Religious Land Use and Institutionalized Persons Act

The passage of RLUIPA gave rise to increasing number of legal cases whereby (local) planning authorities are sued for violating the free exercise of religion.[8] RLUIPA, therefore, generated heated discussions within professional planning communities.[9][10][11] While its advocates (mostly in Congress) argued that this federal statute prevents urban planners from substantially burdening religious practice, its critics (many of whom were planning practitioners) maintained that RLUIPA, in fact, substantially burdens planning practice itself. The American Planning Association (APA), for example, opposed RLUIPA (and its predecessor, RFRA) from the outset, arguing that these statutes effectively change “the playing field in favor of religious institutions” and put local governments “in an untenable position.”[12] In 2005, however, the Supreme Court ruled, in Cutter v. Wilkinson, that RLUIPA is constitutional, at least as it applies to prisons. Since the mid-2000s, therefore, the APA has been offering vital resources to local governments and practicing planners as to how to effectively navigate the renewed legal-religious landscape of the planning field.[13]

Litigation focusing on the term "land use regulation" occasionally asks courts to decide whether RLUIPA applies to eminent domain proceedings. Generally, courts deciding this question have held that RLUIPA does not apply to eminent domain because it is not a "zoning or landmarking law."[14][15][16] Instead, these courts have held that zoning and eminent domain are two completely different and unrelated concepts. The main argument to support this conclusion is that zoning and eminent domain are derived from two separate sources of power. The zoning power is derived from the state's police power, while the eminent domain power is derived from the Takings Clause of the United States Constitution's Fifth Amendment. However, at least one court has applied the RLUIPA in an eminent-domain case because the authority to condemn the property came from the city's zoning scheme.[17] A court may be more inclined to find that eminent domain falls within the scope of RLUIPA if it was authorized by a zoning ordinance or comprehensive plan.

To date, no cases questioning RLUIPA's application to eminent domain have reached the Supreme Court. A 2003 Seventh Circuit case, St. John's United Church of Christ v. City of Chicago, was appealed to the U.S. Supreme Court, but the court declined to hear the appeal. A refusal to hear means that the Supreme Court did not consider the Seventh Circuit Court's decision to be obviously wrong on the legal merits, or that the facts of the particular case could have broader constitutional implications. The Supreme Court generally has a substantial workload and tends to refuse appeals which have already received due process in lower courts. A refusal to hear a case does not preclude hearing a similar case in the future, if the court feels that further judicial review is needed.

The controversy in this case centered around the expansion of Chicago's O'Hare International Airport.[18] In order to expand this airport, the City needed to acquire 433 acres (175 hectares) of adjacent land through condemnation. Among the properties to be condemned were two cemeteries, one owned by St. John's United Church of Christ, and the other by Rest Haven Cemetery Association. In their amended complaint, St. John's and Rest Haven alleged that condemnation of their cemeteries was a violation of RLUIPA. After a revision to the O'Hare Modernization Project, Rest Haven's cemetery was no longer faced with condemnation and this church dropped out of the lawsuit.

St. John's Church argued that the condemnation action substantially burdened its freedom of religious practice because "[A] major tenet of its religious beliefs [was] that the remains of those buried at the [St. John's] St. Johannes Cemetery must not be disturbed until God raises these remains on the 'Day of Resurrection'." This Court had to decide whether eminent domain fit within RLUIPA's definition of a "land use regulation." The Court held that eminent domain was not a "land use regulation." The Court cited the case of Faith Temple Church v. Town of Brighton to support its position that "zoning and eminent domain are 'two distinct concepts' that involve land in 'very different ways'."

St. John's Church also argued that the O'Hare Modernization Act, which authorized the condemnations, was a zoning law, and it invoked the protection of RLUIPA's in condemnation cases derived from the Act.[19] The Court rejected this argument and suggested that Congress would have included eminent domain in the language of RLUIPA if it had intended for the statute to cover eminent domain. After considering the case, the Seventh Circuit Court denied St. John's motion for a preliminary injunction.

Cottonwood Christian Center filed a motion for a preliminary injunction to prevent the City of Cypress from taking its land through eminent domain.[20] The controversy in this case arose when Cottonwood purchased land in Cypress and planned to build a large church and other church-related buildings on an 18-acre (7.3-hectare) plot of land. Since the church was to be built in an area that only allowed churches if they received a Conditional Use Permit (CUP) from Cypress, Cottonwood applied for a CUP. Cypress denied Cottonwood's application. Instead, the city planned to build a shopping mall that included Cottonwood's land. They later scaled the mall down to a Costco store that was solely on Cottonwood's 18-acre (7.3-hectare) plot. Cypress offered to purchase the land and Cottonwood did not accept. As a result, Cypress initiated eminent domain proceedings to acquire the property under a zoning ordinance called the Los Alamitos Race Track and Golf Course Redevelopment Project (LART Plan). The LART Plan authorized the use of eminent domain as a way to redevelop the area where Cottonwood's land was located. Cottonwood argued that because the eminent domain proceedings stemmed from the LART Plan zoning scheme, they violated RLUIPA.

