An interesting decision from the Kansas federal district court, Mount St. Scholastica, Inc. v. City of Atchison, No. 06-2208-CM (Mar. 12, 2007), contains a land use trifecta: historic preservation, religious objections to a denial of a permit, and regulatory takings. (No link yet to opinion, which currently is only available via Westlaw; email me
RLUIPA | religious land use
▪ 2006 Land Use in Review
As a way of saying “aloha” to 2006, I’ve summarized the land use lawhighlights (orlowlights, depending on your point of view) from the Hawaii SupremeCourt, the Ninth Circuit, and the U.S. Supreme Court, roughly inchronological order. Topics include shorelines, eminent domain,environmental impact statements, RLUIPA, vested rights, and land uselitigation procedures.
- Depends What the Meaning of “Shall” Is: Leslie v. Bd. of Appeals, County of Hawaii (HAWSCT) (nondiscretionary actions, shoreline area boundaries)
- Environmental Assessments, Early and Probably Often: Sierra Club v. Office of Planning, State of Hawaii (HAWSCT) (environmental assessments, boundary amendments)
- Eminent Domain and Land Reform Revisited: City & County of Honolulu v. Sherman (HAWSCT) (eminent domain, RLUIPA)
- What to do if the Government Changes its Mind: Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii, 27 U. Haw. L. Rev. 17 (Feb. 2006) (vested rights)
- Hawaii Water Law is Not a Federal Case: Maui Tomorrow v. State of Hawaii (HAWSCT) (attorneys fees, water rights)
- No Leg to Stand On: Keahole Defense Coalition, Inc. v. Bd. of Land and Nat. Res. (HAWSCT) (standing, what is a “property” interest)
- The Supreme Court Muddies the Clean Water Act: Rapanos v. United States (SCOTUS) (Clean Water Act jurisdiction)
- Return to Sender – Elvis and Notice: Jones v. Flowers (SCOTUS) (due process notice to property owners)
- What is a “Contested Case?” – Aha Hui Malama O Kaniakapupu v. Land Use Comm’n (HAWSCT) (administrative appeals, contested cases)
- Who Protects the Public Trust? – Kelly v. 1250 Oceanside Partners (HAWSCT) (water pollution, public trust)
- Contesting Contested Cases: Hui Kako Aina Hoopulapula v. Bd. of Land and Nat. Res. (HAWSCT) (administrative appeals, contested cases)
- RLUIPA and Local Land Use: Guru Nanak Sikh Society of Yuba City v. County of Sutter (9th Cir.) (RLUIPA and local land use)
- Hawaii Eminent Domain Compendium (eminent domain)
- Shoreline Tales: Diamond v. Bd. of Land and Nat. Res. (HAWSCT) (CZMA shoreline certifications)
- Voters Nationwide (But Not Hawaii) Enact Eminent Domain Reform (property rights, eminent domain)
- New Appellate Track: In re Water Use Permit Applications [Waiahole] (HAWSCT) (appellate jurisdiction, water rights)
- Honolulu “Fixed Guideway” Mass Transit Approved (eminent domain)
If you think I missed any key cases or events, please email me.
▪ 2006 Land Use in Review: RLUIPA and Local Land Use
By Robert H. Thomas on
Posted in Land use law, RLUIPA | religious land use
Revisiting the RLUIPA issue, the Ninth Circuit held in Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir., Aug. 1, 2006) that a local land use decision regarding a church’s proposed use of its property violated the federal Religious Land Use and Institutionalized Persons Act of 2000…
▪ 2006 Land Use in Review: Land Reform Revisited
By Robert H. Thomas on
City & County of Honolulu v. Sherman, 110 Haw. 39, 129 P.3d 542 (Feb. 28, 2006), is the latest chapter in the use of eminent domain to effect “land reform” in Hawaii.
I. Background
The story begins long ago when the Hawaii legislatureenacted the statutethat was challenged and sustained in HawaiiHous. Auth. v. Midkiff…
▪ Religion vs Land Use Regulation
By Robert H. Thomas on
Posted in RLUIPA | religious land use
The NY Times posts this article, attempting to put the RLUIPA debate into larger context, focusing on a church in Boulder, Colorado that is running into opposition to its expansion plans from the local land use regulators.
RLUIPA requires local land use decisions that impact religious uses to meet the “strict scrutiny” test — precise tailoring to further the stated government interest, while minimizing the impact on religious freedom. The Ninth Circuit recently held RLUIPA constitutional in a decision regarding a Sikh temple in rural California, invalidating the local government’s refusal to allow construction.
▪ Religious Land Use Trumps Local Permit Denials
By Robert H. Thomas on
Posted in Land use law, RLUIPA | religious land use
What happens when a religious institution claims that local land use regulations impermissibly burden its First Amendment rights to freedom of religion? A recent case decided by the Ninth Circuit, Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 2006) (Aug. 1, 2006), illustrates the conflict.
After its proposal to develop a temple on one parcel was denied, a Sikh group sought a conditional use permit (CUP) from Sutter County, California, to construct a temple on another parcel designated for agricultural use. The County planning department recommended approval, with a series of conditions designed to mitigate the proposed temple’s impact, such as limiting the number of people attending the temple to 75, and several design modifications to the building. The Sikhs accepted the conditions.
After a public hearing at which members of the public opposed the CUP, mainly on the basis of noise, traffic, interference with neighboring agriculture operations, and predicted lowering of property values in the area, the county planning commission narrowly approved the application, subject to the conditions. Several neighbors appealed to the county Board of Supervisors which denied the CUP.
The Ninth Circuit first held that the denial of the CUP was a “substantial burden” on the temple’s free exercise of religion. The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) thus applied, and required the government to show that the burden on religion was outweighed by a “compelling governmental interest.” In other words, before the government may deny a religious institution a specific land use permission, it must have a very good reason, and be able to prove it. In this instance, the court found that the County’s denial of the temple’s first request, combined with the County’s denial of the CUP even after conditions to mitigate impacts had been accepted by the Sikhs, was a substantial burden on their religious freedom:
Because the County’s actions have to a significantly great extent lessened the prospect of Guru Nanak being able to construct a temple in the future, the County has imposed a substantial burden on Guru Nanak’s religious exercise.
The County did not offer any countervailing “compelling interests,” and did not even attempt to meet the burden of persuasion imposed on it by RLUIPA. The Ninth Circuit also determined that RLUIPA was a valid exercise of Congress’ power to enforce the Fourteenth Amendment, and its power to enforce the Free Exercise Clause of the First Amendment.
This case shows that RLUIPA continues to be a powerful tool to prevent land use authorities from undue interference with a religious use of property.
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