Tuesday, January 8, 2008

The new power of religion over land use …

Religions    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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Comments

look like your think local goverment anf land planner arr always doing the
thing they need to do. That not i case in some of the message I read on here.

Posted by: RON | Jan 8, 2008 10:30:40 PM

RLUIPA was Congress's response to the Supreme Court's decision striking down The Religious Freedom Restoration Act in 1997, under the 14th Amendment, in City of Boerne v. Flores, 521 U.S. 507.

In response to growing religious, interest group pressure Congress passed the RFRA, which specified that any regulation affecting religion had to be justified by a compelling government interest.

Unwilling to accept this decision of the Court that RFRA was unconstitutional, Congress tried another approach by enacting RLUIPA, in 2000. RLUIPA prohibits governments from taking any action which creates a "substantial burden" on the free exercise of religion by anyone, without a showing that the action is the least restrictive means of furthering a "compelling government interest."

Congress essentially re-passed the RFRA by shifting the burden onto governments to prove they were not burdening the free exercise of religion.

RLUIPA also spawned an entire "cottage industry" of religious fanatics and "Christian" lawyers who set up foundations to finance lawsuits against local governments when their land use decisions interfered with the wishes of some local religious institution, frequently one with only a tenuous connection to free exercise. Local governments were intimidated by the threat of costly lawsuits, financed by well-heeled religious foundations, into acquiescing to the demands of religious entities that were unhappy with local land use ordinances.

Posted by: Jim Cornehls | Jan 29, 2008 9:09:45 PM