The Effect of RLUIPA's Land Use Provisions on Local Governments

28 Pages Posted: 22 May 2012

See all articles by Alan C. Weinstein

Alan C. Weinstein

Cleveland-Marshall College of Law, Cleveland State University

Date Written: May 4, 2012

Abstract

In the absence of perfect information about how RLUIPA has affected local governments, this article argues that the courts have adopted a pragmatic approach to maneuvering in the difficult terrain that RLUIPA occupies: combining appropriate judicial deference to a legislature that enacts a neutral law of general applicability with the heightened judicial scrutiny that becomes appropriate when that same law is applied to a specific zoning approval, a circumstance that frequently allows for subjectivity, and thus the potential for discrimination or arbitrariness against religious uses, in the approval process. I conclude that: (1) until proven otherwise, the costs RLUIPA undoubtedly imposes on local governments is the price to be paid for insuring against the discriminatory or arbitrary application of land use regulations and (2) RLUIPA does not seek to establish an unconstitutional preference for religious uses, but rather a proper accommodation of religious exercise in the land use context.

Keywords: RLUIPA, substantial burden, equal treatment, religious freedom, houses of worship, zoning, land use regulation

Suggested Citation

Weinstein, Alan C., The Effect of RLUIPA's Land Use Provisions on Local Governments (May 4, 2012). Fordham Urban Law Journal, Vol. 39, 2012; Cleveland-Marshall Legal Studies Paper No. 12-237. Available at SSRN: https://ssrn.com/abstract=2051014

Alan C. Weinstein (Contact Author)

Cleveland-Marshall College of Law, Cleveland State University ( email )

2121 Euclid Avenue, LB 138
Cleveland, OH 44115-2214
United States

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