Therefore, after the City learned the Church entered into an agreement to purchase the property, it changed the zoning. And once they were notified that the zoning change violated the Religious Land Use and Institutionalized Persons Act, (“RLUIPA”) 42 USC 2000cc et seq., it changed the zoning three more times in an effort to keep the church out. It then filed suit against the Church on a “nuisance” theory.

They also set forth a series of procedures for administering and applying the zoning ordinance. A nearly unanimous Congress passed RLUIPA to level the playing field allowing religious uses in other areas of communities when it enacted the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) 42 USC 2000cc. This law, cosponsored by Senators Hatch and Kennedy, two political leaders at the opposite end of the political spectrum, was Congress’ response to the Supreme Court’s decision in City of Boerne v. Flores, 521 U.S. 507 (1997), where the Court ruled that Congress, in enacting a predecessor religious land use law, exceeded its enforcement power under Section 5 of the Fourteenth Amendment by “contradict[ing] vital principles necessary to maintain separation of powers and the federal balance.”

Zoning, the legal authority granted to local governments from a state through its constitution and enabling legislation that gives a community the ability to regulate the use of land within its boundaries, generally consists of a map showing how the different areas of a community are used, establish land uses permitted in each district and a series of specific standards governing lot size, building height, and required yard and setback provisions. They also set forth a series of procedures for administering and applying the zoning ordinance.A nearly unanimous Congress passed RLUIPA to level the playing field allowing religious uses in other areas of communities when it enacted the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) 42 USC 2000cc. This law, cosponsored by Senators Hatch and Kennedy, two political leaders at the opposite end of the political spectrum, was Congress’ response to the Supreme Court’s decision in City of Boerne v. Flores, 521 U.S. 507 (1997), where the Court ruled that Congress, in enacting a predecessor religious land use law, exceeded its enforcement power under Section 5 of the Fourteenth Amendment by “contradict[ing] vital principles necessary to maintain separation of powers and the federal balance.”

The Substantial Burden clause provides that: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.42 U.S.C. § 2000cc(a)(1).The case law in California provides that, “A substantial burden exists where the governmental authority puts substantial pressure on an adherent to modify his behavior and to violate his beliefs.”

Congress provided that “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 the imposition of the burden on that person, assembly or institution is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. §§ 2000cc (a)(1) and (2)(c).2. 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.

In LighthouseInstitute for Evangelism v. City of Long Branch, 510 F3d 253 (3rd Cir 2007), cert den 128 S Ct 2503, 171 L Ed 2d 787 (2008), the zoning ordinance for a downtown commercial district permitted a variety of uses, including an “assembly hall,” but did not permit churches. The Third Circuit construed the equal terms provision at 42 USC 2000cc-(b)(1) to require that a person asserting a claim under the equal terms provisions must show (1) it is a religious assembly or institution, (2) subject to a land use regulation, which regulation (3) treats the religious assembly on less than equal terms with (4) nonreligious assembly or institution (5) that causes no lesser harm to the interests the regulation seeks to advance. 510 F3d at 270.

In LighthouseInstitute for Evangelism v. City of Long Branch, 510 F3d 253 (3rd Cir 2007), cert den 128 S Ct 2503, 171 L Ed 2d 787 (2008), the zoning ordinance for a downtown commercial district permitted a variety of uses, including an “assembly hall,” but did not permit churches. The Third Circuit construed the equal terms provision at 42 USC 2000cc-(b)(1) to require that a person asserting a claim under the equal terms provisions must show (1) it is a religious assembly or institution, (2) subject to a land use regulation, which regulation (3) treats the religious assembly on less than equal terms with (4) nonreligious assembly or institution (5) that causes no lesser harm to the interests the regulation seeks to advance. 510 F3d at 270.

As Shawnee Mission church’s calling is to provide a welcoming refuge for those experiencing homelessness, and the City of Lenexa responded unlawfully through obstruction of that mission through zoning Shawnee Mission filed suit in the United States District Court of Kansas City, Kansas on November 22, 2019. The Church also filed a Motion for an immediate Temporary Restraining Order or, in the alternative, Preliminary Injunction allowing it to fully exercise its religious mission tohouse the homeless on its property, on a temporary basis from December 1, 2019 through April 1, 2020, pursuant to the ReligiousLand Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc and the U.S. Constitution in violation of the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§ 2000cc – cc-5, and the Kansas Preservation of Religious Freedom Act, the United States Constitution, and the Kansas Constitution.The week following oral argument, we met with City and after a long day of negotiations, crafted a mutually agreeable resolution that allows the Church to host its homeless ministry.

That time has come.” Until the Supreme Court decides to address this split in the circuits, the success and failure of a religious assembly’s equal terms claim may depend on the circuit in which it is filed.If your religious assembly or institution has faced land use discrimination, please contact the attorneys at Dalton & Tomich who have litigated these cases all across the country and are familiar with the divergent circuit court tests.[1] 42 U.S.C. §2000cc (b)(1)[2] For the sake of space, this post will not address every circuit’s test. The differences in all the tests underlines the importance of retaining an attorney familiar not only with RLUIPA but also all the relevant circuit’s test.

Using RLUIPA to Defend against Eminent DomainRLUIPA was enacted in order to prohibit the government from implementing a land use regulation in a manner that imposes a substantial burden on religious exercise. See 42 U.S.C. § 2000cc. The term “land use regulation” is defined as “a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land….”