Judicial Review of Local Land Use Decisions: Lessons from RLUIPA (original) (raw)
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The Effect of RLUIPA\u27s Land Use Provisions on Local Government
2012
In the absence of perfect information about how RLUIPA has affected local governments, this article argues that the courts have adopted a pragmatic approach to maneuvering in the difficult terrain that RLUIPA occupies: combining appropriate judicial deference to a legislature that enacts a neutral law of general applicability with the heightened judicial scrutiny that becomes appropriate when that same law is applied to a specific zoning approval, a circumstance that frequently allows for subjectivity, and thus the potential for discrimination or arbitrariness against religious uses, in the approval process. I conclude that: (1) until proven otherwise, the costs RLUIPA undoubtedly imposes on local governments is the price to be paid for insuring against the discriminatory or arbitrary application of land use regulations and (2) RLUIPA does not seek to establish an unconstitutional preference for religious uses, but rather a proper accommodation of religious exercise in the land use ...
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Religious freedom in the United States is negotiated in local conflicts arising from proposals from religious groups to municipalities in order to use or alter land and buildings. This study examines 116 cases of zoning conflict involving religious buildings in the New York City region between 1992 and 2017 as reported by the New York Times. Jewish and Muslim congregations experienced opposition at higher rates compared to their proportion in the region’s population and to Christians. Proposing to use a single-family home for worship or use a building near residences topped local concerns. Neighbors regularly expressed worries about traffic, parking, and preservation. More zoning controversies occurred in the suburbs. These findings advance our knowledge of religious freedom and pluralism in detailing how local religious land conflicts involving multiple social actors operating at different levels engage larger questions about religious gatherings, ideal land uses, and the character...
RLUIPA: Re-Aligning Burdens of Proof, Clarifying Freedoms, and Re-Defining Responsibilities
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Into the breach primed by the U.S. Supreme Court’s decision in Employment Division Department of Human Resources v. Smith in 1990, Congress plunged headlong, dragging along with it a judiciary charged with enforcement of a mandate only defined ambiguously. Thus, in 2004 the Religious Land Use and Institutionalized Persons Act (RLUIPA) was passed and heralded as a legislative sum certain — a “clear” articulation of Congress’ balancing of local zoning prerogative with idiosyncratic religious use. It has proved anything but; for, since its passage, the results of litigation have remained resolutely immune to coherent explanation, as the Federal Circuit courts have become mired in a deep split, with resulting uncertainties engendering risks for both land user and regulator, alike, as well as crippling the very notion of federalism. This Article probes the present divisions of — principally — the Third, Seventh, and Eleventh Circuits, and concludes that Judge Richard Posner’s analytical ...