Tuesday, October 17, 2006

Everything You Need to Know About Bedbugs (Including Their Implications for Landlord-Tenant Law)

The New York Times' article "Everything You Need to Know About Bedbugs but Were Afraid to Ask" has a nice discussion of the implications of the re-emergence of bedbugs in NYC for landlords and tenants.  The Times discusses Peter H. Young's successful claim for rent abatement on his $1000/month loft at 165 Ludlow Street on the Lower East Side:

In June 2004, Judge Cyril K. Bedford of New York City Civil Court found the infestation so harmful to Mr. Young’s “health, safety and welfare” that it violated the implied warranty of habitability — a landlord’s minimal obligation to provide the essential functions of a residence.

“In this case, the bedbugs did not constitute mere annoyance, but constituted an intolerable condition, notwithstanding the landlord’s efforts to exterminate them,” wrote Judge Bedford, who granted Mr. Young a 45 percent rent abatement. (Mr. Young’s landlord, Eric Margules, did not respond to a request for comment.)

Has all the makings of a nice example for property students....

Al Brophy
Comments are held for approval, so they will not appear immediately.

October 17, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, October 16, 2006

Supreme Court Denies Cert In Takings Case

Scotusblog has the scoop on the Court's denial of cert in Drebick v. City of Olympia, an exactions case involving fees imposed on a new project to cover the cost of additional services.  Frankly, it would be nice if the Court would hold off on granting cert on any takings cases for a few years so that (a) I can finally spend more time on my non-takings research interests and (b) we can all continue to beat the Kelo horse without any distractions.  Maybe I should send a note to Chief Justice Roberts requesting that the Court take my research agenda into account in its cert decisions.  A new takings case would be great two or three terms from now.  In the meantime, though, let's leave this stuff to the lower courts.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

October 16, 2006 in Takings | Permalink | Comments (2) | TrackBack (2)

Thanks to Rick . . .

for a great guest stint!  I've learned a great deal about RLUIPA and plan on incorporating it into my land-use unit in the Spring.  Although I'm sympathetic about some of the problems that religious institutions have in dealing with local land-use ordinances, I have to say I have some doubts about the statute, especially its strict scrutiny standard.  There is no question, though, that this is an important statute, and it will be interesting to see how RLUIPA develops in the courts over the next few years.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

October 16, 2006 in About This Blog | Permalink | Comments (1) | TrackBack (0)

RLUIPA Blogging Finale

It has been a pleasure and a privilege for me to guest blog on ProprtyProf about teaching RLUIPA in Property Class. My thanks to Ben and all of you for this opportunity.

I have a few final thoughts.

1) It is probably worth mentioning that RLUIPA protects not only religious land use, but also religious liberty in prisons. Here is the text of RLUIPA Sec. 3:

SEC. 3. PROTECTION OF RELIGIOUS EXERCISE OF INSTITUTIONALIZED PERSONS.
(a) GENERAL RULE- No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 2 of the Civil Rights of Institutionalized Persons Act (42 U.S.C. 1997), even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(b) SCOPE OF APPLICATION- This section applies in any case in which--
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.

I don't teach this provision, but I let students know it exists.

2) It is easy to draft an RLUIPA exam question, because there are always new cases being litigated from which you can borrow facts. RLUIPA.com is a great resource for new cases and issues. For example, my major essay question last year concerned a real case in which the Property Owner's Association threatened to enforce a single family use covenant against a family that was homeschooling their four children at their home in a subdivision. The family's decision to homeschool was based upon religious obligation, the parent's duty to "educate their children in the light of God's truth." The homeschool family was joined once a week by several other homeschool families for group lessons and activities.The covenant required single family use only and prohibited use "for commercial, business, church or school purposes." The POA backed down when Home School Legal Defense lawyers sent a First Amendment SWAT team to defend the family, but the controversy raised some really nice issues about covenants running with the land. By the way, can you spot the RLUIPA issue lurking in the facts? [Hint--is the law of covenants running with the land a "land use regulation" covered by RLUIPA? Remember, RLUIPA requires a broad construction to maximize religious liberty.]

