certain congregation was singled out for denial of the variance.  Thus, the equal terms provision must be carefully considered, because it provides a number a grounds for challenging a local government ordinance or action.

The next substantive RLUIPA provision is similar to the preceding third equal terms claim:

No government shall impose or implement a land use regulation that      discriminates against any assembly or institution on the basis of religion or religious denomination.²⁰

There is little Eleventh Circuit case law on this provision so far, however, it appears that it applies to situations where, under a facially-neutral land regulation scheme, special exceptions are granted to some secular or religious institutions, but not to specific religious institutions, and situations of selective enforcement.²¹

The final substantive land use provision of RLUIPA is the exclusion and limitations provision:

No government shall impose or implement a land use regulation that--

(A) totally excludes religious assemblies from a jurisdiction; or

(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.²²

This is clearly targeting at attempts to zone out churches.  While subsection (A) appears to need no clarification, subsection (B) is very interesting.  It creates an issue of fact as to whether a regulation's limitation of religious uses is reasonable.  It also raises an issue common to practitioners of adult entertainment litigation:  what reasons, and what studies and evidence, did the local government rely upon if it chooses to limit the zones in which a religious institution may be located.  This issue, too, has not yet been much explored in the Eleventh Circuit.

An important point to keep in mind is that the strict scrutiny test and the jurisdictional nexus provisions are in subsection (a) of 42 USC 2000cc, the same section that provides the substantial burden provision discussed above.  The other three substantive provisions are located in subsection (b) of that statute.  It could be argued from the plain language then that the strict scrutiny and jurisdictional nexus provisions only apply to the substantial burden provision, and thus if a land use regulation were discriminatory under one or more of the subsection (b) provisions, it would per se be void, without the need of applying the strict scrutiny test.  However, the Eleventh Circuit has determined that the strict scrutiny test does applies to the subsection (b) provisions, following the Smith and Lukumi cases that predated RLUIPA.²³ In the end, this may be a distinction with little difference, as most restrictions will fail under the strict scrutiny test.

With that in mind, what must a local government do or not do to avoid RLUIPA challenges?  It is clear that RLUIPA does allow regulation of churches, and does not necessarily require more beneficial treatment of churches than of secular uses.  However, a land use regulation may not treat secular assemblies and institutions more favorably than religious institutions.  Thus, a zoning ordinance that allows secular assemblies in a given district but not religious assemblies may be struck down.  A common pitfall involves permitting certain secular assemblies as a matter of right, but requiring churches to obtain special use permits.  Similarly, it would be a violation to place a minimum acreage requirement on churches but not secular assemblies.  These would all be facial violations; at the same time, it is clear that if local government action under a facially-neutral ordinance results in disparate treatment, then RLUIPA will likely have been violated.  For example, if all religious and secular assemblies require a special use permit under the ordinance, but in practice the local government only grants special use permits to secular uses, a RLUIPA claim will probably lie.   Similarly, it may be a violation if special use permits are granted to mainline religions, but not to a certain sect or denomination.  And it might be a violation if a facially-neutral requirement, such as a minimum number of parking spaces, were strictly applied to a certain church, but was overlooked in regards to secular or other religious assemblies.  Thus, in a nutshell, RLUIPA requires a local government to allow religious exercise, within reasonable limits, and to treat religious institutions at least as favorably as secular assemblies.

III.       Georgia's Constitutional Protection of Free Exercise

While Georgia is often thought of as a former prisoner colony, one of the British Crown's inducements to attract colonists was a very broad grant of religious freedom:

And for the greater ease and encouragement of our loving subjects and such      others as well as shall come to inhabit in our said colony, we do by these presents, for us, our heirs and successors, grant, establish and ordain, that forever            hereafter, there shall be a liberty of conscience allowed in the worship of God, to   all persons inhabiting, or which shall inhabit or be resident within our said             province, and that all such persons, except papists, shall have a free exercise of    their religion, so they be contented with the quiet and     peaceable enjoyment of      the same, not giving offence or scandal to the government.²⁴

This is a profound statement, both in its philosophical scope and in its historical context.  England itself had an established religion, the Anglican Church, and the violent wars of religion, when the government was wrested back and forth from Catholics to Protestants, was a matter of recent memory.  Nevertheless, this grant contains both a guarantee of liberty of conscience, the right to believe according to one's own dictates, and (except for Catholics) freedom of exercise, the right to act accordingly.  Thus, the Royal Charter treated the two rights separately, and granted both.  This separate treatment of the liberty of conscience and free exercise was incorporated into Georgia's constitutional history following the Declaration of Independence, and exists to this day.

The freedom of religion is expressed in the 1983 Constitution in several separate paragraphs.  The third and fourth paragraphs of the Georgia Bill of Rights exhaustively state the liberty of conscience and freedom of exercise:

Each person has the natural and inalienable right to worship God, each according to the dictates of that person's own conscience; and no human authority should, in any case, control or interfere with such right of conscience.²⁵

No inhabitant of this state shall be molested in person or property or be prohibited from holding any public office or trust on account of religious      opinions; but the right of freedom of religion shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.²⁶

The freedom of assembly, although it is more commonly thought of as a protection of the right to civil protest, appears also to protect the right to peaceful assembly for religious purposes, such as worship:

The people have the right to assemble peaceably for their common good and to apply by petition or remonstrance to those vested with the powers of government    for redress of grievances.²⁷

Finally, the separation of church is stated later, in the second section of the Bill of Rights:

No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution.²⁸

Thus, the framers of Georgia's constitution went to greater detail than that in the U.S. Constitution to protect religious freedom and guarantee religious neutrality on the part of the government.

