Property Rights Foundation of America®

from PRFA's Twelfth Annual National Conference on Private Property Rights
October 18, 2008

Closing Address

The Rights of Religious Institutions Facing Zoning & Historic Preservation

Roman P. Storzer, Attorney, Storzer & Greene, P.L.L.C., Washington, D.C.

Thank you, Carol. I'd like to thank the Property Rights Foundation for inviting me here to talk about this very important subject. And I also want to thank her for holding this on a Saturday, because I just came back from a decision, an argument in Michigan in the Court of Appeals on one of these cases, and I'm heading out to California in a couple of days to work on another one. So the timing worked out. I was asked to speak about the rights that religious organizations can enjoy when facing all of the sorts of problems that have been discussed today, whether it be the Coastal Commission, takings, wetlands issues, SEQRA in this state, CEQA in California, I believe. We've had them all from the perspective of the religious institution.

One issue was mentioned earlier about the wind generation, the suggestion that perhaps federal legislation can pre-empt the hodge-podge of legislation—local and state legislation—that currently exists, and the first thing I thought about when I heard that was, "Be careful what you wish for." That's what happened in the religious sphere. We have a federal law called RLUIPA, the Religious Land Use and Institutionalized Persons Act, that was passed with the best of intentions in the year 2000 and has proceeded to muddle up the courts ever since. But there's hope—I don't want to sound pessimistic here.

I've represented religious organizations and individuals in a number of different contexts. I've represented students in the public schools, government employees, churches in church autonomy situations, many different contexts. But it's my opinion that in no other area is there as much restriction on religious exercise, a First Amendment freedom, free exercise, than in the zoning context, in the land use context, with possibly the exception of prisoners because their entire daily routine is regulated by the government. But, putting that aside, I think that land use regulation has the greatest impact on churches, on temples, on mosques throughout this nation. And that's where I think most of the free exercise religious liberty cases that have been coming out these days are coming from.

This right to freedom of religion exists independently of any local zoning code, any eminent domain action. Most people believe it's a God-given right. It's certainly enshrined in the Constitution; it transcends local bickering and squabbling. But what I've seen is that it often comes into conflict with something else that reaches near religious fervor, and that is the faith of urban planning and other land use restrictions. And if you hear people that often fight against it talk about it, they will talk about it with the same passion that is usually reserved for peoples' religious beliefs. How can you possibly think that you can put a synagogue next to this residential area—that's ridiculous. How can you have a storefront church being put in our downtown area where we are trying to revitalize the retail sector and increase tax revenues—it's insane. In this area that is filled with discretionary laws and their application, where permits are required and property can be taken by eminent domain, where you have many different layers of regulations, municipalities and other regulating bodies can usually find a reason to prevent any group from building anything anywhere.

In the past, local governments generally held all the power. They were the ones that made the decisions, and usually in the state court systems they were given a very deferential standard of review and pretty much allowed to do what they wanted to do, unless their actions went beyond the pale. And we've heard a lot of stories about actions going beyond the pale. But it's my belief that it shouldn't only be the most egregious cases that get legal protection, but there should be a more reasonable approach to this kind of issue, and that's one of the reasons RLUIPA was passed in 2000.

Before I get into the issue of what that is and what protections religious organizations may enjoy, let me tell you a little bit about what Carol mentioned with respect to the Third Church of Christ, Scientist in Washington D.C. This is a church that has worshipped in downtown D.C. for the last 90 years. In the early 1970s they hired a well-known architectural firm to design a new church. The architect happened to be more interested in one of the prevailing movements; it was mentioned that it was called "Brutalism." What Brutalism is, is a celebration of poured concrete. It really is! I wish I had brought a picture here to show you. For whatever reasons, this architect happens to kind of ignore the interests and the needs of the church, So they went ahead and built it.

