2nd Circuit rules in favor of church in land use dispute

Howard Friedman, Religion Clause

In Fortress Bible Church v. Feiner, (2d Cir., Sept 23, 2011), the U.S. 2nd Circuit Court of Appeals affirmed a New York federal district court’s decision that the Town of Greenburgh, New York violated RLUIPA’s “substantial burden” provisions, as well as the free exercise and equal protection provisions of the U.S. and New York constitutions, in denying an application by Fortress Bible Church to build a new facility to house the church and its school. (See prior posting.) The Court of Appeals first resolved the question of whether the Religious Land Use and Institutionalized Persons Act applies to the town’s decision, which was made in the context of the New York State Environmental Quality Review Act. The court said:

In no sense do we believe that ordinary environmental review considerations are subject to RLUIPA. However, when a statutorily mandated environmental quality review process serves as a vehicle to resolve zoning and land use issues, the decision issued constitutes the imposition of a land use regulation as that term is defined in RLUIPA.

The court went on to hold:

A denial of a religious institution’s building application is likely not a substantial burden if it leaves open the possibility of modification and resubmission…. However, if the town’s stated willingness to consider another proposal is disingenuous, a conditional denial may rise to the level of a substantial burden…


We need not resolve here whether zoning variance decisions challenged under the Free Exercise Clause are subject to strict scrutiny or rational basis review because we conclude that on the record before us there was no rational basis for the Town’s actions…