RLUIPA The National Impact

A new federal law and a proposed Hassidic school may revolutionize housing in America. If it does it will undoubtedly create major economic and environmental challenges. It may be many years before we know whether in the end we will have a better America or just ever more serious conflicts within our society. The law is RLUIPA (the Religious Land Use and Institutionalized Persons Act), and the Hassidic school is Ramapo’s Kiryas Radin.

RLUIPA was passed by a voice vote of Congress after a remarkably short public hearing in which none of the opponents of the law were allowed to speak. It is likely that neither RLUIPA’s supporters nor its opponents anticipated the revolution that it may have created.

RLUIPA provides that:

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…unless the government demonstrates that the imposition…(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

In the four years since RLUIPA was passed the law has been cited successfully to allow the construction and expansion of houses of worship in many parts of the United States. Its opponents have criticized the law as both an intrusion on local zoning and a bludgeon used to intimidate municipalities which, under the law, are forced to pay the legal costs of religious organizations that win RLUIPA lawsuits.

RLUIPA has been most controversial where it has been cited in order to allow other activities carried out by religious organizations. The response of federal courts has varied from court to court. In some cases the force of RLUIPA has been confirmed while in other cases federal courts have held either that the activity is not protected under RLUIPA, or that RLUIPA is a violation of the Establishment Clause of our Constitution’s First Amendment.

In Ramapo RLUIPA was used by our town board as the legal justification for its new "Adult Student Housing Law" (ASH). Michael Klein, our town attorney, informed the town board that under RLUIPA it could not prevent religious institutions from creating "Adult Student Housing" connected to schools providing "post-secondary education." The first school to cite the law in its application to build apartment houses in a single family residential district is Kiryas Radin.

 

After Ramapo’s law was passed the Second District Court of Appeals (its jurisdiction includes New York State) made a ruling that is clearly inconsistent with Michael Klein’s legal opinion. It found in Westchester Day School v. Mamaroneck that the expansion of the school may have adverse environmental consequences and sent the case back to the New York Court to decide if this was indeed the case. It went on to argue that if Mamaroneck would have had a right to reject the expansion of a secular school under the same circumstances then, under the Establishment Clause of the Constitution, it would have an equal right to reject the application of the Westchester Day School

This ruling suggests that Ramapo’s Adult Student Law will not be upheld in New York unless or until the Supreme Court of the United States decides otherwise. This has not discouraged Dennis Lynch, Kiryas Radin’s attorney, from invoking the law in two different arenas.

Four villages, including my village of Wesley Hills, have sued to prevent the implementation of ASH. They brought the case in the New York Supreme Court where they argue that when Ramapo passed ASH it made a variety of procedural, and substantive errors. Dennis Lynch asked the federal district court to accept the case under RLUIPA. The federal court rejected his request and the case is now back in the New York State Supreme (lower).

Lynch again cited RLUIPA when he represented Kiryas Radin before the Ramapo Planning Board. This was an environmental review hearing. He informed the Planning Board that the application was being made under both the State Environmental Quality Review Act (SEQRA) and RLUIPA. This was a not very subtle warning that the Ramapo could be taken to federal court if it did not approve Kiryas Radin’s environmental application.

The constitutionality of RLUIPA in at least one case will be brought before the U.S. Supreme Court in January, but it may be years before the Supreme Court decides whether RLUIPA protects housing created in conjunction with religious activities. But let us assume that housing is protected under RLUIPA. What consequences will this have?

If RLUIPA is found to be constitutional and if it protects housing created by religious organizations it will have a remarkable impact on housing, religion, politics, environment, and the finances of our nation.

In our recent presidential election neither George Bush nor John Kerry paid any real attention to housing. When we consider that this is probably our country’s most serious unmet need, this failure is most unfortunate. They avoided this problem because if we recognized our desperate need for housing it would cost us hundreds of billions of dollars. It would also force our suburbs to confront their failure to allow the creation of enough housing for our poor and of our young people. And, fortunately for our presidential, candidates the poor and the young don’t vote very often.

Our major cities are surrounded by rings of single family homes. We have almost run out of undeveloped land. We can the see the result in Ramapo where house lots are often sold for more than $250,000 and $500,000 homes are being destroyed in order to build "McMansions." Under these conditions how can the poor and the young find housing?

There are also fiscal barriers that discourage multi-family housing. In our country local services are financed locally. This means that any community that provides housing for poor people, or even just young people starting their families, is faced with the need to build new roads, and sewers. It may have to find new sources for water, and it has to provide schools for the young, medical care for the indigent, etc.

Then we also have the "social issue." Too many suburbanites fear that rental housing supported in part by government money may bring with it people of color and crime. How often have you heard someone in our community tell you that they left the Bronx and don’t want the Bronx to come to Ramapo? Because our suburbs have so effectively prevented the expansion of low income housing, any suburb that encourages more apartment houses may be overwhelmed by a tidal wave.

If court cases brought by our Hassidic community force our nation to confront our unmet housing needs it will have done us a great favor. On the other hand, if our local communities are forced to meet this need without truly major federal assistance they will face a real fiscal crisis—where will the money come from?

And then we have the environmental implications of RLUIPA. If, as Dennis Lynch implies, RLUIPA should discourage Planning Boards from taking a serious look at the environmental issues created by religious housing we can expect more bumper to bumper traffic, overloaded sewers, water shortages, the destruction of trees and wetlands, and flooding. The expansion of the Hassidic community in Ramapo has already led to these problems.

We desperately need the kind of comprehensive regional planning for housing that we have never had in this country. But the barriers to such planning are immense. They include both an enormous investment in infrastructure, and housing, and the political will to destroy zoning barriers throughout our suburbs—the center of political power in the United States.

If the Supreme Court finds that RLUIPA protects religious housing, but we do not implement comprehensive regional planning and investment, we will have created fertile soil for the development of terrible religious intolerance. Religious organizations will become increasingly entrepreneurial. Religious organizations with either large numbers of poor and young members, or that have a real commitment to housing will create thousands of religious communities, i.e. apartment houses, throughout the United States. This religious "boom" will also create very angry suburbanites and the kind of religious intolerance that the U.S. has not seen since the Know Nothing movement of the late 19th century.

The impact of these events will be very uneven. Some communities will not be affected but it will have a devastating impact on other communities. Ramapo will undoubtedly be one of the communities that will be most seriously affected.

Robert I. Rhodes, Ph.D.