Even before a municipal board is faced with a land use application from a religious organization, the municipal attorney should educate public officials on Religious Land Use and Institutionalized Persons Act (RLUIPA) and its implications. When deciding RLUIPA cases, New York courts apply five principles, (1) religious and educational institutions are beneficial to public welfare, (2) the court will not second-guess a legitimate, sincerely held professed religious practice, and neither should the municipality, (3) municipal boards responsible for implementing local zoning law must make every effort to accommodate religious use, (4) with some limited exceptions (e.g., historic districts), religious use cannot be zoned out of a residential district and, thus, it is unlikely that it can be zoned out of a commercial district, and (5) keeping property in taxpaying hands is not a legitimate purpose of zoning. These five principles underpin RLUIPA (and pre-RLUIPA court decisions in New York) and boards must be ever mindful of them throughout the review process.1 Finally, the recent Second Circuit case, Fortress Bible Church v. Feiner,2 found, for the first time, that when the environmental review mandated by SEQRA3 is used as a pretext to deny a religious land use application, the reviewing board runs afoul of RLUIPA.

What is RLUIPA?

RLUIPA is a federal law enacted by Congress and signed by President Clinton in 2000. It is found at 42 U.S.C. § 2000cc et seq. Its purpose is to give teeth (some would say fangs) to a person’s right under the Free Exercise Clause of the First Amendment to practice his or her religion free from overly burdensome government encumbrances (some would say any encumbrance whatsoever).

The Act’s precept is straightforward: “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 that imposition of the burden on that person, assembly, or institution is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.”4 Thus, the judicial “strict scrutiny” standard of review is substantially incorporated into RLUIPA.

“To establish a prima facie case under RLUIPA, [the plaintiff]must allege facts sufficient to show that defendants’ conduct in denying the Application: (1) imposes a substantial burden; (2) on the ‘religious exercise’; (3) of a person, institution or assembly.”5 If the plaintiff makes a prima facie showing that the land use regulation or decision substantially burdens the free exercise of religion, then the burden of proof shifts to the government to show compelling interest “except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff’s exercise of religion.”.6

The statute defines the term “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief” and establishes a rule that “the use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose.”7

However, the term “substantial burden” is not defined in the statute. Rather, it is a term of art and, thus, fertile ground for litigation. In Westchester Day School, the Second Circuit contrasted “substantial burden” in the context of religious practice (requiring an adherent to alter behavior) to “substantial burden” in the context of a land use regulation. “[I]n the context of land use, a religious institution is not ordinarily faced with the same dilemma of choosing between religious precepts and government benefits. When a municipality denies a religious institution the right to expand its facilities, it is more difficult to speak of substantial pressure to change religious behavior.”8 The court articulated a 5-part test to help determine whether a land use regulation constitutes a substantial burden:

  1. Was the land use decision the result of a generally applicable, legitimate and neutral law?
  2. Was the law applied in an arbitrary or capricious manner or was it unlawfully applied?
  3. Did the decision coerce the religious organization into changing its behavior?
  4. Did the religious organization have quick, reliable and financially feasible alternatives?
  5. Was the denial conditional?9

If the court finds that land use regulations were applied in violation of RLUIPA, the results can be catastrophic for the municipality for a number of reasons, not the least of which is that attorneys’ fees may be awarded to a successful plaintiff.10 11


The generally held belief is that Congress’ interest in legislation protecting religious freedom was brought about by a number of Supreme Court decisions, but specifically, its decision in Employment Division v. Smith, 494 U.S. 872 (1990). Prior to Smith, the “compelling interest” part of the strict scrutiny test had been applied in a way that was perceived by the public as protective of religious freedom. In two notable decisions that preceded Smith, exceptions to laws of general application were carved out to protect religious freedom: Sherbert v. Verner, 374 U.S. 398 (1968 )(rational relationship to colorable state interest not sufficient to deny unemployment benefits to Seventh Day Adventist who lost her job for refusing to work on Saturday, the Sabbath of her faith), and Wisconsin v. Yoder, 406 U.S. 205 (1972)(no compelling interest sufficient to deny Amish litigants exemption from compulsory schooling).