3) Please don't hesitate if you wish to contact me about teaching RLUIPA or other First Amendment issues in Property. I find that issues like these make for a delightful, palate-cleansing sherbert in between main courses such as estates, recording, & landlord/tenant.

Cheers, Rick Duncan (University of Nebraska College of Law)(email: conlawprof@yahoo.com)

[Comments are held for approval, so there will be some delay in posting]

October 16, 2006 | Permalink | Comments (1) | TrackBack (0)

Kelo Debate

Chapman University Law Profs Donald Kochan and debated the Kelo/Public Use issue on Hugh Hewitt's radio show.  You can listen to the debate online.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

October 16, 2006 in Takings | Permalink | Comments (0) | TrackBack (0)

5th Circuit Decides Public Use Case

Ilya Somin at the VC has the details on the 5th Circuit's decision in Western Seafood Co. v. City of Freeport.  Unsurprisingly in light of Kelo, the court rejected the property owner's public use claim, at least to the degree that it rested on the federal constitution.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

October 16, 2006 in Recent Cases, Takings | Permalink | Comments (0) | TrackBack (0)

Thursday, October 12, 2006

RLUIPA and Congressional Power

I don't cover the issue of whether RLUIPA is within the constituitional power of Congress in my 1L Property class, because Constitutional Law is a required second year class at Nebraska and 1Ls are just not ready for this discussion.

However, I am quite confident that RLUIPA is constitutional for the following reasons.

The general rule, prohibiting land use regulations that substantially burden religious land use, applies only in the following situations:

SEC. 2. PROTECTION OF LAND USE AS RELIGIOUS EXERCISE.
(a) SUBSTANTIAL BURDENS-
(1) GENERAL RULE- 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, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.
(2) SCOPE OF APPLICATION- This subsection applies in any case in which--
(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;
(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or
(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

The Commerce power is only one of the jurisdictional hooks for RLUIPA; I believe most RLUIPA issues are within the power of Congress to regulate interstate Commerce, but, even if they are not, Congress has power under Section 5 of the 14th Amendment "to  enforce, by appropriate legislation, the provisions of this article" including the incorporated Free Exercise Clause and the Equal Protection Clause.

Under the Supreme Court's modern free exercise jurisprudence, although the Free Exercise Clause does not protect religious liberty against restrictive laws that are both neutral and generally applicable, "[a] law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny." Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993). A law that discriminates against religious land users is not a neutral and generally applicable law, and neither is a law that employs "an individualized system of discretionary assessments to allocate some governmental benefit or burden." See Richard F. Duncan, Free Exercise and Individualized Exemptions: Herein of Smith, Sherbert, Hogwarts, and Religious Liberty, 83 Neb. L.Rev. 1178 (2005). Thus, whenever zoning laws discriminate against religious land users or employ an individualized and discretionary process to allocate variances or conditional use permits, RLUIPA is merely enforcing the Free Exercise Clause when it requires strict scrutiny in these situations.

As you can see, both the "substantial burden" rule and the "equal terms" rule of RLUIPA are basically statutory codifications of the Court's free exercise rules (and thus well within the power of Congress under Section 5 of the 14th Amendment). This is much more than you probably wish to cover in Property class, but perhaps worth at least a brief discussion in an upper level Land Use course.

I am nearing the end of my religious land use guest blogging. I will probably tie up some loose ends tomorrow, and then ride off into the beautiful Nebraska sunset. But if you have questions about teaching RLUIPA in Property class, fire away and I will try to answer them. You can ask your questions by posting a comment or by emailing me at conlawprof@yahoo.com.