In interpreting these provisions, or their predecessors, the Georgia courts tell us that the freedom of religion in Georgia is very broad, but not without limits.  A common phrase in the case law indicates that the right to free exercise does not give one the right to impose on other people's rights:

Under our constitutional provisions, both State and Federal, the right to adopt, profess, entertain, or advocate any religious views, or to fail or refuse so to do, is unlimited, and cannot be controlled by any law.  There is no authority under our system of jurisprudence to alter, modify, or infringe upon this right; as a person's sentiments and opinions upon this subject are controlled entirely by his own judgment and conscience.  The courts will ever guard the right to a full and unlimited exercise of one's religious beliefs.  The slightest encroachment upon this right would be but the beginning of a vanished liberty, and after death its grave would bear an epitaph recording its loss as due to the courts being recreant in their duty.  While there is no power to control what a person may believe about religion or the type of religion he may adopt or profess, yet there is a power under the law to limit his acts, even though to do such acts may be part of his religious belief.  The constitutional guarantee of the exercise of religious freedom does not extend to acts which are inimical to the peace, good order, and morals of society.²⁹

This quotation rings with the same note as the quotation from Thomas Jefferson that headlines this paper:  the right of free exercise was never relinquished by the people to their government, and so the government has no power to regulate the exercise of religion.  However, the government does have the police power to provide for the public welfare; where the free exercise of religion clearly threatens the public welfare, then there is power to regulate.

This is consistent with the majority rule among the states as to how religious institutions may be treated by zoning ordinances.  Many states hold religious exercise can only be regulated by zoning to the extent that it is consistent with the public welfare and morals.  Since churches and the like generally have as a fundamental purpose to support morality and public welfare, it can be difficult to justify regulation of churches as a class of use.  For example, the majority rule states that churches may not be absolutely excluded from residential areas.³⁰ In the two cases on point, the Georgia courts have adopted this rule, albeit without a great deal of reasoning.³¹ The Georgia Supreme Court did uphold a local government's application of a special use permit requirement on religious uses in residential areas in Fulton County v. Congregation of Anshei Chesed³², however, the reasoning of the case focused on the appropriate standard for mandamus review of local government action rather than constitutional free exercise principles.

From the case law, it appears that the principal concern regarding a zoning ordinance regulating religious uses is going to be whether it is justifiable as a police power regulation.  Under Georgia law, as in federal law, if the regulation is found to impinge on the fundamental right of freedom of exercise, then, once again, it will be subject to strict scrutiny- is the regulation narrowly tailored to achieve a governmental interest?³³

CONCLUSION

As is so often the case in the law, careful study, rather than providing certainty, only raises more questions.  But there are some conclusions that can be taken from the current state of the law on land use regulation and free religious exercise.  First, zoning ordinances must be neutral on their face, and neutral in their application.  Second, if the local government wishes to regulate a religious use by its religious nature, it very likely will face strict scrutiny, especially if the ordinance is not neutral on its face.

For guidance, practitioners should consider the lessons learned from local government attempts to regulate signs and adult entertainment, the First Amendment hot issues.  Is the ordinance aimed at secondary effects, or is it aimed at religion?  Is the determination that the religious institution will have negative impacts on the community supported by the record?  Ultimately, as is the case with sign regulation, it may be safest to simply regulate the size of religious institutions, to make sure that they are consistent with the surrounding community, rather than the religious use itself.

²494 U.S. 872, 110 S.Ct. 1595 (1990)

³Id at 877.

⁴508 U.S. 520, 113 S.Ct. 2217 (1993)

⁵Id at 533.

⁶ Id at 546.

⁷Id at 547.

⁸ 42 USC § 2000bb et seq.

⁹521 U.S. 507, 117 S.Ct. 2157 (1997)

¹⁰ 42 USC § 2000cc(a)(1)

¹¹42 USC § 2000cc(a)(2)

¹²See generally 46 Cong. Rec. S6678-02; see also H.R. REP. 106-219, H.R. Rep. No. 219, 106TH Cong., 1ST Sess. 1999; see also 146 Cong.Rec. E1564-01.

¹³Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 at 1227 (11th Cir., 2004)

¹⁴ Id at 1227-1228.

¹⁵Konikov v. Orange County, Florida, 410 F.3d 1317 (11th Cir., 2005)

¹⁶ 42 USC § 2000cc(b)(1)

¹⁷ Midrash, supra, at 1230-1231.

¹⁸ 450 F.3d 1295 (11th Cir. 2006)

¹⁹Id. at 1309.

²⁰42 USC § 2000cc(b)(2).

²¹See Hollywood Community Synagogue, Inc. v. City of Hollywood, Fla., 430 F.Supp.2d 1296 at 1320, (S.D.Fla.,2006).

²² 42 USC 2000cc(b)(3).

²³Midrash, supra, at 1231.

²⁴Royal Charter of the Colony of Georgia

²⁵Georgia Constitution, Article 1, § 1 ¶ 3.

²⁶Georgia Constitution, Art. 1, § 1, ¶ 4.

²⁷Georgia Constitution, Art. 1, § 1, ¶ 9.

²⁸ Georgia Constitution, Art. 1, § 2, ¶ 7.

²⁹ Jones v. City of Moultrie, 196 Ga. 526 at 530, 27 S.E.2d 39 (1943)

³⁰ Ziegler, Rathkopf's Law of Zoning and Planning, § 29:22.

³¹ See Lacey v. The State, 270 Ga. 37, 507 S.E.2d 441 (1998); see also Rogers v. Mayor & Aldermen of City of Atlanta, 110 Ga. App. 114, 137 S.E.2d 668 (1964)

³² 275 Ga. 856, 572 S.E.2d 530 (2002)

³³ Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998)(considering the anti-sodomy statute as it infringed upon the fundamental right to privacy)