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Morman Temple in Portland, Oregon
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Morman Temple in Portland, Oregon
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The Religious Land Use and Institutionalized Persons Act of 2000 is a reincarnation of the Religious Freedom Restoration Act of 1993. The 1993 Act was invalidated by the US Supeme Court in 1996.
The new act seeks to accomplish much the same objective: to make it easier to locate and construct religious buildings in areas in which zoning regulations would ordinarily preclude such construction.
The key provision of the act is Section 2 which provides:
"No government shall impose or implement 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 demonstrates that imposition of the burden
on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest."
This compelling governmental interest test of Sub-Section (A) is very well known in constitutional litigation and is somewhat misleading: the use of this test basically means that the government loses. If the court requires the government to meet this test, then it really means that the government will lose because the burden is very high under this test and generally speaking, impossible to meet.
Ordinarily, zoning is required only to meet a much milder burden of proof, usually known as the rational basis test. This one, too, is misleading: it is so low that most zoning regulations easily meet it.
The real question in cases under the statute may very will be whether there is a "substantial burden" on the religious practices of the challenging party. So far, it is not entirely clear what that means.
Under the old act, before it was invalidated, the lower federal courts in general seemed to giving it a rather broad interpretation. For example, not only did several of the courts hold that zoning which would prevent the location and construction of a church building in violation of the act, but in addition, several courts held that if an existing church wanted to add a serice which was religiously oriented, such as let's say, a school for 500 children, or a soup kitchen to feed the needy, the church was entitled to add that service even if not otherwise permitted by the local zoning laws.
In the abstract, that may sound ok. But suppose that church is in a zoning district which is otherwise entirley residential. A new school or a soup kitchen may not be compatible with a old and established residential community.
The real issue is who should decide: the church or the government? Churches are in the main very beneficial land uses, but not at every location. Surely the government should have the power to regulate the location of such uses.
In Tennessee, the position may be a little better than in other states. The 6th Circuit Court Of Appeals, has not ruled on this issue yet, but in the past has seemed rather reluctant to interfere in local zoning decisions. If that position remains the same when interpreting this new Religious Land Use Act, the court may simply conclude that the customary application of local zoning laws does not impose a substantial burden on religious excercise.
Over the next several years, these cases will be very interesting to watch.
Back to Land Use Planning Law in Tennessee
