February 21, 2013
Ngov on Selling Land and Religion
Thousands of religious monuments have been donated to cities and towns. Under Pleasant Grove City v. Summum, local, state, and federal governments now have greater freedom to accept religious monuments, symbols, and objects donated to them for permanent display in public spaces without violating the Free Speech Clause. Now that governments may embrace religious monuments and symbols as their own speech, the obvious question arises whether governments violate the Establishment Clause by permanently displaying a religiously significant object.
Fearing an Establishment Clause violation, some governmental bodies have privatized religious objects and the land beneath them by selling or transferring the objects and land to private parties. Some transactions have included restrictive covenants that require the buyer to maintain the religious object or reversionary clauses that allow the government to reclaim the land. Others have sold or transferred the religious object without soliciting bids from other buyers.
This article provides an in-depth analysis of five cases in which governmental bodies resorted to privatizing public land to avoid violating the Establishment Clause. Drawing from Establishment Clause jurisprudence involving religious displays, this article utilizes the Lemon and Endorsement tests as analytical tools for resolving the constitutionality of land dispositions involving religious displays.
This article considers the purported secular government purposes for selling or transferring land to private parties. The government has sought to justify these land dispositions as a means to provide memorials that honor veterans or promote civic-mindedness, to preserve the religious object in order to avoid showing disrespect to religion, and to avoid violating the Establishment Clause. I argue that these purported government purposes are secondary to a religious interest because there are other alternatives to achieve the government’s purposes.
I also examine the effects of these land dispositions on the reasonable observer. The Herculean efforts exerted by the government to save the religious monument send a message of government endorsement of religion. Restrictive covenants that require the private owner to maintain the religious monument and reversionary clauses that allow the government to reclaim the monument and underlying land perpetuate state action and excessively entangle the government.
I conclude that the best measure to avoid the Establishment Clause is to simply remove the religious object. Removing the religious object will protect the dilution of sacred religious symbols through their secularization and will provide greater inclusiveness in public spaces for religious minorities and nonbelievers.
An original and helpful analysis of an issue that I think has been relatively neglected over the last couple of years, particularly since the Summum case came out-- the interplay between private land use rights and the religion clauses always tends to highlight some of the salient fault lines in many communities.
September 14, 2012
New RLUIPA Website by Merriam and Seeman
From Dwight Merriam comes news of what looks like a really interesting new website and blog on Religious Land Use and Institutionalized Persons Act (RLUIPA) litgation:
Dwight Merriam and Evan Seeman of Robinson & Cole LLP (Dwight teaches at Vermont Law School
and UConn Law School) on August 29, 2012 launched a new land use and zoning law website, RLUIPA-Defense (http://www.rluipa-defense.com) – a resource for anyone wanting to prevent RLUIPA claims or defend against them. RLUIPA-Defense track news and provides a database of RLUIPA federal and state court decisions, trial materials (oppositions to motions for preliminary injunction, motions for summary judgment, motions to dismiss, jury instructions), and appellate materials (circuit court briefs and petitions for writs of certiorari). It also includes scholarly articles and legislative history concerning RLUIPA. Visitors can register to receive e-mail about news and updates.
Prof. Merriam is one of the leading thinkers and writers bridging the land use, planning, and practitioner communities. Check out the resource at www.rulipa-defense.com
July 30, 2012
Salkin on the Quiet Revolution and Federalism
Patricia Salkin (Touro Law Center) has posted The Quiet Revolution and Federalism: Into the Future, 45 John Marshall Law Review (2012). The abstract:
This Article offers an examination of the federal role in land use planning and regulation set in the context of varying theories of federalism by presenting a historical and modern overview of the increasing federal influence in local land use planning and regulation, specifically highlighting how federal statutes and programs impact local municipal decision making in the area of land use planning. Part II provides a brief introduction into theories of federalism and their application to local land use regulation in the United States. Part III provides a brief overview of federal legislation in the United States which affected local land use across three time periods: first, that which existed before the publication of THE QUIET REVOLUTION; second, legislation that emerged a quarter century after the publication of THE QUIET REVOLUTION; and third, more recent federal programmatic and legislative approaches. Part IV provides analysis of the future of federalism in land use regulation, noting the increasing trend of the federal programmatic influence and the potential future influence on local land use controls. The Article concludes with a warning to local governments to be vigilant and to rethink the paradigm of land use regulation to regain control in certain areas to prevent further encroachment by the federal government into matters of local concern.
