Holy Zoning
California Lawyer

Holy Zoning

July 2002

by Martin Lasden
        When a city slogs through the minutiae of a zoning dispute, there's usually little that a lawyer can say to radically alter the balance of power. But in the fall of 2000, William R. Johnston of Zanzinger & Johnston caught the city of Half Moon Bay off guard by invoking a just-enacted statute that lawyers for this San Francisco Bay Area seaside community hadn't even heard of. It's called the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) (42 USC §2000cc), and it gives the faithful a powerful new weapon against the edicts of local government.
        Johnston himself first found out about the law while representing the interests of Mike and Kathy Niece-a pair of Catholic Workers members who had turned their home near the beach into a food distribution center for the poor. To them, it was simply a matter of following the tenets of their faith. But among their neighbors, the Nieces were bad news. Then, on September 29, 2000, the director of the city's planning department weighed in with a letter to the couple, informing them that they were in violation of local zoning law.
        "I do not pretend to be an expert in this field," responded Johnston, who had taken the case on a pro bono basis. "But I was amused by the sentence in [the local ordinance] that reads '[A]ny use not expressly permitted is expressly prohibited.' It strikes me that it would be very easy to come up with a long list of residential home usages that are not expressly permitted. Hot tubs, basketball hoops, and consensual sexual practices come immediately to mind."
        Johnston then cited RLUIPA-a law that requires the city to satisfy a strict-scrutiny test before it can impose a "substantial burden" on religious practice. Moreover, as the statute reads, this test could easily apply to a wide range of faith-based enterprises that threaten the character of neighborhoods, including soup kitchens, day care centers, and homeless shelters. "In light of this law," Johnston wrote, "what we need to do is sit down together and figure out whether there is a compelling governmental interest involved."
        But before such a meeting could ever occur, the couple made a few minor changes-like making sure that visitors parked in their driveway-and the controversy simply died away. "My impression is that people had more of a fear of what might happen than what actually did happen," says Kathy Niece, who now receives donations from a number of her neighbors.
        Did the mere mention of RLUIPA make the critical difference here? At Meyers, Nave, Riback, Silver & Wilson-a San Leandro-based law firm that represents more than 100 city governments, including Half Moon Bay-Jeffrey H. Goldfien resists that interpretation. If the couple is still distributing food, he suggests, it's only because the city didn't attach much importance to the issue. He also suggests that RLUIPA wouldn't have necessarily applied to this case since the city was simply trying to enforce a general rule rather than exercise its discretionary power. Still, Goldfien has to admit that when he received that letter from Johnston it was like getting the first glimpse of a tidal wave. "We've had ten more situations since then where RLUIPA has come up in one way or another," Goldfien says. Moreover with every home a potential church and every city a potential defendant, the growth potential is enormous. "I sometimes say that I would love to be a plaintiffs lawyer pursuing all these cases," Goldfien confides. "Of course, that's strictly a joke."
        When RLUIPA (commonly referred to as Ray-LU-pah) came before Congress in the summer of 2000, its supporters' stated goal was to eradicate a form of discrimination in the strongest language possible. "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," RLUIPA stipulates, unless it is to advance a "compelling government interest." And even then it can only do so by "the least restrictive means."
        More than 60 religious and legal advocacy groups-including such unlikely bedfellows as the ACLU, the National Association of Evangelicals, and the American Jewish Congress-supported RLUIPA, which made it just about impossible for opponents of the bill such as the National League of Cities to get a word in edgewise. The bill passed both houses of Congress by a vote of unanimous consent on July 27, 2000, and on September 22 President Clinton signed it into law. "[T]his legislation," Clinton said, "once again demonstrates that people of all political bents and faiths can work together for a common purpose that benefits all Americans."
        But critics say RLUIPA goes too far. They note that this is the first federal law to specifically target local land-use ordinances and that in the name of religious freedom the law radically impinges on the prerogatives of local government. In fact, without a compelling health or safety issue, communities may be unable to preserve the integrity of even their most basic zoning requirements for such matters as traffic, aesthetics, and noise. "This federal law actually makes it more difficult to live next to churches because it turns them into bad neighbors," contends Marci A. Hamilton, a law professor at the Benjamin N. Cardozo School of Law in New York. "In the past, if a church wanted to do something that impacted a neighborhood, there would have to be discussion and compromise. Now, when a church wants something-whether it's to build a homeless shelter or a parking lot-they have a leg up."
        "RLUIPA is one of the biggest issues now facing local governments," says Veronique Pluvoise-Fenton of the National League of Cities. She also says that communities strapped for money are more likely to cave in to the demands of the faithful than mount expensive defenses in federal court. The faithful, on the other hand, may not be nearly so hard pressed-especially when they get the help of an outside legal advocacy groups such as the Becket Fund for Religious Liberty.
        A privately funded, public interest law firm in Washington, D.C., the Becket Fund's lawyers currently represent more than a dozen religious organizations across the country involved in RLUIPA-related disputes. Among them, there's a group of Roman Catholic brothers in Los Angeles that wants to turn a historic house into a homeless shelter. Missionaries of Charities Brothers v City of Los Angeles (CD Cal) Civ No. 01-CV-8115. The fund is also representing a Christian educational organization in Castro Valley that wants to build a school on land that the locals want to preserve as open space. Redwood Christian Schools v County of Alameda (ND Cal) No. C01-4282 Mej ADR. "Local authorities simply see these cases as land-use issues," says Roman Storzer, the fund's director of litigation. "But when we enter the picture, we talk about the constitutionally guaranteed freedom to exercise one's faith."
