January 24, 2024

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Has your faith-based nonprofit ever considered buying, building, or developing real estate? If so, you know real estate can present a major issue for religious organizations. A minefield of permits, applications, and meetings may stand between you and the property that will allow your organization to best accomplish its mission. The federal government passed the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), which addresses some of these difficulties for religious organizations. A little information about land use and RLUIPA can go a long way in helping your organization to flourish.  

This whitepaper aims to educate religious organizations seeking to buy or build buildings and property for their organization and help them avoid costly obstacles when seeking building permits, special use permits, variances, or other rezonings. Federal law provides protections for religious organizations’ land use that differ from the protections for secular organizations and businesses. Understanding these protections will assist religious organizations in protecting their rights and furthering their missions.

This paper will first introduce RLUIPA, when it applies, and the basic burdens that land use law can place on religious organizations. It will then explain the history that led to RLUIPA, as well as the various ways in which courts have applied RLUIPA to different circumstances. Finally, this paper concludes with some best practices with which your organization should be familiar.  

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Introduction

Forming and running a religious organization requires a keen awareness of the legal landscape surrounding each aspect of an apostolate. This includes real estate: an organization must both identify and develop the right property. Unfortunately, religious organizations encounter varying forms of opposition in the land development process.  

In 2000, Congress enacted RLUIPA¹.  But the mere enactment of a statute does not resolve the potential challenges associated with land use applications. Those applications – related to re-zonings, variances, and site plan approvals – require time-consuming, expensive, and occasionally complex proceedings. Religious organizations must accurately understand RLUIPA, including its limitations, in order to prudently select a site and navigate that process.  

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Introduction: When does RLUIPA apply?

RLUIPA applies only when the situation involves a land use regulation, the applicant qualifies as a protected person or religious organization, and the land use qualifies as a religious exercise. ² When those conditions are met, it prohibits various types of governmental action. There are three ways RLUIPA prevents government action.  

• First, RLUIPA prevents the government from imposing a “substantial burden” on religious organizations through land use regulations. We unpack the meaning of substantial burden more below.  
• Second, RLUIPA prevents the government from passing land use laws that treat religious assemblies in a “less than equal” way than secular organizations.  
• Finally, RLUIPA prevents “discrimination” against the land use practices of religious organizations.  

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Potential Burdens

Unfortunately, numerous burdens riddle the entire land development process. And ordinarily those burdens do not involve obvious discrimination or clear proof of unequal treatment of religious organizations. Rather, the trouble often comes from scheduling delays, mandatory community meetings and comment periods, or other denials of rezoning applications unrelated to the religious nature of the use. A couple case studies help elucidate some of these issues.  

A religious organization could experience delays, incur costly expenses, and face blatant opposition for reasons that appear non-discriminatory. In Christian Assembly Rios De Agua Viva v. City of Burbank, Illinois,³ a church needed a new property. It sought to move from Chicago to a suburban neighborhood and spent more than three years searching for new real estate. It finally found a four-acre parcel with four structures, previously occupied by a restaurant, that could meet its needs with just a bit of renovation. But there was one big problem. It was in zoning district “C.” The zoning ordinance required a special use permit for the church to operate on the property. The church applied for the special use permit. After the building commissioner reviewed the application, he recommended that the zoning commission deny it. The property “was the last large [property in this zoning designation] for development” and therefore the proposed special use was “not in the best interests of the community due to the loss of the historic use and tax monies.” Then there were delays. The zoning commission declined to schedule a meeting the following month because of election day (interestingly, the zoning commission made that decision the same day it received the church’s application). In the meantime, the City Council also sought to change the ordinance. The amendment would require all land falling within the “C” zoning district be tax generating. This would prohibit the church’s use. The amendment passed, and in fact the church’s special use permit was denied for that reason. All the while, the church incurred costs associated with this process. And the Court ultimately held that the delays, uncertainties, and expenses incurred did not amount to a substantial burden on the free exercise of religion.  

In another case, Irshad Learning Center v. County of Dupage,⁴a Muslim organization acquired property in a residential zoning district and hoped to use it for religious educational purposes. Religious uses were permitted with a conditional use permit. The learning center then applied for a conditional use permit in August 2008. Years of meetings and amended applications ensued. Objectors to the application cited lighting, parking, drainage, fire protection, inadequate planning, and other issues that might affect the nearby neighborhood. On January 12, 2010, the County Board denied the application. This sparked years of litigation in which a central issue was the County’s alleged violation of RLUIPA.  

