Tuesday, January 8, 2008
Most of land use law is determined by local authorities, of course. But the federal government, which has taken over large areas of environmental and employment law (which used to be reserved mostly to the states), is playing a more active role in shaping land use. At the law professor conference in New York last week, one of the most interesting talks was given by Prof. Patricia Salkin (also a blogger) on the power of the Religious Land Use and Institutionalized Persons Act. (Here's a DOJ website, then one of a private organization that challenges land use laws, and a previous post of mine about the act.) By empowering a religious group to challenge in federal court a local land use law decision, and by granting to the group an amorphous set of rights, the statute offer a temptation for projects that bear only a tenuous relation to religion to try to avoid land use regulation. And by providing for attorneys fees to winning challengers -- fees that have to be paid by local governments -- the act places upon localities a pressure to settle even marginally colorable cases, in order to avid the risk of a huge fee award. It's unfortunate that the burdens of the federal law fall largely on localities. (Is this an unfounded mandate of sorts?) Will we soon see local governments seeking out RLUIPA insurance?
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