Date: January 15, 2019
To:

Village Board of Chestnut Ridge

From:
Citizens United to Protect our Neighborhoods of Chestnut
Ridge (“CUPON”)
Re:

CUPON Statement on the Religious Land Use and
Institutionalized Persons Act (RLUIPA)

Executive Summary
Chestnut Ridge has proposed making extraordinary changes to its
zoning laws with regard to houses of worship (the “Proposed Zoning
Changes”). These changes were described originally in early 2018.
Those proposed changes were then modestly modified and a new set
of Proposed Zoning Changes was released on August 29, 2018.
Additional modest revisions were added at the end of December.
Throughout the entire process, the Mayor and Village Board have
cited RLUIPA as a primary reason for making these changes.
Repeatedly, the Mayor has claimed that RLUIPA in fact mandates the
proposed changes. CUPON, on advice of its attorneys, states that is
simply false.
To be clear, nothing in RLUIPA requires—or even suggests—that a
village, town, or city must change its zoning laws. RLUIPA simply
requires that the permitting and variance process be carried out in a
nondiscriminatory manner that does not place substantial burdens on
religious practice. The Proposed Zoning Changes are exceedingly
broad and open nearly the entire Village up to religious use in a way
that will forever change the Village. RLUIPA requires nothing of the
sort.
Moreover, the Proposed Zoning Changes would not even shield the
Village from potential RLUIPA claims. When someone is denied a
variance or conditional use permit relating to the construction or
work on a Residential Gathering Place, a Neighborhood Place of

 Worship, or a Community Place of Worship (for, example making the
structure larger), the Village will potentially face a RLUIPA claim.
Again, the key to avoiding liability is to treat everyone fairly in the
permitting and variance process. Lastly, if the goal of the Village is to
avoid litigation, the Village Board should be very concerned about a
potential lawsuit under the Establishment Clause should it adopt the
sweeping Proposed Zoning Changes, particularly given the fact that
the stated reason for adopting the Proposed Zoning Changes
specifically related to one religious community’s needs and were
drafted with the consultation of that religious community.
While CUPON believes that the Village should review and modernize
its zoning laws, permitting process and enforcement procedures, it
strongly urges the Village Board not to enact the Proposed Zoning
Changes. Instead, the Village should go through the process of
adopting a formal comprehensive plan, consistent with Federal and
New York State law (including RLUIPA) but also consistent with the
Establishment Clause of the United States Constitution, which
prevents local, state or national government from favoring one
religion over others or over secular activity.
The comprehensive plan must address the needs of all members of the
community, including all religious communities, but it must do so in
light of the law and the Constitution.

Background on RLUIPA
RLUIPA was enacted in 2000 shortly after the Supreme Court of the
United States decided the Religious Freedom Restoration Act
(“RFRA”) was unconstitutional. The relevant provisions of RLUIPA,
which the Mayor and the Village Attorney often refer to when arguing
for the Proposed Zoning Changes, have not been tested at the
Supreme Court, and there is vigorous national debate about whether
those portions of RLUIPA are in fact constitutional. CUPON, at this
time, is not opining on the constitutionality of the land use provisions
of RLUIPA. This document instead describes what RLUIPA requires
and why it does not require the Proposed Zoning Changes.
RLUIPA forbids local governments from imposing or implementing
land use regulations in a manner that “imposes a substantial burden
on the religious exercise of . . . a religious assembly or institution.”
This is often called the “substantial burden” provision.
RLUIPA forbids local governments from imposing or implementing
land use regulations in “a manner that treats a religious assembly or

