Thou Shalt Not Zone: The Overbroad Applications and Troubling Implications of Rluipa's Land Use Provisions
38 Pages Posted: 20 Sep 2006
This article addresses the substantial confusion in the courts created by the land use provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA was passed by Congress just over five years ago to prohibit local governments from using land use restrictions, such as zoning codes, to discriminate against churches and other religious institutions. Although RLUIPA's legislative intent is remarkably clear, the overbroad drafting of the statute has caused a split among the courts, including the federal courts of appeal. In many instances, courts have overturned local zoning decisions affecting churches, mosques, and synagogues, even when there is absolutely no evidence of intentional discrimination. This article addresses the confusion created by this statute, and suggests a statutory amendment to solve the problem.
Additionally, this article is unique among other similar scholarship. No other published article has explained or even addressed the problems created by the overbroad drafting of RLUIPA, or the resulting overbroad applications by the courts. What's more, no other article has addressed how these overbroad applications are directly contrary to Congressional intent.
Daniel P. Lennington is a trial and appellate attorney with the Grand Rapids, Michigan, law firm of Warner Norcross & Judd LLP. He currently serves as the chairman of the Georgetown Charter Township Zoning Board of Appeals. Georgetown Township is home to nearly 42,000 residents and one of the highest church-to-person ratios in the state of Michigan, making church zoning a frequently reoccurring issue. Mr. Lennington has first hand experience with the matters discussed in this article. During his tenure as chairman, the Board has been made a party to a lawsuit alleging violations of the Religious Land Use and Institutionalized Persons Act. See Great Lakes Society v. Georgetown Charter Township Zoning Board of Appeals, No. 03-4599-AA (Ottawa County, Mich. Cir. Court). Additionally, Mr. Lennington has seen this issue from the other side, as pro bono counsel to a church.
Keywords: RLUIPA, zoning, land use, religious freedom, religious discrimination, religious land use, RFRA
JEL Classification: K11
Suggested Citation: Suggested Citation