The Latest Word on RLUIPA

The impact of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) on the power of local zoning authorities has been the subject of much concern across the country. In New York, the primary focus of attention has been on efforts by the Village of Mamaroneck to thwart the expansion plans of the Westchester Day School (WDS), which has operated a Jewish day school in a residential neighborhood for more than 50 years. The latest chapter in the saga is an opinion by Judge Conner of the Southern District ordering the Mamaroneck Zoning Board of Appeals to approve the Day School's special permit application. The opinion is noteworthy on two fronts: first, for its broad construction of 'religious exercise,' and second for its treatment of the compelling government interests that might justify placing a substantial burden on religious exercise.

Background

In 2001, WDS applied to the Mamaroneck Zoning Board of Appeals (ZBA) for a modification of its special permit to enable the school to build additional facilities. These facilities included classrooms, a cafeteria, and additional parking. The expansion plan engendered community opposition, and the ZBA ultimately denied the application, citing increased intensity of use due to increased enrollment, traffic concerns, and insufficient parking.

WDS then brought suit in federal district court, contending that the denial violated RLUIPA, which prohibits implementation of '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 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 sec. 2000cc[a][1].

The district court awarded summary judgment to WDS, principally focusing upon, and rejecting, a multifaceted challenge to the constitutionality of RLUIPA, (See generally Marci A. Hamilton, Southern District Upholds Constitutionality of RLUIPA, NY Real Estate Law Reporter, October 2003 [available online]). The Second Circuit reversed the district court's grant of summary judgment, concluding that questions of fact remained about whether the ZBA decision had been a complete and final denial of WDS's application, and about whether insufficient parking posed a threat to the public safety. Those issues, in the court's judgment, required a trial. Westchester Day School v. Village of Mamaroneck, 386 F3d 183. See generally Stewart E. Sterk, Second Circuit Tackels RLUIPA, NY Real Estate Law Reporter, November 2004 [available online].

Second Circuit's Questions

In the course of its opinion, however, the Second Circuit questioned two other aspects of the district court's decision. First, the court expressed doubt about the district court's view that 'any program of the School to improve its facilities in a manner that would improve the students' overall educational experience would be protected by RLUIPA.' 386 F3d at 189. The court noted that such a construction of the statute might raise both free exercise and establishment clause issues, and called the district court's attention to the issue on remand. Second, the court questioned the district court's apparent conclusion that traffic concerns can never amount to a compelling governmental interest justifying a substantial burden on religious exercise. Because the Second Circuit did not need to resolve those issues in order to reverse the award of summary judgment, the court just highlighted them for the district court on remand. Similarly, the court declined to address the constitutionality of RLUIPA.

The Decision on Remand

On remand, the district court nodded toward the Second Circuit's admonition that construction of rooms to be used exclusively for secular purposes cannot constitute religious exercise. But the district court nevertheless endorsed a broad definition of religious exercise, and concluded that the secular uses planned for the new space at WDS would be inextricably intertwined with religious uses. As a result, the court concluded, the proposed facilities would be protected by RLUIPA.

The difficulty with the district court's conclusion, of course, is that it is trivially easy for a religious school to allege that its new classrooms would be used for both religious and secular functions. Even such mainstays of secular schools as cafeterias and gymnasiums (explicitly mentioned by the Second Circuit) can be adapted for religious events. If occasional use for religious purposes ” or worse yet, allegations of proposed occasional use for religious purposes ' is enough to qualify as religious exercise under the statute, then any religious school with a competent lawyer will be able to bring a new construction project within the RLUIPA umbrella. Nevertheless, the district court's reading of the statute might be consistent with the statutory purpose. The problem, as the Second Circuit emphasized, is that such a broad construction raises constitutional issues. That did not, however, trouble the district court, which relied heavily on the Supreme Court's recent decision rejecting an Establishment Clause challenge to RLUIPA's prisoner's rights provisions. Cutter v. Wilkinson, 125 S Ct 2113 (2005).

In addressing whether the ZBA had advanced a compelling governmental interest sufficient to justify denial of the permit, the district court concluded that even if traffic concerns could constitute a compelling governmental interest (an issue on which the district court continued to exhibit doubt), the ZBA had not demonstrated that outright denial of the permit constituted the least restrictive means of advancing that interest. As a result, the court ordered grant of the permit.

Implications

In ordering grant of the permit, the district court relied not only on RLUIPA, but on New York state law principles that put religious uses in a preferred position with respect to zoning issues. Because New York courts do extend typically extend broad protection to religious uses, as well as to non-religious educational uses, the decision in the Westchester Day case is not likely to be disturbed on appeal, whatever the merits of the district court's construction of RLUIPA. But the broad reading endorsed by the district court poses a headache for local zoning authorities more generally, and may well lead local zoning authorities to act more deferentially with respect to proposals by religious users.

Stewart E. Sterk is Editor-in-Chief of this newsletter.

