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July 31, 2017 Article

RLUIPA and Islamic Society of Basking Ridge v. Township of Bernards: Defining and Protecting the Intersection of Property Law and Religious Freedom for All Faiths

Under RLUIPA, when a planning board interprets "church" as "Christian church" for the purposes of onsite parking requirements, strict liability applies

by Steven W. Dimitt, Esq., Michael L. Knapek, Esq., and Maggie Burreson

The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) embodies two American ideals: the right to own property and the right to practice one’s religion freely.  RLUIPA protects persons of all faiths, not just Christians. This reality was recently illustrated in Islamic Society of Basking Ridge v. Township of Bernards, 226 F. Supp.3d 320 (D.N.J. 2016).

RLUIPA: Background and Applicability

RLUIPA, signed into law in 2000, was Congress’s response to the Supreme Court’s decision in City of Boerne v. Flores, 521 U.S. 507 (1997), which deemed the federal Religious Freedom and Restoration Act too broad as applied to the states and thus violative of the federal balance. To avoid this constitutional problem, Congress enacted RLUIPA, which narrowed the fields to which the law was applicable. RLUIPA, according to the Department of Justice, was enacted to “protect individuals, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws….” In the legislative process, Congress made the finding that local zoning boards had been discriminating on the basis of religion, behind the guise of traffic or aesthetics.

RLUIPA institutes a strict standard for addressing religious freedom claims in the realm of land use. It encourages broad protection of religious exercise, by requiring courts to construe the statute so as to protect religious rights “to the maximum extent permitted by the terms of [the statute] and the Constitution.” 42 U.S.C. § 2000cc-3(g). Under RLUIPA, if the government attempts to regulate a religious group’s land or the use thereof, then the government must show (1) a compelling governmental interest and (2) that it used the least restrictive means to achieve that interest. 42 U.S.C. § 2000cc(a)(1).

The RLUIPA’s Nondiscrimination Provision

RLUIPA includes three separate clauses intended to protect religious liberty from discrimination: equal terms, nondiscrimination, and exclusions and limits. 42 U.S.C. § 2000cc(b). The one that is most pertinent to this discussion is the nondiscrimination provision, which states: “No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious discrimination.” 42 U.S.C. § 2000cc(b)(2). According to Congress, this provision protects “the Free Exercise Clause…against [land use regulations] that burden religion and are not neutral and generally applicable.” Islamic Society of Basking Ridge, 226 F. Supp.3d at 341.

This provision of RLUIPA shapes the court’s decision in Islamic Society of Basking Ridge v. Township of Bernards. This highly publicized case out of the United States District Court for the District of New Jersey helped give force to the full breadth of RLUIPA’s protections for all faiths. This article will discuss the court’s application of RLUIPA and its reasoning in concluding that the Bernards Township Planning Board violated RLUIPA in denying a local Muslim organization’s application to build a mosque.

Muslim Citizens Fight to Build a House of Worship

This case arose out of a contentious zoning issue in Bernards Township in New Jersey. A Muslim organization—the Islamic Society of Basking Ridge (ISBR)—wanted to build a mosque in the township. The society had bought land in an area where houses of worship were permitted uses. ISBR shared its plans with other area residents, held open houses, consulted with the Bernards Township Planning Board, and eventually applied for site approval. However, the permitting process was far from smooth for the ISBR. It faced roadblocks at almost every turn, both from the community and the planning board.

Of particular importance to the case was the issue of parking. Under the Bernards Township parking ordinance, “churches” must maintain a 3:1 seat-to-parking space ratio. ISBR proposed a plan that would meet such a parking requirement. However, the planning board, after receiving ISBR’s application, considered and adopted an amendment that made it significantly harder to get a house of worship approved. The planning board considered ISBR’s proposal for over three and a half years. This period was an unprecedented amount of time for consideration. The planning board continually placed new requirements on the applicants—requirements that had not been imposed on any previous house of worship. The planning board particularly focused its inquiry on mosque’s parking capacity.

Previously, the planning board had used the 3:1 ratio in assessing the parking plans for churches and synagogues, sometimes even granting a downward variance to allow for fewer parking spaces. However, even though ISBR’s plan satisfied the 3:1 ratio, the planning board decided that ISBR needed more parking. The planning board relied on a publication from the Institute of Transportation Engineers in making its decision that a mosque needed more parking than any other house of worship. The planning board also decided that the 3:1 parking ratio only applied to Christian churches and not to other houses of worship, stating, “We don’t admit that mosques are considered churches for the purposes of the statute.” Islamic Society of Basking Ridge, 226 F. Supp.3d at 342. ISBR tried to negotiate with the planning board, proposing split services and additional provision for overflow parking. Nonetheless, the planning board denied ISBR’s application.