This article comes from last year's excellent Kratovil Conference retrospective on The Quiet Revolution in Land Use Control (David Callies & Fred Bosselman (Council on Environmental Quality, 1971)), hosted by John Marshall Law School in Chicago.
July 18, 2012
Murfreesboro Mosque Supporters Obtain US District Ct. TRO
It's been exactly a year since we last blogged about the siting of the mosque in Murfreesboro, Tenn. Last month, opponents of the mosque convinced a county judge to enjoin its construction by alleging that they were not given adequate notice of the zoning proceedings. Today, US District Court Todd Campbell granted the proponents an injunction based on RLUIPA to allow construction to proceed. The members of the local Muslim community were represented by the The Becket Fund for Religious Liberty. Here's a copy of the TRO.
February 28, 2012
Infranca on a New Framework for Interpreting RLUIPA
John J. Infranca (Research Fellow, NYU Furman Center) has posted Institutional Free Exercise, Charitable Purposes, and Religious Land Use: A New Framework for Interpreting RLUIPA. The abstract:
The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects religious landowners from the imposition, through a land use regulation, of a substantial burden on religious exercise, absent a compelling interest. For purposes of RLUIPA, a religious landowner may be a person, or, as is more likely, an assembly or institution. This Article contends that courts and commentators have failed to consider the implications of the institutional identity of the vast majority of land use claimants under RLUIPA. As a result, courts frequently focus inappropriately on the substantial burden claims of individual adherents, rather than institutional claimants. The concept of institutional free exercise, as articulated in case law and legal scholarship, provides a framework for distinguishing between the religious exercise and substantial burdens of religious institutions and individual adherents and can aid in clarifying substantial burden doctrine. In addition, the treatment of religious and non-profit institutions in comparable land use contexts, particularly hardship claims under landmark laws, can help shape the evaluation of institutional substantial burden claims.
I propose that courts should distinguish between the substantial burden claims of “existing institutions,” those that have made use of a particular property for a period of time and seek to alter or expand their use, and “new institutions,” those seeking a parcel of land for their first location or seeking to obtain and use a new parcel of land. Existing institutions should receive protection akin to that provided by courts to existing uses under the “natural expansion doctrine.” Given their bonds with a specific location and community, certain land use restrictions will impose a substantial burden on their institutional religious exercise. In contrast, new institutions cannot claim the same degree of burden when denied the use of a particular parcel and their claims are adequately protected by other provisions of RLUIPA. Both new and existing institutions may have claims when the land use process itself, rather than the simple denial of a desired use, imposes a substantial burden, but those claims should be addressed through RLUIPA’s other provisions.
December 14, 2011
Bad Acronym: The Real Problem With RLUIPA
Some argue that the Religious Land Use and Institutionalized Persons Act (RLUIPA) is an unconstitutional establishment of religion. Others claim that it unduly restricts municipal land use authority. Still others wonder what constitutional authority Congress had to enact such a law. While these are important questions, this blog post argues that RLUIPA suffers from a far more serious defect that has so far been neglected in the legal scholarship: it has a really bad name. I mean, seriously, how do you even pronounce RLUIPA? Is is Ahrr-loopa? Uhrrr-loopa? Rah-loopa? All of these are equally plausible and, frankly, equally awful. For those of us who need to actually pronounce this acronym at least fifty times during a semester, it's a big problem.
So what to do? Some statutes with unwieldy names are simply called by the names of their sponsors. I like the Taft-Hartley Act myself (standing in for the acronymically challenged "Labor-Management Relations Act" or LMRA. "Lmoora?" OK, that's pretty bad too). RLUIPA, unfortunately, had six sponsors, and I'm afraid the Hatch-Daschell-Kennedy-Canady-Nadler-Edwards Act would be a bit of a mouthful. Other statutes are given cool nicknames -- the Comprehensive Environmental Response, Compensation and Liability Act is called "Superfund" (and let's be honest, even "CERCLA" isn't half as bad as RLUIPA.) I'm not sure there's an obvious nickname for RLUIPA though -- unless it's "the Establishment Act."