        In Sacramento, another legal advocacy group offering support to the faithful is the Pacific Justice Institute, headed by Brad Dacus. "When I spoke before the American Bar Association last summer," he says, "I made it clear to the city attorneys there that our intent is to sue every local government that doesn't respect the statute." Currently, the Pacific Justice Institute is involved in more than two dozen RLUIPA-related disputes.
        Inevitably, say observers, one of these cases will end up before the U.S. Supreme Court, which for some time now has been jousting with Congress over the meaning of the Free Exercise clause.
        In 1990 religious interests took a hit when the Court ruled against a Native American Church member seeking unemployment compensation after he was fired from a drug rehabilitation program for his sacramental use of peyote. Employment Div. v Smith, 494 US 872. The Court said then that the Free Exercise clause provides little protection from laws that are generally applicable and neutral in their intent.
        In response, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA) (42 USC §2000bb et seq.), which applied the strict-scrutiny test to all Free Exercise cases in which a substantial burden could be shown. Then, four years later, Marci Hamilton got the Supreme Court to strike down RFRA by a 6-to-3 vote when the law was used to try to alter a historical landmark in Texas. City of Boerne v Flores (1997) 521 US 507, 532. As Justice Anthony Kennedy wrote for the majority on that occasion: "RFRA is so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior. It appears, instead, to attempt a substantive change in constitutional protections."
        The Boerne decision prompted legislators to fire off two more bills: the Religious Liberty Protection Act of 1998 and the Religious Liberty Protection Act of 1999-neither of which made it out of Congress, thanks in no small part to the stiffening opposition of civil rights groups. They feared that under these slightly reworded versions of RFRA, religious groups would enjoy immunity from antidiscrimination laws.
        Then, in 2000, legislators hit upon a new strategy. Instead of pushing for an all-inclusive umbrella, they decided to focus on land-use regulations. (Legislators also added a provision to protect the religious freedom of institutionalized persons such as prisoners, which before September 11 didn't seem particularly controversial.) There were two distinct advantages to this approach. First, lawmakers zeroed in on rules that often couldn't be characterized as neutral because of the subjectivity that local governments routinely apply-either through variances or special-use permits. Second, advocates could more easily gather anecdotes for the Congressional Record, showing patterns of discrimination that needed to be addressed.
        In one of these reported disputes, officials in Los Angeles denied a group of elderly disabled Orthodox Jews permission to hold services in a single-family home but later granted the same type of conditional-use permit to a gay sex club. In Evanston, Illinois, a zoning code permitted a building owned by a Christian fellowship organization to be used for "cultural" events such as concerts and theatrical performances but prohibited religious gatherings. And in the town of Bedford, New York, a small Buddhist temple was denied a special-use permit on the grounds that their gatherings would cause too much noise, even though their primary activity was silent meditation.
        Religious groups outside the mainstream were said to be particularly vulnerable. According to one study, minority religious groups that account for less than 9 percent of the population are ten times more likely to sue for denial of building privileges than much larger groups.
        Now, with RLUIPA, California courts are seeing a wave of land-use cases. "There are, by far, more ongoing RLUIPA cases in California than any other single state we're involved in," reports Patrick Korten of the Becket Fund. How does he explain it? He says it all has to do with the inflexibility of local officials. But no matter how these fights get started, once they spill over into federal court, four threshold questions must be considered: What is religious exercise? What is substantial burden? What is a compelling government interest? And what constitutes "least-restrictive means"?
        In the fall of 2001, these questions came before U.S. District Judge Ronald M. Whyte when San Jose Christian College (SJCC) sued the city of Morgan Hill for refusing to give its officials permission to turn an abandoned hospital into a college campus. School officials maintained they had God on their side. As stated in their motion for a preliminary injunction: "SJCC, its leaders, administrators, and representatives genuinely believe that God's will brought them this property for the continuation of their religious mission, and have publicly proclaimed that belief prior to the enactment of RLUIPA and long before the city's denial of their application. This is not a legally convenient revelation but a sincere and deeply felt religious belief.... It is these religious beliefs that are being restricted and violated by the action of the city."
        In the end, Judge Whyte granted Morgan Hill's motion for summary judgment, which was a big victory for the city and a setback for those supporting RLUIPA. But the law can hardly be ignored. In fact, just two months ago, a federal judge in Pennsylvania upheld the constitutionality of RLUIPA, generating national headlines and leaving local governments very much on their guard. "I recently had to cross-examine an applicant at a hearing," says City Attorney Helene L. Leichter, who represents Morgan Hill. "RLUIPA has forced us to turn our zoning hearings into quasi-judicial proceedings in order to demonstrate compelling government interests. The impact of this law truly is extraordinary."
        Martin Lasden is a senior editor at

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