Statement on Land-Use Provisions of RLUIPA

Statement of the Department of Justice on the Land Use Provisions of the Religious
Land Use and Institutionalized Persons Act (RLUIPA)
The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42
U.S.C. §§ 2000cc to 2000cc-5, is a civil rights law that protects individuals and religious
assemblies and institutions from discriminatory and unduly burdensome land use
regulations.1 After hearings in which Congress heard that religious assemblies and
institutions were disproportionately affected, and in fact were often actively discriminated
against, in local land use decisions, Congress passed RLUIPA unanimously in 2000.
President Clinton signed RLUIPA into law on September 22, 2000.
Congress heard testimony that zoning authorities were frequently placing
excessive or unreasonable burdens on the ability of congregations and individuals to
exercise their faith with little to no justification and in violation of the Constitution.
Congress also heard testimony that religious institutions often faced both subtle and overt
discrimination in zoning, particularly if those institutions involved minority, newer,
smaller, or unfamiliar religious groups and denominations.2
Congress also heard testimony that, as a whole, religious institutions were treated
worse than comparable secular institutions by zoning codes and zoning authorities. As
RLUIPA’s Senate sponsors, Senator Hatch and the late Senator Kennedy, said in their joint
statement issued upon the bill’s passage: “Zoning codes frequently exclude churches in
places where they permit theaters, meetings halls, and other places where large groups of
people assemble for secular purposes. . . . Churches have been denied the right to meet in
rented storefronts, in abandoned schools, in converted funeral homes, theaters, and skating
rinks—in all sorts of buildings that were permitted when they generated traffic for secular
purposes.”3
Congress further heard testimony that zoning authorities often placed excessive
burdens on the ability of congregations and individuals to exercise their faiths without
sufficient justification, in violation of the Constitution.
RLUIPA provides a number of important protections for the religious freedom of
persons, places of worship, religious schools, and other religious assemblies and institutions,
including:
 	Protection against substantial burdens on religious exercise: RLUIPA prohibits
the implementation of any land use regulation that imposes a “substantial burden”
1 This Statement deals with RLUIPA’s land use provisions. Another section of RLUIPA protects the
religious freedom of persons confined to prisons and certain other institutions.
2 146 CONG . REC . S7774 (daily ed. July 27, 2000) (joint statement of Senators Hatch and Kennedy).
3 Id. at S7774-75.
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on the religious exercise of a person or religious assembly or institution except
where justified by a “compelling governmental interest” that the government
pursues in the least restrictive way possible.4
 	Protection against unequal treatment for religious assemblies and institutions:
RLUIPA provides that religious assemblies and institutions must be treated at least
as well as nonreligious assemblies and institutions.5
 	Protection against religious or denominational discrimination: RLUIPA
prohibits discrimination “against any assembly or institution on the basis of
religion or religious denomination.”6
 	Protection against total exclusion of religious assemblies: RLUIPA provides that
governments must not totally exclude religious assemblies from a jurisdiction.7
 	Protection against unreasonable limitation of religious assemblies: RLUIPA
states that governments must not unreasonably limit “religious assemblies,
institutions, or structures within a jurisdiction.”8
RLUIPA’s protections can be enforced by the Department of Justice or by private
lawsuits. In the eighteen years since its passage, RLUIPA has been applied in a wide
variety of contexts and has been the subject of substantial litigation in the courts. It is a
complex statute, with five separate provisions which protect religious exercise in
different but sometimes overlapping ways.
In order to assist persons and institutions in understanding their rights under
RLUIPA, and to assist municipalities and other government entities in understanding the
requirements that RLUIPA imposes, the Department of Justice has created this summary
and accompanying questions and answers. This document rescinds and replaces a prior
version, released in 2010, which was not fully consistent with the Attorney General’s
Memorandum on Guidance Documents of November 16, 2017.9 This non-binding
guidance document is just that: non-binding guidance to individuals, religious
institutions, and local officials about existing law. It is not intended to create any new
obligations or requirements, nor establish binding standards by which the Department of
Justice will determine compliance with RLUIPA. This document is not intended to
compel anyone into taking any action or refraining from taking any action—indeed, the
Department will not bring any enforcement actions based on noncompliance with this
document.10 	Rather, this document is intended to describe the various provisions of the