However, the Court applied the compelling interest exceptions articulated in Sherbert and Yoderunevenly. Religious exemptions were denied in several later cases, primarily upon the grounds that exemptions would interfere with the administration of government programs such as the Fair Labor Standards Act and Social Security.12

Then, in Smith, the Court held that Oregon could criminalize the use of peyote without providing an exemption for religious use by Native Americans. The majority concluded, “…the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.”13 Smith promulgated a straightforward rule: the Free Exercise Clause allowed the government to enact otherwise valid, neutral laws of general applicability that incidentally burdened religion without a religious exemption.14

The Smith rule was viewed as further lowering the government’s burden to show a compelling interest, at least so far as it was applied in religious exercise cases. Congress reacted to Smith by enacting a series of laws: The Religious Freedom Restoration Act (“RFRA”) of 1993, which was deemed unconstitutional by the Supreme Court in 1997. The Religious Liberty Protection Act (“RLPA”), passed by the House in 1999, but not considered by the Senate due to fears that the Act could undermine local anti-discrimination measures.15 Instead, RLPA was reconstituted and adopted as RLUIPA in 2000. Although RLUIPA was not Congress’ first attempt at legislation protecting religious freedom, it has survived judicial scrutiny and has had a profound effect on municipal land use law. 16


Even prior to RLUIPA, New York courts were not tolerant of land use decisions that excluded or otherwise restricted religious exercise in the community. The courts review RLUIPA cases with five governing principles in mind.

1. Religion is beneficial to public welfare. 

New York case law begins with the assumption that “churches and other religious institutions are beneficial to the public welfare by their very nature and that, therefore, exercises of the police power directed toward determining whether such institutions will harm the public if located in a particular residential area must begin with that assumption.”  Jewish Reconstructionist Synagogue v. Village of Roslyn Harbor.17 Jewish Reconstructionist clarified, in no uncertain terms, that churches could not be excluded from residential zones: “[W]here an irreconcilable conflict exists between the right to erect a religious structure and the potential hazards of traffic or diminution in value, the latter must yield to the former.”18

2. A court will not second-guess a legitimate, sincerely held professed religious practice. 

The judiciary’s reticence to arbitrate religious practice is well documented in federal case law. In Thomas v. Review Bd. Of Ind. Employment Sec. Div.,19 the Supreme Court determined that a Jehovah’s Witness who quit his job because his religious beliefs prevented him from participating in the manufacture of war materials was entitled to unemployment compensation. “The determination of what is a “religious” belief or practice is more often than not a difficult and delicate task…However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”20 The Court stated unequivocally that neither a government agency nor the judiciary could disavow the professed religious belief or practice of a bona fide religious organization or person.

The Court’s reticence to differentiate amongst professed religious practice was even more apparent when it determined that a city ordinance prohibiting animal sacrifice for professed religious purposes [practitioners of Santeria]while allowing Kosher slaughter and hunters to bring their kill to their houses was an unconstitutional violation of religious freedom. In Church of Lukumi Babalu Aye v. City of Hialeah, the Court reasoned that “[g]iven the historical association between animal sacrifice and religious worship, petitioners assertion that animal sacrifice is an integral part of their religion cannot be deemed bizarre or incredible. Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners’ professed desire to conduct animal sacrifices for religious reasons.”21

Similarly, the Second Circuit broadly construes the meaning of a sincerely held “religious practice”. “[C]ourts are not permitted to inquire into the centrality of a professed belief to the adherent’s religion or to question its validity in determining whether a religious practice exists…An individual claiming violation of free exercise rights need only demonstrate that the beliefs professed are sincerely held and in the individual’s own scheme of things, religious.”22

The reluctance of the federal courts to interpret the meaning of “religious exercise” is reflected in New York State decisions. Simply put by the New York Court of Appeals: “Because the free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires, courts may not inquire into or classify the content of the doctrine, dogmas, and teachings held by that body to be integral to its religion but must accept that body’s characterization of its own beliefs and activities.”23 If the inquiry is not proper for the courts, then it is not proper for the municipal board.

3. Local boards responsible for implementing zoning laws must make every effort to accommodate religious use.

Although religious institutions are not exempt from zoning law, municipal boards must accommodate religious use. The extent to which a religious use must be accommodated, however, is fact specific. For example, in Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Zoning Bd. of Appeals, the Second Department annulled the denial of a variance to build a Mormon temple in a residential zone at a height 77% greater than the permitted height because the alternative construction would have increased the cost of the project by $1 to $2 million.24 In Genesis Assembly of God v. Davies, the court determined that the ZBA abused its discretion by not making an effort to accommodate the proposed religious use by imposing reasonable conditions on a parking variance, such as limiting the number of services and attendees.25 And, in Mintz v. Roman Catholic Bishop, the district court of Massachusetts decided that parking and traffic congestion were not sufficient reasons to deny a building permit for the construction of parish center.26

4. Religious use cannot be prohibited in a residential district. Whether it can be prohibited in a commercial zone is unclear.

