This is the first in a series of articles that we will post over the next few weeks concerning the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). We will explain what it is and what it means in the context of those opposing a land use application to build or expand a church, synagogue, mosque, or other religious institution in their community.

In Virginia, and elsewhere, land use issues generally are governed by local, and sometimes, state law. But RLUIPA is an important federal law that sometimes comes into play.

In the land use context, RLUIPA applies to the use of land for religious purposes, typically with respect to houses of worship such as churches, mosques, synagogues and temples, as well as related facilities such as schools. It applies to applications for the construction of such facilities, as well as the physical alteration or expansion of such facilities, and other changes for which local government permission must be obtained, such as the alteration or expansion of their operating hours.

In our land use practice, we usually represent individuals, businesses or community organizations that are opposed to development that will adversely affect the character of their neighborhood or the values of their property or business. Where such development involves the construction or expansion of a house of worship or related facilities, RLUIPA can be a significant factor in the ultimate land use decision.

RLUIPA was passed by Congress in 2000. Its provisions concerning land use are as follows:

• It bars land use/zoning restrictions that impose a “substantial burden” on the religious exercise of a person, religious assembly or institution unless the government can show that

• • It has a “compelling interest” for the restriction and
  • The restriction is the least restrictive way for the government to further that interest.

The substantial burden prohibition applies, among other things, when it is imposed in the context of a land use regulation under which a government makes, or has in place, formal or informal procedures or practices that permit the government to make individualized assessments concerning the proposed uses for the particular property.

• It bars governments from imposing or implementing 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.
• It prohibits governments from discriminating among religions in the imposition or implementation of a land use regulation.
• It prohibits governments from imposing or implementing a land use regulation that totally excludes religious organizations from a jurisdiction or “unreasonably limits” religious assemblies, institutions, or structures within a jurisdiction.

Significantly, prevailing parties in RLUIPA cases have the right to recover reasonable attorney’s fees and expenses. For those opposing the location of a house of worship in their community, or who seek to block the expansion of such a religious institution, the attorney’s fees provision can be a serious problem. Local land use agencies try to avoid RLUIPA lawsuits, not only because of the adverse publicity but also because of the possibility that, if the land use agency loses, they may have to pay the other side’s costs and attorney’s fees. As a consequence, sometimes even the threat of a RLUIPA lawsuit may cause local land use authorities to overrule community objections and to grant the application of the religious organization.