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

October 12, 2006 | Permalink | Comments (0) | TrackBack (0)

More on RLUIPA's Constitutionality

As a follow up to Ben's post on RLUIPA's constitutionality:

RLUIPA.com links to these articles:

Roman P. Storzer & Anthony R. Picarello, Jr., The Religious Land Use and Institutionalized Persons Act of 2000: A Constitutional Response to Unconstitutional Zoning Practices, 9 Geo. Mason L. Rev. 929 (Summer 2001)

Derek L. Gaubatz, RLUIPA at Four: Evaluating the Success and Constitutionality of RLUIPA's Prisoner Provisions, 28 Harv. J.L. & Pub. Pol’y 501 (2005)

Rick Duncan

Comments are held for approval, so there will be some delay in posting]

October 12, 2006 | Permalink | Comments (0) | TrackBack (0)

McNeill on RLUIPA

This fits well with this week's theme at Propertyprof.  Elizabeth McNeill (Northwestern University - School of Law) has posted The Current Court and the Religious Land Use and Institutionalized Persons Act: An Analysis of the Next Potential Contendor for Commerce Clause Restriction on SSRN.  Here's the abstract:

The RLUIPA is at the center of a political firestorm that touches on eminent domain, church and state separation, and basic principles of federalism. In 2005, the Supreme Court considered a challenge to the constitutionality of the RLUIPA; considering only the Institutionalized Persons component of the law, the Court upheld it against an Establishment Clause challenge. However, the Court declined to consider Commerce Clause and Spending Clause challenges. It has yet to consider the constitutionality on any grounds of the religious institutions portion, which protects religious structures from zoning and land use regulations. Significantly, the Senate is currently considering expanding the RLUIPA to also protect churches and religious-owned property from eminent domain. Of further significance is the new balance in the Court with the exit of Justice O'Connor and the appointment of Justices Roberts and Alito.

This Article will consider, from political, legal, and statistical standpoints, the likelihood that the RLUIPA will be the next Congressional Act overturned by the Supreme Court for exceeding the bounds of the Commerce Clause.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

October 12, 2006 in Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Times' Attack on Religious Liberty Criticized

The Religion Clause blog reports:

An article Wednesday by the Business & Media Institute strongly criticized the New York Times' recent series on benefits and exemptions granted by government to religious organizations. The Institute said that the series was a "pro-government, pro-regulation treatise". It argues that Diana B. Henriques, reporter on the Times series, failed to point out "the radical nature of several anti-religious sources mentioned in her series".

As I said earlier, it is not uncommon for strict separationists to view laws that protect religious libety as somehow advancing religion. The Times supports separation of church and state when government benefits are involved, but not when government burdens are involved. When government exempts religious activities from regulation--as it does under RLUIPA--it practices separation by removing government-imposed burdens from religious actors. As I explained to a colleague of mine earlier this week, a one-way Establishment Clause--one that prohibits equal funding and other benefits, but requires equal burdens and regulations--is not consistent with religious tolerance in a religiously pluralistic nation.

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

October 12, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 10, 2006

RLUIPA in Property Class: Day 2

For our second session on RLUIPA, I have my students read New Life Ministries v. Township of Mt. Morris (E. Dist. Mich. 2006)(link), a case in which "a federal district court ruled that a zoning ordinance in Mt. Morris, Michigan could not be applied to prohibit New Life Ministries from holding 'religious services' in a zone where secular assemblies, such as 'private clubs, civic and fraternal organizations, lodge halls, theaters, assembly halls, and public and private educational facilities and institutions,' are allowed."  See Rluipa.com (Scroll down to "Michigan Court Finds Town Violated RLUIPA").

New Life Ministries is a short, well-written opinion on the second substantive rule of RLUIPA, section 2000cc(2)(b)(1) and the "equal terms" rule:

SEC. 2. PROTECTION OF LAND USE AS RELIGIOUS EXERCISE.

(b) DISCRIMINATION AND EXCLUSION-
(1) EQUAL TERMS- No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.

