The Lawletter Vol 34 No 10, November 4, 2010
John Stone, Senior Attorney, National Legal Research Group
When it enacted the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), "Congress endeavored to codify existing Free Exercise jurisprudence" in the area of land use regulations. Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 350 (2d Cir. 2005) (citations omitted). The RLUIPA has not elevated federal courts into appellate zoning boards, id. at 348-49, but it protects against "subtle forms of discrimination when, as in the case of the grant or denial of zoning variances, a state delegates essentially standardless discretion to nonprofessionals operating without procedural safeguards," Sts. Constantine & Helen Greek Orthodox Church v. City of New Berlin, 396 F.3d 895, 900 (7th Cir. 2005) (Posner, J.) (citations omitted).
Section 2(a)(1) of the RLUIPA, the substantial-burden claims provision, provides 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, unless the government demonstrates that imposition of the burden on that person, assembly or institution—
(A) is in furtherance of a compelling interest; and
(B) is the least restrictive means of furthering that compelling interest.
42 U.S.C. § 2000cc(a)(1). In Fortress Bible Church v. Feiner, No. 03 Civ. 4235(SCR), 2010 WL 3199876 (S.D.N.Y. Aug. 12, 2010), a Town's determined efforts to keep a church from establishing itself in a new location in the town after the church congregation had outgrown the property where it had been for 40 years led a court to find a violation of the RLUIPACand a not so "subtle" violation at that.
In addition to injunctive relief, the court in Fortress Bible Church ruled that the church could recover damages, not by means of the RLUIPA, but under a separate claim under 42 U.S.C. § 1983. Courts are divided on the issue of whether the "appropriate relief" available under the RLUIPA extends to monetary damages. Compare Madison v. Virginia, 474 F.3d 118, 131B32 (4th Cir. 2006) (monetary damages are not available under the RLUIPA), with Smith v. Allen, 502 F.3d 1255, 1265 (11th Cir. 2007) (monetary damages are available under the RLUIPA). The Second Circuit has yet to resolve the issue. The same Town conduct that violated rights under the RLUIPA offended the First Amendment Free Exercise Clause and the Fourteenth Amendment Equal Protection Clause, thus supporting the § 1983 claim.
The evidence presented at a 26-day bench trial established that the proposed use of the church's new property, including the operation of a school, would be devoted to religious purposes. A single structure would house both the church and school and would include a sanctuary, offices, library, kitchen, classrooms, and a gymnasium. The proposed facility would host prayer, religious ceremonies, fellowships, visiting ministries, religious education, and other religious activities. The minister for the church testified regarding the religious significance of these activities to the church and its congregants. Also, a preexisting single‑family house on the same property would be used as the parsonage for the church.
The church substantiated its claim that the denial of its application submitted under state environmental legislation in effect coerced the church to continue its religious practices in inadequate facilities, thereby impeding its religious exercise. The Town had an extensive history of dealing with the church in bad faith, evidenced by such conduct as the Town's repeatedly requesting additional informationCoften that it already had in handCfor the church's revised proposals, board members' instructing staff to identify ways in which the board could vote against the church's proposal, and at least one board member's instructing a planning commissioner to "kill the project."
As for the supposed compelling governmental interests that might have justified denial of the church's applications, the Town contended that it had acted to protect the health, safety, and welfare of Town residents because the plan (i) created unsafe traffic conditions in and around the property; (ii) contained inadequate parking; (iii) failed to comply with Town Code steep slope requirements; (iv) created a public nuisance that endangered the safety of children; (v) posed adverse impacts to the Town's police and fire resources; and (vi) created concerns among the project's neighbors. Point by point, the court discounted these purported concerns, finding that they all were contrived for the sole purpose of rationalizing the Town's denial of the applications. Because the court found that the Town had not demonstrated a compelling governmental interest for the denial of the church's application, it did not need to address whether the Town had utilized the least restrictive means to address those interests.
Rubbing salt in the Town's wound was the court's additional ruling that the Town would be sanctioned in the amount of $10,000 for intentionally destroying or discarding relevant evidence and for failing to produce some other clearly relevant evidence during discovery. The record was "replete" with evidence of such violations, which were described by the court as "blatant."