January 1, 1900

by Stephen M. Eisdorfer

In a recent opinion in a case entitled Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, the Federal Court of Appeals for the Third Circuit cast new light on the legal standards that govern local disputes over the construction or expansion of churches, synagogues, mosques, temples and other religious facilities.

Although Americans are among the most diligent churchgoers in the world, any attempt to construct a new religious building or to expand an existing one is virtually guaranteed to draw crowds of objectors. Sometimes the objections are stimulated by prejudice against religious or ethnic minorities, but attempts to construct or expand churches for even mainstream religions draw opposition.

As a result of this paradox, a large body of specialized state and federal law now governs disputes over the construction or expansion of religious structures. To properly deal with these disputes, religious organizations, local planning and zoning boards and the objecting neighbors need some understanding of this specialized law.

Constitutional Considerations

These matters sometimes involve issues of constitutional rights under the “free exercise clause” of the First Amendment to the United States Constitution or the parallel provisions of the New Jersey Constitution. As enunciated by the U.S. Supreme Court, if a local ordinance is “neutral” and “generally applicable” and any burden that it may impose on religious conduct — however severe — is only incidental to its neutral purpose, the “free exercise clause” offers no protection. Even where public officials are plainly responding to expressed religious prejudice or stereotyping by members of the public but refrain from expressing any such views themselves, their facially neutral and uniformly applied policies are immune from attack under the “free exercise” clause.

If, however, the local ordinance is not neutral, that is, it discriminates against religiously motivated conduct, or is not generally applicable, that is, it proscribes particular conduct only or primarily when religiously motivated, strict scrutiny applies. Then, even a modest burden on religious conduct violates the free exercise clause unless it is narrowly tailored to advance a compelling government interest.

Inherently Beneficial Uses Promoted

More commonly, however, these cases involve specialized principles of New Jersey zoning law. Independent of any constitutional or statutory prohibitions, the New Jersey courts have recognized that there are land uses that provide public benefits even if they are not permitted in particular areas. They have evolved a body of judge-made state law to require towns to accommodate these “inherently beneficial uses.” Churches and other religious buildings were among the earliest “inherently beneficial uses” identified by the courts. Zoning boards must grant use or bulk variances for “inherently benefi cial uses” such as churches or religious buildings if, on balance, the public benefit outweighs any detriment to the public good or impairment of the intent and purpose of the zoning plan and zoning ordinance.

As outlined by the New Jersey Supreme Court in Sica v Board of Adjustment of Wall, this evaluation involves a four-step analysis:

1) The zoning board must identify the public interest at stake. Some uses are deemed more compelling than others.

2) The board must identify any detrimental effect that will ensue from the grant of the variance.

3) Where feasible, the local board must attempt to minimize the detrimental effect by imposing reasonable conditions on the use.

4) The board must then weigh the positive and negative criteria and determine whether, on balance, the grant of the variance would cause a substantial detriment to the public good.

In Sica, the Supreme Court declared that “[t]his balancing, while properly making it more difficult for municipalities to exclude inherently beneficial uses . . . permits such exclusion when the negative impact of the use is significant. It also preserves the right of the municipality to impose appropriate conditions upon such uses.’” While every application for approval of construction or expansion of a church or religious building involves its own particular facts, objectors repeatedly raise four issues: traffic, parking, noise, visual impact on the neighborhood. In considering the proposed use, the reviewing board must weigh any detriment which the use may cause to the neighborhood with respect to these factors against the presumed benefits of the use, decide whether there are ways to reduce any harmful impact, and determine whether, on balance, the anticipated detriments are substantially greater than the expected benefits.

In some instances, religious uses that are not expressly permitted by local zoning ordinances are entitled to operate even without variances. The courts have consistently held that home worship services, even if conducted on a regular basis and open to the public, are permitted “accessory uses” in residences as long as they remain small in scale. Where churches are permitted, other religious uses integrally related to the operation of the church’s mission, such as a homeless shelter or a radio station, may also be accessory uses to the permitted use.

The Effect of RLUIPA

The Lighthouse Institute case, however, did not involve either the First Amendment or New Jersey zoning law doctrines governing “inherently beneficial uses” or “accessory uses.” Rather, it involved a relatively new federal statute that also governs these disputes—the Religious Land Use and Incarcerated Persons Act (commonly referred to as “RLUIPA”). As its name suggests, this statute seeks, in part, to protect religious activities against certain types of local land use regulation.