Notice that there are four elements to an "equal terms" claim: "(1)the plaintiff must be a religious assembly or institution, (2) subject to a land use regulation, that (3) treats the religious assembly on less than equal terms, with (4) a nonreligious assembly or institution." New Life Ministries at 7.

A similar case--one that some of you may wish to use instead of New Life Ministries--is Midrash Sephardi,Inc. v. Town of Surfside, 366 F. 3d 1214 (11th Cir. 2004)(link), a case in which a small Orthodox Jewish congregation was denied a conditional use permit under a zoning scheme pursuant to which churches and synagogues are prohibited in the business district, even though private clubs, lodge halls, restaurants, dance studios, health clubs, and theaters are permitted. The Beckett Fund filed a brief in this case that included the following powerful argument:

    • "Can a city permit people to assemble in a private club or lodge hall (e.g., Lions Club, Rotary, Elks Lodge) for fellowship, but prohibit the same number of people from assembling in a synagogue for religious fellowship?
    • "Can a city permit people to assemble in a theatre to watch the staging of a Jewish wedding (e.g., Fiddler on the Roof), but prohibit the same number of people from assembling in a synagogue to participate in a religious Jewish wedding?
    • "Can a city permit people to assemble in a cinema to watch the Ten Commandments, but prohibit the same number of people from assembling in a synagogue to hear religious teaching about and worship the God they believed authored the Ten Commandments?
    • "Can a city permit people to assemble in a health club for yoga and aerobic classes to improve physical and mental health, but prohibit the same number of people from assembling in a synagogue to address their spiritual health?
    • "Can a city permit people to assemble in a language school to study Hebrew, but prohibit the same number of people from assembling in a synagogue to study the Hebrew text of the Torah?
    • "Can a city permit people to assemble in a music studio to sing music, but prohibit the same number of people from assembling in a synagogue to sing during a worship service?

The answer under both RLUIPA and the Constitution to all of these questions is no.

I like New Life Ministries for 1Ls because the opinion is short and to-the-point. But Midrash is another good choice.

A few years ago I had an RLUIPA question on my Property final exam, and I use the rest of the hour to go over this exam, sort of like a "practice exam." This gets us through our second RLUIPA class, and it is time to move on to more traditional Property topics.

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

October 10, 2006 | Permalink | Comments (0) | TrackBack (0)

RLUIPA in Property Class: Day 1

I spend two hours in Property class teaching RLUIPA. Here is a "teachers manual" for RLUIPA Day One.

I start by discussing some of the background issues--why religious land users are often excluded from both commercial and residential districts, the difficulty "non-mainstream" churches have getting special use permits, the NIMBY problem faced by many religious ministries--and then we take a walk through the statute while I try to get the students to focus on particularly important provisions (including definitions).

Then we turn to the case assigned for the class--Murphy v. Zoning Com'n of Town of New Milford, 148 F. Supp. 2d 173 (D. Conn. 2001) (link). This is a bit of an unusual case--and as I will point out later it was vacated on other grounds by the 2d Circuit--but it has nice facts and a very thoughtful discussion of the RLUIPA issues. Here is a summary of the facts provided by the RLUIPA.com web site:

Robert and Mary Murphy have lived in their home on Jefferson St. in New Milford for 28 years, and in 1994, after Robert Murphy became ill, they began hosting prayer group meetings on Sunday afternoons. The number of people attending varied, but was never less than 10 or 12. Mr. Murphy testified that the prayer meetings brought "him closer to God" and changed his life after he became ill.

Late in the summer of 2000, the New Milford zoning office began getting complaints from neighbors because of traffic concerns and parking on the street near the Murphy's home. The Zoning Enforcement Office (ZEO) was ordered to investigate, and on December 19, 2000, issued a cease and desist order charging the Murphys with violations of zoning regulations governing the single-family district.

The relevant provision of RLUIPA is Section 2000cc):

SEC. 2. PROTECTION OF LAND USE AS RELIGIOUS EXERCISE.
(a) SUBSTANTIAL BURDENS-
(1) GENERAL RULE- 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, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.