 institution on less than equal terms with a nonreligious assembly or
institution.” This is often called the “equal terms” provision.
RLUIPA bars restrictions that totally exclude religious assemblies
from a jurisdiction or discriminate “against any assembly or
institution on the basis of religion or religious denomination.”
RLUIPA bars discrimination among religions. The Village of Chestnut
Ridge has never been accused of such a violation during its entire
history of applying the existing zoning laws.
RLUIPA also contains a safe harbor provision that allows a local
government that is subject to a legal challenge under the statute to
address any zoning provision or practice that allegedly violates the
statute. The provision broadly states:
A government may avoid the preemptive
force of any provision of this chapter by
changing the policy or practice that
results in a substantial burden on
religious exercise, by retaining the
policy or practice and exempting the
substantially burdened exercise, by
providing exemptions from the policy or
practice
for
applications
that
substantially burden religious exercise,
or by any other means that eliminates
the substantial burden.
42 U.S.C. § 2000-c3(e).
This provision gives local governments
sweeping authority to take corrective action to avoid any potential
liability, and the courts have held that this provision applies to all
types of RLUIPA claims, not just substantial burden claims. See, e.g.,
Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752,
762 (7th Cir. 2003) (finding that the City’s amendments placing
churches on an equal footing with nonreligious assembly uses
corrected any violation of the nondiscrimination provision and that
religious institutions must go through the same land use processes as
other land users).
RLUIPA is only triggered if there has been an individualized
assessment. See, e.g., Westchester Day Sch., 504 F.3d at 354. The
plain language of the statute makes clear that it does not apply
directly to land use regulations that are written in general and
neutral terms. But when the zoning code is applied to grant or deny

 a certain use to a particular parcel of land, that application is an
‘implementation’ under 42 U.S.C. § 2000cc(a)(2)(C). Congregation
Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 280 F. Supp. 3d
426, 469 (S.D.N.Y. 2017) (quoting Guru Nanak Sikh Soc'y of Yuba City
v. County of Sutter, 456 F.3d 978, 986 (9th Cir. 2006)).
Two broad types of challenges to zoning ordinances may be made
under RLUIPA: “facial” and “as-applied.” Facial challenges contest
the legal validity of laws based on their plain text. A facial challenge
may arise where a zoning ordinance is not neutral and not generally
applicable but specifically targets and applies to religious uses. 1 That
is clearly not the case with regard to Chestnut Ridge’s current zoning
laws.
“As-applied” challenges involve local governments’ application of
zoning ordinances to a particular use and user. RLUIPA claims
challenging specific decisions on applications for zoning relief fall
under the as-applied variety, as do cease and desist orders. For these
claims, the party seeking relief from the zoning ordinance must
usually first obtain a final determination about the use of the property,
including an exhaustion of the variance process. Under extreme
circumstances, a court may adjudicate RLUIPA claims, even if the
religious entity or individual did not seek a variance, if both: (1) the
religious entity suffered a clear and immediate injury from some
action by the government; and (2) those injuries were absolutely clear
and would not be further defined by additional administrative
proceedings. Dougherty v. N. Hempstead Bd. of Zoning Appeals, 282
F.3d 83, 90 (2d Cir. 2002). The Second Circuit concluded that a
property owner’s failure to appeal a cease and desist order to a local
zoning board doomed his case because his injuries were not well
defined. Murphy v.New Milford Zoning Comm’n, 402 F.3d 342, 352
(2d Cir. 2005) (“Bypassing the Zoning Board of Appeals and its
hearing processes, which were statutorily designed for exploration
and development of these sorts of issues, leaves the Murphys’ alleged
injuries ill-defined.”).
Indeed, “RLUIPA is not reached unless a party demonstrates a
substantial burden on religious exercise, or religious discrimination or
exclusion.” Castle Hills First Baptist Church v. City of Castle Hills,
2004 U.S. Dist. LEXIS 4669, at *74 (W.D. Tx. 2004) (the Court went on
These sorts of claims are generally ripe for adjudication at any time.
Congregation Rabbinical College of Tartikov, Inc. v. Vill. of Pomona, 915 F. Supp. 2d
574, 595 (S.D.N.Y. 2016) (“facial challenges to regulation[s] are generally ripe the
moment the challenged regulation or ordinance is passed.”) (emphasis added)
(internal citations removed).
1

