Real Estate Law

RLUIPA, Redevelopment, and Eminent Domain

The decision in Lighthouse Institute for Evangelism v. City of Long Branch, rendered by the United States Court of Appeals for the Third Circuit on November 27, has national implications for religious use, zoning regulations, and eminent domain. In its precedent setting 96-page opinion, the Third Circuit ruled 2-1 in favor of the City of Long Branch against Reverend Kevin Brown and the Lighthouse Institute for Evangelism in their attempt to establish a church at 162 Broadway within the Broadway Corridor Redevelopment area. However, the court remanded the case to Judge William Walls in the U.S. District Court for further findings on the plaintiff's challenge to the C-1 ordinance, the zoning for the subject property prior to the adoption of the redevelopment ordinance and plan, under RLUIPA's Equal Terms provision. The court was unanimous that the C-1 ordinance violated RLUIPA. This will entitle the plaintiffs to damages, counsel fees, and costs. Read the opinion here.

The federal statute at the heart of the question is the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the most recent congressional effort to protect religious exercise from discrimination through land use regulations. The Equal Terms provision states:

No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.

The majority opinion, written by senior Judge Jane Roth, affirms the entry of summary judgment by Judge William Walls of the U.S. District Court. The dissent, filed by Judge Kent A. Jordan, disagreed with the majority regarding the redevelopment plan ordinance. Judge Jordan said that both ordinances failed to treat religious and non-religious assemblies on equal terms and, therefore, violate the very purpose for which the RLUIPA statute was enacted.

Judge Jordan noted that both ordinances, as interpreted by Long Branch,  prohibit religious use categorically. Judge Jordan reasoned that, if the majority reading of RLUIPA were correct, local governments could effectively render RLUIPA meaningless. Both the Becket Fund for Religious Liberty and the Department of Justice Civil Rights Division argued as amicus in support of Reverend Brown and the Lighthouse Mission. This decision is at odds with other decisions regarding RLUIPA in other circuit courts and may well end up before the United States Supreme Court.

The location of houses of worship, temples, mosques, and evangelical congregations is an issue that comes up frequently in New Jersey. Protracted battles in Rockaway Township ensued over the site selection by Dr. David Ireland, pastor of the 5000-member Christ Church. That church, a predominantly African American evangelical congregation, sought to move from its Montclair location to the former Agilent site in Rockaway. The relocation of the church was vigorously contested by a group of local residents. In Wayne, an Albanian mosque pursued litigation against the township of Wayne because the planning board delayed the plaintiff’s land use application.

Underlying these disputes is an undercurrent of racism and prejudice, voiced by objectors who veil their discrimination in terms of traffic, density, environmental issues, and any other legal grounds that can be presented to the courts. RLUIPA is designed to address this, and Judge Jordan referenced the bill's sponsors, Senators Orrin Hatch and Edward Kennedy,  who said, "Discrimination against religious entities is a major problem nationwide." Judge Jordan further noted in his dissent:

The City nevertheless defends its unequal treatment of religious assemblies by pointing to the state law that prohibits issuing liquor licenses within a certain distance of religious institutions.* According to the City, if churches were allowed in its Redevelopment Zone, the liquor law would prevent it from turning the Zone into a high-end entertainment district. New Jersey law, however, cannot take the City off the hook for violating RLUIPA. RLUIPA is a federal law, and no state or local government can defend against a charge that it has violated federal law on the basis that its actions were required by state law. Were it otherwise, a state could nullify RLUIPA simply by passing a statute mandating that churches be treated on unequal terms.

*New Jersey state law prohibits the issuance of liquor licenses within two hundred feet of any church. N.J.S.A. § 33:1-76.2.  

From New Jersey Eminent Domain Law Blog posted 2007-12-02.