Local regulation of religious land uses has become the latest battlefield in California development. There are at least seven lawsuits pending over government regulation of church development, proposed private schools, and the use of facilities by religious ministries.

Lawsuits have been filed against the cities of Concord, Cypress, El Cajon, Los Angeles and Morgan Hill, and against Alameda County and the California Coastal Commission. Additional lawsuits appear likely in Sierra Madre and Huntington Beach.

"There are certainly more cases in California than anywhere else," said Roman Storzer, director of litigation for The Becket Fund for Religious Liberty based in Washington, D.C. "They regulate such uses to a greater extent than other states."

The Religious Land Use and Institutionalized Persons Act (RLUIPA), approved unanimously by Congress in 2000, provides the basis for most litigation. The law, which many local government leaders and planners opposed, appears to give religious institutions the upper hand by prohibiting most regulation that is a "substantial burden" to religious freedom. Courts have not yet defined "substantial burden" and there are questions about how much evidence in the record is needed to deny religious land uses, said Vivian Kahn, an Oakland-based planning consultant and former American Planning Association (APA) board member. The federal law has had a chilling effect on planners, according to Kahn.

"We see this as another federal pre-emption of local land use decision-making," she said.

A long history
While the controversy has flared during recent years, arguments regarding restraint of religion are very old, said Joseph DiMento, an urban planning and law professor at University of California, Irvine. Government has long regulated the secondary effects of religious land uses, such as traffic, glare and noise, he said. However, lawmakers and courts have begun constraining the ability of government to regulate secondary impacts, he said, pointing to a Massachusetts law that precludes any restriction on religious institutions. DiMento and others favor a content-neutral approach.

"If you are treating the institution the same way you are treating others, it should be on the institution's shoulders to prove that it is being harmed," he said.

The questions are complicated by the many manifestations of religion in the United States, and by the increased number of "mega-churches" that draw thousands of worshippers, DiMento added. The debate gained new life in 1997 when the U.S. Supreme Court, in City of Boerne v. Flores, 521 U.S. 507, struck down the Religious Freedom Restoration Act of 1993 as an unconstitutional limit on state and local government authority. Congress responded to that decision by approving RLUIPA, which is similar to the stricken statute. The new law prohibits government regulation that imposes a substantial burden on the exercise of religion unless the government proves the restriction is for a "compelling governmental interest" and it is the least restrictive means of furthering that interest. James Kushner, a visiting professor at University of Southern California law school who is helping update the six-volume California Environmental Law and Land Use Practice, said what RLUIPA requires of government regulators is uncertain at this point. There is little case law, and law review articles have not been helpful, he said.

"I think that it's a cloud over what local government is permitted to do," Kushner said.

One of the first RLUIPA cases decided so far in California concerned San Jose Christian College's proposal to convert a former hospital to a college campus in Morgan Hill. In 1999, Catholic Healthcare West (CHW) closed the 60-bed St. Louise Hospital and adjoining medical offices, shifting much of the staff to a CHW hospital in Gilroy. CHW put the 30-acre property on the market with the restriction that the site could not be used for medical purposes. San Jose Christian College proposed converting the hospital to a campus. However, the site is zoned for a hospital and city officials have been working with a new healthcare foundation to reopen the facility. In 2001 the City Council denied the college's rezoning application.

"While this was the only site for a hospital, we allow churches and schools in almost any other zoning district," said Jim Rowe, Morgan Hill planning manager. "There were other sites available to San Jose Christian College."

The college sued, but federal District Court Judge Ronald Whyte ruled that the college had not proven the City Council decision was a substantial burden. "

Moreover," Whyte wrote, "RLUIPA does not grant religious institutions immunity from land use regulations."

Brad Dacus, president of Pacific Justice Institute, which represented the college, said the city's decision did represent a substantial burden because the college has had to turn away students and reduce its ministries for lack of larger facilities. He is appealing the decision.

The Morgan Hill situation is not uncommon: A church that wants to build facilities or use existing buildings is denied a variance, use permit or rezoning. More unusual is the case of the Cottonwood Christian Center, which is battling the Cypress redevelopment agency over a prime 18-acre site the church owns. The city has begun eminent domain proceedings to acquire the property for retail development. But the church, which sued earlier, wants to build a 4,700-seat sanctuary and support facilities.

Different viewpoints
Planners say they are simply applying regulations to religious institutions in the same way rules apply to secular developers and landowners. And, planners say, the First Amendment already affords religious institutions a great deal of protection. "I think the government has accommodated religion in every single way the constitution permits, and then some," said Kushner. "Yet people keep going to the legislature and demanding even more."

Advocates such as Dacus of the Pacific Justice Institute and Storzer of the Becket Fund see the world differently. They argue that government finds ways to single out the activities of religious institutions, so laws such as RLUIPA are needed to ensure religious liberty. Dacus said many cities have not updated their zoning ordinances since RLUIPA became law. An ordinance that requires a church to get a discretionary use permit in every zoning district, for example, conflicts with RLUIPA, he said.

"We intend to file many, many more lawsuits against cities and counties in the years ahead," Dacus said. "We'd much rather work constructively with municipalities ahead of time to avoid litigation. We are willing to assist without charge." Dacus and Storzer argue that government can block a religious institution's land use plans only if the project would endanger public health and safety. Economic concerns or speculative development possibilities cannot be a factor, Dacus contended.

The APA's Kahn, however, believes planners can use content-neutral regulations to deal with religious land uses. RLUIPA, she said, treats churches like the Americans with Disabilities Act treats disabled people. The government has to provide a compelling reason for what it is doing, she said. "Make sure your ordinance does not treat religious land uses differently from any other uses that have the same impacts," Kahn added. "If you allow lodges and private clubs in a district, but not religious assemblies, you need to change your ordinance."

She also said that economic concerns, especially in a redevelopment zone, can provide a legitimate basis for making decisions. A church that is often closed and that generates little foot traffic may not be an appropriate use for a parcel in an area where the city is trying to spur economic growth, she said. The APA wants to find a good RLUIPA test case, added Kahn, who is a member of APA's Amicus Committee.

Alameda County's denial of a use permit application from Redwood Christian Schools might provide that case. Last fall, the Alameda County Board of Supervisors rejected the application, which would have allowed construction of a 650-student campus in a lightly developed area near Castro Valley, because the site is outside the voter-approved urban growth boundary. The school has since filed a lawsuit. One further complication in California is a state law that allows religious institutions to exempt themselves from local historic preservation laws.

The state Supreme Court upheld the validity of that law in East Bay Asian Local Dev't Corp. v. State of Cal., 24 Cal4th 693 (2000) (see CP&DR Legal Digest, January 2001). Churches, synagogues and other houses of worship can be some of the oldest structures in a community and local governments often regulate structural changes to the historic buildings. Under the East Bay decision, a church could bypass such historic preservation regulation.


Vivian Kahn, Kahn Mortimer Associates, (510) 482-1031. Jim Rowe, Morgan Hill planning department, (408) 779-7247. James Kushner, USC School of Law, (213) 740-2542. Joseph DiMento, UC Irvine, (949) 824-5102. Brad Dacus, Pacific Justice Institute, (916) 857-6900. Roman Storzer, The Becket Fund for Religious Liberty, (202) 955-0095. Becket Fund website: www.becketfund.org