When Religion Becomes a Nuisance: Balancing Land Use and Religious Freedom When Activities of Religious Institutions Bring Outsiders into the Neighborhood

47 Pages Posted: 10 Jun 2016

See all articles by Shelley Ross Saxer

Shelley Ross Saxer

Pepperdine University - Rick J. Caruso School of Law

Date Written: 1996

Abstract

This Article examines the escalating conflict between homeowners and religious institutions when a religious use located inside a residential community serves people from outside the community. Current controversial uses addressed include drug counseling centers run by religious groups and the feeding and sheltering of the homeless. The Article reviews the application of zoning ordinances, the Religious Freedom Restoration Act of 1993 (“RFRA”), and nuisance law, concluding that religious uses be given great deference when zoning regulations are applied because of their contribution to the general welfare and because of First Amendment protection. Religious land uses should be restricted only when they interfere with another’s use and enjoyment and the benefit of the religious uses is outweighed by the burden on the other landowners’ use of their property. Nuisance litigation provides a possible remedy to landowners who are actually damaged by an unreasonable interference with the quiet enjoyment of their property. Nuisance litigation also provides a less restrictive means than zoning for regulating religious land uses and avoids the problem of prior restraint that is inherent in proactive zoning regulation.

Keywords: Land Use, Religious Freedom, Zoning, Nuisance Law, Religious Institutions, Free Exercise, First Amendment, Religious Freedom Restoration Act, RFRA

Suggested Citation

Saxer, Shelley Ross, When Religion Becomes a Nuisance: Balancing Land Use and Religious Freedom When Activities of Religious Institutions Bring Outsiders into the Neighborhood (1996). 84 KY. L.J. 507 (1996), Pepperdine University Legal Studies Research Paper No. 22, Available at SSRN: https://ssrn.com/abstract=2792354

Shelley Ross Saxer (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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