Religious Land Use and Institutionalized Persons Act Claims - PowerPoint Presentation

Religious Land Use and Institutionalized Persons Act Claims Religious Land Use Disputes; Latest Case Law Updates and Strategies for Avoiding and Defending Claims January 17, 2018Presenters:Evan Seeman, Robinson & Cole LLPKarla Chaffee, Robinson & Cole LLPJohn Peloso, Robinson & Cole LLPIan Williams, Practical Law Public Sector (Moderator)

Agenda RLUIPA’s Enactment/HistoryWhen RLUIPA AppliesTypes of RLUIPA ClaimsNew RLUIPA Cases Strategies to Avoid/Defend RLUIPA Claims

What is RLUIPA? Federal Zoning StatuteSupremacy ClauseDoes Not Override Zoning Can Regulate Religious Uses

History & Intent Sherbert v. Verner (1963)Employment Div. v. Smith (1990)Church of Lukumi Babalu Aye v. City of Hialeah (1993)Religious Freedom Restoration Act of 1993 City of Boerne v. Flores (1997)

RLUIPA Provisions The Basics: Substantial Burden 42 U.S.C. § 2000cc(a)Equal Terms 42 U.S.C. § 2000cc(b)(1)Nondiscrimination 42 U.S.C. § 2000cc(b)(2)Exclusions and Limitations 42 U.S.C. § 2000cc(b)(3)

Strategy #1: Know when RLUIPA applies. Educate. Prepare.Fully understand what it is that the applicant is requestingBe aware of the situations where RLUIPA appliesA law or application of the law that restricts the use of the applicant’s property

Strategy #1: Know when RLUIPA applies. Educate. Prepare. “[A] zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.”24 U.S.C. 2000-5(5)

What is a “Land Use Regulation”? Building & Safety Codes – No.Salman v. City of Phoenix (D. AZ 2015).Affordable Recovery Housing v. City of Blue Island (N.D. Ill 2016)Environmental Review – Possibly . Fortress Bible Church v. Feiner (2d Cir. 2012 ). Eminent Domain – Maybe, but probably not.St. John’s United Church of Christ v. City of Chicago (7th Cir. 2007); Congregation Adas Yerim v. City of New York (E.D.N.Y. 2009).

What is Religious Exercise? “The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”“The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.”

Examples of Religious Uses Soup kitchenFood pantryProvision of clothesMedical servicesHome bible studyCemeteries

What is NOT Religious Exercise? If “beliefs” are not sincerely held but are instead meant to circumvent zoning regulations. Church of Universal Love & Music v. Fayette County (W.D. PA 2008)Is mixed-use religious exercise? See Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield (use of the “segmented” approach)

Strategy #2: Know the process & apply it fairly. Ripeness still matters.Finality RequirementReligious Institutions and Assemblies Must Exhaust All Local Quasi-Judicial Appellate Avenues to Establish Ripeness Motion to Dismiss Failure and Refusal of Religious Institutions to File Land Use Applications St. Vincent de Paul Place, Norwich, Inc. v. City of Norwich (2d Cir. 2013)

Strategy #3: Recognize the complexity of the substantial burden analysis. Congress intentionally left the term “substantial burden” undefined. The term ‘substantial burden’ as used in this Act is not intended to be given any broader definition than the Supreme Court’s articulation of the concept of substantial burden or religious exercise. Joint Statement, 146 Cong. Rec. 16,700 (2000)

Where Might a Substantial Burden Claim Arise? Complete or partial denial of application for zoning relief (special permit, rezone, site plan, etc.)Approval of application for zoning relief subject to conditionsOrder from local official (i.e., cease and desist order, notice of violation, etc.)Text of zoning regulations

What constitutes a Substantial Burden on religious exercise? Very Likely Substantial Very Likely Not Nowhere to locate in the jurisdiction Timely denial that leaves other sites available Unable to use property for religious purposes Denial that has a minimum impact Imposing excessive and unjustified delay, uncertainty or expense Denial where no reasonable expectation of an approval Religious animus expressed by City officials Personal preference, cost, inconvenience

Substantial Burden Developments Both Holt and Hobby Lobby may impact how courts evaluate whether a governmental interest is “compelling” and furthered by “the least restrictive means” available.

