What Are Equal Terms Anyway?

By Reed, Peter T. | Notre Dame Law Review, February 2012 | Go to article overview

What Are Equal Terms Anyway?


Reed, Peter T., Notre Dame Law Review


INTRODUCTION

In 1994 the Lighthouse Institute for Evangelism purchased property in downtown Long Branch, New Jersey. (1) The property was meant to be the new site of a church, which had been renting a nearby building for several years. The property was zoned central commercial, allowing a wide variety of uses permitted as of right: restaurants, variety stores and other retail stores, educational services and colleges, assembly halls, bowling alleys, theaters, governmental services, municipal buildings, and new automobile or boat showrooms. (2) A religious assembly, however, was not a permitted use. Between 1995 and 2000, Lighthouse sought approval to use the property for religious worship, as a soup kitchen, for a job skills training program, and as a residence for their pastor. (3)

In mounting frustration, Lighthouse sued the city in June of 2000 on federal constitutional and statutory grounds. While the case was pending, Long Branch changed the applicable zoning ordinance to limit land uses comparable to religious assemblies. (4) The new ordinance permitted theaters, cinemas, culinary schools, and dance studios as primary uses. Restaurants, bars and clubs, and specialty retail were among secondary uses. (5) Any unlisted uses were prohibited, including churches and synagogues. (6) The new plan specified its goals: increasing retail trade, city revenues, and employment opportunities so as "to encourage a 'vibrant' and 'vital' downtown residential community." (7) Upon reapplication under the new statute, the City Council found that the religious assembly would "destroy the ability of the block to be used as a high end entertainment and recreation area" (8) and consequently denied the application.

This sort of zoning gridlock is precisely the situation the Religious Land Use and Institutionalized Persons Act (RLUIPA) is designed to govern. The "equal terms" provision of RLUIPA requires that "[n]o government shall impose or implement 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." (9) It invokes two of the fundamental liberties of the western world--religious freedom and the free use of private property. Yet a decade after passage and after consideration by seven different circuit courts, the provision's meaning remains elusive. (10) Today, the plight of the Lighthouse Institute and the city of Long Branch would be resolved by no less than four different methods, depending on the circuit hearing the case. (11)

This Note argues for the superiority of the Eleventh Circuit's interpretation of the provision based on the statute's history, text, and purpose. Part I provides an overview of land use law, the Free Exercise clause jurisprudence of the Supreme Court, and RLUIPA. Part II presents and defends the Eleventh Circuit's interpretation of the equal terms provision. Part III presents and rejects the alternative interpretations offered by other circuit courts.

I. BACKGROUND

A. Overview of Land Use Regulations

Since Village of Euclid, Ohio v. Ambler Realty Company (12) and the rise of single-use, noncumulative zoning, land use law and religious land uses have been on a collision course. Why? Broadly and crudely speaking, neither the vocabulary nor the methodology of land use law accounts for the type of land uses represented by religious institutions or the type of benefits that religious institutions offer to the physical landscape. To understand why, it is necessary to understand the typical regulatory scheme.

Zoning is the division of land into zones or districts often represented on an accompanying zoning map. (13) These zones are defined by permissible land uses, (14) such as the traditional categories of agricultural, residential, commercial, and industrial uses. (15) Districts are drawn to separate uses that are likely to be incompatible, keeping heavy industry, for example, separate from residential areas. …

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