By Steve Thorpe
The area of religious land use and zoning within the context of a federal law is constantly evolving. Municipalities often deny religious entities such as churches, mosques, temples and synagogues rights to land use in order to maintain areas for tax generating uses like retail, residential, entertainment or industrial. Dan Dalton is a founding member at Dalton & Tomich PLC. The firm specializes in providing guidance to religious organizations, businesses and financial institutions.
Thorpe: You have a new website devoted to this topic. Tell us about it.
Dalton: We developed this website (www.attorneysforlanduse.com) as a resource to religious organizations and attorneys representing them to give them guidance on this ever changing area of the law. We find that most religious entities have attorneys within their organization that assist them when they start the process of purchasing land. However, when the local government denies the use of land for religious assembly, many religious leaders and attorneys do not know where to turn for guidance. This website provides an overview of the law to help those who need assistance in navigating the thorny land use issues.
Thorpe: The Religious Land Use and Institutionalized Persons Act (RLUIPA) is often involved in these cases. When was the law passed and what issues was it meant to address?
Dalton: The law was unanimously passed by Congress and signed into law in 2000 by President Clinton. The law was passed as a result of testimony from a broad spectrum of religious leaders who saw that local governments were eliminating religious uses in their community through zoning. Congress saw this as unfair and passed RLUIPA to level the playing field for religious assemblies. Congress simply sought to provide a mechanism that provides when a local government permits a secular assembly in a zoning district, it must also allow religious assembly. In addition, Congress rejected the notion that local governments could exclude religious uses simply because of the loss of tax dollars.
Thorpe: What are some of the strategies municipalities are using when they attempt to deny religious status?
Dalton: There are many. One trend is that local governments will change the zoning code once a challenge is raised to exclude the religious use but allow it in other areas of a city which is either completely developed, or, where religious assembly is not reasonable (such as industrial areas near factories or trash dumps.) The local government will then argue that it has a much larger percentage of land available for religious use when in fact, the change of zoning is simply a ruse to run the religious entity out of town.
Thorpe: What strategies are defense teams employing?
Dalton: The primary strategy is delay. The defense, which is paid out of insurance dollars rather than general fund tax dollars, will employ as many delay mechanisms as possible to drive up the cost of pursuing the case that a religious entity would be forced to drop the case based on its inability to pay. Therefore, we find ourselves defending motions, appeals, discovery disputes and other means to keep the case from reaching a jury or settlement.
Thorpe: In a nod to multimedia, you’re planning a book on the subject. When will that be published and what will be in it?
Dalton: Yes, the American Bar Association is publishing my book on litigating religious land uses cases later this summer. This is the only book on the topic. The book begins with the history of religious land use and zoning litigation, covers the constitutionality of RLUIPA, describes in detail the provisions of RLUIPA, and provides practical advice for religious entities when faced with the decision about litigation — something akin to “what to expect when you’re expecting” when you file a religious land use case.
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