Over the years, I’ve represented a number of churches and synagogues in their pursuit of zoning and development approvals to build places of worship. In my consultations with these clients, inevitably someone says something like, “If they turn us down, we’ll just sue them under RLUIPA”, referring to the Religious Land Use and Institutionalized Persons Act of 2000. RLUIPA protects the use of land for religious purposes under federal law, and limits the types of restrictions and burdens local authorities can place on churches, synagogues, mosques, parochial schools, and other religious land uses.
I have used RLUIPA in some of my cases for religious institutions, but the truth is that RLUIPA cases, like all civil rights cases, are very difficult cases to prove. There are many very unglamorous threshold legal issues that must be addressed first, like exhaustion of administrative remedies, standing, and federal jurisdiction. And, turning to the merits of these cases, they are very difficult to prove, and often the proof is just not there. Although the legal tests are stated rather simply, as with many legal issues, in practice they are very nuanced and exacting.
However, I recently came across a federal District Court decision which gives an excellent primer on the analytical framework for a facial attack on a set of local land use regulations under RLUIPA, as well as the U.S. Constitution. Facial attacks on land use regulations are among the most difficult to prove, as the plaintiff must show there is no set of facts under which the regulations at issue might be constitutional (the regulations are unconstitutional “on their face”). Facial attacks differ from “as applied” attacks in that in an “as applied” attack, the plaintiff needs to prove only that the land use regulation at issue is unconstitutional as it is applied under the facts and circumstances of the case to the plaintiff’s property, despite the fact that it may be constitutional as applied to other properties. Facial attacks are far more sweeping in their breadth, and therefore tend to be much harder to prove.
Congregation Rabbinical College of Tartikov (“Tartikov”) acquired a 100 acre parcel in Pomona, New York in August 2004 for the purpose of building a rabbinical college for the study of the Jewish Orthodox faith and the training of full time rabbinical judges. The program called for student housing, which, because of the tenets of Judaism espoused by the students, required not only housing for the students themselves, but for their families as well. The program offered by Tartikov was to be particularly intense and take between 13 and 15 years for a student to complete. This particular rabbinical college was to be the first of its kind in the United States, with other rabbinical colleges offering similar courses of study, but Tartikov’s was to be unique among them in terms of the extent and intensity of its program.
Shortly after Tartikov acquired the property, their intentions to develop the property with a rabbinical college, including substantial student and family housing, became known throughout Pomona, despite that Tartikov had not filed any plans or applications for approval to build anything. Nonetheless, the local governing body, the Board of Trustees of Pomona, promptly began enacting a series of local land use regulations which intentionally and effectively precluded Tartikov’s use of the property as a rabbinical college.
The Court found that the Pomona’s Board of Trustees enacted a series of laws, including zoning laws affecting educational institutions and dormitories and environmental regulations that affected suspiciously few parcels in the village, including, not surprisingly Tartikov’s property, over a period of years and these laws were specifically intended and designed to prevent a rabbinical college from locating within the village. The findings by the United States District Court for the Southern District of New York on December 7, 2017 followed a 10 day bench trial earlier in the year, and ten years of pre-trial procedures that preceded it. The Court held that collectively, and in the context of the circumstances in which the laws were adopted, the enactment of these laws intentionally to prevent the spread of the Orthodox/Hasidic community into the village violated the rabbinical college’s rights under the First and Fourteenth Amendments to the United States Constitution, the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), and other laws. The Court summarized,
Collectively, the Challenged Laws prevent the construction of Tartikov’s rabbinical college in the Village. . . . The Accreditation Law bars the construction of the rabbinical college because Tartikov, as proposed, cannot be accredited [under the terms of the law] by any accrediting body. The Dormitory Law also presents several challenges for Tartikov’s proposed development. The prohibitions on student family housing and separate cooking, housekeeping, and dining facilities preclude the rabbinical college from being built in the Village. Limiting housing to 20% of the total square footage of other buildings on the Subject Property is also problematic because Tartikov seeks to provide housing in excess of this limitation. The Wetlands Law restricts Tartikov’s use of the Subject Property because the location of the driveway onto the property falls within the 100–foot buffer mandated by that law. An access road cannot be built in any other location because of the presence of wetlands and steep slopes, which would require significant regrading.
The issue before the Court is whether Tartikov’s permit application to build its rabbinical college should be governed by the standards set forth in the Challenged Laws. Plaintiffs argue that the Court should enjoin Defendants from enforcing the Challenged Laws because they are discriminatory and substantially burden their religious exercise. Defendants assert that the laws were passed for legitimate reasons and do not burden the creation of a run-of-the-mill rabbinical college. Any burden, Defendants claim, results from the fact that Tartikov seeks to build a “rabbinical college extraordinaire.” The primary source of Defendants’ opposition to Tartikov’s proposed use is that it will include housing for its students and their families. Indeed, it appears that they challenge little else about Tartikov’s proposal. Defendants are particularly concerned that providing housing for students and their families will overburden the Village’s infrastructure and detract from its rural character. A secondary source of Defendants’ opposition rests in their severe distrust of Plaintiffs’ motives. Defendants are adamant that Plaintiffs’ primary wish is not to build a rabbinical college, but rather a housing complex for Orthodox/Hasidic Jews and their families dressed as a college. Although the Court finds no support for Defendants’ mistrust of Plaintiffs’ motives, the Court is sympathetic to Defendants’ concerns about the size and scope of Tartikov’s proposed development. Ultimately, however, the Court concludes that Defendants enacted the Challenged Laws to prevent the spread of the Orthodox/Hasidic community into the Village, and in certain respects, to specifically target the Subject Property and Tartikov. This holding is based on the context in which the laws were adopted and the unsatisfactory and incredible reasons presented for their adoption. Tartikov v. Pomona, 2017 WL 6206193, at 9-10 [citations to the trial record omitted.]
Against this backdrop, the Court had no trouble finding discriminatory purpose and effect, and therefore, violations of equal protection, free exercise, and free association under the First and Fourteenth Amendments to the United States Constitution. The Court also found violations of the Substantial Burden and Nondiscrimination provisions of RLUIPA. The Court declined to find violations under certain other provisions of RLUIPA, finding those sections inapplicable or otherwise not violated. The Court also found violations of the federal Fair Housing Act, and analogous New York State Constitutional provisions as the federal constitutional provisions that it had previously found Pomona had violated.
The Tartikov case is notable for the comprehensive view that the Court took, not only of the numerous regulations at issue, which are often examined and validated by the courts in isolation, but also of the entire public record preceding and attendant to the passage of the regulations, and the effect on Tartikov’s property in the context of its proposed use of the land for its religious purposes. Critical to the case and the Court’s findings were the Trustees’ statements about the effects of the student housing, which would include the students’ often large families, and the manner in which multiple laws were passed or changed to preclude not only the rabbinical college, but also the particular type of student housing required by Tartikov. The Court examined the statements and actions of the village Board of Trustees in passing the series of laws over a period of years in establishing their discriminatory intent, and then examined the effect of the laws taken as a whole in concluding they imposed an improper substantial burden on Tartikov, specifically because of Tartikov’s particular requirements in the context of its sincerely held religious beliefs. This case is an excellent example of not only how to try a RLUIPA case, but also of the type of egregious facts that RLUIPA is truly most powerful in vindicating.