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July 2017
“Substantial Burden”: Limits on the Religious Land Use and Institutionalized Persons Act

By Katelyn Young, Bodman PLC

Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA) to protect the fundamental right to religious freedom with respect to real property and land use. 42 U.S.C. § 2000cc. RLUIPA does not, however, provide religious institutions a blanket exemption from land-use regulations, nor does it create a cause of action regarding land use simply because a religious institution is involved.

Not just any impact on a religious exercise will constitute a violation of RLUIPA. The land use or regulatory burden must be substantial. Although RLUIPA does not define a “substantial burden,” the Sixth Circuit just issued the only published RLUIPA opinion in the circuit. The Court established just how difficult it is to meet the substantial burden test; simply putting forth evidence of a mere inconvenience will not suffice.

In Livingston Christian Schs. (LCS) v. Genoa Charter Twp. (CA6, No. 17a0117.06, April 26, 2017), the church applied for a special use permit to build a school. The Court relied on several factors to determine the township’s denial did not violate RLUIPA: (1) the availability of a reasonable, alternate location; (2) whether the regulation caused undue delay or expense; and (3) whether the burden from the regulation was self-imposed. The Court concluded that the burden on LCS was self-imposed when they leased that property after the special use permit was denied.

Compare this to the recent Department of Justice settlement with the City of Des Plaines, IL (finding a RLUIPA violation for misapplied zoning laws for a Muslim religious organization). LCS’s argument seems based on business, not religion. LCS alleged that the denial would have negative impacts on their revenue and enrollment rates, but failed to identify any religious or traditionally secular activity that they could not perform on their original property.

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RPLS Academy

This fall, the Real Property Law Section is launching a new continuing education program, the Real Property Law Academy. The Academy is modeled in large part after the successful Business Bootcamp held by the Business Law Section. The Academy is being taught by some of the most respected and experienced Michigan real estate attorneys. The goal is to provide a basic understanding of the most fundamental aspects of a real estate practice. The Academy is targeted for both real estate attorneys and other attorneys who will periodically encounter real estate issues.

The program is being presented in two parts (Academy I and Academy II). Each part will present eight topics over a consecutive two day period. Academy I will focus on purchase agreements, due diligence, commercial financing, closings, commercial leasing, condominiums, summary proceedings and quiet title actions, and introductory zoning issues.

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Academy I will be held in Grand Rapids on October 11-12, 2017, and in Troy on May 9-10, 2018.

Academy II will be held in Grand Rapids in fall, 2018 and in the metro Detroit area in spring, 2019.

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