Notice that RLUIPA permits government to "subtantially burden" the "religious exercise" of a person by means of a "land use regulation" only if governemnt can pass strict scrutiny by showing that the land use restriction is the least restrictive means of furthering a compelling state interest. In other words, once plaintiff establishes that a land use regulation has substantially burdened his religious land use, the burden shifts to the government to establish both a compelling state interest and least restrictive means. In other words, even if parking, traffic, and congestion problems qualify as a compellingly important state interest, the state must also establish that the land use restriction was the "least restrictive means" of furthering that interest. And there are often less restrictive means of dealing with traffic safety and parking problems, such as generally applicable speed limits, speed bumps, traffic lights, parking regulations, crosswalks, and the like.

Here are some of the key statutory provisions:

SEC. 4. JUDICIAL RELIEF.
....
(b) BURDEN OF PERSUASION- If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation of section 2, the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff's exercise of religion.

(d) ATTORNEYS' FEES- Section 722(b) of the Revised Statutes (42 U.S.C. 1988(b)) is amended--
(1) by inserting `the Religious Land Use and Institutionalized Persons Act of 2000,' after `Religious Freedom Restoration Act of 1993,'; and
(2) by striking the comma that follows a comma.

SEC. 5. RULES OF CONSTRUCTION.
(e) GOVERNMENTAL DISCRETION IN ALLEVIATING BURDENS ON RELIGIOUS EXERCISE- A government may avoid the preemptive force of any provision of this Act by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.

(g) BROAD CONSTRUCTION- This Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.

SEC. 8. DEFINITIONS.
In this Act:
(1) CLAIMANT- The term `claimant' means a person raising a claim or defense under this Act.
(2) DEMONSTRATES- The term `demonstrates' means meets the burdens of going forward with the evidence and of persuasion.
(3) FREE EXERCISE CLAUSE- The term `Free Exercise Clause' means that portion of the first amendment to the Constitution that proscribes laws prohibiting the free exercise of religion.
(4) GOVERNMENT- The term `government'--
(A) means--
(i) a State, county, municipality, or other governmental entity created under the authority of a State;
(ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and
(iii) any other person acting under color of State law; and
(B) for the purposes of sections 4(b) and 5, includes the United States, a branch, department, agency, instrumentality, or official of the United States, and any other person acting under color of Federal law.
(5) LAND USE REGULATION- The term `land use regulation' means a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.
(6) PROGRAM OR ACTIVITY- The term `program or activity' means all of the operations of any entity as described in paragraph (1) or (2) of section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a).
(7) RELIGIOUS EXERCISE-
(A) IN GENERAL- The term `religious exercise' includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.
(B) RULE- The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.

This is a very fun case to teach. The Murphys were hosting weekly "prayer meeting" for as many as 40 or 50 guests (and as many as 20 cars). This was not a mega-church trying to build in a single family neighborhood; it was a single family having a large social gathering once-a-week. Although there were no findings about the size and frequency of social gatherings hosted by other residents in the neighborhood, I point out that University Deans and Presidents often host alumni and faculty receptions at their homes involving similar numbers of cars and guests. And, of course, there are the ubiquitous Cub Scout/Brownie meetings not to mention Tupperware parties.

The students really get excited discussing this case, and it is a highlight of the semester.

Here is the story about what happened to Murphy on appeal (from RLUIPA.com):

The Becket Fund for Religious Liberty filed an amicus (friend of the court) brief (PDF format, 347K) that was received by the U.S. Court of Appeals for the Second Circuit on July 9, 2004. The brief supports the affirmance of U.S. Magistrate Judge Holly Fitzsimmons' decision.and defends the constitutionality of RLUIPA, a law that has been found constitutional in an overwhelming majority of cases that have reached the courts. The Second Circuit could also affirm the Murphys' win based on their First Amendment claims to Free Exercise of religion or their claim under the Connecticut Act Concerning Religious Freedom.

