March 17, 2017 Practice Points

Tips for Handling an RLUIPA Lawsuit

As churches and religious organizations grow and expand, they may face opposition from the same community they intend to serve

by Michael Knapek and Steven Dimitt

As churches and religious organizations grow and expand, they may face opposition from the same community they intend to serve. The Religious Land Use and Institutionalized Persons Act (RLUIPA) was enacted to protect churches and religious organizations from overreaching governmental action. Specifically, RLUIPA prohibits zoning laws that discriminate on the basis of religion, treat religious organizations on less than equal terms with nonreligious institutions, or unlawfully place a substantial burden on religious exercise. A RLUIPA claim, however, typically requires the church’s advocate to approach the case differently than a garden variety lawsuit.

Make Sure that the RLUIPA Claim Is Ripe

As the Supreme Court has explained, the ripeness doctrine’s “basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements. . . .” Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). RLUIPA cases may require the attorney advocating on behalf of the church or religious organization to jump through several procedural hoops in order to ensure that the church’s claims are ripe. Determining whether a claim is ripe depends both on the type of RLUIPA claim and the availability of local administrative remedies. Many courts require there to be a “final” decision before a RLUIPA claim is ripe. A final decision refers to a final, definitive ruling on “a variance application, a special use permit application, or through a single appeal of a denied permit. . . .” Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957, 979 (9th Cir. 2011). The attorney for the religious organization needs to review the local ordinances to confirm that any necessary variances or appeals have been pursued to ensure that the religious organization’s claims are ripe.

However, if a procedural step was missed, a RLUIPA claim may still be ripe. Courts have held that seeking a variance is not required when it would be futile because the zoning agency either lacks discretion to grant variances or has dug in its heels and made clear that all such applications will be denied. Moreover, facial challenges are generally ripe the moment the challenged regulation or ordinance is passed, and there is no need to “have first sought and been denied any permit prior to filing a facial challenge.” Congregation Rabbinical Coll. of Tartikov, Inc. v. Village of Pomona, 915 F. Supp. 2d 574, 595 (S.D.N.Y. 2013) quoting Lamar Advert. of Penn. LLC v. Town of Orchard Park. New York, 356 F.3d 365, 374 (2d. Cir. 2004).

Attorney Fees Should Be Segregated from the Start

Unlike typical lawsuits, an attorney’s work in preparing to file an RLUIPA lawsuit may start months or years before a lawsuit is ever filed. In most instances, the religious organization seeks the assistance of counsel when it experiences difficulty going through the zoning or land-use approval process. The attorney may even continue to go through the land-use approval process after a lawsuit has been filed, including addressing inspection and construction issues that are unrelated to the church’s claims or appearing before the city council in an attempt to resolve the lawsuit. In these instances, it is important for the attorney to segregate his or her attorney fees, because a court may determine that attorney fees incurred navigating the municipality’s zoning approval process are not recoverable. See World Outreach Conference Ctr. v. City of Chicago, 2017 WL 587265, at *7 (N.D. Ill. Feb. 14, 2017). While all of the attorney fees may ultimately be recoverable, it is prudent to separate the tasks performed in the event that a court scrutinizes the fee statements after the church or religious organization successfully brings its RLUIPA claim.

The Delicate Balance When Advocating for Religious Organizations

While most lawsuits involve disputes between two parties who will never see each other again, most churches and religious organizations hope to be an integral part of their community long after their lawsuit with the municipality is over. Litigators must be cognizant of this long-term relationship and craft their strategy to meet their client’s needs.


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