RLUIPA has three key provisions that affect disputes over the construction of religious structures. First, 42 U.S.C. §2000cc(a)(1) prohibits any government entity from imposing or implementing any “land use regulation” in a manner that “imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution” unless the government demonstrates that imposition of the burden on that person, assembly, or institution is both (a) “in furtherance of a compelling governmental interest” and (b) “the least restrictive means of furthering that compelling governmental interest.”

Second, 42 U.S.C. §2000cc(b)(1) and (2) prohibits and governmental entity from imposing or implementing a “land use regulation” in a manner that (a) “treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution” or (b) “discriminates against any assembly or institution on the basis of religion or religious denomination.”

Finally, 42 U.S.C. §2000cc (b) (3) prohibits any governmental entity from imposing or implementing a “land use regulation” that (a) “totally excludes religious assemblies from a jurisdiction” or (b) “unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.”

Varying Interpretations

In most instances, the key provision of RLUIPA is the provision barring the imposition or implementation of any “land use regulation” in a manner that “imposes a substantial burden on the religious exercise.” Congress chose not to define “substantial burden” but rather left the interpretation of that phrase to the courts. The Supreme Court has not construed this phrase, and the lower federal courts have interpreted this statutory term in quite different ways.

In Civil Liberties for Urban Believers (C.L.U.B.) v. City of Chicago, the Seventh Circuit Court of Appeals construed it to mean a burden “that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise . . . effectively impracticable.” By contrast, in Midrash Sephardi, Inc. v.Town of Surfside, the Eleventh Circuit defined the term to mean “more than an inconvenience on religious exercise; a ‘substantial burden’ is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly. Thus, a substantial burden can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct.” Neither the Third Circuit nor the New Jersey courts have yet addressed this issue definitively.

Lighthouse Institute focused on a different question: What constitutes treatment of “a religious assembly or institution on less than equal terms”? Lighthouse Institute sought to use its building in downtown Long Branch for a church. Long Branch’s zoning ordinance prohibited churches on the site but permitted government buildings, schools, colleges, assembly halls and motion picture theaters. The Court of Appeals held that because the city could not explain why a church would have an impact on the objectives of the zoning ordinance different or greater than any of the permitted uses, the city had violated the “equal terms” provision of RLUIPA.

Before the case was ultimately decided, though, the city replaced the zoning ordinance with a redevelopment plan that permitted theaters, cinemas, performance art venues, restaurants, bars and clubs, culinary schools and dance studios on the site, but not churches and synagogues. The city’s expressed purpose was to create a “vibrant” and “vital” downtown community centered on entertainment and retail uses. The Court of Appeals held that because New Jersey’s liquor statutes prohibit the issuance of liquor licenses within 1,000 feet of a church, the construction of a church in the area would have a different and greater impact on objectives of the ordinance than would the permitted non-religious uses. It therefore concluded that the redevelopment plan did not treat the church “on less than equal terms” under the provision of RLUIPA.

The court held that Lighthouse was not entitled to an order permitting it to use its building as a church because the use of its property was now governed by the lawful redevelopment plan. It held, however, that Lighthouse was entitled to seek damages and attorney fees because it had previously been prevented from using its building as a church by the unlawful prior zoning ordinance.

A New Way of Thinking

As the Lighthouse Institute case suggests, RLUIPA changes the way towns and their boards must deal with development applications. Once the proponents of the religious structure have established a “substantial burden” or treatment “on less than equal terms,” the burden shifts to the government entity to justify any restrictions it places on churches or religious structures. The presumption of validity that courts otherwise attach to local governmental actions does not apply. The case also changed the stakes. A victim now can bring suit and can secure not only injunctive relief but also damages and attorney fees.

Applications for approval of religious facilities thus can be complex. Applicants, reviewing boards and objectors must consider constitutional issues, the benefit of the proposed use, accessory uses and RLUIPA. Cases can be brought in either federal court or state court. There are often diffi cult procedural and substantive issues. Moreover, the courts have sometimes construed RLUIPA and the “inherently benefi cial use” and “accessory use” doctrines in non-intuitive ways. Parties involved in such matters therefore are well advised to seek legal advice before acting.

Stephen M. Eisdorfer is a partner of Hill Wallack LLP in the Princeton office where he is a member of the Land Use Division. A recent member of the Board of Directors of the New Jersey State Bar Association’s Land Use Section, he concentrates his practice in land use matters, including applications, Mount Laurel litigation and litigation involving the civil rights statutes.