Southern District Upholds Constitutionality of RLUIPA

In one of the earliest decisions addressing the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Southern District of New York upheld the law. Westchester Day School v. Village of Mamaroneck, 2003 WL 22110445 (S.D.N.Y. Sept. 5, 2003). Only three other courts to date have addressed the issue, including Elsinore Christian Center v. City of Lake Elsinore, No. 01-04842, 2003 U.S. Dist. LEXIS 11301 (C.D. Cal. 2003) (holding RLUIPA unconstitutional and beyond Congress's power), affirmed on reconsideration, No. 01-04842 (C.D. Cal. Filed Aug. 21, 2003); Teen Life Christian Center, U.S. District Court for the District of Arizona, Case No. CIV 01-1490 (2003) (upholding RLUIPA); Freedom Baptist Church of Delaware County v. Township of Middletown, 204 F. Supp.2d 857 (E.D. Pa. 2002) (upholding RLUIPA). Challenges are pending in Connecticut, Hawaii, Pennsylvania, Texas, and Wisconsin.

RLUIPA places the burden on plaintiff religious landowners to prove that there is a substantial burden on their religious exercise and then shifts the burden to the government to prove that its land use law applied to the religious landowner was passed to serve a “compelling interest” and that it is the “least restrictive means” necessary to serve that interest.

The Westchester Day School (WDS) case involves the denial by the Zoning Board of Appeals of the Village of Mamaroneck (ZBA) denying a special permit application by WDS to build and renovate a Jewish day school. After finding that no Environmental Impact Statement was needed, the ZBA expressed concern about isolated issues – movement of a new building from the property line and the overall square footage of the new building. Following public hearings, however, the ZBA denied the application in toto. Westchester Day School appealed, invoking the RLUIPA.

Challenge to RLUIPA

The decision first addressed RLUIPA's constitutionality. Heavily relying on the reasoning of the E.D.Pa. in Baptist Church of Delaware County v. Township of Middletown, 204 F.Supp. 2d 857 (E.D. Pa. 2002), the court rejected the Village's argument that RLUIPA was beyond Congress' power under either Section 5 of the Fourteenth Amendment or the Commerce Clause. Though it did not survey the legislative history itself, the court found that the congressional record was sufficient to justify federal regulation of local land use law under Section 5. Moreover, the court interpreted the compelling interest/least restrictive means test in RLUIPA to be a codification of the Free Exercise Clause, citing Employment Div. v. Smith, 494 U.S. 872 (1990), on the ground that RLUIPA limits its reach under Section 5 of the Fourteenth Amendment to those situations where there is an “individualized assessment.” Apparently, the court assumed that the statement in Smith indicating that “individualized exemptions” may justify strict scrutiny means that all instances wherein there is a case-by-case determination justify strict scrutiny. This approach was flatly rejected in City of Lake Elsinore, No. 01-04842, at 15 (C.D. Cal. Filed Aug. 21, 2003), where the court stated, “RLUIPA establishes an entirely new and different standard than that employed in prior Free Exercise Clause jurisprudence.”

The court further held that the Commerce Clause was satisfied, because the WDS's activity of running a Jewish day school is “an economic endeavor within the meaning of the Commerce Clause.” There was no analysis of the fact that RLUIPA regulates land use law, not economic activity itself. It further rejected the Tenth Amendment arguments raised by the Village on the ground that the power of Congress was consistent with the Commerce Clause and therefore could not violate the Tenth Amendment. The court summarily rejected the Village's argument that RLUIPA violates the Establishment Clause, stating that it was “neutral” with respect to all religions, but did not address the issue whether it passes Establishment Clause muster because it favors religion over nonreligion. See, e.g., Boerne, supra at 537 (Stevens, J., concurring) (“[t]his governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment”).

'Substantial Burden'

Having found RLUIPA constitutional, the court then applied the law to the facts and found that WDS should prevail. The court adopted an expansive interpretation of the “substantial burden” analysis under RLUIPA, ruling that WDS had shown a substantial burden by showing that the denial of the its application burdened the “quality of the religious education. … While the students of WDS may still, without the special permit modification, gather to pray and be educated, their religious education is limited by the current size and condition of the school buildings.” Thus, even though the zoning law did not preclude the religious group from engaging in prayer or education, its application impinged on the group's desire to expand in a way sufficient to prove a “substantial burden.”

Conclusion

There is no discussion of the constitutionality of the burden-shifting provisions of RLUIPA that shift the burden traditionally borne by the plaintiff in free exercise cases to the government. Rather, the court moves directly from finding a substantial burden to concluding that the Village failed to prove that its asserted interests in traffic or parking were “compelling interests.”

The court expressed “reluctance to act as a zoning board of appeals to review land use determinations,” but then proceeded to criticize the public's response to the project as “a paradigm of what has been referred to as the NIMBY (Not In My Backyard) syndrome” and in a lengthy footnote praised the details of WDS's proposal. Compare Congregation Kol Ami v. Abington Township, 309 F.3d 120, 125 (3d Cir. 2002) (“In the federal constitutional universe, federal courts accord substantial deference to local government in setting land use policy”).

