Fifth Circuit Invalidates City Zoning Ordinance that Treats Churches Less Favorably than Similar Secular Land Uses

In its recent decision in Elijah Group v. City of Leon Valley, the federal Court of Appeals for the Fifth Circuit invalidated a city zoning ordinance that forbade churches in an area where very similar secular land uses are permitted. The court ruled that the ordinance violates the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). Here is the key passage in the opinion:

In articulating the reasoning behind and criteria to be used for creating the retail corridor on Bandera Road, the text of the [zoning] ordinance does not mention religion. The City’s real problem lies in the ordinance’s “Permitted Use Table,” which lists many types of buildings by use and then specifies the zone or zones in which each is or is not permitted. Specifically, the use table notes that “Churches” are not allowed in B-2 zones at all, but that many nonreligious, nonretail buildings, e.g., “Club or Lodge (private),” are allowed to request SUPs [special use permits] and, if granted, to occupy a B-2 zone. Try as we may, we cannot reconcile the ordinance’s facial treatment of a church differently than a private club in light of the way that B-2 zones are defined….

At bottom, the ordinance treats the Church on terms that are less than equal to the terms on which it treats similarly situated nonreligious institutions. We conclude therefore that the imposition of the City’s ordinance violates the RLUIPA’s Equal Terms Clause.

I think the decision is correct, though it must be said that it does very little to clarify the ongoing debate over the application of RLUIPA to different kinds of zoning ordinances. In this case, the double standard applied to churches as compared with secular land uses was so blatant that it violated almost any plausible reading of RLUIPA’s requirement that religious land uses may not be regulated on “less than equal terms” with secular ones.

CONFLICT OF INTEREST WATCH: I played a very minor role in the case by helping the Becket Fund for Religious Liberty (which represented the Elijah Group) prepare for the oral argument. I was not a paid consultant, but helped out on a pro bono basis.

UPDATE: I have changed the title of this post to make it more clear.