Religious Resurrection

As most of the readers of our Legal Update know, WJ&L, LLP has had the good fortune to assist many civic and other not-for-profit entities with their business and legal affairs, including real estate and zoning matters. Within this group of clients, there are many religious institutions.
On September 22nd of this year a new federal law was signed which provides religious institutions, and certain institutionalized persons, with protections against state and local laws which unjustly interfere with the exercise of religious freedoms and practices. The Religious Land Use and Institutionalized Persons Act focuses on land use and zoning matters. The Act requires local governments and agencies such as zoning and planning boards to show a compelling interest for zoning regulations that restrict temples, churches, mosques, and other similar religious facilities. Further, the governments and their agencies must demonstrate that they have used the least restrictive means to carry out that compelling interest. This is a very heavy legal burden for governments and local Boards to sustain.

The new law also protects the rights of prisoners and patients in mental hospitals and nursing homes. These institutionalized persons are to be permitted to engage in religious practices without restrictions. Presently, certain dietary and occasional prayer or other form of religious observance are restricted to persons within such institutions.

This new law passed through Congress unanimously, with bi-partisan sponsorship. Senators Orrin Hatch, R-Utah, Edward Kennedy, D-Mass., and Joseph Lieberman, D-Conn., co-sponsored the new law in the Upper House. The American Civil Liberties Union also supports the new law.

Why was this new law needed? The Federal and State Constitutions provide all people with the right to freely practice their religions. In New Jersey, that constitutionally protected right has run up against another heavily protected legislative right, the right of local municipalities to dictate and control how land may or may no t be used within the municipal boundaries. Municipalities use the power to zone and regulate land uses as provided by the New Jersey Municipal Land Use Law. These competing interests have squared off on many occasions here in New Jersey, and throughout the Country. Each time a conflict arises, an individual religious facility or an individual person seeking to exercise religious freedoms is pitted against a governmental entity or agency, along with a neighborhood of objectors. For this reason, the federal government has identified the need to provide greater protections.

Previously, a federal law known as the Religious Freedom Restoration Act of 1993 was enacted to protect religious freedoms. This Act provided, among other protections, that local zoning ordinances and land use regulations which violated religious freedoms were void and unenforceable. In 1997, the United States Supreme Court struck down the Religious Freedom Restoration Act as overreaching and unconstitutional. The new Religious Land Use and Institutionalized Persons act has been crafted to restore the religious protections that were lost when the earlier Act was struck down.

If you find yourself wondering why such a federal law is needed, it is helpful to think for a moment about what constitutes a religious use. We can all picture a traditional church, temple or mosque in our minds. Perhaps most people can agree that such a traditional facility should be permitted in most areas of a municipality. But what about a church-sponsored soup kitchen for the homeless and needy in a commercial area or residential zone? What about a small Orthodox Jewish temple seeking to have prayer services in a house in your otherwise residential neighborhood? Should these and other similar uses be permitted everywhere? Anywhere? Nowhere?

Undoubtedly there are some who abuse the religious use designation. And unfortunately, there are municipalities that use the land use laws as a method of keeping otherwise protected religious activities out of areas “deemed undesirable”. Sometimes the restricted areas are completely residential areas where municipalities determine religious uses do not belong. Other times the restricted areas are commercial areas where municipalities that determine the tax base cannot afford to accommodate too many religious and tax exempt uses. And the regulations are not limited to permitted versus on-permitted uses. Minimum or maximum property or building sizes, or parking requirements, are frequently found to interfere with or restrict the proposed religious activity.

These issues have been debated and legislated for many years past, and will be for many years to come. There are cases pending in numerous courts in New Jersey, as well as throughout the Country, where the protection of religious freedom is sought against allegedly unreasonable interference by municipal zoning laws. WJ&L, LLP is currently representing the interests of a New Jersey religious institution in a Court action where these issues have been raised.

In 1966, United States Supreme Court Justice Stewart wrote, “I am convinced that no liberty is more essential to the continued vitality of the free society which our Constitution guarantees than is the religious liberty protected by the free exercise clause explicit in the First Amendment and imbedded in the Fourteenth.” (Sherbert v. Verner, 374 U.S. 398, 413). In 1985, New Jersey Supreme Court Justice Clifford said “It is worth remembering that the forefathers of many of us came to these shores to escape, among other things, government regulation of their forms of worship. Local governments have more than enough to keep them busy in the legitimate exercise of the zoning power.” (State v. Cameron 100 N.J. 586, 609-610).

Local governments need to be tolerant of religious practices and sensitive to the need to protect religious freedoms. Through the proper use of the Municipal Land Use Law, governing bodies, planning boards and zoning boards can create and enforce the proper zoning to protect compelling interests for regulation, while simultaneously allowing the mandated religious freedoms. Until that process is carefully and properly undertaken, our courts will remain cluttered with seemingly unnecessary lawsuits.

Stuart Liebman is the Managing Partner
at WJ&L, LLP and practices primarily in the
Land Use and Real Estate areas.

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