Strategy #4: Support the decision: Compelling Interests. MERE SPECULATION, not compelling; need specific evidence that religious use at issue jeopardizes the municipality’s stated interestsCompelling interests are interests of the highest order (public health and safety)

Examples of Compelling Interests Preservation of a municipality’s rural and rustic single family residential character of a residential zone. Eagle Cove Camp Conf. Ctr. v. Town of Woodboro (7th Cir. 2013) Ensuring the safety of residential neighborhoods through zoning. Harbor Missionary Church Corp. v. City of San Buendaventura (9th Cir. 2016)Traffic? Possibly. Westchester Day Sch. v. Vill. of Mamaroneck (2d Cir. 2004)

Strategy #5: Consider all options & choose the least restrictive means. “We do not doubt that cost may be an important factor in the least restrictive means analysis … Government may need to expend additional funds to accommodate citizens’ religious beliefs.” Burwell v. Hobby Lobby (2014)“‘The least-restrictive-means standard is exceptionally demanding,’ and it requires the government to ‘sho[w] that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].’” Holt v. Hobbs (2015)(quoting Hobby Lobby )

More On Least Restrictive Means Denial of zoning application without consideration of any conditions or alternatives fails this test. Westchester Day Sch. (2d Cir. 2007)“But nothing in the Court’s opinion suggests that prison officials must refute every conceivable option to satisfy RLUIPA’s least restrictive means requirement.” Holt v. Hobbs (2015) (Sotomayor, J., concurring) (emphasis added)Must strike “delicate balance” between religious practice and governmental interest. Jova v. Smith (2d Cir. 2009)

Strategy #6: Examine your zoning code today. Tests for Equal Terms claims: Less than Equal Terms See , Opulent Life Church v. City of Holly Springs Miss. (5th Cir. 2012) Any Assembly See , Midrash Sephardi, Inc. v. Town of Surfside (11th Cir. 2004)

Strategy #7: Include a strong purpose statement. Equal Terms claims - Regulatory Purpose Test“A regulation will violate the Equal Terms provision if it treats religious assemblies or institutions worse than secular assemblies that are similarly situated as to the regulatory purpose. A secular comparator is needed to demonstrate the impact of the regulatory purpose in the same way that the religious assembly would. Once established, strict liability.” Lighthouse Institute for Evangelism, Inc. v. City of Long Branch (3d Cir. 2007).

Strategy #8: Know your potential comparators. ClubsMeeting hallsCommunity centersAuditoriums and theatresRecreational facilitiesSchoolsMunicipal uses

Strategy #9: Know what land is available for religious uses. No government shall impose or implement 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.42 U.S.C. Section 2000cc(b)(3 )

Strategy #10: Keep it fair and control the crowd. “No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.”42 U.S.C. Section 2000cc(b)(2)

Strategy #11: Use an escape valve when you have it. Rarely used, but should be invoked moreFeared admission of faultRecent example:Riverside Church v. City of St. Michael (D. Minn. 2016) “A government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden.” 42 U.S.C Section 2000c-3(e)

Strategy #12: Limit individual exposure. RLUIPA creates an express private cause of action allowing relief against a government. 42 U.S.C. § 2000cc-2(a).In Sossamon v. Texas (2011), the Supreme Court held that sovereign immunity forecloses the availability of money damages as a remedy against states and state actors in their official capacities under RLUIPA. Does this holding extend to land uses cases?A resounding yes from the Sixth Circuit

Strategy #13: Really know what you are up for. Invariably Expensive Time and Money – lawyers, coincident environmental proceedings, experts (land use, damages, environmental) Probably document intensiveEqual terms, free exercise, facial, and as-applied challenges usually involve extensive documentationDocument IntensiveCases are fact intensive

Strategy #13: Really know what you are up for. Once brought, difficult to settleLegal feesStrong emotions on both sides Difficult to defend at trialUsually a jury trialGod vs. Government bias potentialCross-examination of church officials requires tact not ferocityJury instructions invariably confusingFederal judiciary rarely has RLUIPA or land use experience

Strategy #14: Plan for trial. StrategiesChoice of ForumJury or Bench TrialBe prepared for discovery and potentially unflattering documentsPolitics/mediaDispositions Short of Trial

RLUIPA DEFENSE BLOG Visit https://www.rluipa-defense.com/

FUTURE DEVELOPMENTS? Increased use of safe harbor provision?Public opposition used to support RLUIPA violationsDOJ Enforcement under Trump administration