A religious organization might also confront environmental, safety, or building codes. In St. Paul’s Foundation v. Baldacci,⁵ a monk wanted to brew and sell beer at a newly acquired property as part of a long religious tradition. Brewing and selling beer in a communal hall formed part of the organization’s evangelical efforts and religious mission. But the necessary renovation and uses required compliance with the building code. Throughout the renovation process, the relationship with the town deteriorated. The town then revoked the building permit. The organization unsuccessfully attempted to challenge that revocation under RLUIPA.  

Land development applications are multi-faceted, involving environmental issues, safety issues, engineering issues, traffic issues, parking issues, time-consuming comment periods, expensive legal fees, long public hearings and more. When do these various obstacles constitute substantial burdens under RLUIPA, and how is that analysis conducted?  

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A Little Bit of History

To understand the extent of RLUIPA’s protections, some background is necessary. In Employment Division v. Smith⁶, the United States Supreme Court held that neutral and generally applicable laws (laws that do not explicitly target religious exercise but in fact do impede religious practices) do not violate the First Amendment’s guarantees of religious freedom. Land use regulations and municipal zoning codes that apply to all properties or properties of a certain classification across the board do not violate the First Amendment under Smith.

The public backlash from the Smith decision caused Congress to respond with the passage of the Religious Freedom Restoration Act (“RFRA”) on November 16, 1993. But things do not end there. In 1997, the Supreme Court heard the case City of Boerne v. Flores.⁷  The Archdiocese of San Antonio sought to demolish and expand St. Peter the Apostle Catholic Church in 1991. The City Council of Boerne passed a historic district designation that included St. Peter’s Church to protect the existing building’s architecture. The Archbishop sued under the Federal RFRA for relief. The full history is told in Boerne: A History of Our Town:

The population of Boerne grew quickly in the 1980s and so did the congregation of St. Peter’s. So, in 1991, St. Peter’s began planning a new church building. Deciding whether to tear the building down completely or just partly proved to be difficult. Arguments arose within the church and the larger community of Boerne. The church decided to tear down 80% of the building to make room for an addition and put their request into the City. The request was denied in 1993 by the Boerne Historical Landmark Commission. The church then appealed that ruling and the argument went all the way to the Supreme Court. In 1997, the Supreme Court ruled in favor of the Boerne Historical Landmark Commission...The City of Boerne and St. Peter’s came to a compromised[sic] in 1998. Only 25% of the building was torn down and the new part of the building was added to rear and side of the old building. This saved the beautiful and historic twin towers.⁸

Ultimately, the Supreme Court in City of Boerne held that RFRA’s guarantees only applied to federal laws, not state or local laws. And note that the Supreme Court ultimately ruled against Bishop Flores in 1997, three years before Congress passed RLUIPA. Ultimately, the Archdiocese of San Antonio was embroiled in litigation for some 7 years before a settlement was reached after it first sought to remodel its cathedral, and RLUIPA was passed after the Archdiocese ultimately lost in Boerne. The potential time, expense, and uncertainty of outcomes that follow litigation cannot be discounted by any religious organization thinking about filing suit and seeking relief under RLUIPA.  

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Divisions Over the Application of RLUIPA

Note: This section contains significant legal analysis regarding the application of RLUIPA in federal courts.  Non-lawyers may prefer to skip to the final section to learn about some practical takeaways.

RLUIPA specifically applies to the “implementation… of a land use regulation or system of land use regulations, under which a government makes…individualized assessments of the proposed uses for the property involved.”  The Supreme Court has never taken up the constitutionality of the portions of the statute that limit the application of land use regulations to religious organizations, so there is no uniform way that courts apply this rule.

The remaining unknowns related to how courts will interpret RLUIPA in each case leave major questions unanswered for religious organizations. Can long delays amount to a substantial burden? Can denial of a land use application be interpreted as the religious organization being placed on less than equal footing with a secular organization that was granted a similar exemption? What burden of proof is needed for a religious organization to show discrimination under RLUIPA? Existing case law involves very specific factual scenarios with differing results.  As such, legal analysis in this area involves nuanced and creative work by lawyers when advocating for religious organizations.  