The United States Court of Appeals for the Second Circuit has vacated the lower court’s ruling. The lower court had held that the town of New Milford had substantially burdened the religious exercise of Robert and Mary Murphy by issuing an order requiring the Murphys to cease and desist from hosting regularly scheduled prayer meetings in their home. The Second Circuit vacated the decision without reaching the merits, holding that the Murphy’s RLUIPA and constitutional claims were not ripe for review in federal court. According to the Second Circuit, the Murphys should have first sought review of the cease and desist order by the New Milford Zoning Board of Appeals before filing their federal court action.

I hope many Property Profs decide to teach RLUIPA to 1Ls. It is an important--and a very practical--development in the law of land use.

Related posts:

Teaching RLUIPA in Property Class

Critics of RLUIPA

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

October 10, 2006 | Permalink | Comments (0) | TrackBack (0)

Property Rights Legislation

I missed it at the time, but Sunday's NY Times has an interesting article on property rights legislation.

Ben Barros

[Comments are held for approval, so there will be some delay in posting[

October 10, 2006 in Takings | Permalink | Comments (1) | TrackBack (0)

Monday, October 9, 2006

A Bet Against the Rule Against Perpetuities

As I noted a few months ago, Pennsylvania recently abolished the Rule Against Perpetuities.  I wanted to go on record with this prediction:  I think that within ten years, more than half of United States jurisdictions will have abolished the RAP outright, and that virtually all will have at least permitted perpetual trusts.  (According to the handy table in the new edition of D&K, Alaska, Idaho, New Jersey, Pennsylvania, Rhode Island, South Dakota, and Wisconsin have all abolished the RAP outright; a total of 21 U.S. jurisdictions presently allow perpetual or 1,000 year trusts, most by allowing an opt-out of the RAP in a trust document).  I have to confess that I have a slight conflict of interest, because I'm working on an article on how to make abolition of the RAP more workable, particularly for interests not held in trust.  But I'm pretty confident that the RAP is a doctrine that will not last another generation, in part because the trust management industry has the incentive to push reform legislation.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

October 9, 2006 in Future Interests and the RAP | Permalink | Comments (0) | TrackBack (0)

As Exemptions Grow, Religion Outweighs Regulation

The October 8, 2006 New York Times has a lengthy article on religious exemptions from the Regulatory State that contains an extensive discussion of religious land use and RLUIPA. (Thanks to the Religion Clause blog for the pointer)

By the way, the title of the New York Times article is misleading. RLUIPA and other religious exemptions from restrictive laws advance religious liberty, not religion. This is a basic concept that I try to teach my First Amendment students when studying the Establishment Clause--the EC, as interpreted by the Supreme Court in the Lemon test, forbids laws that advance relgion, not laws that advance religious liberty. Notice what a difference it makes to rewrite the title to that NYT article as "As Exemptions Grow, Religious Liberty Outweighs Regulation."

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

October 9, 2006 | Permalink | Comments (0) | TrackBack (0)

Rosser on Obligations of Privilege

Ezra Rosser (American University Washington College of Law) has posted Obligations of Privilege on SSRN.  Here's the abstract:

Little attention is paid to the nature of the high incomes of the rich nor to legal or norm-based obligations the rich owe society. This popular and scholarly inattention reflects the general acceptance of the idea that the rich have earned their high incomes and owe society little. By looking at income equations revealing society's role in high incomes and the obligations of the rich, the Article urges a strengthening of the obligations of the rich and rejects the argument that the legal community ought not consider the moral demands associated with high incomes.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

October 9, 2006 in Property Theory, Recent Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, October 6, 2006

Critics of RLUIPA

Just another brief post on RLUIPA. I will have several longer posts coming next week.