As early as 1956, the Court of Appeals ruled: “It is well established in this country that a zoning ordinance may not wholly exclude a church or synagogue from any residential district (emphasis added).”27 If a church or other religious organization must, under the law, be accommodated in a residential neighborhood, then it is reasonable to conclude that it might be difficult to restrict in a commercial zone. As the Court of Appeals stated succinctly in Jewish Reconstructionist, infra, “[T]he power to decide where churches may not locate becomes the power to say where they may do so. That is impermissible.”28

5. Generating tax revenue is not a legitimate purpose of zoning. 

The question of whether land is used for a religious purpose is often litigated in the form of a tax proceeding.29 Property owned by a bona fide religious organization is entitled to tax exemption so long as the religious organization or purpose is not a “guise or pretense”.30

However, the loss of tax revenue will not support the denial of a religious land use application. The Court of Appeals has held that “[k]eeping property in taxpaying hands is not a legitimate purpose of zoning.”31Furthermore, the tax-exempt status of property is not jeopardized even if the principal use is to generate funds, so long as the funds are to be used for a tax-exempt purpose. In Congregation Rabbinical Coll. of Tartikov, Inc. v Town of Ramapo,32 the religious organization owned property that it leased to a for-profit entity for the purpose of operating a camp. The money derived from the lease (about $60,000 per year) was set aside for the purpose of building a religious school. The Second Department found that the property was tax exempt because the funds were being put to a religious use, even though not “thereon” the property in question. “The fact that the property is leased or licensed to other parties, or the fact that the owner derives some profit from the use of the property, does not defeat a tax exemption pursuant to Real Property Tax Law § 420-a (1), so long as the primary or principal use of the property is for a tax-exempt purpose of its owner.”33


Until recently, RLUIPA litigation was limited to the question of whether zoning regulations had been applied impermissibly. Although each application was subject to environmental review under the State Environmental Quality Review Act (SEQRA), the question of whether an environmental statue might constitute a zoning law under RLUIPA had not been addressed by the courts. That changed in a scathing decision rendered September 24, 2012, by the Second Circuit. In Fortress Bible Church v. Feiner, the court held that “when a government uses a statutory environmental review process as the primary vehicle for making zoning decisions, those decisions constitute the application of a zoning law and are within the purview of RLUIPA.”34 Thus, under certain circumstances, SEQRA can be considered a zoning law for the purpose of RLUIPA.

Reading the Fortress Bible Churchdecision is like reading a primer on what not to do when reviewing a religious land use application (or any application, for that matter). That the Town acted in bad faith is an understatement. As a threshold matter, religious use was allowed in the zoning district. However, the Court concluded that the Town had acted in bad faith, using SEQRA as a pretext to delay and deny the application. And it had plenty of factual evidence of the Town’s bad actions. To wit: the Supervisor attempted to “extort” a fire truck from the church; a Town Board member referred to the application as “another church” and repeatedly suggested to the Town Planning Commissioner that he should “stop” or “kill” the project; the Planning Commissioner was replaced when he advised that the Town’s traffic concerns had been mitigated and that it could issue a Conditioned Negative Declaration; instead, after the Church declined to donate the fire truck or make some other payment in lieu of taxes, the Town issued a positive declaration, triggering a full environmental review; the Town edited the FEIS to include additional problems without even telling the applicant, and last but not least; Town staff and one Town Board member intentionally destroyed discoverable evidence after it had been advised not to.

The Second Circuit concluded that although the SEQRA process does not automatically implicate RLUIPA, under certain circumstances, it could. The Court applied a four-part test: (1) the SEQRA review process was triggered because discretionary land use approvals were required, (2) the SEQRA process was intertwined with the Town’s zoning regulations, (3) during the SEQRA review, the Town focused on zoning issues rather than traditional environmental issues, and (4) “to hold that RLUIPA is inapplicable to what amounts to zoning actions taken in the context of a statutorily mandated environmental quality review would allow towns to insulate zoning decision from RLUIPA review.”35

The Town denied the Church’s application relying on its SEQRA Findings. The Second Circuit upheld the District Court’s decision to (1) annul the positive declaration and Findings Statement, (2) order the site plan approved for SEQRA purposes, (3) order the Board to grant a waiver from the landscaped parking island requirement, (4) order the Zoning Board to issue a side yard variance, (5) order the Town to issue a building permit, and (6) enjoin the Town from taking any action that would unreasonably interfere with the project. Finally, the Court imposed $10,000 in sanctions for spoliation of evidence.

Fortress Bible Church also considered, as a matter of first impression, whether “evidence of multiple projects that were each treated differently with regard to a discrete issue” rather than a single comparator similarly situated was sufficient to prove the Church’s equal protection claim. The court ruled that it was. “[W]here, as here, a decision is based on several discrete concerns, and a claimant presents evidence that comparators were treated differently with regard to those specific concerns without any plausible explanation for the disparity, such a claim can succeed.”36

Fortress Bible Church broadens future RLUIPA litigation to include the question of whether SEQRA was used to obstruct a religious land use application and potentially opening a municipality’s environmental review to strict scrutiny by the courts, the standard of review applied here by the District Court. The Circuit Court, on the other hand, found the Town’s actions so egregious that they failed even the rational basis standard of review.

