RLUIPA: Two Sides to the Story

Abstract

Editor's Note: In the seven years since President Clinton signed the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) into law, there has been a flurry of litigation, the vast majority initiated by inmates. In 2005, the U.S. Supreme Court ruled RLUIPA is constitutional, at least as it applies to prisoners, in Cutter v. Wilkinson, 544 U.S. 709, 125 S.Ct. 2113 (2005).

Last year was a busy time for RLUIPA in the land use context as well. whether it was the denial of two conditional use permits which the court deemed was a substantial burden on the Sikh Society in Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 987 (C.A.9, Cal. 2006) or the contrary finding in Pennsylvania when a township denied the church's application for a campground and hiking trails as an accessory use in City of Hope v. Sadsbury Township Zoning Hearing Board, 890 A.2d 1137 (Pa. Cmwlth. 2006); or the holding in the Seventh Circuit that an involuntary annexation of church property is not a land use regulation under RLUIPA in Vision Church v. Village of Long Grove, 468 F.3d 975 (7th Cir. 2006), these decisions are very dependent on the facts. The most bizarre facts come from the District of Columbia, where nine Georgetown University students have declared themselves the Apostles of Peace and Unity in order to thwart the zoning code which allows no more than six unrelated individuals to live together in one home. (See http://writ.news.findlaw.com/hamilton/20061130.html.)

We've asked attorneys on both sides of the RLUIPA equation to share the “facts” in their cases in the two minicommentaries that follow. There are lessons to be learned from each. Dan Dalton describes the exasperating experience his client has had for more than three years trying to obtain an occupancy permit for a church. Then Graham Billingsley, Boulder County planner, and Dwight Merriam, an attorney representing Boulder County defending against a RLUIPA challenge, describe the other side of the coin.