4 RLUIPA, 42 U.S.C. § 2000cc(a).
5 RLUIPA, 42 U.S.C. § 2000cc(b)(1).
6 RLUIPA, 42 U.S.C. § 2000cc(b)(2).
7 RLUIPA, 42 U.S.C. § 2000cc(b)(3)(A).
8 RLUIPA, 42 U.S.C. § 2000cc(b)(3)(B).
9 Available at www.justice.gov/opa/press-release/file/1012271/download.
10 See Memorandum from the Associate Attorney General on Limiting Use of Agency Guidance
Documents in Affirmative Civil Rights Cases, available at www.justice.gov/file/1028756/download.
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statute in a simple and straightforward manner and to provide examples of how some
courts have interpreted and applied the law in various contexts. Such examples are
purely illustrative and do not necessarily reflect binding law.
This guidance document is designed to be accessible to the non-attorney. A
version of this document including footnotes to court decisions and other legal authorities
is available here.
Please note that this guidance document is not a final agency action, has no force
or effect of law, and may be rescinded or modified in the Department’s complete
discretion.
Date: June 13, 2018
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Questions and Answers on the Land Use Provisions of RLUIPA
1. Who is protected and what types of activities are covered by RLUIPA?
RLUIPA protects the religious exercise of “persons,” defined to include religious
assemblies and institutions in addition to individuals.11 Courts have applied RLUIPA, for
example, in cases involving houses of worship, individuals holding prayer meetings in
their homes, religious schools, religious retreat centers, cemeteries, and faith-based
social services provided by religious entities.
2. What does “religious exercise” include?
RLUIPA provides that “religious exercise” includes any exercise of religion, “whether or
not compelled by, or central to, a system of religious belief.”12 Thus, a county or
municipality cannot avoid the force of RLUIPA by asserting that a particular religious
activity is something that a religious group merely wants to do rather than something that
it must do. For example, a town could not claim that Sunday school classes are not
religious exercise because they are less central to a church’s beliefs or less compulsory
than worship services.
RLUIPA also specifies that “[t]he use, building, or conversion of real property for the
purpose of religious exercise shall be considered to be religious exercise . . . .” 13 This
provision makes clear that religious exercise under RLUIPA includes construction or
expansion of places of worship and other properties used for religious exercise.
Courts have held that “religious exercise” covers a wide range of activities, including
operation of various faith-based social services facilities; accessory uses such as
fellowship halls, parish halls and similar buildings or rooms used for meetings, religious
education, and similar functions; operation of a religious retreat center in a house;
religious gatherings in homes; and construction or expansion of religiously affiliated
schools, even where the facilities would be used for both secular and religious
educational activities.
3. Who is bound by RLUIPA’s requirements?
RLUIPA applies to states (including state departments and agencies) and their
subdivisions, such as counties, municipalities, villages, towns, cities, city councils,
planning boards, zoning boards, and zoning appeals boards.14
11 RLUIPA, 42 U.S.C. § 2000cc(a).
12 RLUIPA, 42 U.S.C. § 2000cc-5(7)(A).
13 RLUIPA, 42 U.S.C. § 2000cc-5(7)(B).
14 RLUIPA, 42 U.S.C. 2000cc-5(4).
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4. Does RLUIPA exempt religious assemblies and institutions from local zoning
laws?
No. RLUIPA is not a blanket exemption from zoning laws. As a general matter,
religious institutions must apply for the same permits, follow the same requirements, and
go through the same land use processes as other land users. But RLUIPA by its terms
prohibits a local government from applying zoning laws or regulations in a way that:
 	Substantially burdens religious exercise without a compelling justification
pursued through the least restrictive means;
 	Treats religious uses less favorably than nonreligious assemblies and institutions;
 	Discriminates based on religion or religious denomination; or
 	Totally or unreasonably restricts religious uses in the local jurisdiction.
When there is a conflict between RLUIPA and the zoning code or how it is applied,
RLUIPA, as a federal civil rights law, takes precedence.
5. Are there occasions when a religious assembly or institution does not have to
apply for zoning approval, and appeal any denial, before it has recourse to
RLUIPA?