A municipal attorney now has one more reason to advise his boards – early and often – on the implications of RLUIPA and against the kind of bad behavior exhibited in Fortress Bible Church.

For an excellent primer on municipal board “Dos” and Don’ts”, see Kevin J. Plunkett, Esq., “Does and Don’ts for Municipal Attorneys when Advising Municipal Board Members, Staff and Consultants” on RLUPA, New York State Bar Association Meeting, October 20, 2007, Municipal Law Section.

Fortress Bible Church v. Feiner, 2012 U.S. App. LEXIS 20019 (2d Cir. Sept. 24, 2012).

State Environmental Quality Review Act, ECL §8-0101 et seq.

42 U.S.C. §2000cc(a)(1).

Westchester Day Sch. v. Vill. of Mamaroneck, 379 F. Supp. 2d 550, 555 (S.D.N.Y. 2005).

42 USCS § 2000cc-2(b).

42 USCS § 2000cc-5(7)(A), (B); See also, Westchester Day School v Village of Mamaroneck, 504 F.3d 338 (2d Cir. 2007) (denial of Jewish day school application to expand facility by 44,000 square feet unlawfully burdened the school’s exercise of religion). 348-349.

Id. at 349-352.

“In any action or proceeding to enforce a provision of…the Religious Land Use and Institutionalized Persons Act of 2000…the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C. 1988(b).

In the seminal case, Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir 2007), the Second Circuit ultimately determined that, (1) prayer and Jewish studies within a private school constitute “religious exercise” under RLUIPA, (2) the construction of a new school and renovation of the old school was necessary to fulfill its religious mission, and (3) the denial of the application imposed a substantial burden to the school’s exercise of religion without a compelling governmental interest. The Village of Mamaroneck paid Westchester Day School $4.5 million to settle the RLUIPA claim (the school decided not to pursue its damages claims for an additional $17.25 million in attorneys fees, increased construction costs and lost funding – but it could have). Karla L. Chaffee and Dwight H. Merriam, Six Fact Patterns of Substantial Burden in RLUIPA; Lessons for Potential Litigants, 2 Albany Gov’t L. Rev. 437 (2009).

Bowen v. Roy, 467 US 693 (1986)(SSN required for application for state welfare benefits despite religious objections); Tony and Susan Alamo Foundation v. Secretary of Labor, 471 US 290 (1985)(religious organization not exempt from Fair Labor Standards Act); United States v. Lee, 455 US 252 (1982)(Amish must pay social security taxes).

Id. at 879 (internal quotation marks omitted).

For a detailed explanation of the Smith decision and excellent discussion of the decisions leading up to RLUIPA see Patricia Salkin and Amy Lavine’s “The Genesis of RLUIPA and Federalism” at

Karla L. Chaffe and Dwight H. Merriam, Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants, 2 Albany Gov’t L. Rev. 437, 447 (2009).

One focus of a recent CLE on RLUIPA was how New York municipalities could avoid RLUIPA litigation because it was so difficult to prevail. To paraphrase one presenter, “The first question the board has to ask before it begins to consider an application from a religious organization is, ‘what will the lawsuit look like if we deny'”?

38 N.Y.2d 283, 286-287 (1975).

Id. at 288.

450 U.S. 707 (1981).

Id. at 714.

508 U.S. 520, 578 (1993).

Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 574 (2d Cir. 2002) (removal of the homeless by the City violates the Free Exercise Clause where the Church established that providing outdoor sleeping space for the homeless effectuates a sincerely held religious belief).

Matter of Holy Spirit Ass’n for the Unification of World Christianity v. Tax Comm. of the City of New York, 55 N.Y. 2d 512, 518 (1982).

296 A.D.2d 460, 462 (2d Dep’t 2002).

208 A.D.2d 627, 628-629 (2d Dep’t 1994).

424 F. Supp. 2d 309, 321-322 (D. Mass. 2006).

Diocese of Rodchester v Planning Bd. of the Town of Brighton, 1 N.Y.2d 508, 522 (1956).

38 NY2d 283, 291 (1975).

Real Property Tax Law §420-a.

RPTL §420-a(1)(b).

Town of Mount Pleasant v. Legion of Christ,1 N.Y.3d 122, 129 (2006) (training center sold to religious organization entitled to tax exempt status even though the facility is used to train priests .

72 A.D.3d 869 (2d Dep’t 2010).

Id. at 871.

2012 U.S. App. LEXIS 20019, 13 (2d Cir. Sept. 24, 2012).

Id. at 18-19.

Id. at 37-38.

Reprinted with permission from: Municipal Lawyer, Fall 2012, Vol. 26, No. 4, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.