I invite your thoughts during this grading season about how to handle this pressing problem. One solution, of course, is to just do nothing. Maybe we should just embrace the fact that land use and environmental law are full of terrible acronyms. After all, we're the people who brought you such gems as PUDs, TPPs, CUPs, MURPs, SIDs, MUDs, and SMSAs, among others. On this list, RLUIPA is practically a beauty queen. Please feel free to leave a note with your favorite horrible land use acronym.
July 19, 2011
Herman Cain vs. the Murfreesboro Mosque
Having apparently never heard of RLUIPA, Republican presidential candidate Herman Cain is arguing on freedom of religion grounds that a mosque should not be built in Murfreesboro, Tennesee. The US Justice Department apparently disagrees, as does the head of the Southern Baptists...
Jamie Baker Roskie
May 19, 2011
Ramapo Village Spent $450,000 in Losing Battle over Discriminatory Zoning
Most land use professors are familiar with the town of Ramapo, New York, whose phased-growth program was upheld as constitutional nearly 40 years ago. Among other things, the court in the famed Ramapo case found that the town’s program was “far from being exclusionary” and sought only to “provide a balanced and cohesive community.” Interestingly, certain land use controls in one Ramapo village have proven far more vulnerable to constitutional challenge for their exclusionary effects.
Recently, the Village of Airmont (which is located within Ramapo) settled a lawsuit filed under the RLUIPA and Fair Housing Act relating to the Village’s zoning prohibition on boarding schools. The Manhattan U.S. Attorney’s office brought its claim against the Village back in 2005 after the Village denied a permit application from the Hasidic Jewish Congregation Mischknois Lavier Yakov to construct a religious boarding school in the community.
According to recent stories in the Wall Street Journal and elsewhere, the Village finally settled the lawsuit a couple of weeks ago after expending more than $450,000 in legal fees. The May 9 consent decree formalizing the settlement gives the Village until October 15, 2011, to amend its zoning code to allow construction of the religious school and to otherwise bring its code into compliance with federal laws “prohibiting discrimination and unreasonable imposition on religious freedom.”
This isn’t the first time that Airmont has effectively lost a discriminatory zoning claim. According to the New York Times, the Village previously had to amend its zoning ordinances in response to a 1991 Fair Housing Act claim contesting a zoning prohibition on the use of private homes as places of worship.
These constitutional zoning challenges in the decades following the Ramapo case offer at least some support for the theory offered by Fred Bosselman back in the 1970s (see generally 1 Fla. St. L. Rev. 234, 248-50 (1973)) that exclusionary motives were partly behind the town’s famous phased-growth scheme.
March 02, 2011
Land Use & a Mosque in London
For those interested in zoning and religious buildings, the current enforcement proceedings aiming to close down the Tablighi Jamaat mosque in London make interesting reading. While local planners are resisting the application to maintain the mosque because of traffic levels, land contamination and visual impact, the enforcement hearing has been well informed about Tablighi Jamaat's apprent religious and political views, as well as attitudes to women. The dispute takes place in the context of the Tablighi Jamaat's aim to build a much larger, 'mega-mosque' on the site, a move which is opposed by many within the Muslim community.
Inevitably this planning dispute is taking place in the context of much larger debates about multiculturalism, identity and human rights. This comes to no suprise to land use lawyers of course ... land use issues are, whether acknowledged or not, inevitably much broader than the immediate impacts of the site.
January 20, 2011
Lupu and Tuttle on RLUIPA and Religious Accommodation
Ira Lupu (GW) and Robert Tuttle (GW) have posted The Forms and Limits of Religious Accommodation: The Case of RLUIPA, 32 Cardozo L. Rev ___ (forthcoming 2011), on SSRN. Here's the abstract:
This paper, prepared for a Symposium at the Benjamin Cardozo School of Law to mark the 20th anniversary of the Supreme Court’s decision in Employment Division v. Smith, focuses on the constitutionally appropriate forms for, and limits on, government protection of religious freedom. Part I articulates in general terms the primary constitutional strategy of mandatory accommodations – protection of religion and its secular analogues in matters of speech, association, and equality – and the limits on such accommodations, with an emphasis on a jurisdictional limit to the state’s capacity to decide questions of religious significance. Part II extends this concept of a jurisdictional limit to permissive accommodations, and analyzes the role of that limit in the interpretation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). Part II argues that many of the land use provisions of RLUIPA can be constitutionally applied without official decision-makers violating that jurisdictional limit, but that some applications of the land use provisions, and a significant number of applications of the institutionalized persons provisions, raise profound problems of state exercise of religious authority.