A Federal NJ District Court Helps Define RLUIPA’s Nondiscrimination Protections

After the denial of its application, the ISBR and some of its members filed suit against the Township, the planning board, the township committee, and various individuals. ISBR alleged, among other claims, that the defendants had violated the RLUIPA’s nondiscrimination provision. On a motion for partial judgment on the pleadings, the United States District Court for the District of New Jersey agreed. The court emphasized that the nondiscrimination provision “applies strict liability toward laws and the application of laws that lack neutrality and general applicability…” Islamic Society of Basking Ridge, 226 F. Supp.3d at 324. Because the court concluded that strict liability applies, it did not consider the defendants’ arguments that their conduct was necessary to further public interests in traffic and parking regulation in the township. In light of this threshold conclusion, the court granted partial judgment on the pleadings to the ISBR.

Facial neutrality and general applicability. In deciding the case, the court first looked to the local ordinance itself. Although the specific parking ordinance only applied to “churches,” that word was undefined in the section. Pursuant to the definitions section of the township ordinances, any word not defined was to be defined by Webster’s Third New International Dictionary of the English Language. According to that dictionary, “church” is defined as “a place of worship of any religion.” This includes a mosque. Therefore, the court found that the parking ordinance was neutral and generally applicable.

The application of the ordinance. Next, the court turned to the application of the parking ordinance. In particular, the court addressed the four issues on which the parties disagreed: the applicable standard of intent; whether the plaintiffs must show similarly situated comparators under the nondiscrimination provision; whether the plaintiffs’ comparators are similarly situated; and whether the disparate treatment at hand was based on religion.

Standard of Intent

The court sided with the plaintiffs on the issue of intent, holding that the defendants’ intent to apply the ratio differently on the basis of religion was sufficient, even if defendants held no animus toward the plaintiffs’ religious identities. The court iterated that neither RLUIPA nor the Third Circuit, within which it is situated, required any elevated level of intent.

Requirement of Comparators

The court articulated that, normally, the Third Circuit would require comparators under RLUIPA’s nondiscrimination provision. However, the court found differently here because the government expressly discriminated on the basis of religion. So, while defendants correctly argued that comparators are generally required, the court refused to require them in this case because of the express regulatory distinction made by the defendants was based on religion. The planning board openly treated mosques and churches differently. This purposeful difference in treatment of religious faiths clearly proved the planning board’s intent to treat places of worship differently because of their affiliated religion, thereby eliminating any argument the planning board could make for the requirement of comparators.

Determination of Whether Comparators Were Similarly Situated

Even though it determined that comparators were not required in this case, the court held that the comparators put forward by the plaintiffs were similarly situated. The plaintiffs identified two synagogues and one church, all of which applied for site plan approval and were approved using the 3:1 ratio. These facts met the standard used to determine if a comparator is similarly situated, which is “whether they impact the city’s declared goals in the same way as the plaintiff.” Islamic Society of Basking Ridge, 226 F. Supp.3d at 347 (quotations omitted).

Deciphering if Religion Provided the Basis for the Disparate Treatment

The court held that the disparate treatment of the mosque, versus the synagogues and churches, was based on religion. The court determined that the planning board’s application of the parking ordinance violated RLUIPA because it was equivalent to the township favoring some religious groups over others. According the court, the defendants’ downfall was that they “interpreted the Parking Ordinance to expressly distinguish treatment of Christian churches from Muslim mosques.” Islamic Society of Basking Ridge, 226 F. Supp.3d at 349. Because the defendants expressly interpreted “churches” in a discriminatory manner, the application of the ordinance violated RLUIPA. The court also emphasized that the nondiscrimination provision is one of strict liability, not strict scrutiny. Because it is strict liability, the court could not consider defendants’ arguments as to why it should be able to discriminate for the needs of the community.

A Settlement Worth Celebrating

Beyond its success litigating under the RLUIPA, ISBR also received an enormously large settlement of $3.25 million. Over half of the settlement was for attorneys’ fees, and the rest for damages.

A Win for Religious Freedom

The court’s decision reinforces the American ideal of religious freedom, regardless of what religion one professes. Not only that, but it also exemplifies the incredible protections that the United States has for religious organizations—protections that far exceed those of most other countries. This was not just a win for American Muslims, whose religious freedoms have been contested, but for all religious persons and groups who face state regulation that seeks to limit or prevent their acts of faith.

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