Fast forward twenty years. A preservationist group decides that now the building needs to be protected. This is not some beautiful 200-year old church with a steeple and the kind of accoutrements that you expect from a building that is deserving of historic preservation, perhaps, under some circumstances. This thing is a concrete box. It's ugly, it's falling apart, it doesn't meet the needs of the church. The church needs to tear it down. At the time it was built, some descriptions include that by the U.S. Fine Arts Commission, "an obvious image of a wartime bunker." The Washington Post called it "rude, brutal, military and uncivilized." I think there's nothing wrong with "military," but when it comes to a church, perhaps it's not the best context to have that kind of image. More recently, and I'm no big fan of The Washington Post, but sometimes they get it right, they called it "probably the city's most unfriendly and depressing piece of spiritual architecture."

Not only that, but the church can't afford to keep it up. The church has a small congregation today, and because of the way the building is designed and constructed it has enormous maintenance and utility costs. It's estimated it would cost about $20 million to renovate it sufficiently to make it a viable building. And this is a church of a couple hundred people. So now, because of the aesthetic views of a few elitists, the church will literally be run into the ground. The concrete is falling apart. The congregation is going to have to devote all of its finances to maintaining this building, instead of devoting it to its ministries. And that's exactly why Congress passed the RLUIPA law in 2000. It specifically targets landmarking laws like this, as well as zoning laws. Here we're challenging the action in federal court. We just started the lawsuit and we've got a motion to dismiss that we're responding to next month; so hopefully we'll get something done.

Now you'd imagine that the RLUIPA law would apply to this action. On its terms, it applies to landmarking laws. What do you expect the reaction of the HPRB (Historic Preservation Review Board), the body in D.C. that reviews these kinds of actions to be? It says, "It's not our problem." It thinks that it's immune from the federal law. They disregard the burdens on the church completely, and they feel like they don't have to pay any attention to civil rights laws, like RLUIPA. Their position is absolutely wrong. The act itself says that it applies to any governmental entity and any official working for any governmental entity, or even any person acting under color of law. Congress thought that if it defined these terms as clearly and explicitly as possible, there would be no misunderstanding. And I think for normal, reasonable people there would be no misunderstanding. But the HPRB said, "No, it doesn't apply to us." For whatever reason…"Go take us to court if you want to."

That's what we're doing. But at the end of the day, even if the church is successful, it will probably end up paying hundreds of thousands of dollars in legal fees, it will take years before this will finally get resolved. The District as well as local preservation groups are making as much of an issue of this as they can, because the congregation doesn't want to accept the precedent that the property, the church, actually belongs to the District and the preservation groups, belongs to the people of the city, rather than belonging to the religious organization that built it and has paid for it.

You might ask, how did we get to this point? The passage of RLUIPA is kind of one of the last stages in a very interesting history. Zoning laws were affirmed in the early part of the twentieth century; the Supreme Court put its stamp of approval on them. Since then, jurisdictions and courts, as well, have generally been relatively protective of religious institutions, because it's seen as a land use that is inherently beneficial. It's like schools and hospitals; it's something that is for the public good.

That attitude changed when you get into the seventies, eighties, and nineties. In 1990 the Supreme Court decided a case that said basically that the free exercise clause of the First Amendment which protects religious liberty doesn't mean anything. There's no more strict scrutiny standard of religious exercise like there was before, and all that a government has to prove is that it has any reasonable, rational basis for its actions. And any religious freedom claim is going to be thrown out by the courts.

So Congress responded. In 1993 they passed the Religious Freedom Restoration Act. We call it RFRA, which reapplied the strict scrutiny test and overruled the decision. The Supreme Court didn't like that. So in 1997 it struck down that law, said "Congress, you don't have the authority to pass this law." It does still apply to the federal government, and, since D.C. is a federal district, we're using that statute to try to challenge the historic preservation designation in the Third Church case.