Again, courts come out differently on these questions. In 2004. the 11^th Circuit found that a zoning ordinance prohibiting Orthodox Jewish synagogues from opening within the business district of a Florida beach town did not constitute a substantial burden under RLUIPA. “[T]he burden of walking a few extra blocks made greater by Mother Nature's occasional incorrigibility, is not substantial.”⁹ However, the Midrash Sephardi court in the same case found that Section (b)(1) of RLUIPA was violated because the zoning ordinance treated religious assemblies and institutions differently from nonreligious assemblies or institutions. Three years later, the Third Circuit would explicitly disregard the Fourth Circuit’s test for (b)(1) violations, arguing that it would essentially exempt religious organizations from municipal zoning codes.¹⁰ In Civil Liberties for Urban Believes (CLUB) v. City of Chicago, the Seventh Circuit held that a land use regulation must render the religious use “effectively impracticable” when determining whether a substantial burden exists.¹¹ In Midrash Sephardi, the Eleventh Circuit held that a substantial burden “must place more than an inconvenience on religious exercise” but can “result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct.”¹² And the Ninth Circuit said the regulation, or imposition of the regulation, must be oppressive “to a significantly great extent.”¹³ When confronted with this collage of standards, the Supreme Court of Maryland rejected the Seventh Circuit’s high standard and attempted to find middle ground, holding that a substantial burden will leave “the aggrieved religious institution without a reasonable means to observe a particular religious precept…”¹⁴ If you are unclear at this point how much protection RLUIPA provides to religious organizations, you are not alone. It is hard to anticipate what a given court will adopt as its standard and how it will apply that standard to varying circumstances.

On top of it all, recent U.S. Supreme Court holdings in other religious freedom contexts may impact a court’s RLUIPA analysis in land use cases. In 2022, the Supreme Court ruled in Collier v. Ramirez that a Texas prison’s refusal to allow a pastor to “lay hands” on a death row inmate during his execution constituted a substantial burden on a prisoner’s religious practice and, therefore, violated RLUIPA.¹⁵ The Supreme Court however did not exactly define what constituted a substantial burden going forward, which factors should be used to find a substantial burden, or when the government might have a compelling interest to justify the imposition of an otherwise substantial burden on religious practice.

In 2021, the Supreme Court revisited the Smith holding in Fulton v. City of Philadelphia and revised its test. In Fulton, the Court held that a “law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by providing a mechanism for individualized exemptions.”¹⁶ In Fulton, Catholic Charities refused to facilitate foster care placements with same-sex couples in accord with the teachings of the Catholic Church. The City of Philadelphia terminated its contract with Catholic Charities for that reason. And in a unanimous decision, the Supreme Court held that the City of Philadelphia violated the First Amendment when it did so.

Fulton’s holding then has serious implications not only for the First Amendment, but also RLUIPA. The Fulton holding seems to undercut RLUIPA decisions like Lighthouse in the Third Circuit, mentioned above. It also raises questions as to what extent zoning codes, and various applicable exceptions thereunder, apply to religious organizations. Under Fulton, must municipal bodies always grant individualized exemptions, like variances and special use permits, to religious organizations? Are zoning boards and local governments now required to grant any requested variance for a religious use? These questions must be fleshed out in the years to come.

In sum, it is difficult to predict what courts will consider substantially burdensome, and what tests or methodologies will be used to conduct the analysis. The case law is divided, unsettled, and evolving. Nevertheless, the Supreme Court appears to be leaning towards a more expansive understanding of the rights afforded by RLUIPA.  

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So What Do I Do? Some Best Practices

Where does this leave religious organizations? Fortunately, there are reasonable and logical steps that can be taken to equip organizations to invoke the protections of RLUIPA (or simply avoid any need to rely on it at all) when selecting a property.  

First and foremost, look for properties that require few land use approvals (or none at all). This might seem obvious, but sometimes well-meaning ministers can underestimate the land use process, or overestimate the protections afforded by laws like RLUIPA. It is important to recognize that acquiring a special exception or variance can require a lot of work, and that approvals are never guaranteed. And even if RLUIPA is applicable, enforcing those protections can be expensive and time-consuming.  