In one of the earliest decisions addressing the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Southern District of New York upheld the law. Westchester Day School v. Village of Mamaroneck, 2003 WL 22110445 (S.D.N.Y. Sept. 5, 2003). Only three other courts to date have addressed the issue, including Elsinore Christian Center v. City of Lake Elsinore, No. 01-04842, 2003 U.S. Dist. LEXIS 11301 (C.D. Cal. 2003) (holding RLUIPA unconstitutional and beyond Congress's power), affirmed on reconsideration, No. 01-04842 (C.D. Cal. Filed Aug. 21, 2003); Teen Life Christian Center, U.S. District Court for the District of Arizona, Case No. CIV 01-1490 (2003) (upholding RLUIPA); Freedom Baptist Church of Delaware County v. Township of Middletown , 204 F. Supp.2d 857 (E.D. Pa. 2002) (upholding RLUIPA). Challenges are pending in Connecticut, Hawaii, Pennsylvania, Texas, and Wisconsin.

RLUIPA places the burden on plaintiff religious landowners to prove that there is a substantial burden on their religious exercise and then shifts the burden to the government to prove that its land use law applied to the religious landowner was passed to serve a “compelling interest” and that it is the “least restrictive means” necessary to serve that interest.

The Westchester Day School (WDS) case involves the denial by the Zoning Board of Appeals of the Village of Mamaroneck (ZBA) denying a special permit application by WDS to build and renovate a Jewish day school. After finding that no Environmental Impact Statement was needed, the ZBA expressed concern about isolated issues – movement of a new building from the property line and the overall square footage of the new building. Following public hearings, however, the ZBA denied the application in toto. Westchester Day School appealed, invoking the RLUIPA.

Challenge to RLUIPA

The decision first addressed RLUIPA's constitutionality. Heavily relying on the reasoning of the E.D.Pa. in Baptist Church of Delaware County v. Township of Middletown , 204 F.Supp. 2d 857 (E.D. Pa. 2002), the court rejected the Village's argument that RLUIPA was beyond Congress' power under either Section 5 of the Fourteenth Amendment or the Commerce Clause. Though it did not survey the legislative history itself, the court found that the congressional record was sufficient to justify federal regulation of local land use law under Section 5. Moreover, the court interpreted the compelling interest/least restrictive means test in RLUIPA to be a codification of the Free Exercise Clause, citing Employment Div. v. Smith , 494 U.S. 872 (1990), on the ground that RLUIPA limits its reach under Section 5 of the Fourteenth Amendment to those situations where there is an “individualized assessment.” Apparently, the court assumed that the statement in Smith indicating that “individualized exemptions” may justify strict scrutiny means that all instances wherein there is a case-by-case determination justify strict scrutiny. This approach was flatly rejected in City of Lake Elsinore, No. 01-04842, at 15 (C.D. Cal. Filed Aug. 21, 2003), where the court stated, “RLUIPA establishes an entirely new and different standard than that employed in prior Free Exercise Clause jurisprudence.”

The court further held that the Commerce Clause was satisfied, because the WDS's activity of running a Jewish day school is “an economic endeavor within the meaning of the Commerce Clause.” There was no analysis of the fact that RLUIPA regulates land use law, not economic activity itself. It further rejected the Tenth Amendment arguments raised by the Village on the ground that the power of Congress was consistent with the Commerce Clause and therefore could not violate the Tenth Amendment. The court summarily rejected the Village's argument that RLUIPA violates the Establishment Clause, stating that it was “neutral” with respect to all religions, but did not address the issue whether it passes Establishment Clause muster because it favors religion over nonreligion. See, e.g., Boerne, supra at 537 (Stevens, J., concurring) (“[t]his governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment”).

'Substantial Burden'

Having found RLUIPA constitutional, the court then applied the law to the facts and found that WDS should prevail. The court adopted an expansive interpretation of the “substantial burden” analysis under RLUIPA, ruling that WDS had shown a substantial burden by showing that the denial of the its application burdened the “quality of the religious education. … While the students of WDS may still, without the special permit modification, gather to pray and be educated, their religious education is limited by the current size and condition of the school buildings.” Thus, even though the zoning law did not preclude the religious group from engaging in prayer or education, its application impinged on the group's desire to expand in a way sufficient to prove a “substantial burden.”

Conclusion

There is no discussion of the constitutionality of the burden-shifting provisions of RLUIPA that shift the burden traditionally borne by the plaintiff in free exercise cases to the government. Rather, the court moves directly from finding a substantial burden to concluding that the Village failed to prove that its asserted interests in traffic or parking were “compelling interests.”

The court expressed “reluctance to act as a zoning board of appeals to review land use determinations,” but then proceeded to criticize the public's response to the project as “a paradigm of what has been referred to as the NIMBY (Not In My Backyard) syndrome” and in a lengthy footnote praised the details of WDS's proposal. Compare Congregation Kol Ami v. Abington Township , 309 F.3d 120, 125 (3d Cir. 2002) (“In the federal constitutional universe, federal courts accord substantial deference to local government in setting land use policy”).