 to state that the law does not require local governments to
legislate on behalf of the federal government).
Substantial Burden Claims
Courts consider various factors to determine if a “substantial burden”
exists, such as whether: governmental action is arbitrary and
capricious; there are ready and feasible alternatives available for
religious use; there was a reasonable expectation to receive
government approval for religious use; and any conditions have been
imposed that limit the religious use, among others. Chabad Lubavitch
of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d
183, 195-196 (2d Cir. 2014). A Federal District Court in Maryland
recently ruled that a reverend did not plead a substantial burden
claim where she did not have a reasonable expectation when she
purchased the property that it could be used for a church. Jesus
Christ is Answer Ministries, Inc. v. Balt. Cty., 303 F. Supp. 3d 378, 396
(D.C. Md. 2018) (where the property was a single-family dwelling
located in a residential neighborhood, and, although a church was a
use permitted as of right under the zoning ordinances, the church
would still have to comply with the dwelling-type and other
supplementary use restrictions). The Court emphasized that RLUIPA
does not grant automatic exceptions to religious organizations
from generally applicable land use regulations, and that the
courts should consider whether a plaintiff reasonably believed it
would be permitted to undertake proposed modifications when the
property was purchased in weighing any delay, uncertainty, or
expense. Id. at 396-97 (quoting Chabad Lubavitch of Litchfield Cty.,
Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 196 (2d Cir.
2014)).
Also significant is whether the zoning ordinance is neutral and
generally applicable or whether the ordinance “coerces the religious
institution to change its behavior.” Westchester Day Sch. v. Village of
Mamaroneck, 504 F.3d 338, 352-53 (2d Cir. 2007) (finding a
substantial burden where the village denied an Orthodox Jewish
group’s special permit to expand its day school because of a lack of
feasible alternatives where the school’s experts testified that the
planned location of the expansion was the only site that would
accommodate the new building). Where the issue is merely one of
financial cost and inconvenience, or the “frustration of not
getting what one wants,” courts have determined that does not
qualify as a substantial burden. Castle Hills First Baptist Church
v. City of Castle Hills, 2004 U.S. Dist. LEXIS 4669, at *11 (W.D. Tex.
2004); see also Midrash Sephardi, Inc. v. Town of Surfside, 336 F.3d

 1214, 1227 (11th Cir. 2004) (finding that having to walk a few blocks
farther to a synagogue, even if some congregants were ill, or very
young or old, did not constitute a substantial burden within the
meaning of RLUIPA); Chabad Lubavitch of Litchfield Cty. v. Borough of
Litchfield, 2017 U.S. Dist. LEXIS 181656, at *72-77 (D.C. Conn. 2017).
The Connecticut District Court weighed whether the denial of a
permit for a Rabbi’s personal residence to be located in the Chabad
House violated RLUIPA and acknowledged that the location of the
Rabbi’s residence a couple of blocks away would be most burdensome
on the Sabbath, when the use of cars and telephones is not permitted.
Chabad Lubavitch, 2017 U.S. Dist. LEXIS 181656,. at *73-74.
Nevertheless, the Court concluded that physical presence inside the
Chabad House did not share a close nexus with the Chabad’s religious
exercise, hence there was no substantial burden with respect to that
portion of plaintiffs’ proposed use. Id. The Court recognized that it
was “theoretically possible that there are no properties available
within walking distance of 85 West Street, or that the prices are
prohibitive,” but even assuming that would be a substantial burden,
the Court held that the plaintiffs failed to demonstrate that those
circumstances existed.
Even if a plaintiff was able to establish a substantial burden, a local
government may nevertheless defeat a substantial claim if it can
demonstrate that the burden advances a compelling interest in the
least restrictive means possible.
To succeed at that stage, the
government must at least present evidence that it considered
alternatives that would protect the compelling interest (whether
public health, safety, or general welfare) while lessening the burden
on religion.
Westchester Day Sch., 504 F.3d at 353. Indeed,
preserving the rural and rustic, single-family residential character of a
residential zone has been deemed a compelling interest. Eagle Cove
Camp & Conference Ctr., Inc. v. Town of Woodboro, 734 F.3d 673 (7th
Cir. 2013).
Equal Terms Claims
Equal terms claims typically arise where a zoning district appears to
treat religious uses worse than analogous secular uses, either based
on the text of the zoning ordinances, or as applied to a particular
circumstance. For example, if a religious use is subject to a stricter
process in seeking a permit than a secular use, there may be an equal
terms violation. Corp. of Catholic Archbishop of Seattle v. City of
Seattle, 28 F. Supp. 3d 1163 (W.D. Wash. 2014). In order to determine
whether a religious group is treated on “less than equal terms” courts
generally compare the two types of entities and how each is treated