January 14, 2011
Connecticut RLUIPA case on NPR
All Things Considered last night featured a four-minute story on a federal lawsuit brought by an Orthodox Jewish group challenging the denial of its building permit for a student center in an historic residential district. Patty Salkin (Albany) blogged at Law of the Land this past summer about the denial of the motion to dismiss.
December 07, 2010
Dolan on the Salazar cross, historic preservation, and federal land transfers
Mary Jean Dolan (John Marshall-Chicago) has posted P.S. Untold Stories and the Cross National Monument. We've mentioned the land use aspects of the Salazar decision before. Dolan's abstract:
This Article offers an interesting post script to the Supreme Court’s Salazar v. Buono Establishment Clause decision. It presents some surprising non-record facts and additional issues raised by Congress’s 2002 designation of the Mojave Cross as a “National Memorial.” This Act deserves more exploration, particularly because it appears wholly extraneous to the government policy approved by the Supreme Court plurality: ending the appearance of government endorsement of religion, while simultaneously “avoid[ing] the disturbing symbolism associated with the destruction of the historic monument.”
Included in the new information is evidence that National Memorial status is not as lofty or rare as it would seem, the cross does not appear to be the sole WWI memorial for the nation, and in the past, Congress has abolished National Memorial status upon transferring the land. The Article also looks at the intersection of historic preservation law and Congress’ requirement that the Secretary of the Interior fund and install a new replica cross on Sunrise Rock.
October 09, 2010
Blumenthal & Turnipseed on the Polling Place Priming Effect
Jeremy A. Blumenthal (Syracuse) & Terry L. Turnipseed (Syracuse) have posted Is Voting in Churches (or Anywhere Else) Unconstitutional?: The Polling Place Priming (PPP) Effect, forthcoming in the Boston University Law Review. The abstract:
A substantial social science literature has demonstrated the power of situational cues on behavior, decisions, choices, attitudes, and emotions. Moreover, recent findings demonstrate that the place where a citizen casts a ballot – Town Hall, a fire station, a school, a church, a library – can itself influence that citizen’s vote, by priming particular concepts, values, or ideals that nudge the voter in a particular direction. More important, that effect – what we call the Polling Place Priming Effect or the PPP Effect – nudges voters in a predictable direction – that is, it leads to a systematic, non-random bias in individuals’ decision-making. For example, school locations activate pro-education concepts and norms, and thus lead to votes supportive of education, specifically, allocating more tax dollars toward education. Voting in churches activates conservative Christian values, leading to support for conservative candidates who express such values, and activates anti-abortion norms as well.
Here we discuss the legal and policy implications of the PPP Effect, focusing on the specific question of the constitutionality of voting in churches. We then connect these findings with similar challenges to voting procedures. We suggest that both the church challenges and these other analogous disputes – and courts’ responses to these challenges – fail to fully take into account the unconscious nature of the influence on a citizen’s decision-making, and warrant a reconsideration of First Amendment and Equal Protection jurisprudence. Drawing on recent scholarship in the abortion rights context, we articulate a plausible approach to grounding such challenges that does consider that unconscious influence. We then connect our discussion with recent steps toward reducing or altogether eliminating the use of polling places, by addressing its relationship to calls for absentee or convenience voting. We close by broadening our discussion and identifying other legal and policy contexts to which the PPP Effect might be relevant, and suggesting empirical research that might address such possibilities.
This is an interesting topic for its intersections with several land use areas: local government, constitutional law, religious land use, behavioral studies, and political theory. It's also very timely, with some important elections just around the corner.
