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The Constitutional Limitations on Congress's Power Over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act is Unconstitutional


Marci A. Hamilton


Cardozo Law School

July 31, 2009

Albany Government Law Review, Vol. II, No. 2, 2009
Cardozo Legal Studies Research Paper No. 283

Abstract:     
The purpose of this Article is to bring to the forefront of discussion bedrock principles of land use law, which have been ignored to date, and to place RLUIPA analysis on a more constitutionally sound base. The Article is divided into three main sections. Section I recounts the history of land use principles from the drive to ordering urban centers in the seventeenth and eighteenth centuries to the development of the rich amalgam of modern practices that now constitute local land development and planning. Section II examines the Supreme Court’s constitutional doctrine of land use law and describes the federal laws that directly or incidentally affect local land uses and shows that these few are cabined within narrowly circumscribed arenas or in fields in which federal coordination of the states is necessary. These laws are readily distinguishable from the sweeping effect of RLUIPA on local land use determinations. Section III then looks closely at Section 2(a), to show how it impacts local decision-making, and operates as a radical and careless interference with settled constitutional principles. In addition, it points out that state courts have a history of rooting out invidious discrimination against religious landowners and invalidating discriminatory or arbitrary zoning and permitting decisions.

Number of Pages in PDF File: 83

Keywords: RLUIPA, RFRA, federalism, zoning, commerce clause, section 5, Boerne, free exercise, religious accommodation

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Date posted: November 7, 2009 ; Last revised: February 22, 2010

Suggested Citation

Hamilton, Marci A., The Constitutional Limitations on Congress's Power Over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act is Unconstitutional (July 31, 2009). Albany Government Law Review, Vol. II, No. 2, 2009; Cardozo Legal Studies Research Paper No. 283. Available at SSRN: http://ssrn.com/abstract=1442897

Contact Information

Marci A. Hamilton (Contact Author)
Cardozo Law School ( email )
55 Fifth Ave.
New York, NY 10003
United States
212-790-0215 (Phone)
212-790-0205 (Fax)
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