CORRECT CONSTRUCTION OF RLUIPA
This Part argues that the Ninth Circuit was correct in Guru
Nanak but incorrect in San Leandro when it held that the land-use
requests in each case were individualized assessments within the scope of RLUIPA. It offers an analysis of RLUIPA that draws a principled distinction between the two cases and shows that San Leandro’s denials of the ICFG’s rezoning requests were outside the scope of RLUIPA because the city conducted a generalized assessment rather than an individualized assessment.
In San Leandro, the ICFG requested both a zoning-map and a
zoning-text amendment. The zoning-map amendment would have changed the zoning of the ICFG’s parcel of land, and the zoning-text amendment would have permitted assembly uses on all parcels already located in the proposed zoning classification throughout the city.195
When it held that San Leandro’s “treatment of the Church’s applications constituted an ‘individualized assessment,’”196 the Ninth Circuit fundamentally misunderstood the nature of a zoning ordinance and the nature of a request to amend a zoning ordinance.197 Specifically, the Ninth Circuit failed to recognize what a municipality actually does when it reviews amendments to the zoning ordinance; the municipality conducts a generalized assessment of the implications of approving a zoning-map amendment, and it conducts a generalized assessment of the jurisdiction-wide effects of the zoning-text amendments. The assessments are generalized because the municipality considers jurisdiction-wide impacts beyond the specific impacts of the project that prompted the proposed amendments.
195. See supra Part III.B.
196. San Leandro, 673 F.3d at 1066 (quoting Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter,456 F.3d 978 (9th Cir. 2006)).
197. Interestingly, when the Ninth Circuit denied San Leandro’s petition for a rehearing en banc, it issued an amended opinion that made four changes. Id. at 1060–61. One of the changes modified a sentence in the original opinion that read as follows: “There is no dispute that the City’s treatment of the Church’s applications constitutes an ‘individualized assessment.’” Int’l Church of the Foursquare Gospel v. City of San Leandro, 634 F.3d 1037, 1043 (9th Cir. 2011), reh’g en banc denied,amended, and superseded by San Leandro, 673 F.3d. The amended opinion deleted the words “[t]here is no dispute that.” San Leandro, 673 F.3d at 1060. The sentence now reads as follows: “The City’s treatment of the Church’s applications constitutes an ‘individualized assessment.’” Id. at 1066.
A. Consideration of a Zoning-Map Amendment
When a municipality considers a request for a zoning-map amendment, it must evaluate the implications of the project under consideration. But for two reasons, the municipality’s assessment goes beyond an evaluation of the effects of that single project. First, as soon as the zoning map is amended, the owner of that parcel may establish any of the uses permitted in the new zoning classification.198 If one or more of the permitted uses in the proposed zoning classification have the potential to conflict with the uses of the surrounding properties, then a municipality would have a valid reason for denying the map amendment.199
Second, the new zoning classification will apply to that parcel indefinitely, not only during the life of the sought-after use.200
In San Leandro, the city would have
considered the potential impacts of the ICFG’s proposed church, but it also would have considered the potential impacts of every other possible use on the subject parcel that the new zoning classification would permit. Stated differently, after the zoning of the parcel was amended, the ICFG—and any future user—could have operated any of the other uses permitted in the new district. San Leandro’s assessment of the rezoning proposal was therefore generalized.
By contrast, when a municipality considers a request for a use permit, it makes an individualized assessment of that proposed use. For example, when Guru Nanak applied to Sutter County for its use permits, the county evaluated only the proposed temple in the context of the surrounding properties.201 In both use permit applications, planning staff recommended conditions of approval that were tailored to the specific use and location, such as a limit to the number of people on the property, additional landscaping, and a larger building setback.202 Even if Guru Nanakhad chosen not to use its property for the proposed temple, the underlying zoning of its parcel would have remained the same. Sutter County’s assessment of the religious land use was individualized because approval of the use
198. See supra Part II.B.
199. Generally, a municipality may not place conditions on one particular parcel within a zoning classification to preclude certain permitted uses it might find objectionable. For a discussion of the “like uses alike” principle, see supra note 99 and accompanying text.
200. See supra Part II.B. 201. See supra Part II.B.2.b. 202. See supra Part III.A.
permit would allow no other uses beyond those that were specifically requested.
B. Consideration of a Zoning-Text Amendment
Similarly, when a municipality considers a proposal to amend the text of its zoning code, it must necessarily consider implications beyond those associated with the project that prompted the proposed amendment.203
Because of the “like uses alike” principle, all parcels in a zoning district must be governed by the same rules.204 Therefore, when the ICFG requested to amend the zoning ordinance to allow assembly uses in the IL district with a use permit, San Leandro would have assessed the request for its suitability on the ICFG’s property, but it also needed to consider the implications of the proposed change on every parcel with IL zoning throughout the entire city. Even if the proposal had been suitable on the ICFG’s property, San Leandro could have determined that the proposal to allow assembly uses with a use permit would have been unworkable on at least one other parcel with the same zoning classification. Denying the zoning-text amendment for this reason would have been legitimate and completely unrelated to the ICFG’s use of its property.
By contrast, when a municipality considers a request for a use permit, the permit is confined to the property that was the subject of the application for the time allowed by the permit. The assessments that Sutter County conducted in Guru Nanak were individualized assessments because approval of the requested use permit would have been limited to Guru Nanak’s parcel and would have had no effect on any other properties in the county.
In San Leandro, the Ninth Circuit relied on Guru Nanak for the
premise that RLUIPA applies to land-use decisions that result from an individualized assessment of a proposed project.205
Assuming RLUIPA’s constitutionality,206 this reliance represents a correct statement of the law, but the Ninth Circuit failed to distinguish between the different types of land-use entitlements that were at issue in the two cases. The court specifically stated that “while the zoning
203. See supra Part II.B.3–4.
204. CAL.GOV’T CODE § 65830 (West 2009). 205. See supra notes 192–194 and accompanying text.
206. Not all would agree that RLUIPA is constitutional even as applied to individualized assessments of the type conducted by Sutter County in Guru Nanak. See, e.g., MARCI A. HAMILTON,GOD VS. THE GAVEL:RELIGION AND THE RULE OF LAW (2007).
scheme itself may be facially neutral and generally applicable, the individualized assessment that the City made to determine that the Church’s rezoning and CUP request should be denied is not.”207
The Ninth Circuit never acknowledged that the ICFG’s use-permit application could be processed only after the zoning map was amended to change the ICFG’s property from IP to IL, and only after the zoning-ordinance text was amended to allow assembly uses with a use permit in the IL district. Although San Leandro considered the impacts of the proposal on the ICFG’s parcel, it also had to consider the impacts that the proposal would have had on the rest of the city.208 To say that the city conducted an individualized assessment of the ICFG’s rezoning applications only comprehends part of what the city assessed. By applying RLUIPA to generalized assessments such as the ones the city conducted in San Leandro, the Ninth Circuit expanded the coverage of RLUIPA’s Section 5 jurisdictional hook, which, by its own terms, applies only to “individualized assessments.”209
The Ninth Circuit’s construction of RLUIPA renders the statute overbroad by precluding legitimate conduct in the process of attempting to prevent unconstitutional discrimination.