I have already given you links to the RLUIPA.com web site that provides lots of supportive information and materials about RLUIPA. Now permit me to introduce you to RLUIPA's most prolific critic, Prof. Marci Hamilton. In her book, God vs. The Gavel: Religion and the Rule of Law, Prof. Hamilton devotes chapter 4 to "Religious Land Use and Residential Neighborhoods."  Here are brief excerpts that give you the flavor of Marci's disdain for RLUIPA: "RLUIPA has turned neighbor against neighbor and is one of the most religiously divisive laws ever enacted in the United States...The churches have an uncanny ability to make standard, fair practices sound inherently prejudiced." I disagree with most of her conclusions about religious liberty, but her book is well-written and very thoughtful.

Marci also has some articles that are available online including:

--STRUGGLING WITH CHURCHES AS NEIGHBORS:Land Use Conflicts Between Religious Institutions And Those Who Reside Nearby (link)

---How Congress Undermined the American Dream: The Effect of the Religious Land Use and Institutionalized Persons Act on Residential Neighborhoods (link)

Here is a money excerpt from the American Dream article:

Currently, homeowners trying to retain the residential character of their neighborhoods are finding RLUIPA an enemy to their dreams. Across the country, cases where religious landowners are seeking to get around residential zoning requirements abound. RLUIPA is the classic siren song, capable of persuading any religious landowner that they need not be good neighbors and that they have "rights" to choose location, size, and use at whim. That siren song has gone platinum as groups like the Becket Fund have funded federal litigation, making the religious landowners' decision to ignore the pleas of their neighbors in favor of federal court easier than ever. (Of course, Congress is largely to blame for such shenanigans because of its ill-advised decision to provide attorneys' fees for lawyers taking on RLUIPA claims.)

In one case, a church seeks to add a fourth story in a residential neighborhood zoned for two stories. In another, a private homeowner asserts the right to hold lengthy prayer meetings that exceed occupancy requirements every weekend. In a third, the church seeks a "small" addition of 30,000 square feet.

In a fourth, a synagogue seeks to convert a piece of property previously used to house a quiet convent, and then a monastery, into a lively complex offering services, education, and a catering hall for hundreds of families. In a fifth case, a quickly constructed 8000 square foot shul is overshadowing its 3000 square foot residential neighbors.

Every one of these projects changes the residential quality of the neighborhood in which it is planned. That is because every one is inconsistent with the character of the neighborhood, and involves a dramatic increase in the intensity of the use of the property, far above normal residential usage. Traffic (both pedestrian and automobile), lighting, setbacks, height, bulk, noise, and parking are all elements that contribute to the degradation of residential character; each project would alter at least one, and often several, of these elements.

Powerful stuff.

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

October 6, 2006 | Permalink | Comments (1) | TrackBack (0)

A Rant on Moore v. Regents

I taught Moore v. Regents on Wednesday.  As always, the fascinating factual scenario presented by the case sparked a great discussion.  Every time I teach the case, though, I'm struck by the very poor reasoning in the majority opinion.  It sucks.  It is really, really bad.  It is so simplistic, mechanical, and wrong that I suspect that it was drafted in crayon.  Most of the points made by the majority are absolutely demolished by Justice Mosk in dissent.  The California Supreme Court knew that this was a tremendously important case, and it is a sad statement about the quality of that court that it couldn't produce an opinion that at least had some intellectual content beyond "we don't want to recognize property in the body, but we don't really know why."  I don't mean to suggest that there aren't good arguments for the result reached by the court -- problems of commodification and economic coercion, among others, are very strong arguments for rejecting a claim of property in the body.  These good arguments, however, are completely absent from the majority opinion.  Therefore, I, D. Benjamin Barros, hereby resolve never to require my property students to again waste their time by reading the majority opinion in Moore, unless, of course, I change my mind.  I'll cover the case and the issues presented therein, but I don't have the time to use the case as an instruction tool about poor legal reasoning.  Life's too short to read bad law.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

October 6, 2006 in Property Theory, Teaching | Permalink | Comments (7) | TrackBack (0)

Thursday, October 5, 2006

Epstein on Religious Liberty and Property Rights

I am fully booked teaching today, so I only have time for a short post on religious liberty and property rights. I thought what I would do is refer you to a great op-ed on the subject by Richard Epstein. It might make a nice handout as an introduction to religious liberty issues in Property, whether under RLUIPA or even when discussing the landlord whose religion compels her to refrain from renting to unmarried cohabitants.