Congress came back in 2000 and passed RLUIPA, the Religious Land Use and Institutionalized Persons Act, which deals with land use issues and prisoners. As I've said before I think that land use represents the most significant intrusions on religious liberty that are out there. That statute has been upheld repeatedly by the courts. The Supreme Court upheld it with respect to the prisoners' side. Every other court that's looked at the land use side has upheld it as constitutional. So it's good law.

To muddy the waters a bit further, states also have their own protections of religious liberty, and they may have passed what people have called "mini-RFRA's" in their own jurisdictions. New York doesn't have one, but New York has a constitutional protection of religious freedom that, well, nobody really quite knows what it does.

A couple of years ago, in the Catholic Charities of the Diocese of Albany v. Serio case, the New York State Court of Appeals tried to analyze this issue. What does the New York State Constitution protect? And the question before the court was, is there strict scrutiny like RLUIPA or RFRA provided before 1990 in the federal courts, or is there just this "rational review" kind of scrutiny that the Supreme Court said in the Employment Division v. Smith case, gives governments the ability to do what more or less what they want. And it came up with a decision that it's worth quoting:

"In interpreting our free exercise clause, we have not applied and we do not now adopt the inflexible rule of Smith 'that no person may complain of a burden on religious exercise that is imposed by a generally applicable neutral statute.' Rather, we have held that when the state imposes an incidental burden on the right to free exercise of religion, we must consider the interest advanced by the legislation that imposes the burden, and the respective interests must be balanced to determine whether the incidental burdening is justified. We have never discussed, however, how the balancing is to be performed. Specifically we have not said how much, if any, deference will be given to the judgments of the legislature when the result of those judgments is to burden the exercise of religion. We now hold that substantial deference is due the legislature and that the party claiming an exemption bears the burden of showing the challenged legislation as applied to that party is an unreasonable interference with religious freedom. This test, while more protective of religious exercise than the rule in Smith is less so than the rules state and do not always apply in a number of other federal and state cases."

Now this is the kind of decision that makes us wish we had become tax lawyers. What this means is anybody's guess. It seemed to reject the Smith test. It seemed to reject the strict scrutiny test. What it replaced it with is unclear. So right now, when religious organizations ask me and ask other lawyers a relatively simple question, "Do we have a right to build our facility here?" we can't give them an answer. We just don't know. We don't know what the state of the law is. RLUIPA itself has various different provisions to protect against discrimination and protects against burdens on religious liberty.

The big question is when can the government burden religious liberty. When does it become a substantial burden in such a way that RLUIPA and these other laws give religious organizations the right to be free from onerous government regulation and be able to pursue their missions as they see fit?

Since 2000 there have been a number of federal court decisions that give us something of a pattern. They tell us that courts don't look at these questions in a vacuum, but they really look to see equities of the situation and see whether the municipality really does have legitimate interests or if the church is just basically trying to get away with something and bypass the permitting process and infringe on others' liberties. Courts look at whether the church has made a good faith effort in complying with zoning laws, applying for permits and going through the required process.

They also look at the good faith of the municipality, whether it's tried to accommodate the religious exercise by imposing what could be considered reasonable conditions, or whether it simply denies the land use outright. But when the denials are final and complete, and where it can be shown that reasonable conditions can help the municipalities achieve their interests, then courts find that RLUIPA is violated. So what this law does is it really levels the playing field. Whereas once cities, counties, zoning boards held all the power, now it's certainly not a situation where religious organizations have a blank check, but the power is more even. Churches, mosques, temples can go to court and get redress under a relatively strong standard of review when they are burdened in much the same way as a lot of the other contexts that have been discussed here that don't have this benefit that could be applied to them.

