Zoning Practice — October 2010

Ask the Author

Lora LuceroHere are reader questions answered by Lora Lucero, author of the October 2010 Zoning Practice article "What Constitutes a 'Substantial Burden' Under RLUIPA?"

Question from Marisa Barmby, AICP:

I understand that RLUIPA's charge is to not substantially burden a religious land use applicant's right to free exercise. I further understand that local governments cannot permit assembly type uses in zoning categories where they do not allow religious uses. For example, if an assembly use is permitted in a commercial zoning district, than churches and other religious uses must be permitted as well. Does this work the other way as well? Can religious uses be permitted in a zoning district where assembly uses are not allowed? For example, residential zoning districts where churches are allowed but assembly uses are not permitted in residential zoning districts.

Answer from author Lora Lucero:

The Equal Terms provision in RLUIPA requires the community to treat a religious land use proposal in the same manner as another proposal with similar characteristics. The key is to look objectively at the characteristics of the proposed land use — noise, traffic, lighting, water/sewage, number of occupants, etc. — and not at who is making the application. The characteristics of the church, temple, soup kitchen, and community center can be objectively reviewed. If the impacts can be mitigated with a conditional use permit for one use, then the same should be available for the religious land use applicant.

It might also be wise to review the definitions in your zoning regulations. Not all "churches" are the same. A megachurch with multiple uses located on a large campus is very different from the white steepled church on the corner in a residential neighborhood. A Planners Dictionary (PAS Report 521/522) shows how specific communities have chosen to define churches of different intensities. It includes examples of definitions for community church, large church, megachurch, neighborhood church, and small church.