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Assessing RLUIPA's Application to Building Codes and Aesthetic Land Use Regulation

32 Pages Posted: 11 Aug 2009  

Shelley Ross Saxer

Pepperdine University School of Law

Date Written: August 11, 2009

Abstract

This article presents the author’s argument that building codes and aesthetic or historical land use regulations should be subject to scrutiny under the Religious Land Use and Institutionalized Persons Act (RLUIPA). This scrutiny would serve to further the intent of RLUIPA to protect the religious exercise of churches and synagogues against government discrimination in zoning codes and land use regulation, both for established and non-established religious denominations. This scrutiny also ensures that RLUIPA is construed broadly, as was Congress’s intent, to maximize federal constitutional protection of the free exercise of religion. Judicial application of RLUIPA has been varied: while some courts have applied RLUIPA to any local land use regulation impacting religious exercise, others have applied RLUIPA only if there appears to be actual discrimination occurring in the land use regulations scheme. Building codes, as well as aesthetic and historical regulations, are generally designed to ensure that buildings are safe, habitable and appropriate for the community environment, and they may be facially neutral. However, the author argues that they should be closely scrutinized under constitutional principles or RLUIPA guidelines when they are individually applied to burden the fundamental right of free exercise of religion, because arbitrary or discriminatory decision-making cannot be allowed to hide behind the facial neutrality of these codes and regulations.

Keywords: religion, religious, land use, building codes, RLUIPA, free exercise, constitution, religious exercise, discrimination, land use regulations, scrutiny, discrimination, religious discrimination, neutrality

Suggested Citation

Saxer, Shelley Ross, Assessing RLUIPA's Application to Building Codes and Aesthetic Land Use Regulation (August 11, 2009). Albany Government Law Review, Vol. 2, 2009; Pepperdine University Legal Studies Research Paper No. 2009/17. Available at SSRN: https://ssrn.com/abstract=1447468

Shelley Ross Saxer (Contact Author)

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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