Since RLUIPA was passed, even though the majority of cases have still gone against the property owner, there's been a huge backlash against the law. It's even been cast as a threat to property rights, the right of other property owners to prevent any unwanted places of worship or any other religious uses to be developed near them. It's been described as fundamentally unfair. One particularly vocal opponent of RLUIPA, Professor Marci Hamilton, whom I've had the pleasure of arguing against across the country, has argued that the RLUIPA formulation, whether federal or state, mocks the constitutional requirement of equality under the law. Two neighbors, one religious, the other a family, who buy plots of land on the same day in the same zoned area, are treated unequally under the law. The religious landowner gets first class treatment, while the neighbor is a second class citizen who must accommodate his property, his dream and even his family to the religious landowner's desires.

Now this is wrong for many reasons. First, everybody enjoys the benefit of federal civil rights laws like RLUIPA. The Presbyterian church enjoys the same protections as the Buddhist meditation group. As an aside, I've represented three Buddhist meditation groups that have been shut down by local zoning authorities, and I think only one Presbyterian church many, many years ago that wanted to build a handicapped access ramp. The Buddhist centers, which involve basically a dozen people showing up on Sundays or Saturdays and engaging in quiet meditation, often get shut down because they are declared to be too noisy for the neighborhood. It just boggles the mind. We don't see laws like the Americans with Disabilities Act as "favoring" disabled people, that it discriminates in favor of disabled people. But rather it's an accommodation of something that our society feels is important. And in the same way, RLUIPA is an accommodation of religious exercise. The Supreme Court has said that when legislatures pass laws accommodating religious exercise, they act in the best of our traditions.

Second, and this is really fundamental, but an issue that simply gets lost way too often is the fact that one does not have a property interest in controlling the property of others. I have actually seen an individual at a zoning board hearing crying at the prospect of having to see, one weekend a year, a group of Muslims several hundred yards away in a prayer gathering and convincing the zoning board that they can't possibly permit that use because of the devastating effect that such a use would have. The old adage that the right to swing your fist ends where the other's nose begins doesn't seem to apply in the land use context. Residents will flock into the town hall by the hundreds to make sure that an unpopular religious group doesn't get to build.

There are a number of other problems with the anti-RLUIPA approach. But my last point gets to the fact that what RLUIPA actually does is it protects minority groups that would otherwise suffer at the hands of the majority. You have a situation usually where the local Baptist church or the local Catholic church generally won't have the kind of problems that the Muslim group or the Orthodox Jewish group will have. They are better represented in the community and they may have members on the City Council or on the zoning board itself. They tend to have their problems worked out. You get groups that are generally comprised of immigrants and, by far, most of my clients are of minority and non-traditional faiths. They come in, they look at the zoning code, they say, "OK, a place of worship is a permitted use in this zoning district. And in the last ten years there have been two or ten other churches that have been built nearby. So what's wrong with this? We're going to invest a million dollars into this property and build our temple."

Well, that's a very naive approach that often lands them in hot water. The discretionary application of land use regulation allows zoning boards to say, more or less, "If you add one more car to our traffic patterns here, that gives us a basis for rejecting your permit." Not to mention even situations where they don't have that authority, where there's no question that a religious organization may be entitled to a permit. What happens in those kinds of situations is that they get dragged along in the building permit process for three, five years, at the end of which the city decides, "Oh, wait a minute, we have a compelling interest in taking your property by eminent domain." These aren't fanciful conjectures here. These are real life situations that have happened to my clients.

That last situation happened to a client of mine called the Albanian Associated Fund that bought over ten acres of property in the township of Wayne, New Jersey. They planned to build a mosque and community center there. The land was zoned for religious use. And suddenly people started coming out, talking about minarets and the calls for prayer that Muslims have in Asia and the Middle East. There was no basis for these kinds of fears at all.

But at the end of several years of stringing them along, the town decided, "Wait a minute, we have to protect the public health and safety by creating open space, so we're going to take your property by eminent domain." That's something they've never done before in their history as far as we can tell, and something they haven't done since. Like the argument that any increase in traffic can prevent development for religious use, I guess any municipality can argue that they are protecting open space by taking property that is intended for an unpopular religious group. This kind of standardless discretion on the part of local officials gives them the ability to do what they want, when they want, to whomever they want.