Keep in mind long-term goals for your organization and understand what land use approvals will be necessary as your apostolate grows. Do you need to build more structures? Do you plan to distribute food? Do you plan to sell merchandise, perhaps to fundraise for the organization? What are your long-term plans, and what will you need to do to accomplish them? What permits, variances, or special exceptions may become necessary to fulfill your vision? Plan for the future when selecting your property – and again, if at all possible, seek a property that will enable your organization’s growth without any land use approvals.

Pay attention to surrounding land uses when selecting a property. It may not be realistic to find a property that does not require any land use approvals. If the land use process becomes antagonistic, the best way to make an argument for a violation of RLUIPA may actually be to point out unequal treatment. Take some time to understand if other properties in the area have a similar use, but for non-religious purposes. Did those landowners obtain approvals? Identifying and understanding how the process unfolded for comparative properties can be immensely helpful in identifying the right property. 

Keep in mind the politics of the locale. Land development is often an intensely political process. As noted above, even if you have a legitimate claim under RLUIPA, asserting those rights can be expensive. And in many cases, you will remain responsible for your attorneys’ fees and expert fees regardless of the outcome of the litigation.¹⁷ If alternate properties you are considering are in different political jurisdictions, that understanding may impact which one you choose. 

Understand that some burdens are likely just part of the process. Be realistic. Expect delays and leave adequate space in the budget for unexpected land use expenses.  

Always seek legal counsel before moving forward on a construction or land use permit process. A religious organization should not move forward on any new plans for usage or construction on its property before consulting an attorney. Notably, some governments require religious organizations to be represented by an attorney prior to seeking a zoning variance.

Finally, keep these arguments in your back pocket. Don’t depend on RLUIPA at first strike when planning your real estate projects. Plan for a path of least resistance. Nevertheless, know that you have favorable law and can make strong arguments if things become difficult. Invoking RLUIPA may make your initial building or zoning use application more salient to a local zoning board.  Be prepared to assert your rights under RLUIPA if necessary and leverage some legal arguments. Localities want to avoid needless expenses as well. Asserting reasonable and non-frivolous positions can help create the leverage you need to avoid an argument from the beginning.  

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¹ 42 U.S.C. § 2000, et seq.

² For information on eligibility, we encourage you to read the Napa Legal whitepaper by Howard Chang titled “Assemblies & Institutions: RLUIPA’s Overlooked Requirement.” In this paper, we will focus on that final prong, whether the implementation of a land use regulation constitutes a substantial burden.

³ 237 F. Supp. 3d 781 (N.D. Ill. 2017).

⁴ 937 F. Supp. 2d 910 (N.D. Ill. 2013).

⁵ 540 F. Supp. 3d 147 (D. Mass. 2021).

⁶ 494 U.S. 872 (1990).

⁷ 521 U.S. 507 (1997).

⁸ Amy Deckard et al, Boerne, A History of Our Town https://www.ci.boerne.tx.us/DocumentCenter/View/16977/The-Boerne-Book-2020-Updated-Edition.

⁹ Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004).

¹⁰ “We are not persuaded by the reasoning of the Eleventh Circuit. Its reading of the statute would lead to the conclusion that Congress intended to force local governments to give any and all religious entities a free pass to locate wherever any secular institution or assembly is allowed. Thus, under the Eleventh Circuit's interpretation, if a town allows a local, ten-member book club to meet in the senior center, it must also permit a large church with a thousand members-or, to take examples from the Free Exercise caselaw, it must permit a religious assembly with rituals involving sacrificial killings of animals or the participation of wild bears-to locate in the same neighborhood regardless of the impact such a religious entity might have on the envisioned character of the area.” Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007).

¹¹ 342 F.3d 752, 761 (7th Cir. 2003).

¹² 366 F.3d at 1227.

¹³Guru Nanak Sikh Society v. County of Sutter, 456 F.3d 978, 988 (9th Cir. 2006).

¹⁴Trinity Assembly of God of Baltimore City, Inc. v. People’s Counsel for Baltimore County, 407 Md. 53, 96 (2008).

¹⁵ 10 F. 4th 561 (2022).

¹⁶ 141 S.Ct. 1868 (2021).

¹⁷ See 42 U.S.C. § 1988 (b). In some cases, a prevailing plaintiff may be awarded attorneys’ fees, at the discretion of the court. But this is not a guarantee.