Trinity Assembly of God v. People's Counsel for Baltimore County

Date: June 16, 2010

In 1802, Thomas Jefferson wrote in a letter to the Danbury Baptists that the American people have "declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State." It is doubtful that Jefferson had in mind the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.A. ยงยง 2000cc et seq., when he wrote those famous words, but the irony of his use of a construction metaphor should not be lost on anyone familiar with the statute and the growing body of court decisions interpreting it. In essence, the statute, RLUIPA for short, prohibits local authorities from implementing land use regulations in a manner that imposes a substantial burden on a person's or group's religious exercise, unless doing so is the least restrictive means of advancing a compelling government interest.

For churches, synagogues, mosques, and other religious affiliations, and the communities in which they are located, RLUIPA presents difficult and controversial questions about where to draw the line between the prohibition against government hindrance of religious liberty on one end of the spectrum, and against government favoritism of certain religious groups on the other end. In Trinity Assembly of God v. People's Counsel for Baltimore County, 407 Md. 53, 962 A2d 404 (2008), the Maryland Court of Appeals weighed in on the matter, providing some guidance for local zoning authorities grappling with those issues.

Some background on RLUIPA is helpful. Congress enacted the statute in 2000 as a response to Supreme Court rulings interpreting the First Amendment, which some members of Congress believed permitted state and local governments to unfairly erode religious liberties. Congress feared that neutral laws, which were not designed to inhibit a particular group's religious exercise, nevertheless could have that effect when applied. Congress found that two areas of the law were particularly vulnerable to intentional and unintentional erosions of religious liberties by state and local governments: land use and the treatment of incarcerated persons. Congress therefore limited RLUIPA's reach to those two areas, hence its name. While RLUIPA's implications for institutionalized persons also present a host of interesting, complex issues, they are beyond the scope of this article.

In the land use context, RLUIPA is triggered when a state or local government limits a person's or group's ability to use or develop land for religious purposes in any one of three situations: 1) when the state or local government is administering a program that receives Federal funding, 2) when the limit imposed affects inter-state commerce, or 3) as is most often the case, when an agency, such as a zoning board, makes an "individualized assessment" about the person's or group's use or development of the property, for instance when considering a petition for a variance. If any of these circumstances exist, RLUIPA prohibits the state or local government from intentionally or unintentionally imposing a substantial burden on the person's or group's use or development of the property for religious purposes, unless doing so is the least restrictive means of advancing a compelling government interest. Zoning authorities and courts applying RLUIPA, however, must resolve whether a given land use limitation constitutes a "substantial burden" and, if necessary, what constitutes a "compelling government interest" and the least restrictive means of advancing that interest.

In Trinity the Maryland Court of Appeals, addressing RLUIPA for the first time, articulated a test for what constitutes a "substantial burden" under the statute, providing some guidance for zoning boards, religious groups, and others affected by the statute. In that case, a Baltimore County church sought a variance from the county's Zoning Code, which limited the size of identification signs to twenty-five square feet. The church wished to erect a two-hundred and fifty square-foot sign facing the Baltimore Beltway, and have a large part of the sign's face appear as electronic changeable type. The County Board of Appeals denied the variance on the basis that the church failed to demonstrate, as required by the generally-applicable law of variances, that the property itself was unique and that compliance with the county's sign size law would work a "practical difficulty" on the use of the property. The church responded that the denial of the variance violated RLUIPA. Specifically, the church complained that the denial of the variance imposed a substantial burden on the church's use of its property for religious purposes, because its congregation believed strongly in evangelizing and the requested sign would allow the church to spread scripture verses and uplifting messages and identify itself to would-be parishioners travelling the Beltway. The Board of Appeals rejected the church's RLUIPA argument, finding that its denial of the variance did not impose a substantial burden on the church. The church then appealed to the Circuit Court for Baltimore County, which affirmed the Board. Ultimately, the state's highest court agreed to hear the church's case.

The Court of Appeals looked to other federal and state courts around the country to aid it in fashioning a workable judicial standard for determining what constitutes a "substantial burden" on the use or development of land for religious purposes. The Court then explained that, in order to constitute a substantial burden in a RLUIPA analysis, the land use regulation at issue, or the zoning authority's interpretation of it, must have the effect of leaving "the aggrieved religious institution without a reasonable means to observe a particular religious precept." The Court elaborated that, "if [ ] the religious institution may adhere to that precept through some viable alternative mode, the land use regulation . . . is not a substantial burden on religious exercise, even though it may make that exercise more difficult or expensive." Applying this standard, the Court affirmed the decision of the County Board of Appeals. The Court credited the Board's conclusion that the church had at its disposal numerous means of evangelizing, advertising, and reaching out to the public. In addition, the church already had on its property two identification signs that complied with the applicable size limitation. The Court noted that one such sign could have electronic changeable type, allowing the church to evangelize to some extent with the sign (albeit to an audience smaller than the one it could reach if it had its desired sign overlooking the Beltway).

Time will tell how local zoning authorities and courts in Maryland administer the Court of Appeals's definition of "substantial burden" under RLUIPA; however, because what constitutes a substantial burden is generally a case-specific inquiry, there is fertile ground for dispute when a religious organization seeks to develop or use its property in a way that is unpopular with the surrounding community. Furthermore, because the Court of Appeals in Trinity affirmed the Board's conclusion that denial of the church's requested variance did not rise to the level of a "substantial burden," the Court declined to consider whether the Board's denial of the variance was the least restrictive means of advancing a compelling government interest and, therefore, did not provide any guidance in that regard. Thus, it appears for now that RLUIPA's effect on land use and development in Maryland is still in a nascent stage.