• Key point. The federal Religious Land Use and Institutionalized Persons Act prohibits state and local governments from imposing a land use regulation in a manner that imposes a substantial burden on the exercise of religion unless the regulation is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.

* A federal appeals court ruled that a city ordinance requiring a church to “tap in” to a city sewer line, at a substantial cost, did not violate the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) or the first amendment. In 1984 a city enacted a “mandatory tap-in ordinance” that required any building located within 150 feet of any sewer to connect to it if so directed. In 2003 the city notified a church that it had completed construction of a sewage extension project and that the church would now be required to “tap-in” to the sewage system because it was located 138 feet from the sewer line and was therefore covered by the ordinance.

The church refused to comply with the ordinance because it deemed the costs associated with the connection to be too great. As a result, the city brought an enforcement action against the church in state court. The court found the church in violation of the ordinance but granted it time to “tap in.” It also rejected the church’s claim that the city had violated the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA provides:

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates the imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

Once a church demonstrates the existence of a substantial burden on the exercise of religious beliefs, the burden shifts to the government to show that the challenged action furthers a compelling governmental interest by the least restrictive means.

The trial court held that RLUIPA was inapplicable to the “tap in” ordinance in this case because RLUIPA applied only to zoning and landmark laws and the ordinance was neither. The court also rejected the church’s claim that the ordinance violated the first amendment guaranty of religious freedom. The church appealed.

A state appeals court noted that RLUIPA defines a “land use regulation” as “a zoning or landmarking law that limits or restricts a [church’s] use or development of land (including a structure affixed to land).” As a result, “a government agency implements a land use regulation only when it acts pursuant to a zoning or landmarking law that limits the manner in which a [church] may develop or use property.” The court concluded that “because the ordinance is outside the scope of RLUIPA, the church’s claims under that statute must fail.”

The court also rejected the church’s first amendment claims, noting that “if a law is ‘neutral’ and ‘generally applicable,’ and burdens religious conduct only incidentally, the [first amendment] offers no protection. The church concedes that the ordinance is neutral. Reading the amended complaint in the light most favorable to the church, we find no facts that would support a claim either that the ordinance is not generally applicable or that it directly burdens the church’s religious conduct. Therefore, the church’s [first amendment] claim was properly dismissed.” Second Baptist Church v. Gilpin Township, 118 Fed.Appx. 615 (3rd Cir. 2004).

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