RLUIPA: Municipalities must proceed carefully and fairly

By DUNCAN LEE    Community View in The Journal News
(Original Publication: April 16, 2007)

RLUIPA, the Religious Land Use and Institutionalized Persons Act of 2000, defines land use as part of the free exercise of religion. If a municipality is to limit growth and prevent a religious group from building or expanding, it must show a compelling governmental interest and it must show that the zoning or other regulation is the least restrictive means of obtaining that compelling governmental interest. It is a perfect example of a law that is second only to Murphy's - the law of "unintended consequences"

On its face, RLUIPA seems innocent enough. It is an effort to guarantee that communities cannot ban religious groups they don't like, just because they're different. What was unforeseen was the effect that the law would have on zoning efforts to maintain the character of a community and the potential for shattering the local infrastructure.

There are several proposed construction projects in the Town of Ramapo which relate to RLUIPA and there have been fears, misstatements and genuine concerns voiced. Of immediate concern is the development of a college to train Orthodox Jewish judges proposed Pomona, a village with a population of a little more than 3,000. The rabbinical college, a proposal that has yet to land before any land-use board, could provide housing for up to 1,000 students and their families.

As a local radio show host, I have interviewed Dr. Robert Rhodes, of Preserve Ramapo; Roman Storzer, attorney for Congregation Rabbinical College of Tartikov; and Professor Patricia Salkin, of Albany Law School's Governmental Law Center. [Editor's note: to listen to the Bob Rhodes' interview on WRCR click here]

Storzer's concern was that attempts to stop the college was a case of prejudice - of the community not wanting "those people", i.e., Orthodox Jews, within their midst. If that is the case, RLUIPA was designed to combat the NIMBY syndrome, as well it should. When asked if he agreed that concerns over water supply and sewage load would be legitimate "compelling governmental interests" Storzer replied that if the sewage system or water supply was insufficient, there would be no construction.

Rhodes sees RLUIPA as unconstitutional and wants municipal efforts to focus on finding the law to be so. When asked about the "compelling governmental interest" portion of the law, Rhodes cited concerns over the water supply, sewage system, road traffic and the ability of the police, fire department and ambulance services to cover the additional population.

Salkin believes that constitutional challenges probably won't succeed. The only such challenge to make it to the Supreme Court so far challenged RLUIPA on the basis of the "establishment" portion of the First Amendment. It lost.

The following recommendations seem appropriate for municipalities:

First, if religious prejudice is a factor, no matter how disguised, you are fighting a losing battle. RLUIPA is designed to prevent such attacks and comes with the penalty of paying the attorney fees for the religious group if the municipality loses. Similarly, worries that the political balance will change are not legitimate worries - new populations of any sort have the potential to change the political landscape.

Second, concerns over the sewage system, the water supply, electrical demand, traffic patterns, and emergency services are legitimate worries. Approaching the problem on the basis of a compelling governmental interest in providing services has a better chance. However, to prevail on a "compelling governmental interest" standard means that there must be some objective means of verification.

Third, given that there is a second part to the "compelling governmental interest" standard, i.e., that municipal ordinances are the least restrictive, municipalities should consider compromises. If a 1,000-person college is too big, scaling it back, or building in stages to test the ability of the infrastructure to deal with the increased population may be the way to go.

Fourth, the unconstitutional angle is not the best bet. So far, the only challenge was a loser. While it addressed the rights of prisoners, the language in RLUIPA's land-use section is so similar to the prisoners' rights section, that there is little chance of success. Additionally, constitutional challenges are time consuming, cost a significant amount of money, and are not resolved for years. A more successful approach would be to continue to lobby Congress to modify the law to make its provisions clearer and fairer to legitimate governmental concerns.

The writer is an Upper Nyack attorney and author of "The Law and You" column and radio show on WRCR (AM 1300).