 on the face of the zoning ordinance or in its application. Third
Church of Christ, Scientist, of New York City v. City of New York, 626
F.3d 667, 669 (2d Cir. 2010). If zoning ordinances prohibit religious
uses but allow secular uses for clubs, auditoriums, recreational
facilities, theaters, community centers, etc., some courts have found a
RLUIPA violation. Midrash Sephardi, 366 F.3d at 1231-32; contra
Tree of Life, 2017 WL 4563897, at *13 (S.D. Ohio 2017) (upholding a
city’s zoning ordinance prohibiting a religious school in a business
zone where other secular assembly uses were allowed because the
business zone’s stated purpose was to generate tax income). The
District Court for the Southern District of New York summarized the
three types of equal terms violations: (1) a statute that facially
differentiates between religious and secular assemblies or
institutions; (2) a facially neutral statute that is nevertheless
gerrymandered to place a burden solely on religious, as opposed to
secular, assemblies or institutions; and (3) a truly neutral statute that
is selectively enforced against religious, as opposed to secular,
assemblies or institutions.
Congregation Rabbinical College of
Tartikov, Inc. v. Vill. of Pomona, 138 F. Supp. 3d 352, 441 (S.D.N.Y.
2015).
Where religious and secular uses are treated differently, the local
government must justify the unequal treatment based on legitimate
zoning concerns. To avoid the appearance of targeting religious uses
for unequal treatment, local governments may point to justifications
within its zoning ordinances, such as creating parking space,
controlling traffic, generating municipal revenue, or limiting a
commercial zone to commercial use. See, e.g., River of Life Kingdom
Ministries v. Village of Hazel Crest, 611 F.3d 367, 373 (7th Cir. 2010).
Nondiscrimination Claims
To establish a nondiscrimination claim under RLUIPA, a potential
plaintiff must show evidence of discriminatory intent.
Chabad
Lubavitch of Litchfield County, Inc. v. Litchfield Historic Dist. Comm’n,
768 F.3d 183, 198 (2d Cir. 2014). Courts will look at different factors
to assess discriminatory intent, such as: events leading up to the land
use decision; the context when the decision was rendered; whether
the permitting process strayed from set norms; statements made by
the decision making body and the members of the public; reports
issued to the decision making body; whether a discriminatory impact
was foreseeable; and if less discriminatory alternatives were
available. Id. at 199-200 (noting that while a religious comparison is
not necessary to make out a nondiscrimination claim, a local
government’s treatment of certain religions better than others could
be evidence of discrimination).

 Exclusions and Limits
RLUIPA imposes two requirements under this provision: (1) where
space permits, religious uses should be allowed to locate somewhere
in a jurisdiction, whether it is a single zoning district or multiple
zones, and (2) local governments provide reasonable opportunities for
religious uses to locate. In other words, a locality cannot place
unreasonable limitations on religious uses within its jurisdiction.
They may, however, limit the land available to religious organizations
through limits on districts where the religious uses may operate,
whether uses are allowed as-of-right or by special permit, or
requirements for minimum bulk, density, and dimension for religious
buildings. See, e.g., United States v. Bensalem Township, 220 F.
Supp. 3d 615, 622 (E.D. Pa. 2016) (finding that allegations that no
parcels are available for purchase or lease by a religious organization
in a zoning district could support a RLUIPA claim). For jurisdictions
that are “close to being built to capacity, evidence that numerous
religious uses are already operating can provide a powerful defense to
total exclusion and unreasonable limits claims.” Evan J. Seeman, et
al., Local Government Regulation of Religious Land Uses Under
RLUIPA 6, PRACTICAL LAW (2018).
Analysis
Chestnut Ridge’s current zoning laws do not and have not violated any
of these requirements. They do not impose a substantial burden on
religious practice; they do not violate the equal terms provision; they
do not exclude religious assemblies; and they do not discriminate
based upon a particular religion.
The current zoning laws do include land use restrictions on all types
of land use including houses of worship such as minimum land size,
fire and safety provisions, parking and traffic requirements which
have been in place since Chestnut Ridge was formed. These land use
rules have not stifled the formation and healthy diversity of the many
houses of worship in the Village. Further, there is a fair and public
process in place for any land use including religious to get variances
to meet a specific need, for example the use of a house for small
religious services or the construction of a community house of
worship on a lot that is smaller than authorized in the existing code.
The Proposed Zoning Changes instead provides blanket variances for
houses of worship and sidesteps the Zoning Board of Appeals. This is
NOT required by RLUIPA.
The Second Circuit has stated: “We do not believe RLUIPA directly
compels states to require or prohibit any particular acts. Instead,