The Court granted a preliminary injunction against Cypress. The Court held that RLUIPA applied in this case, and therefore, the Court used a strict scrutiny standard of review. In its analysis, the Court found that it took Cottonwood five years to identify a location and negotiate for the land. After all the church had invested, the City's actions placed a substantial burden on the churches' religious exercise without presenting a compelling government interest for doing so.

Faith Temple Church brought an action to enjoin the Town of Brighton from condemning its property through eminent domain.[21] Faith Temple was a church that had outgrown its needs at its original location. In order to accommodate its larger congregation, it negotiated and eventually purchased a 66-acre (27-hectare) parcel of land in January 2004. In its Comprehensive Plan for 2000, the Town had included a recommendation that this parcel be acquired. The purpose of the acquisition was to expand an adjacent town-owned park. After the church purchased the land, the Town initiated condemnation proceedings in the spring of 2004.

RLUIPA's application to eminent domain was at issue in this case because Faith Temple argued that the recommendation in the Town's Comprehensive Plan was essentially a "zoning law." Further, if the recommendation was a zoning law, then Faith Temple argued that condemnation was "the application of a zoning law" and was a violation of RLUIPA.

The Court held that RLUIPA was inapplicable to this case. The judge found that the connection between zoning and eminent domain in this case was "too attenuated to constitute the application of a zoning law." Therefore, summary judgment was granted in favor of the Town, denying injunctive relief.

This case was an appeal to the Supreme Court of Hawaii which stemmed from a Honolulu city and county ordinance.[22] The ordinance gave the city and county eminent domain authority in "[A]ctions for [ ] lease-to-fee conversion[s] of certain leased-fee interests." Using the authority granted by the ordinance, the City of Honolulu initiated condemnation proceedings to obtain thirty-four leasehold condominium units in the Admiral Thomas condominium complex. The purpose behind the condemnation proceedings was to "conver[t] the leasehold [interests] to fee simple [interests] on behalf of forty-seven owner-occupant[s]" (the lessees).

The plaintiff-appellee in the action was the City and the defendant-appellant was First United Methodist Church as the fee owner of the Admiral Thomas condominium complex. First United counterclaimed the condemnation proceedings and cited a violation of RLUIPA. Using the Cottonwood case for support, First United argued that eminent domain is a "land use regulation" and that RLUIPA should be a defense to the City's action. While First United argued that its exercise of religion had been burdened by the eminent domain proceedings, the City argued that First United had not proven this and that "the Church's exercise of religion [was] unaffected."

Affirming the decision of the circuit court granting summary judgment in favor of the City, the Court held that RLUIPA could not be used as a defense to eminent domain proceedings authorized under the ordinance. The Court supported this holding by stating that eminent domain and zoning are different concepts and that it would not "assume that Congress simply overlooked [eminent domain] when drafting RLUIPA." Since Congress did not include the term "eminent domain" in the RLUIPA statute, the Court decided that Congress did not want it to be included. Therefore, the Court did not apply RLUIPA in this case.

• Kris Banvard, Comment, Exercise in Frustration? A New Attempt By Congress to Restore Strict Scrutiny to Governmental Burdens on Religious Practice, 31 Cap. U. L. Rev. 279 (2003).
• Shelley Ross Saxer, Eminent Domain Actions Targeting First Amendment Land Uses, 69 Missouri L. Rev. 653 (2004).
• Stephen A. Haller, Comment, On Sacred Ground: Exploring Congress's Attempts to Rein in Discriminatory State Zoning Practices, 33 Sw. U. L. Rev. 285 (2004).
• Aaron Keesler, Note, Religious Land-Use and the Fourteenth Amendment's Enforcement Clause: How the FMLA Paved the Way to the RLUIPA's Constitutionality, 3 Ave Maria L. Rev. 315 (2005).
• G. David Mathues, Note, Shadow of a Bulldozer?: RLUIPA and Eminent Domain After Kelo, 81 Notre Dame L. Rev. 1653 (2006).
• Daniel P. Lennington, Thou Shalt Not Zone: The Overbroad Applications and Troubling Implications of RLUIPA's Land Use Provisions, 29 Seattle U. L. Rev. 805 (2006).
• Matthew Baker, Comment, RLUIPA and Eminent Domain: Probing the Boundaries of Religious Land Use Protection, 2008 BYU L. Rev. 1213 (2008).
• Daniel N. Lerman, Note, Taking the Temple: Eminent Domain and the Limits of RLUIPA, 96 Geo. L.J. 2057 (2008).
• Cristina Finetti, Comment, Limiting the Scope of the Religious Land Use and Institutionalized Persons Act: Why RLUIPA Should Not Be Amended to Regulate Eminent Domain Actions Against Religious Property, 38 Seton Hall L. Rev. 667 (2008).