Pomona and RLUIPA: Judgment needs to be withheld on both sides

By Marci A. Hamilton--Community View in The Journal News (Original Publication: March 18, 2007)

It is unfortunate that the citizens of the Village of Pomona are being subjected to the very worst of what the Religious Land Use and Institutionalized Persons Act engenders so early in the land-use process. Roman Storzer's Feb. 20 "In Reply" ("Rabbinical college also concerned with Pomona's well-being"), in which he indiscriminately accuses the citizens of Pomona of xenophobia, or anti-Semitism, is one of the ugly tactics that religious entities too often employ. This relatively new tactic of public name-calling and divisiveness even before the legal process has begun needs to be brought to Congress' attention. There can be no question that this sort of baseless rancor was not what Congress intended with RLUIPA, and if this is what the members have done to local communities, they need to re-think RLUIPA, and especially its anti-community effects.

Storzer further misstates the law. First, as he states himself, the yeshiva has not yet submitted a development plan. It is irresponsible for its legal representative to go on the attack against Pomona before the village has had the ability to respond through its established procedures to its actual application. Whatever the debate among and by private individuals, RLUIPA applies to the government, not the people. From RLUIPA's inception, religious entities have tried to use it as a means of leap-frogging the land-use process altogether, but the federal courts repeatedly have followed RLUIPA's plain language and legislative history that provide it does not offer immunity from the process. At this point, before the government has had the opportunity for consideration and deliberation of all the factors that must go into a land-use application, any RLUIPA argument is premature and unripe in the federal courts.

Second, there is no constitutional right for a religious landowner to obtain development permits. As is typical, Mr. Storzer tries to equate RLUIPA with the requirements of the First Amendment. That would mean that religious entities have no more power under RLUIPA than they did under the First Amendment by itself, which is enforceable by private rights of action under 28 U.S.C. 1983. As any one of the many inhabitants of residential neighborhoods across the country adversely affected by RLUIPA can tell you, though, RLUIPA ushered in a new era in which they are second-class property owners to the privileged class of religious entities. That entitlement sensibility is disturbingly evident in Storzer's opinion piece.

Third, it is misleading for Storzer to equate RLUIPA with the Civil Rights Acts or the Americans with Disabilities Act. Those statutes were aimed at entrenched discrimination against individuals on the basis of their race or disability, which are immutable characteristics. Discrimination against religion is unconstitutional, but treating their intense land uses (or uses that endanger the community's health, safety, and welfare) as incompatible with a city plan is not a civil rights issue.

The writer is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School, Yeshiva University.