September 23, 2010
DOJ Report on RLUIPA at 10 Years
The Department of Justice this week issued a report on its decade of enforcement actions since the enactment of the Religious Land Use and Institutionalized Persons Act (RLUIPA). From the press release:
RLUIPA protects places of worship and other religious uses of property from discrimination and unreasonably burdensome regulation in zoning and landmarking law, and also protects the religious freedom of persons confined to institutions such as prisons, mental health facilities and state-run nursing homes. RLUIPA was enacted by both houses of Congress unanimously and signed into law on Sept. 22, 2000. The law was a response to concerns that places of worship, particularly those of religious and ethnic minorities, were often discriminated against in zoning matters.
The report illustrates that in the 10 years since its enactment, RLUIPA has aided thousands of individuals and institutions from a wide range of faith traditions through Department of Justice lawsuits, private lawsuits, and successful efforts to achieve voluntary compliance.
More information can be found in the full Report on the Tenth Anniversary of the Religious Land Use and Institutionalized Persons Act.
May 04, 2010
Salazar v. Buono: Supreme Court religious land use case
Catching up from last week (the last week of classes and exam review!) I should post this synopsis of the recent U.S. Supreme Court case Salazar v. Buono. The case revolves around a land-swap between the federal government and the private Veterans of Foreign Wars, who wanted to preserve a donated Latin Cross commemorating World War I servicemembers. Here is the FindLaw abstract:
In an action involving an underlying Establishment Clause challenge to a Latin cross placed on federal land by members of the Veterans of Foreign Wars (VFW) to honor American soldiers who died in World War I, the Ninth Circuit's order precluding the government from transferring the cross and the land on which it stood to the VFW in order to comply with a prior injunction is reversed and the matter remanded where: 1) plaintiff had standing to maintain the instant action because a party that obtains a judgment in its favor acquires a "judicially cognizable" interest in ensuring compliance with that judgment; but 2) the district court erred in enjoining the government from implementing the land-transfer statute on the premise that the relief was necessary to protect plaintiff's rights under the 2002 injunction.
The 2002 injunction thus presented the Government with a dilemma. It could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disrespect for those the cross was seen as honoring. Deeming neither alternative satisfactory, Congress enacted the land-transfer statute. The statute embodied a legislative judgment that this dispute is best resolved through a framework and policy of accommodation. The statute should not have been dismissed as an evasion, for it brought about a change of law and a congressional statement of policy applicable to the case
April 13, 2010
Hot Topics in Land Use--ABA Section on State & Local Government
The ABA Section on State and Local Government is focusing on land use for its spring virtual meeting. From the announcement:
This popular annual program will cover the hottest developments in several areas of the law related to land use regulation.
Among the expected topics are:
- The Religious Land Use Update;
- Recent Developments in Comprehensive Planning;
- Elected Official Immunity in Making Local Zoning Decisions;
- Regulating the Vacancy of Property;
- The Miami Beach Art Deco District: A continuing case study of Preservation and its Discontents
- Accommodating Zoning: Uses and Limits of the Fair Housing Act and Americans With Disabilities Act
- And much more……
See the website linked above to register for the virtual CLE.
March 16, 2010
Happy St. Patrick's Day
Well, we've tried to post land use-related observations over most of the holidays over the six months we've been driving the blog: Columbus Day, Veterans' Day, Thanksgiving, Christmas, New Years, Valentine's Day. Now it's time to try and make a land use-related post about St. Patrick's Day.
First of all, the legend of St. Patrick has it that he drove the snakes out of Ireland. If that isn't an awesome land use regulatory feat, then nothing is!
St. Patrick is credited with bringing Christianity to Ireland, and the Church played a major part in land control over the centuries. Later on in Irish history, the Catholic-Protestant struggle had a great deal to do with English land ownership and the relationship of the Irish people to the land. Even until recent years, the symbol of St. Patrick has been part of the controversy over the IRA and Northern Ireland.
