Thursday, June 5, 2008

Ostrow on Judicial Review and RLUIPA

Ashira Ostrow (Hofstra) has posted Judicial Review of Local Land Use Decisions: Lessons from RLUIPA on SSRN.  Here's the abstract:

This Article questions whether traditional judicial deference to local land use regulators is justified in light of the highly discretionary, and often corrupt, system of modern land use regulation. In 2000, Congress determined that unlike other forms of economic legislation, land use regulation lacks objective, generally applicable standards, leaving zoning officials with unlimited discretion in granting or denying land use applications. Congress further concluded that this unlimited discretion lends itself to religious discrimination. Congress therefore enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), which requires courts to strictly scrutinize land use decisions that impact religious land users.

Since its passage, the constitutionality of RLUIPA has been extensively debated. Many scholars maintain that RLUIPA is an overly broad exemption that creates a privileged class of land users and allows religious institutions to avoid a community's reasonable land use concerns. In contrast, this Article argues that Congress, through RLUIPA, identified a global flaw in land use regulation which impacts all land users, but limited its remedy to religious land users. While RLUIPA's strict scrutiny review is clearly inappropriate for land use cases that involve neither fundamental rights nor suspect classes, traditional judicial deference is equally inappropriate in light of the discretionary nature of modern zoning. Fortunately, the Supreme Court established the appropriate standard of review in its earliest zoning cases. Thus, this Article maintains that RLUIPA is significant because it highlights a global flaw in local land use and because its bifurcated approach to judicial review of zoning decisions revives an early facial/as-applied dichotomy in land use jurisprudence and encourages more meaningful judicial review of all as-applied land use decisions.

Ben Barros

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