 RLUIPA leaves it to each state to enact and enforce land use
regulations as it deems appropriate so long as the state does not
substantially burden religious exercise in the absence of a compelling
interest achieved by the least restrictive means.” Westchester Day
Sch. v. Vill. of Mamaroneck, 504 F.3d 338 (2d Cir. 2007). The Village
is free to enact and enforce its zoning ordinances as it deems
appropriate, but is not required to completely overhaul its existing
land use regulations in order to comply with RLUIPA.
Since RLUIPA does not require local governments to take action, but
includes a safe harbor provision for corrective action to be taken after
the fact, that would be the most prudent course of action. The
provision would allow the Village to address a religious applicant’s
complaints to leverage a favorable resolution while avoiding liability
and extensive, expensive litigation.
In addition, RLUIPA does not purport to prescribe which means of
eliminating a substantial burden must be chosen. The District Court
for the Western District of Virginia agreed that the safe harbor
provision was included by Congress to make clear that RLUIPA does
not require a local government to adopt any particular measures, only
that when the locality chooses to act, those actions do not violate
RLUIPA.
The Court explained that “the safe harbor provision
embodies a congressional policy against federal micromanagement of
a locality’s land use decisions.” United States v. County of Culpeper,
2017 U.S. Dist. LEXIS 142125, at *18-21 (W.D. Va. 2017) (where the
government’s suit against the County’s denial of a sewage permit to
an Islamic congregation was deemed moot because the County took
remedial steps with the congregation of its own volition by creating
nondiscrimination notices, creating a complaint process, and trained
employees about religious discrimination).
Indeed, in the Department of Justice Statement on the Land Use
Provisions of RLUIPA, the DOJ stated outright that RLUIPA is not a
blanket exemption from zoning laws.
See also World Outreach
Conference Ctr. v. City of Chicago, 591 F.3d 531, 539 (7th Cir. 2009);
Sisters of St. Francis Health Servs. v. Morgan County, 397 F. Supp. 2d
1032, 1051 (S.D. Ind. 2005) (“Interpretation of the substantial burden
provision to prohibit every regulation limiting any use of property for
religious
purposes
would
render
the
word
'substantial'
meaningless….Also, St. Francis’ argument would effectively exempt
any religious-based health care facility from otherwise valid certificate
of need laws, which would seem to be a sweeping and unwarranted
exemption. RLUIPA does not grant churches a blanket exemption
from zoning laws.”); 146 CONG. REC. S7776.
To allow blanket