Thanks for having us! John F. X. Peloso Jr.: 203.462.7503 | jpeloso@rc.comKarla L. Chaffee: 617.557.5956 | kchaffee@rc.com Evan Seeman: 860.275.8247 | eseeman@rc.com

Questions

CLE Credit CLE credit is available for: Arizona, California, Connecticut, Colorado, Georgia, Hawaii, Illinois, Indiana, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Vermont, Washington, WisconsinCLE credit is being sought for: Louisiana, Minnesota, Oregon, Ohio, Tennessee, Texas, Virginia CLE credit can be self-applied for in: Florida To obtain your certificate of attendance for your use in CLE credit compliance, please fill out and submit the online form: https://wlec.formstack.com/forms/pl_238226 Once we receive your request, we will process it within an average of two (2) weeks. Your certificate will be archived on www.westlegaledcenter.com and instructions will be e-mailed to you on how to download your certificate from this location for your own records.If your requested state(s) allow the sponsor to report your CLE attendance, we will do so and pay the associated fees within 30 days of your course. If you have questions, please contact accreditation@westlegaledcenter.com . 35

About Practical Law Practical resources covering all major practice areas.Overviews, model documents, trend articles and more created by our expert attorneys.Dedicated areas for law firms, law departments and law schools.Practice centers for specialists.What’s Market for IPOs, underwriting agreements and more.Updates on the latest legal and market developments.Practical Law The Journal magazine covering today’s transactional and compliance topics as well as key issues and developments in litigation practice and procedure.

Meet the Experts Practical Law attorney editors create and maintains thousands of resources to ensure you have the content you need at hand. With Practical Law, our know-how is your competitive advantage. Practical Law reflects the work product of more than 230 US based licensed attorney editors (350 globally) with an average of 12-14 years of prior legal experience and drawn from the world’s leading law firms and in-house departments . More than 47,000 resources covering 13 practice areas including Labor & Employment, IP & Technology, Commercial Transactions, Litigation, and more. Annotated Standard Documents and Clauses Practice Notes Checklists What’s Market State Q&A Visit TryPracticalLaw.com to learn more about all of our Attorney Editors.

Practice Areas Alternative Dispute ResolutionAntitrustBankruptcyBusiness EntitiesCapital MarketsCommercialCorporate Governance and Continuous Disclosures Employee Benefits and Executive Compensation Environmental Finance Intellectual Property and Technology Joint VenturesLabor and EmploymentLitigationMergers and AcquisitionsPrivate Equity Real Estate Trust & Estates

Practice Notes

Standard Documents & Model Clauses

Checklists

Practical Law Free Trial Your free trial includes:Unlimited access to our online legal know-how services during the trial period.Full training and support.Weekly editorial update e-mails on current legal developments in your practice area. TryPracticalLaw.com

About the Speakers

About the Speakers  John Peloso, a member of the firm's Business Litigation and Real Estate Litigation Groups, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, Mr. Peloso counsels clients and litigates business and real property disputes, including real estate, land use, environmental, securities, and tax matters. John F.X. Peloso , Jr. Partner, Robinson & Cole LLP Email: jpeloso@rc.com Phone: 203.462.7503Full Bio: http://rc.com/people/JohnFXPelosoJr.cfm

About the Speakers Karla Chaffee focuses her practice on land use litigation and transactions. She is a member of the firm’s Land Use and Real Estate + Development Groups. Karla L. Chaffee Associate, Robinson & Cole LLP Email: kchaffee@rc.com Phone: 617.557.5956 Full Bio: http://rc.com/people/KarlaLChaffee.cfm

About the Speakers Evan Seeman concentrates his practice in three areas – religious land use litigation, land use and zoning, and real property litigation. He is a member of the firm’s Real Estate + Development Group, and he represents developers, landowners, municipalities, corporations, and advocacy groups. Evan J. Seeman Counsel, Robinson & Cole LLP Email: eseeman@rc.com Phone: 860.275.8247Full Bio: http://rc.com/people/EvanJSeeman.cfm

About the Speakers Joined Practical Law from the County Attorney's Office of Volusia County, Florida, where he was an Assistant County Attorney whose practice focused on a variety of local government matters, including land use, environmental compliance, utilities, and litigation. Previously, Ian clerked for Florida’s Fifth Judicial Circuit.. Ian Williams Senior Legal Editor, Practical Law Public Sector Service Full Bio: http://legalsolutions.thomsonreuters.com/law-products/solutions/practical-law/senior-legal-editors