Presenting a live 90-minute webinar with interactive Q&A RLUIPA Land Use Claims: Latest Litigation Trends and Key Case Law Developments Strategies for Local Governments to Avoid or Defend RLUIPA Actions Amid a Changing Litigation Landscape WEDNESDAY, FEBRUARY 22, 2017 1pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: John F. X. Peloso, Jr., Partner, Robinson & Cole, Stamford, Conn. Karla L. Chaffee, Esq., Robinson & Cole, Boston Evan J. Seeman, Esq., Robinson & Cole, Hartford, Conn. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
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Religious Land Use and Institutionalized Persons Act Claims S T R AT E G I E S F O R L O C A L G O V E R N M E N T S T O AV O I D A N D D E F E N D R L U I PA A C T I O N S F E B R U A R Y 2 2, 2 0 1 7 Boston Hartford New York Providence Stamford Albany Los Angeles Miami New London rc.com 2017 Robinson & Cole LLP
Thanks for having us Evan Seeman (Hartford) Karla Chaffee (Boston) John Peloso (Stamford) www.rluipa-defense.com 6 6
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) 7
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) 8
When Does RLUIPA Apply? [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. 9 24 U.S.C. 2000-5(5) 9
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). 10
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. 11
Examples of Religious Uses o Soup kitchen o Food pantry o Provision of clothes o Medical services o Home bible study o Cemeteries 12
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) 13
Ripeness Finality Requirement Religious 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) 14
What is a Substantial Burden? 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) 15
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 conditions Order from local official (i.e., cease and desist order, notice of violation, etc.) Text of zoning regulations 16
What constitutes a substantial burden on religious exercise? Very Likely Yes Nowhere to locate in the jurisdiction. Unable to use property for religious purposes. Imposing excessive and unjustified delay, uncertainty or expense. Religious animus expressed by City Officials. Very Likely No Timely denial that leaves other sites available. Denial that has a minimum impact. Denial where no reasonable expectation of an approval. Personal preference, cost, inconvenience. 17
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. 18
Impact of Hobby Lobby And Holt v. Hobbs? The Seventh Circuit has concluded that Holt and Hobby Lobby articulated a substantial burden standard much easier to satisfy than that previously used in the circuit. Is C.L.U.B. v. City of Chicago (7th Cir. 2003) still good law? 19
Compelling Interests MERE SPECULATION, not compelling; need specific evidence that religious use at issue jeopardizes the municipality s stated interests Compelling interests are interests of the highest order (public health and safety) 20
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 Buenaventura (9th Cir. 2016) Traffic? Possibly. Westchester Day Sch. v. Vill. of Mamaroneck (2d Cir. 2004) 21
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) 22
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) 23
Equal Terms: More Circuit Variability secular assemblies that are similarly situated as to the regulatory purpose. (3 rd Cir., Lighthouse) secular comparator, similarly situated with respect to an accepted zoning criteria (7 th Cir., River of Life Kingdom) a church and school were insufficiently comparable, given that the properties sought different forms of zoning relief from different land use authorities applying "sharply different" criteria. (11 th Cir., Primera Iglesia ) (1) the regulatory purpose or zoning criterion behind the regulation, as stated explicitly in the text of the ordinance or regulation; and (2) whether the religious assembly or institution is treated as well as every other nonreligious assembly or institution that is "similarly situated" with respect to the stated purpose or criterion. (5 th Cir., Opulent Life Church) 24
The Equal Terms Tests Dictionary Definition Test: Midrash Sephardi, Inc. v. Town of Surfside (11th Cir. 2004) Regulatory Purpose Test: Lighthouse Institute for Evangelism, Inc. v. City of Long Branch (3d Cir. 2007) Accepted Zoning Criteria Test: River of Life Kingdom Ministries v. Vill. of Hazel Crest (7th Cir. 2010) 25
Types of Assembly Uses Clubs Meeting halls Community centers Auditoriums and theatres Recreational facilities Schools Municipal uses 26
Nondiscrimination Provision 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) 27
Exclusions & Limits Provision 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) 28
Individual Liability 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 29
RLUIPA s Safe Harbor Provision 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) 30
Safe Harbor Provision Rarely used, but should be invoked more Feared admission of fault Recent example: Riverside Church v. City of St. Michael (D. Minn. 2016) 31
Avoiding a RLUIPA Claim Assess your zoning code How are all assembly uses treated? Do distinct standards apply to places of worship? What other RLUIPA provisions are commonly a part of facial claims? 32
Avoiding a RLUIPA Claim When an application under your zoning code is filed by a religious organization, perform a RLUIPA analysis Determine the reasons for the application (i.e. what burdens on religion now exist) Attempt to identify and measure the burden that might be imposed if the application is denied in whole or in part Compare the nature and extent of the application to that of other applicants that could be regarded as comparators Attempt to determine the risk of an equal terms claim if application is denied in whole or in part 33
Avoiding a RLUIPA Claim Invite the applicant to propose a less intensive use (can municipal goals be met in a less restrictive manner?) Negotiate a new location Plan for religious use (inventory of all sites where religious use permitted) Educate local officials NOW Insure that RLUIPA claims are covered under your governmental liability policy 34
Defending a RLUIPA Claim Invariably Expensive Time and Money lawyers, coincident environmental proceedings, experts (land use, damages, environmental) Probably document intensive Equal terms, free exercise, facial, and as-applied challenges usually involve extensive documentation Document Intensive Cases are fact intensive 35
Defending a RLUIPA Claim Once brought, difficult to settle Legal fees Strong emotions on both sides Difficult to defend at trial Usually a jury trial God vs. Government bias potential Cross-examination of church officials requires tact not ferocity Jury instructions invariably confusing Federal judiciary rarely has RLUIPA or land use experience 36
Time for Trial Strategies Choice of Forum Jury or Bench Trial Be prepared for discovery and potentially unflattering documents Politics/media Dispositions Short of Trial 37
Time for Trial More Strategies Expert Witnesses Focus Groups/Mock Trials Post-Trial Matters Finding the Right Balance Aggressive Defense vs. Respect for Religion 38
RLUIPA DEFENSE BLOG Visit https://www.rluipa-defense.com/ 39
FUTURE DEVELOPMENTS Increased use of safe harbor provision? DOJ Enforcement under new administration State of Washington v. Donald J. Trump (9th Cir. 2017) Implications for religious land use disputes? 40
Thanks for having us! John F. X. Peloso Jr.: 203.462.7503 jpeloso@rc.com Karla L. Chaffee: 617.557.5956 kchaffee@rc.com Evan Seeman: 860.275.8247 eseeman@rc.com 41
Questions Religious Land Use and Institutionalized Persons Act Claims Strategies for Local Governments to Avoid or Defend RLUIPA Actions 42