The Epstein piece I am referring to is a Wall Street Journal op-ed (July 27, 1994, at A15) entitled "The Welfare State's Threat to Religion."  In this essay, Epstein argues that: "An even broader look at the place of religion in the welfare state shows that many of the greatest threats to religious liberty stem from insufficient protection of individual liberty in economic affairs....The protection of private property does more than promote market efficiency; it enhances the level of human freedom in the most intimate and personal parts of our lives."

I don't have a link to this article. But if you can have your libray track it down, it would make a nice handout for a unit focusing on religious liberty and property.

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

October 5, 2006 | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 4, 2006

Teaching RLUIPA in Property Class

Ben has been kind enough to invite me to guest blog about my experiences teaching RLUIPA (the Religious Land Use and Institutionalized Persons Act of 2000) as part of my 1L Property course here at Nebraska. I am delighted to do so, because every year the RLUIPA unit is one of the highlights of my Property class (both for me and, so I am told, for many of my students).

RLUIPA (42 U.S.C. sects. 2000cc et seq.) (link) is surely one of the most important developments in the law of property and land use in recent years. Signed into law by President Clinton on September 22, 2000, RLUIPA is a federal civil rights law that protects religious land uses from discrimination and substantial burdens imposed by restrictive land use regulations.

RLUIPA was needed because churches, religious ministries, and other religious land users often find themselves unpopular with local residents, businesses, tax collectors, and (thus with) local government. The problems are particularly severe in the case of churches that are considered “non-mainstream” because of racial, ethnic, or sectarian factors. In a recent law review article, Roman Storzer and Anthony Picarello observed that: “Churches in the United States are facing ever-increasing pressure by municipal authorities to limit their physical presence in America’s cities and towns. According to zoning boards, mayors, and city planners across the nation, churches may belong neither on Main Street nor in residential neighborhoods. And those whom neighbors deem a ‘cult’ may not belong at all.”

After sharing the Storzer & Picarello quote with my students in a handout I distribute to the class, I ask them: “Do churches belong in residential neighborhoods? In commercial districts? If your answer is 'no,' then where do churches and religious ministries belong in a typical town or city?”

I hope the authors of Property casebooks will someday cover RLUIPA in some reasonable fashion, but until they do I use a handout that contains the following:

1) An introductory note containing some background information about RLUIPA and some comments and questions;

2) A copy of the statute;and

3) Two RLUIPA cases: Murphy v. Zoning Com’n of Town of Milford, 148 F. Supp. 2d 173 (D. Conn. 2001) and (in this year’s handout) New Life Ministries v. Charter Township of Mt. Morris (E. D. Mich. 2006) (link)

The Beckett Fund has established a wonderful web site covering RLUIPA--RLUIPA.com (link)--which contains information about cases, pleadings, briefs, and scholarship concerning RLUIPA. In particular, this site contains helpful discussion and links concerning the two cases I assign to my students (Murphy) (New Life Ministries scroll down).

I plan to discuss these two cases (as well as some others) in future posts. For now, suffice it to say that RLUIPA brings some interesting issues concerning the public law of property and statutory interpretation into the first year Property class. It also brings a nice real world component into the course, because churches and religious ministries are ubiquitous and increasingly find themselves at odds with local land use authorities. It is also a great "table turning" issue, because it converts a government-always-wins zoning dispute into a plaintiff-often-wins civil rights/religious liberty case.

I really enjoy teaching RLUIPA in Property!

Rick Duncan

[Comments are held for approval, so there will be some delay in posting]

October 4, 2006 | Permalink | Comments (1) | TrackBack (0)