As a practical matter, applying for a zoning permit, special use permit, conditional use
permit, special exception, variance, rezoning, or other zoning procedure, and appealing
within that system in case of denials, is often the fastest and most efficient way to obtain
ultimate approval.
Some courts have held that, in some circumstances, religious institutions need not make
an application or appeal before filing a RLUIPA lawsuit. These include settings where
further application or appeal would be futile under the circumstances; there would be
excessive delay, uncertainty, or expense; or if the application requirements are
discriminatory on their face.
6. RLUIPA applies to any “land use regulation.” What does that mean?
RLUIPA defines land use regulation as a “zoning or landmarking law, or the application
of such a law, that limits or restricts a claimant’s use or development of land.”15 Zoning
laws include statutes, ordinances, or codes that determine what type of building or land
use can be located in what areas and under what conditions. In addition to requests for
variances, rezonings, special use permits, conditional use permits, occupancy permits,
site plans approvals, and other typical zoning actions, some courts have construed
“zoning law” to encompass things such as environmental regulations or sewage
requirements that are integrated into the zoning process. Landmarking laws are
restrictions that municipalities place on specific buildings or sites to preserve those that
are deemed significant for historical, architectural, or cultural reasons.
15 RLUIPA, 42 U.S.C. § 2000cc-5(5).
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Some courts have held that RLUIPA’s definition of land use regulation, however, does
not extend to every type of law involving land, such as fire codes, the Americans with
Disabilities Act’s building accessibility requirements, an ordinance requiring all land
development to tap into municipal sewer connections, or stormwater remediation fees.
7. Does RLUIPA apply to local governments using eminent domain to take property
owned by religious institutions?
“Eminent domain” refers to government taking of private property for public use with
just compensation. Some courts have held that, as a general matter, eminent domain is
not the application of a zoning or landmarking law, and thus RLUIPA will not apply.
However, where municipalities have tried to use eminent domain to short-circuit the
zoning process for places of worship that have applied for zoning approval, other courts
have found that such actions may be covered by RLUIPA.
8. Can places of worship still be landmarked?
Yes, places of worship can be landmarked. However, like any other land use regulation,
landmarking designations that impose a substantial burden on religious exercise must be
justified by compelling governmental interests and pursued in the least restrictive ways
possible. Landmarking regulations also must be applied in a nondiscriminatory manner.
9. What kinds of burdens on religious exercise are “substantial burdens” under
RLUIPA?
A court’s substantial burden inquiry is fact-intensive. Courts look at the degree to which a
zoning or landmarking restriction is likely to impair the ability of a person or group to engage
in the religious exercise in question. Whether a particular restriction or set of restrictions will
be a substantial burden on a complainant’s religious exercise will vary based on the context.
Courts have looked at factors such as the size and resources of the burdened party, the actual
religious needs of an individual or religious congregation, the level of current or imminent
space constraints, whether alternative properties are reasonably available, the history of a
complainant’s efforts to locate within a community, the absence of good faith by the zoning
authorities, and many other factors.
Examples of actions that some courts have found to constitute a substantial burden on
religious exercise under RLUIPA include:
 	effectively barring use of a particular property for religious activity;
 	imposing a significantly great restriction on religious use of a property; and
 	creating significant delay, uncertainty, or expense in constructing or expanding a
place of worship, religious school, or other religious facility.
Some courts have, for example, found substantial burdens on religious exercise in a denial of
a church construction permit due to onerous off-street parking requirements imposed by a
city, a denial of approval for construction of a parish center, a denial of expansion plans for a
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religious school, and a denial of an application to convert a building’s storage space to
religious use.
Conversely, other courts have found no substantial burden violation when a church was
denied the amount of off-street parking it would have preferred when there were reasonable
parking alternatives available, when a religious high school was denied the ability to operate
a commercial fitness center and dance studio out of a portion of its building, and when a
church was barred from demolishing an adjacent landmarked building it had purchased in
order to construct a family life center, as there was other space on the church’s campus that
would be suitable.
10. RLUIPA contains a complicated description about when the “substantial
burden” section will apply. Just when does the “substantial burden” test apply in a
particular case?
