I just finished reading a very interesting article by Marci Hamilton, a law professor at Benjamin N. Cardozo School of Law, Yeshiva University. Professor Hamilton represented the City of Boerne in Boerne v. Flores, where, as she reports in her article, the U.S. Supreme Court held that the Religious Freedom Restoration Act (RFRA) "violated the principles of federalism and the separation of powers."
Now Congress has enacted the Religious Land Use and Institutionalized Person Act of 2000 (RLUIPA) and Professor Hamilton is representing a number of cities across the country who are challenging it. Her article (which may be accessed here, via FindLaw) is titled: "How Congress Undermined the American Dream: The Effect of the Religious Land Use and Institutionalized Persons Act on Residential Neighborhoods." Some quotes from the article:
Across the country, cases where religious landowners are seeking to get around residential zoning requirements abound. [After listing some examples, the article continues] Every one of these projects changes the residential quality of the neighborhood in which it is planned. That is because every one is inconsistent with the character of the neighborhood, and involves a dramatic increase in the intensity of the use of the property, far above normal residential usage. Traffic (both pedestrian and automobile), lighting, setbacks, height, bulk, noise, and parking are all elements that contribute to the degradation of residential character; each project would alter at least one, and often several, of these elements.An article written earlier this year by Professor Hamilton is also available via Findlaw (access it here). Titled "Struggling with Churches as Neighbors: Land Use Conflicts Between Religious Institutions And Those Who Reside Nearby," Professor Hamilton discusses the "changing nature of the way religious buildings and land are used in our country."The religious organizations' neighbors are fighting mad, and they should be. They were never asked whether they should have fewer property rights than their religious neighbors. Their interests apparently were never considered by Congress. And the people they normally hold accountable for zoning issues--mayors, city councils, and zoning boards--were kept out of the loop as well. * * *
[T]he unfairness of allowing religious groups to ignore zoning laws is plain. The federal government has floated the argument that RLUIPA is constitutional because it enforces constitutional guarantees, but the First Amendment has never guaranteed that religious landowners are to be treated better than their neighboring landowners. To the contrary, land use laws--even when they are applied to religious entities--have been subjected to rationality review under the Constitution, not the strict scrutiny mandated by RLUIPA.
There was a time when such buildings were solely "houses of worship," as many local codes still identify them. In other words, congregants met one day each week for religious services, making them ideal residential neighbors. But times have changed.Posted by Marcia Oddi at April 26, 2003 01:56 PMAs the Fifth Avenue Presbyterian Church dispute shows so well, these buildings are now being used far more intensively and frequently than they were when they were solely houses of worship. Now they are also being employed as homeless shelters, soup kitchens, senior or child day care centers, or schools.
These new uses generate a slew of negative secondary effects--traffic, noise, sanitation issues - that neighbors find burdensome, and rationally so. It is one thing to buy one's family home next door to a house of worship, and quite a different matter to buy one next door to a homeless shelter. When the one transforms into the other, it is reasonable for neighbors to be concerned.