Second Circuit Tackles RLUIPA

The federal Religious Land Use and Institutionalized Persons Act (RLUIPA) threatens to have a significant impact on local zoning decisions. Municipalities across the country have challenged the statute's constitutionality. In the most recent of those cases, Westchester Day School v. Village of Mamaroneck, 2004 US App LEXIS 20327 (NYLJ, 10/15/2004, p. 18, col. 1), the Second Circuit declined to address the constitutional issues directly, but suggested a narrow construction of the statute that would reduce RLUIPA's impact on local zoning policies.

The Facts, the Statute, and the District Court decision

Westchester Day School has operated a Jewish Day School in Mamaroneck for over 50 years. In 2001, the school applied to the village Zoning Board of Appeals (ZBA) for a modification of its special permit to enable the school to build additional facilities. Most of the new facilities were secular in nature, including classrooms, computer and art rooms, a cafeteria, and additional parking. As community opposition to the expansion mounted, the ZBA denied the school's application, citing ordinary zoning concerns, such as increased intensity of use due to increased enrollment, traffic concerns, and insufficient parking.

RLUIPA, however, alters the usual land use process by prohibiting implementation of “a land use regulation in a manner that imposes a substantial burden the religious exercise of a person, including a religious assembly or institution … ” unless the government regulator can demonstrate both that the regulation is “ in furtherance of a compelling governmental interest” and is “the least restrictive means of furthering that governmental interest.” 42 USC section 2000cc(a)(1). Westchester Day School challenged the ZBA's denial of its application as a violation of RLUIPA.

In its action in the United States District Court for the Southern District of New York, the school sought summary judgment. That court granted the summary judgment motion, concluding that the school had established that the ZBA's decision imposed the “substantial burden” contemplated by the statute, shifting to the village the burden or establishing a compelling governmental interest, and that the denial was the least restrictive means of furthering that governmental interest. The court found that the village had failed to meet that burden, and had raised no questions of fact warranting denial of summary judgment. The District Court's opinion, however, focused less on the facts of the Westchester Day School case, and more on the village's challenge to the constitutionality of RLUIPA — a multifaceted challenge that focused on Section 5 of the Fourteenth Amendment, the Commerce Clause, and the First Amendment's Free Exercise Clause. The court rejected each of the challenges and upheld the statute's constitutionality. (See generally, Marci A. Hamilton, Southern District Upholds Constitutionality of RLUIPA, NY Real Estate Law Reporter, October 2003). The village appealed.

The Second Circuit's Reversal

In reversing the Southern District's award of summary judgment to the school, the Second Circuit did not resolve the constitutionality of RLUIPA. Instead, the court, in an opinion by Judge Leval, held that the district court had improperly resolved on a summary judgment motion questions of fact “upon which a fact finder could reasonably disagree.” The Second Circuit's decision, however, rests on a statutory construction that would permit RLUIPA to intrude far less significantly on local land use concerns.

First, the Second Circuit cited the District Court's conclusion that the ZBA's action amounted to a “complete denial” of the school's proposal. The Second Circuit read this conclusion to mean that the ZBA had left open no possibility that it would be amenable to submission of a modified proposal. The Second Circuit noted, however, that the ZBA's resolution rejecting the school's application suggested that the ZBA's concern was with the specifics of the rejected application, not necessarily with any expansion plan the school might propose. As a result, the Second Circuit held that questions of fact remained about whether there had been a complete denial of the proposal.

Note, however, that this holding significantly narrows the potential scope of RLUIPA. The Second Circuit's holding in effect requires religious users to engage in the same process of compromise and resubmission that applies to other landowners. By contrast, a holding that denial of the initial application can constitute a substantial burden, without regard to the government's possible response to a modified proposal, would give the religious user enormous leverage in the zoning process.

Second, the Second Circuit commented on the meaning of “substantial burden on religious exercise.” In particular, the court questioned whether any effort by the school to improve the overall educational experience of its students would be protected by RLUIPA. In particular, the court noted that such a broad construction would permit a zoning board to reject an application to enlarge the gymnasium of a secular school, while precluding rejection of an identical application by a religious school. Such a construction, in the court's view, would raise significant First Amendment free exercise concerns.

Third, the court questioned the proposition that traffic concerns — advanced by the ZBA to justify denial of the application — can never be compelling governmental interests. Without expressing a final view on the issue, the Second Circuit noted that no controlling authority has held that traffic problems are incapable of being deemed compelling.

Implications

The Second Circuit's opinion deferred for another day final resolution of RLUIPA's constitutionality, and did not address at all the issues arising under the Commerce Clause or section 5 of the Fourteenth Amendment. But the court's opinion suggests that even if RLUIPA it ultimately upheld against constitutional attack, the impact on local land use policies might not be nearly as serious as the statute's critics have feared; a narrow construction of the statute might leave municipal officials entitled to consider many of the same factors they have traditionally considered in other zoning cases.