RLUIPA applies the substantial burden test to zoning or landmarking laws that have
procedures in place under which the government makes “individualized assessments of
the proposed uses for the property involved.”16 Individualized assessments may be
present, some courts have held, when the government looks at and considers the
particular details of a proposed land use in deciding whether to permit or deny the use.
RLUIPA thus generally may cover applications for variances, special use permits, special
exceptions, rezoning requests, conditional use permits, zoning appeals, and similar
applications for relief, since these all ordinarily involve reviewing the facts and making
discretionary determinations whether to grant or reject an application. Some courts have
held, however, that denial of a building or occupancy permit based solely on a
mechanical, objective basis with no discretion on the part of the decision maker would
not be an individualized assessment.
Even if a zoning or landmarking case does not involve an individualized assessment, the
substantial burden test still applies if there is federal funding involved or if the use at
issue affects interstate commerce, 	as might be the case with some construction or
expansion projects.
17
11. What are examples of compelling interests that will permit local governments to
impose substantial burdens on religious exercise?
A government cannot impose a substantial burden on religious exercise unless it can
prove both that it is pursuing a compelling governmental interest, and that it is using the
means that are the least restrictive of religious freedom. 18 In the RLUIPA context, some
courts have interpreted “compelling interest” to mean an interest of the “highest order.”
As one court described it, an interest of the highest order typically involves “some
substantial threat to public safety, peace, or order.”19 Some courts have ruled, for
16 RLUIPA, 42 U.S.C. § 2000cc(a)(2)(C).
17 RLUIPA, 42 U.S.C. § 2000cc(a)(2)(b).
18 RLUIPA, 42 U.S.C. § 2000cc-2(b).
19 Congregational Rabbinical Coll. of Tartikov, Inc. v. Village of Pomona, 138 F. Supp. 3d 352, 456
(S.D.N.Y. 2015) (citing Sherbert v. Verner, 374 U.S. 398, 403 (1963)).
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example, that a municipality’s asserted interests in revenue generation and economic
development or aesthetics were not compelling.
While increased traffic can implicate safety concerns, some courts have ruled that a
county or municipality cannot simply point to an interest in traffic safety in the abstract
as a compelling interest justifying a substantial burden on religious exercise. Rather,
according to these courts, the local government must show that it has a compelling
interest in achieving that interest through the particular restriction at issue, such as safety
interests in regulating traffic flow on the particular street at issue.
Even where an interest is compelling, RLUIPA requires that it must be pursued through
the least restrictive means. 	That is, if there is another way that the government could
achieve the same compelling interest that would impose a lesser burden on religious
exercise, it must choose that way rather than the more burdensome option.
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12. What does RLUIPA require of local governments with regard to treating
religious assemblies and institutions as favorably as nonreligious assemblies and
institutions?
RLUIPA contains a section known as the “equal terms” provision. It provides 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.”21
This provision was meant to address the problem of zoning codes, either facially or in
application, excluding places of worship where secular assemblies are permitted.
Senators commented on the problem of houses of worship being excluded from places
where theaters, meeting halls, private clubs, and other secular assemblies would be
permitted.22
Determining if a religious assembly is treated on “less than equal terms” than a secular
assembly or institution requires a comparison of how the two types of entities are treated
on the face of a zoning code or in its application. Courts have differed regarding how
such a comparison is made, and thus the precise legal test for determining when this
provision is violated will vary depending on the judicial circuit in which the case arises.
Examples of cases in which some courts have found equal terms violations include
situations where places of worship were forbidden but private clubs were permitted;
where religious assemblies were prohibited but auditoriums, assembly halls, community
centers, senior citizen centers, civic clubs, day care centers, and other assemblies were
allowed; and where places of worship were forbidden but community centers, fraternal
associations, and political clubs were permitted.
20 RLUIPA, 42 U.S.C. § 2000cc(a)(1)(b).
21 RLUIPA, 42 U.S.C. § 2000cc(b)(1).
22146 Cong. Rec. 16698 (daily ed. 2000) (Joint Statement of Senators Hatch and Kennedy).
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13. What constitutes discrimination based on religion or religious denomination
under RLUIPA?
