Courts and advocates alike have struggled to articulate a coherent rule regarding when the Religious Land Use and Institutionalized Persons Act (RLUIPA) should apply to local governments’ land-use decisions. When it is applied too broadly, RLUIPA runs roughshod over the ability of state and local governments to control their own land-use patterns, and it is inconsistent with the Supreme Court’s First Amendment and federalism precedents. When applied too narrowly, RLUIPA fails to provide a remedy for victims of religious discrimination. This Note explains the legally cognizable—but previously unrecognized—differences between the types of land-use decisions that local governments make, and it argues that RLUIPA should apply to individualized assessments, such as use permits and variances, but that RLUIPA should not apply to generalized assessments, such as requests for zoning-ordinance amendments. This Note uses two recent Ninth Circuit cases—one of which would have been decided differently if the court had used the proposed distinction—to illustrate how an analysis of individualized and generalized assessments would work in practice.
Katie M. Ertmer, Individualized vs. Generalized Assessments: Why RLUIPA Should Not Apply to Every Land-Use Request, 62 Duke Law Journal 79-118 (2012).
Available at: http://scholarship.law.duke.edu/dlj/vol62/iss1/2