St. Patrick's Day has spread throughout the Irish diaspora worldwide. In the U.S., St. Patrick's Day has, of course, served as a semi-official Irish-American holiday. Irish immigrants moved throughout the country, but are particularly known for rising to political power in the cities. Anti-Irish/Catholic prejudice loomed over the Gilded Age ("no Irish need apply") and the Progressive Era (multifamily housing (the "pig in the parlor") associated with immigrants). Irish Catholic churches played a major role in urban affairs and continue to have a presence in First Amendment and RLUIPA issues. After attaining some political power in urban political systems such as Tammany Hall, Irish-Americans have played a central role in city governance for over a century. My undergrad alma mater, Notre Dame, served as a source of pride for Irish-Americans for its competitiveness in that land-use struggle known as football, and later in academics. When John F. Kennedy was elected President, it seemed to many Americans of Irish extraction that they had finally become accepted into the American Dream.
In the last few decades, St. Patrick's Day has continued to influence American land use issues. Major celebrations take place in many U.S. cities, and places like Chicago, most famously, and Savannah dye their rivers green for the occasion. [ancillary question: is being "green" a good thing, in this sense?] In some American cities the St. Patrick's Day parade has become one of the most important political events of the year, which has led in turn to protracted litigation over the question of who gets to decide who marches in privately-organized yet publicly-sanctioned St. Patrick's Day parades. The U.S. Supreme Court weighed in on the matter in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995). Justice Souter's opinion for a unanimous Court upheld the First Amendment associational rights of the parade organizers to exclude an Irish-American GLBT group (would the case come out the same way today?).
St. Patrick's Day has a lot of cultural significance and a little bit of land-use significance too. So hoist a green beer and celebrate.
February 04, 2010
May the bells toll . . . in Phoenix?
There seems to be a big church-state land use battle brewing in Arizona. From the Arizona Republic story Court hears arguments over church bell in Phoenix:
The arguing over the silencing of church bells grew louder in two Phoenix courtrooms on Monday.
The legal conflict centers on a church in north Phoenix. In 2008, it started to ring its bells 13 times a day, seven days a week, to the annoyance of its neighbors.
In May 2009 Phoenix Municipal Court Judge Lori Metcalf told the church, Cathedral of Christ the King, to pipe down.
The bells could ring, she said, but only once a week on Sunday morning.
She also found the church's leader, Bishop Rick Painter, guilty on two counts of disturbing the peace. He received a 10-day suspended sentence and three years' probation.
On Monday morning, a national Christian legal group, the Alliance Defense Fund, argued in U.S. District Court that the Phoenix noise ordinance is overly vague and unconstitutional.
The legal conflict centers around a city noise ordinance. The language of the Phoenix noise ordinance isn't at all uncommon, and is based on nuisance theory. In the "Nuisance and Noise" section, the Phoenix City Code sec. 23-12 reads:
"Subject to the provisions of this article the creating of any unreasonably loud, disturbing and unnecessary noise within the limits of the City is hereby prohibited."
Is the ordinance unconstitutionally vague? Does targeting church bells infringe on First Amendment free exercise, or RLUIPA? It's a generally-applicable rule, but the text certainly gives a wide berth of discretion to local government officials to make enforcement decisions under the "reasonableness" standard. Too much discretion, or necessary flexibility? That's the classic land use regulation debate, and the religious land use cases tend to bring this point out.
Either way, though, sentencing a bishop to (suspended) jail time in pursuit of nuisance code enforcement is pretty hard core. The battle is joined and it looks to be an interesting federal case.
UPDATE: Erik Stanley, the ADF attorney for the churches cited in the article, has a post in the comments section.
February 03, 2010
Florida's Nelson Symposium
Michael Allan Wolf writes to let us know about the upcoming Nelson Symposium at the University of Florida:
The University of Florida Levin College of Law is hosting the Ninth Annual Richard E. Nelson Symposium on Friday, February 12. The topic of this year’s program is “Local Government Liability Under Federal Law: Regulating the Sacred and the Profane.” Outside law professor presenters include Ashira Ostrow (Hofstra) on RLUIPA, Alan Weinstein (Cleveland-Marshall) on adult use zoning, and Asmara Tekle (Texas Southern) on sex offender residency requirements.
Professor Wolf will be speaking on “How Local Governments End Up Making New Federal Caselaw.” You can check out the brochure, and if you can make it to Florida (never a bad thing this time of year, especially given what Phil said yesterday), it sounds like a great event.