Religion and Zoning
Professor Lora A. Lucero
Planning & Environmental Law
Fall 2011
RLUIPA: Church & State
Congress shall make no
law respecting an
establishment of
religion, or prohibiting
the free exercise
thereof.
Two religion clauses
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Establishment clause is focused on organized
religion and prevents government from acting
to favor one religion over another.
Lemon v. Kurtzman (1971) three-part test:
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The law must have a secular purpose
The primary effect must neither advance nor
inhibit religion
The law must not foster “an excessive
government entanglement with religion.”
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Free Exercise Clause protects the individual’s
rights.
Strict scrutiny test (1963 – 1990)
Employment Division v. Smith (1990) – U.S.
Supreme Court decided neutral, generally
applicable laws could not be challenged under
Free Exercise Clause
FIRESTORM
Pre-RLUIPA history
•
Religious and civil rights groups head to
Congress.
•
Religious Freedom Restoration Act (RFRA)
invalidated City of Boerne v. Flores, 521 U.S.
507 (1997).
•
Congress introduced Religious Liberty Protection
Acts of 1998 and 1999 (RLPA).
•
Religious Land Use & Institutionalized Persons
Act (42 U.S.C. sec. 2000cc).
RLUIPA: The Elements
•
Government may not place a “substantial burden” on
the right of an individual (religious assembly,
institution) to exercise religious freedom.
•
•
•
“least restrictive means” of furthering a
“compelling government interest.”
RLUIPA does not apply in land use context unless
there is a “substantial burden” imposed where the
government makes an “individualized assessment.”
RLUIPA’s Equal Terms Provision
“No government shall impose or implement a
land use regulation in a manner that treats a
religious assembly or institution on less than
equal terms with a nonreligious assembly or
institution.”
RLUIPA’s
Unreasonable Limitations Provision
“No government shall impose or implement a
land use regulation that – . . . (B)
unreasonably limits religious assemblies,
institutions, or structures within a
jurisdiction.”
Big Box RLUIPA case
Rocky Mountain
Christian Church
v.
Board of County
Commissioners of
Boulder County,
Colorado
Rocky Mountain Christian Church

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1984 – Rocky Mountain
Christian Church founded
1993 – Church building has
reached about 50,000 sq.-ft.
1994–2003 – Boulder County
Commissioners approved five
requests to expand the size and
use of church facilities.
2003 – The church is over
100,000 sq.-ft. with a
sanctuary holding more than
1,400 people and academy
serving 380 students (K – 8th)
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2004 – Church applied to
add 152,200 sq.-ft. and
increase student enrollment
by 160.
2006 – County approves
increasing sanctuary seating
from 1,400 to 1,550 people
& permanent school
building to replace existing
modular school. Denies the
rest of the request. Church
sues.
November 2008 – Jury
decides County did not
violate the Constitution, but
violated RLUIPA.
Jury’s Decision
•
•
•
County Commissioners
did not discriminate
against the church.
County violated
RLUIPA because it did
not treat church equally
to a non-religious
institution; it placed a
substantial burden on
church.
No damages awarded
to church.
In the 10th Circuit
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APA argued a “substantial burden” under
RLUIPA is not shown by failure to approve a
larger church facility in an agricultural zone
Protecting agricultural and open space lands
through a comprehensive plan is a compelling
governmental interest.
http://www.planning.org/amicus/pdf/rockymo
untainchurch.pdf
Boulder County argued:
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RLUIPA should be interpreted as only
codifying “Free Exercise” jurisprudence,
If Court construes RLUIPA as granting greater
protection of religious exercise beyond First
Amendment protections, then it is
unconstitutional as applied because it violates
the Establishment Clause and exceeds
Congress’ authority under Section 5 of the
Fourteenth Amendment.
10th Circuit decision 613 F.3d 1229 (2010)

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Did not consider “substantial burden”
Held that Boulder County violated RLUIPA’s
“equal terms” provisions.
U.S. Supreme Court denied cert.
Questions:
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Is RLUIPA constitutional in land use context?
What advice should we give communities today?
Does land use control belong at the federal level?