RLUIPA bars imposition or implementation of a land use regulation that discriminates on
the basis of religion or religious denomination.23 Courts have held that this bar applies to
application of land use regulations that are discriminatory on their face, as well as land
use regulations that are facially neutral but applied in a discriminatory manner based on
religion or religious denomination. Thus, if a zoning permit is denied because municipal
officials do not like members of a particular religious group, or if for any other reason an
applicant is denied a zoning permit it would have granted had it been part of a different
religion or religious denomination, RLUIPA has been violated. Because this section
applies to discrimination based on either religion or religious denomination, it can apply
to situations where a city may not be discriminating against all members of a religion, but
merely a particular sub-group or sect.
14. What does it mean for a local government to totally exclude religious uses from
a jurisdiction?
RLUIPA prohibits local governments from “totally exclud[ing] religious assemblies from
a jurisdiction.”24 For example, if a city, town, or county had no location where religious
uses are permitted, that would be a facial violation of RLUIPA.
15. What does it mean for a local government to impose unreasonable limitations
on a religious assembly, institution, or structure?
RLUIPA prohibits land use regulations that “unreasonably limit[ ]” religious assemblies,
institutions, or structures within a jurisdiction.25 One court has concluded that a
municipality will violate this provision if its land use laws, or their application, deprive
religious institutions and assemblies of reasonable opportunities to use and construct
buildings within that jurisdiction. Another court has held that determination of
reasonableness depends on a review of all of the facts in a particular jurisdiction,
including the availability of land and the economics of religious organizations. Some
courts have found unreasonable limitations where regulations effectively left few sites for
construction of houses of worship, such as through excessive frontage and spacing
requirements, or where zoning restrictions imposed steep and questionable expenses on
applicants.
16. When must someone file suit under RLUIPA?
RLUIPA lawsuits brought by private plaintiffs must be filed in state or federal court
within four years of the alleged RLUIPA violation.
23 RLUIPA, 42 U.S.C. § 2000cc-2(b)(2).
24 RLUIPA, 42 U.S.C. § 2000cc-2(b)(3)(A).
25 RLUIPA, 42 U.S.C. § 2000cc-2(b)(3)(B).
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17. What is the Department of Justice’s role in enforcing RLUIPA?
The Department of Justice is authorized to file a lawsuit under RLUIPA for declaratory
or injunctive relief, but not for damages. In a RLUIPA lawsuit, the Department might
seek, for example, an order from a court requiring a municipality that has violated
RLUIPA to amend its zoning code or grant specific zoning permits to a place of worship,
religious school, or other religious use. The Department may not, however, seek
monetary awards on behalf of persons or institutions that have been injured. To recover
damages for RLUIPA violations, alleged victims must file private suits. The Department
reviews each case on its merits and the law in the jurisdiction in question. The
Department does not base the decision of whether to bring an enforcement action on
compliance or noncompliance with this guidance document.
Responsibility for coordinating RLUIPA land use investigations and suits has been
assigned to the Housing and Civil Enforcement Section of the Civil Rights Division.
That Section investigates and brings RLUIPA lawsuits, both on its own and in
conjunction with United States Attorney’s offices around the country. If you wish to
bring a potential case to the attention of the Department of Justice, you should do so as
soon as possible to allow adequate time for review.
The Department receives many complaints from individuals whose rights under RLUIPA
may have been violated. It cannot open full investigations and bring suit in all cases.
The Department generally endeavors to select cases that involve especially important or
recurring issues, that will set precedents for future cases, that involve particularly serious
violations, or that will otherwise advance the Department of Justice’s goals of protecting
religious liberty. In addition to opening investigations and filing suits, the Department
sometimes files statements of interest and friend-of-the-court briefs in privately filed suits
to highlight important issues of law. Individuals and institutions who believe their
RLUIPA rights have been violated are encouraged to seek advice from a private attorney
to protect their rights, in addition to contacting the Department of Justice.
18. How can someone contact the Department of Justice about a RLUIPA matter?
The Civil Rights Division’s Housing and Civil Enforcement Section may be reached by
phone at:
(202) 514-4713
(800) 514-1116
(202) 305-1882 (TTY)
(202) 514-1116 (fax).
Email: RLUIPA.complaints@usdoj.gov
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The mailing address is:
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, N.W.
Housing and Civil Enforcement Section, NWB
Washington, D.C. 20530
More information about RLUIPA is available at www.justice.gov/crt/rluipa
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