Panel 2: Legislative Intent and Statutory Interpretation Under RLUIPA

Sarah Darnell, Staff Writer,, Tanya Davis, Staff Writer, & Daniel Wood, Staff Writer,

     The Symposium’s second panel explored legislative intent and statutory interpretation under RLUIPA.  The panel discussed how RLUIPA applies to building codes, aesthetic regulations, the exercise of eminent domain, and determining damages. 

Participating in the panel were:

Amy Lavine from the Albany Law School Government Law Center served as moderator.

Professor Saxer began the discussion: 

     Professor Saxer is a prolific writer in the area of the intersection between land use and constitutional issues,1 writing on such topics as the use of religious institutions for homeless shelters, “conflict between local governmental units over commercial land use decisions that impact surrounding communities,” eminent domain, zoning and First Amendment Rights, and RLUIPA

     Professor Saxer’s current interests involve the reach of RLUIPA.  She questioned whether the Act applies – or should apply – to building codes and/or aesthetic and historic regulations.  She began her exploration of the issue by parsing the statute itself.  She suggested four questions will trigger RLUIPA in land use conflicts:

  1. Is it a “land use” regulation?  Which codes/regulations should be considered “land use” regulations under RLUIPA?  The courts are already mixed on this question, as the determinations typically rely on the specific facts of the case.
  2. Is religious exercise involved? 
  3. Was there an individualized assessment?  Prof. Saxer agreed with our morning speaker, Hon. Michael McConnell, that all of these cases are individualized, affording opportunity both to discriminate and to avoid discrimination.
  4. Does the regulation substantially burden religious exercise?

     As to question #3, Prof. Saxer pointed out cases in Germany, involving the building of giant “mega-mosques.”  Germany often controls the proliferation of these gargantuan structures through strategic use of building codes.  Would RLUIPA prohibit this practice? 

    As to the fourth question, Prof. Saxer discussed a balancing approach, comparing the “substantial burden” borne by the religious organization on one side, and the compelling government interest on the other side.  She suggested that this balancing is similar to that used for questions of First Amendment infringement, and that it would be equally successful in applying RLUIPA

     Generalizing causes problems here, because these types of cases are highly fact-specific.  Also, because building codes and aesthetic or historical regulations leave a lot to discretion, they are open to discriminatory abuse.  Because of the room for discretion, discrimination often proves difficult to show.  Therefore it is difficult to apply a uniform treatment of RLUIPA

Professor Tebbe spoke second: 

     In addition to being an Associate Professor of Law at Brooklyn Law School, Prof. Tebbe co-chairs the Nominating Committee, and is a member of the Executive Committee, of the Law and Religion Section of the American Association of Law Schools.  His research focuses on the relationship between religious traditions and constitutional law, both in the United States and in South Africa.  He spoke on RLUIPA as applied to the exercise of eminent domain, specifically condemnation. 

     Should RLUIPA apply not only to zoning, but also to condemnation?  In other words, should religious land owners enjoy special protection from eminent domain, under RLUIPA?  Prof. Tebbe says that it should not. 

     Prof. Tebbe discussed at length the prophylactic use of RLUIPA, and argued that such application of the Act to questions of eminent domain overreaches.  Such prophylaxis catches both discriminatory and non-discriminatory action.  The costs associated with zoning questions – as distinct from questions of eminent domain – are higher.  Because procedural protections against eminent domain exist, governments rarely exercise eminent domain.  But creating zoning laws costs local governments nothing, and zoning offers authorities great discretion.  This of course opens the door to discrimination. 

     RLUIPA solves the problem of case-by-case discrimination by removing the burden of proving discrimination.  The mere showing of a burden caused by the land use regulation triggers heightened scrutiny, making it easier for the religious organization to defeat the zoning regulation. 

     Prof. Tebbe also suggested that because citizens watch small local governments more closely, discriminatory takings become difficult to perform.  Large municipalities present more complications, but existing procedural protections ensure great scrutiny of any taking.  Therefore costs of enforcement against eminent domain tends to be lower than with zoning issues. 

    Another troubling question involves reverse condemnation, which occurs when some action has diminished the property value so much that it constitutes a taking under the Fifth Amendment.  For example, a city builds a new airport, which creates a flight path over a piece of property.  The property under the jet flight path becomes less valuable, and an action for reverse condemnation would typically force sale of the affected property to the entity that caused the damage (the city).  However, Prof. Tebbe hypothesizes that because religious organizations are exempt from condemnation, they might be able to force the airport to reroute the flight path.  He suggests that this would be a bad result. 

     In response to potential difficulties with condemnation, he offered the solution that municipalities would have the power to invoke eminent domain; the municipalities may then control the property according to their own purposes, and the religious groups would receive monetary compensation in return. 

     Our third panelist, Dan Dalton, a practitioner in this area of law, addressed the question of appropriate damages under RLUIPA claims.  It is well established that compensatory and nominal damages are applicable, but there is emerging case law indicating that punitive damages might be applicable too. Close inspection of Sections 1988 and 1983 of title 42 of the United States Code seem to indicate the same.2  The question to be addressed involves making the plaintiff whole, but this can become complex. What factors are to be considered? How to put a value (for purposes of damages) to what a church adds to a community? 

    (In response to a question from the audience regarding this last point, Mr. Dalton suggested that it being a highly fact-specific inquiry, damages based on community loss often come down to a good expert witness; the process is inexact.) 

     Municipalities may sometimes view religious entities as an economic drain because the city collects no sales tax from them, no property taxes, etc.  But this view fails to consider the opportunity cost damages:  what benefits does the entity provide to the community that might otherwise have to be provided by the local government?  Also, what is the value of creating and maintaining a sense of community?  For example, if a church runs a soup kitchen, in providing meals to the poor it alleviates some of the burden on a city to feed its citizens.  Likewise with shelters.  So for damages, one can attempt to factor in what feeding and sheltering the poor costs the city, and what portion of that might be shouldered by the church.3 

    Mr. Dalton also mentioned a study performed three years ago in Philadelphia, which found that each of the roughly 1500 churches in the area contributed 2-3 volunteers to other, often non-religious organizations.  This resulted in approximately 2 million hours of volunteerism annually, benefiting the community.4


1  See, e.g., Shelley Ross Saxer, Eminent Domain Actions Targeting First Amendment Land Uses, 69 Mo. L. Rev. 653 (2004).

2  42 U.S.C. §§ 1983, 1988 (2006).

3  See, e.g., Ram A. Cnaan & Stephanie C. Boddie, Philadelphia Census of Congregations and Their Involvement in Social Service Deliver (2001), available at (finding that on average each congregation provides 2.41 programs and serves 102 people per month, and that the replacement value of all congregational social services in Philadelphia is $246,901,440 annually).

4  Though we do not have available the exact study to which Mr. Dalton referred, the Cnaan & Boddie study, supra note 3, did put an exact dollar amount to the volunteering provided by churches.  For additional discussion as to the substantial community benefits provided by churches, see

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