 variances for religious uses would run contrary to RLUIPA’s aim to
place religious and nonreligious uses on equal footing.
What RLUIPA does require is that the permitting and variance
process be handled in an objective and nondiscriminatory manner that
is consistent with each of the requirements described above. For
example, when a proposed land use comes before the Planning Board
or Zoning Board of Appeals seeking a variance to allow property to be
modified and used for religious purposes, these Boards must apply the
zoning law fairly in a nondiscriminatory manner that recognizes and
balances the property rights of nearby property owners and the public
safety of the community at large. They cannot use zoning laws to
frustrate a meritorious request for a variance.
Neither the Village Planning Board nor the Zoning Board of Appeals
has a history or reputation for making improper decisions relating to
proposed variances. Indeed, the most noteworthy religious use case
they have addressed in recent years involved 3 Spring Hill Terrace
where the owner requested and received a permit to build a three-car
garage while being silent on the real intent to build a house of
worship under the guise of a garage certificate of occupancy. Telling
the truth about intended land use is NOT a substantial burden
under RLUIPA. Within days of the ZBA decision to revoke the
certificate of occupancy, the Village Attorney instructed the Building
Inspector to issue a new slightly revised certificate of occupancy, thus
negating the ZBA decision. It is no small wonder why the Proposed
Zoning Changes avoid the ZBA process.
The Proposed Zoning Changes would create the as of right ability to
designate that any house or property in any part of Chestnut Ridge
can be converted or constructed as a residential gathering place or
neighborhood house of worship.
This sweeping change to a
community where over 90% of the land in the Village has already been
built on is simply a bridge too far and clearly NOT mandated by
RLUIPA. These Proposed Zoning Changes provide a blanket variance
for any house to be converted or built as residential gathering places
or neighborhood houses of worship without any land size requirement.
The hasty, very poorly drafted and unenforceable provisions of the
Proposed Zoning Changes are NOT mandated by RLUIPA. Certainly,
the tax base and marketability of Village property would suffer
tremendously.
Indeed, favoring religious uses over secular uses, which is what the
Proposed Zoning Changes do, is prohibited by the Constitution’s
Establishment Clause. Congregation Rabbinical Coll. Of Tartikov, Inc.
v. Vill. of Pomona, 280 F. Supp. 3d 426 (S.D.N.Y. 2017); see also CLUB,

 342 F.3d at 762 (“Otherwise, compliance with RLUIPA would require
municipal governments not merely to treat religious land uses on an
equal footing with nonreligious land uses, but rather to favor them in
the form of an outright exemption from land-use regulations…no such
free pass for religious land uses masquerades among the legitimate
protections RLUIPA affords to religious exercise.”); WDS I, 386 F.3d at
189 (“As a legislative accommodation of religion, RLUIPA occupies a
treacherous narrow zone between the Free Exercise Clause, which
seeks to assure that government does not interfere with the exercise
of religion, and the Establishment Clause, which prohibits the
government from becoming entwined with religion in a manner that
would express preference for one religion over another, or religion
over irreligion.”).
The Village, then, is running the risk of violating the First
Amendment’s Establishment Clause by enacting such a drastic change
to its zoning laws.
Landowners often experience cost and
inconvenience as part of the land use process, regardless of whether
those landowners are religious or non-religious, as most zoning laws
are neutral and of general applicability. Arguments of inconvenience
and expense have been insufficient for landowners seeking to
overturn negative zoning or land use decisions for a due process
violation. In carrying out these proposed zoning laws, the Village is
changing the character of the majority of land within the Village
without limit and entangling itself with religion, the effect of which is
to advance religious interests over the secular in contravention of the
Establishment Clause. The Clause contemplates that “sponsorship,
financial support, and active involvement of the sovereign in religious
activity” may be deemed establishment. Jimmy Swaggart Ministries v.
Bd. of Equalization of Cal., 493 U.S. 378, 393 (1990); Walz v. Tax
Comm’n of City of N.Y., 397 U.S. 664, 668 (1970).
Conclusion
CUPON urges the Village Board not to adopt the Proposed Zoning
Changes as drafted. The Village Board’s rationale for the changes—
that they are somehow mandated by RLUIPA—is wrong. RLUIPA
does not require the Proposed Zoning Changes.
Instead, CUPON believes that the Village Board should engage in a
comprehensive plan process to adopt a formal Village Comprehensive
Plan consistent with Federal and New York State law (including
RLUIPA) but also consistent with the Establishment Clause of the
United States Constitution, which prevents local, state or national
government from favoring one religion over others or over secular
activity.