The federal Religious Land Use and Institutionalized Persons Act (RLUIPA) threatens to have a significant impact on local zoning decisions. Municipalities across the country have challenged the statute's constitutionality. In the most recent of those cases, Westchester Day School v. Village of Mamaroneck, 2004 US App LEXIS 20327 (NYLJ, 10/15/2004, p. 18, col. 1), the Second Circuit declined to address the constitutional issues directly, but suggested a narrow construction of the statute that would reduce RLUIPA's impact on local zoning policies.

The Facts, the Statute, and the District Court decision

Westchester Day School has operated a Jewish Day School in Mamaroneck for over 50 years. In 2001, the school applied to the village Zoning Board of Appeals (ZBA) for a modification of its special permit to enable the school to build additional facilities. Most of the new facilities were secular in nature, including classrooms, computer and art rooms, a cafeteria, and additional parking. As community opposition to the expansion mounted, the ZBA denied the school's application, citing ordinary zoning concerns, such as increased intensity of use due to increased enrollment, traffic concerns, and insufficient parking.

RLUIPA, however, alters the usual land use process by prohibiting implementation of “a land use regulation in a manner that imposes a substantial burden the religious exercise of a person, including a religious assembly or institution … ” unless the government regulator can demonstrate both that the regulation is “ in furtherance of a compelling governmental interest” and is “the least restrictive means of furthering that governmental interest.” 42 USC section 2000cc(a)(1). Westchester Day School challenged the ZBA's denial of its application as a violation of RLUIPA.

In its action in the United States District Court for the Southern District of New York, the school sought summary judgment. That court granted the summary judgment motion, concluding that the school had established that the ZBA's decision imposed the “substantial burden” contemplated by the statute, shifting to the village the burden or establishing a compelling governmental interest, and that the denial was the least restrictive means of furthering that governmental interest. The court found that the village had failed to meet that burden, and had raised no questions of fact warranting denial of summary judgment. The District Court's opinion, however, focused less on the facts of the Westchester Day School case, and more on the village's challenge to the constitutionality of RLUIPA — a multifaceted challenge that focused on Section 5 of the Fourteenth Amendment, the Commerce Clause, and the First Amendment's Free Exercise Clause. The court rejected each of the challenges and upheld the statute's constitutionality. (See generally, Marci A. Hamilton, Southern District Upholds Constitutionality of RLUIPA, NY Real Estate Law Reporter, October 2003). The village appealed.

The Second Circuit's Reversal

In reversing the Southern District's award of summary judgment to the school, the Second Circuit did not resolve the constitutionality of RLUIPA. Instead, the court, in an opinion by Judge Leval, held that the district court had improperly resolved on a summary judgment motion questions of fact “upon which a fact finder could reasonably disagree.” The Second Circuit's decision, however, rests on a statutory construction that would permit RLUIPA to intrude far less significantly on local land use concerns.

First, the Second Circuit cited the District Court's conclusion that the ZBA's action amounted to a “complete denial” of the school's proposal. The Second Circuit read this conclusion to mean that the ZBA had left open no possibility that it would be amenable to submission of a modified proposal. The Second Circuit noted, however, that the ZBA's resolution rejecting the school's application suggested that the ZBA's concern was with the specifics of the rejected application, not necessarily with any expansion plan the school might propose. As a result, the Second Circuit held that questions of fact remained about whether there had been a complete denial of the proposal.

Note, however, that this holding significantly narrows the potential scope of RLUIPA. The Second Circuit's holding in effect requires religious users to engage in the same process of compromise and resubmission that applies to other landowners. By contrast, a holding that denial of the initial application can constitute a substantial burden, without regard to the government's possible response to a modified proposal, would give the religious user enormous leverage in the zoning process.

Second, the Second Circuit commented on the meaning of “substantial burden on religious exercise.” In particular, the court questioned whether any effort by the school to improve the overall educational experience of its students would be protected by RLUIPA. In particular, the court noted that such a broad construction would permit a zoning board to reject an application to enlarge the gymnasium of a secular school, while precluding rejection of an identical application by a religious school. Such a construction, in the court's view, would raise significant First Amendment free exercise concerns.

Third, the court questioned the proposition that traffic concerns — advanced by the ZBA to justify denial of the application — can never be compelling governmental interests. Without expressing a final view on the issue, the Second Circuit noted that no controlling authority has held that traffic problems are incapable of being deemed compelling.

Implications

The Second Circuit's opinion deferred for another day final resolution of RLUIPA's constitutionality, and did not address at all the issues arising under the Commerce Clause or section 5 of the Fourteenth Amendment. But the court's opinion suggests that even if RLUIPA it ultimately upheld against constitutional attack, the impact on local land use policies might not be nearly as serious as the statute's critics have feared; a narrow construction of the statute might leave municipal officials entitled to consider many of the same factors they have traditionally considered in other zoning cases.