LAW OF THE LAND

Editor’s note: This summary was originally published in the USDOJ’s February 2019 Religious Freedom in Focus newsletter available here: https://www.justice.gov/crt/religious-freedom-focus-volume-78-february2019#mosque

On December 12, 2018, the U.S. District Court for the District of New Jersey ruled that a Muslim congregation alleging that it was improperly denied septic permits and a certificate of occupancy to build a mosque could bring a claim under RLUIPA.  The court in the case, Garden State Islamic Center v. City of Vineland, agreed with the United States’ position in a Statement of Interest submitted in September 2017 that the city’s actions qualified as “land use regulation” under RLUIPA.

RLUIPA prohibits a government from imposing or implementing  a “land use regulation” in a manner that discriminates against religious uses, or which imposes substantial burdens on religious land uses without a compelling government justification pursued through the least restrictive means.  RLUIPA specifies that land use regulation means “zoning or landmarking” laws.

The Garden State Islamic Center received city approval to build a mosque in 2012.  When the Center sought to build the second phase of the mosque in 2016, the city denied it the necessary septic permits, claiming that the size of the septic system would now require state environmental review, and denied the mosque a final certificate of occupancy.  The mosque brought suit under RLUIPA, claiming that the denials were discriminatory and imposed a substantial burden on its religious exercise.

The city asked the court to dismiss the case, saying that the septic permits are not “zoning laws” and thus denying such permits cannot violate RLUIPA.  The United States contended in its Statement of Interest that the city’s actions triggered RLUIPA both because the septic regulations are incorporated into the city zoning code, and the septic permit denials constituted the means by which the city made its decision to deny the certificate of occupancy, the denial of which is plainly a zoning action.

The court agreed. The court noted that the mosque was alleging that “the City’s tactics associated with the septic system process” evidenced an effort to deny the approval of the overall project.  The court concluded that “because the sewage regulation at issue is incorporated by reference into the City’s Land Use Ordinance, it qualifies as a zoning law.  To hold otherwise would put form over function.”

In a similar case brought by the United States involving a proposed mosque in Culpeper, Virginia, a federal court in Virginia held in March 2017 that the sewage restrictions applied in that case constituted a land use regulation under RLUIPA because these regulations were cited by reference in the zoning code and were used in that case to thwart the mosque’s zoning application.