Judicial Review of Local Land Use Decisions: Lessons from RLUIPA

This Article questions whether traditional judicial deference to local land use regulators is justified in light of the highly discretionary, and often corrupt, modern system of land use regulation. In 2000, Congress determined, first, that unlike other forms of economic legislation, land use regulation lacks objective, generally applicable standards, leaving zoning officials with unlimited discretion in granting or denying zoning applications, and second, that this unlimited discretion lends itself to religious discrimination. Congress therefore enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), which requires courts to apply strict scrutiny review to land use decisions that impact religious land uses. Since its enactment, the constitutionality of RLUIPA has been debated extensively. Many scholars maintain that the statute is an overly broad exemption that creates a privileged class of land users and allows religious institutions to avoid a community's reasonable land use concerns. In contrast, this Article argues that in enacting RLUIPA, Congress identified a global flaw in land use regulation that impacts all land users, but limited its remedy to religious land users. While RLUIPA's strict scrutiny review is clearly inappropriate for land use cases that involve neither fundamental rights nor suspect classes, traditional judicial deference is equally inappropriate in light of the discretionary nature of modern zoning. Fortunately, the Supreme Court established the appropriate standard of review in its earliest zoning cases. This Article thus maintains that RLUIPA is significant because it highlights a fundamental flaw in local land use regulation, and because its bifurcated approach to judicial review of zoning decisions revives an early facial/as-applied dichotomy in land use jurisprudence and encourages more meaningful judicial review of all as-applied land use decisions. INTRODUCTION I. JUDICIAL DEFERENCE AND THE DISCRETIONARY NATURE OF LOCAL LAND USE REGULATION A. The Rise of Zoning and the Origins of Judicial Deference B. Judicial Deference in Light of Discretionary Modern Zoning Practice II. RLUIPA's LAND USE PROVISIONS AND THE "INDIVIDUALIZED ASSESSMENTS" DOCTRINE A. The History and Purpose of RLUIPA's Land Use Provisions B. The "Individualized Assessments" Doctrine C. RLUIPA's Bifurcated Framework for Judicial Review 1. Zoning Ordinances "As Applied" Through Individualized Assessments 2. The Facial/As-Applied Dichotomy III. LOOKING BEYOND RELIGIOUS LAND USE A. Religious Discrimination or Zoning as Usual? B. Judicial Review of As-Applied Land Use Decisions: Euclid and Nectow CONCLUSION INTRODUCTION In 2000, the city of New London, Connecticut, undertook a redevelopment project designed to rejuvenate the economically depressed Fort Trumbull portion of the city. As part of that plan, the city condemned several private homes and transferred them to a private developer. In what is now a wellknown story, the Supreme Court, in Kelo v. City of New London, (1) upheld the transfer as a valid public use under the Takings Clause. (2) The Kelo decision sparked a public outcry, with many worrying that it cast all private property rights into doubt. (3) In the year following Kelo, twenty-nine states acted to restrict the use of the eminent domain power. (4) In light of this tremendous resurgence of private property rights protection in the eminent domain arena, it is surprising that so little attention has been paid to a more common threat to private property rights: local zoning. (5) This Article seeks to bridge that gap by focusing more broadly on judicial review of local land use regulation. In the United States, zoning has traditionally been a function of local governments. (6) Despite the universality of local control, as the pace and complexity of development has increased in recent decades, both scholars and planning experts have begun to question the value of localism in the context of land use regulation. …