The impact of the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) on the power of local zoning authorities has been the subject of much concern across the country. In New York, the primary focus of attention has been on efforts by the Village of Mamaroneck to thwart the expansion plans of the Westchester Day School (WDS), which has operated a Jewish day school in a residential neighborhood for more than 50 years. The latest chapter in the saga is an opinion by Judge Conner of the Southern District ordering the Mamaroneck Zoning Board of Appeals to approve the Day School's special permit application. The opinion is noteworthy on two fronts: first, for its broad construction of 'religious exercise,' and second for its treatment of the compelling government interests that might justify placing a substantial burden on religious exercise.

Background

In 2001, WDS applied to the Mamaroneck Zoning Board of Appeals (ZBA) for a modification of its special permit to enable the school to build additional facilities. These facilities included classrooms, a cafeteria, and additional parking. The expansion plan engendered community opposition, and the ZBA ultimately denied the application, citing increased intensity of use due to increased enrollment, traffic concerns, and insufficient parking.

WDS then brought suit in federal district court, contending that the denial violated RLUIPA, which prohibits implementation of '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 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 sec. 2000cc[a][1].

The district court awarded summary judgment to WDS, principally focusing upon, and rejecting, a multifaceted challenge to the constitutionality of RLUIPA, (See generally Marci A. Hamilton, Southern District Upholds Constitutionality of RLUIPA, NY Real Estate Law Reporter, October 2003 [available online]). The Second Circuit reversed the district court's grant of summary judgment, concluding that questions of fact remained about whether the ZBA decision had been a complete and final denial of WDS's application, and about whether insufficient parking posed a threat to the public safety. Those issues, in the court's judgment, required a trial. Westchester Day School v. Village of Mamaroneck , 386 F3d 183. See generally Stewart E. Sterk, Second Circuit Tackels RLUIPA, NY Real Estate Law Reporter, November 2004 [available online].

Second Circuit's Questions

In the course of its opinion, however, the Second Circuit questioned two other aspects of the district court's decision. First, the court expressed doubt about the district court's view that 'any program of the School to improve its facilities in a manner that would improve the students' overall educational experience would be protected by RLUIPA.' 386 F3d at 189. The court noted that such a construction of the statute might raise both free exercise and establishment clause issues, and called the district court's attention to the issue on remand. Second, the court questioned the district court's apparent conclusion that traffic concerns can never amount to a compelling governmental interest justifying a substantial burden on religious exercise. Because the Second Circuit did not need to resolve those issues in order to reverse the award of summary judgment, the court just highlighted them for the district court on remand. Similarly, the court declined to address the constitutionality of RLUIPA.

The Decision on Remand

On remand, the district court nodded toward the Second Circuit's admonition that construction of rooms to be used exclusively for secular purposes cannot constitute religious exercise. But the district court nevertheless endorsed a broad definition of religious exercise, and concluded that the secular uses planned for the new space at WDS would be inextricably intertwined with religious uses. As a result, the court concluded, the proposed facilities would be protected by RLUIPA.

The difficulty with the district court's conclusion, of course, is that it is trivially easy for a religious school to allege that its new classrooms would be used for both religious and secular functions. Even such mainstays of secular schools as cafeterias and gymnasiums (explicitly mentioned by the Second Circuit) can be adapted for religious events. If occasional use for religious purposes ” or worse yet, allegations of proposed occasional use for religious purposes ' is enough to qualify as religious exercise under the statute, then any religious school with a competent lawyer will be able to bring a new construction project within the RLUIPA umbrella. Nevertheless, the district court's reading of the statute might be consistent with the statutory purpose. The problem, as the Second Circuit emphasized, is that such a broad construction raises constitutional issues. That did not, however, trouble the district court, which relied heavily on the Supreme Court's recent decision rejecting an Establishment Clause challenge to RLUIPA's prisoner's rights provisions. Cutter v. Wilkinson , 125 S Ct 2113 (2005).

In addressing whether the ZBA had advanced a compelling governmental interest sufficient to justify denial of the permit, the district court concluded that even if traffic concerns could constitute a compelling governmental interest (an issue on which the district court continued to exhibit doubt), the ZBA had not demonstrated that outright denial of the permit constituted the least restrictive means of advancing that interest. As a result, the court ordered grant of the permit.

Implications

In ordering grant of the permit, the district court relied not only on RLUIPA, but on New York state law principles that put religious uses in a preferred position with respect to zoning issues. Because New York courts do extend typically extend broad protection to religious uses, as well as to non-religious educational uses, the decision in the Westchester Day case is not likely to be disturbed on appeal, whatever the merits of the district court's construction of RLUIPA. But the broad reading endorsed by the district court poses a headache for local zoning authorities more generally, and may well lead local zoning authorities to act more deferentially with respect to proposals by religious users.

Stewart E. Sterk is Editor-in-Chief of this newsletter.