In that case, we filed suit and we got an injunction preventing them from taking the property. But once again, it's an issue of the group having to spend hundreds of thousands of dollars that they should be devoting to their religious mission and not to paying attorneys' fees. They still don't have their mosque. We're still in court.

Personally, one of my favorite situations is actually in New York, it's a client by the name of Bikur Cholim Shabbos House. It's an Orthodox Jewish organization that is devoted to health care issues. They bought a house in Suffern across the street and near a state highway, across the street from a hospital. Orthodox Jews can't drive on the Sabbath, though you can drive when you have a medical emergency. So you have a situation that happens in a lot of hospitals in this state and elsewhere in the country where people have a medical emergency. Somebody's having a heart attack or broke their leg, and they're driven to the hospital by a relative. And now the relative isn't allowed to drive any more, because the emergency has passed and it's on their Sabbath, when they have a proscription against using automobiles. They're not allowed to take taxis or buses, either. So what do they do? This organization, my client, bought this house and said, "OK, once a week we're going to provide a place for you to sleep. Then in the morning you can come back to the hospital to see how your relative is doing."

Well, what did the Village of Suffern do in that situation? They said, "This use is not allowed." There were neighbors that complained. When we deposed one of the neighbors, her response was, "I'm fearful because I'm a woman and most of the people that stay there are Hasidic men." Talk about a non sequitur. But it shows the kind of discrimination that's inherent in these kinds of local zoning proceedings. And it's not unique by any stretch of the imagination.

So the village shut them down. They didn't have any good reason for it; they just said, "Our code doesn't allow this." I don't think there would be too many local zoning codes that talk about a Shabbos house as a potential land use, it's just a relatively unique use and people probably don't think about it when they're creating a zoning code. The code did allow uses like adult entertainment uses, fraternities, dormitories, but not the Shabbos house where you have once a week maybe a dozen people sleeping over. In that case, the use is ongoing but we've been waiting for years for a hearing under the federal courts.

The federal Department of Justice has actually been a great ally in joining us in that case. They also are suing the Village. They joined us in the prior case I mentioned, as well, in New Jersey. They do have the authority to enforce this federal statute of RLUIPA, although they don't do it often. The ability is out there and I would recommend that anybody that hears of a religious organization having this kind of difficulty contact them.

I'd like to end my talk with a discussion of what's probably the worst case of discrimination that I've ever seen in the context of burdensome and discriminatory land use regulations. That happened earlier this year in the small town of Walkersville, which is near Frederick, Maryland. In that town for many days over the course of months, hundreds of people showed up to oppose the application of a group called the Ahmadiyya Muslim community. They're a group of mainly Pakistanis that came to America. They had to flee their homeland because they were persecuted there. They didn't join in the typical hostile beliefs of some of their co-religionists there; so they were persecuted. They came to America. And they bought a 225-acre parcel of land to build a mosque for twenty families. You'd think, OK, nobody could deny this kind of use: They have more than enough land and they're not going to impact local services. And of course the local town was outraged, the local officials, the local residents. They even formed a committee, Citizens for Walkersville, specifically to oppose this project.

The town's mayor said on local radio, this is a direct quote: "For the most part, people are definitely concerned. Like me, I'm concerned myself. I understand the world climate. I understand what's going on. I do remember 9/11 so vividly that it's the only thing that sticks in your mind."

Now these kinds of issues are validly raised in different contexts, but before a zoning board deciding who may build a place of worship? Absolutely ridiculous! But these kinds of things happen every day across this country.

I want to say that there are difficulties with applying these laws. By no means does RLUIPA or the constitutional provisions provide a blank check for religious organizations. But at the same time, there's a lot of hope now. The tide is turning at least in one area; onerous land use regulations are being fought against and fought against successfully.


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