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Land Use Update
Historic Preservation and RLUIPA: What “Zoning” Means
Contributing Author: Daniel R. Mandelker, Washington University School of Law, Stamper Professor of Law Emeritus, St. Louis, Missouri.
This is my first Land Use Update column, and I intend to discuss recent cases, recent developments, and periodical articles. I begin with cases that consider the scope and purpose of zoning.
Historic Preservation
The first case is an historic preservation case. Historic preservation is an essential function for local governments. They can adopt historic preservation ordinances that require landmark preservation and authorize the creation of historic districts. Historic preservation ordinances stand alone outside the zoning ordinance and are administered by a separate historic preservation commission. These differences from zoning raise a problem. Is historic preservation a type of zoning? If not, what is it, and why? Does it make a difference?
A Texas Supreme Court case, Powell v. City of Houston, 628 S.W.3d 838 (Tex. 2021), considered these questions. Homeowners in an historic district brought a declaratory judgment action claiming the historic district ordinance was a zoning ordinance and was void because the city charter required six months’ notice of a proposed zoning and voter approval. The historic district ordinance was not voter-approved. No zoning ordinance has ever been approved for Houston. Although the voting requirement is unique to Houston, similar problems can occur in other municipalities where homeowners could claim an historic preservation ordinance violates other zoning ordinance requirements, such as a requirement that zoning must be in accordance with a comprehensive plan or a statutory notice requirement.
The Texas court rejected the homeowners’ claim, held that the historic district ordinance was not a zoning ordinance, and provided a detailed discussion of what zoning means based on dictionary definitions, court decisions, and treatises. After reviewing Texas and lower federal court decisions, the court considered two major Supreme Court cases that upheld the constitutionality of zoning and historic preservation. Village of Euclid v. Ambler Realty, 272 U.S. 365 (1926), upheld a comprehensive zoning ordinance, and Penn Central Transportation. Co. v. New York City, 438 U.S. 104 (1978), upheld New York City’s historic landmark ordinance.
Reliance on these two land use decisions was unique because the Texas court used them as a guide to history. The court read them to mean that land use movements had two historical periods, an earlier period concerned with incompatible uses that led to the adoption of zoning, and a later period concerned with the task of preserving the history and aesthetics of buildings that led to the adoption of historic preservation ordinances. It concluded that historic preservation is a land use regulation historically distinguished from zoning.
Based on its reading of these sources, the court decided “that the ordinary meaning of zoning is the district-based regulation of the uses to which land can be put and of the height, bulk, and placement of buildings on land, with the regulations being uniform within each district and implementing a comprehensive plan.” 628 S.W.3d at 849. Zoning also tended to be comprehensive geographically by dividing an entire city into districts.
The court decided that several “key features” of zoning were missing from the historic district ordinance. Significantly, it did not regulate land use purposes. Instead, it focused on “protecting and preserving the exterior architectural characteristics of buildings based on historical significance, distinctiveness, and connection to a neighborhood.” Id. at 850. The court noted other distinctions. An historic district ordinance, for example, did not meet the typical statutory requirement that zoning must be uniform within a district because each property in a historic district is required to maintain its unique historic exterior features. Id. at 853. Uniqueness is not uniformity.
The decision in Powell saved historic preservation ordinances in Texas from extinction because Houston voters have consistently voted zoning down. It is the only major city in the country that does not have zoning. The Houston historic preservation ordinance would have been void under the city charter, had the court held it was a zoning ordinance subject to voter approval, because it was not voter-approved. Avoiding this result may have influenced the Powell decision, but its distinctions are arguable, and another court may take a different view. For example, why doesn’t historic preservation have a land use purpose? Why isn’t the uniformity required by zoning laws met by historic district regulations that apply uniformly throughout a district? Like historic districts, zoning ordinances also require consideration of uniqueness when zoning boards consider hardship variances.
Other questions remain. What about other purpose-based land use ordinances, such as floodplain regulation, which applies specialized building regulations to floodplain areas? There is a partial answer in the Powell court’s rejection of homeowners’ definition of zoning as “the legal regulation of land by geographic district.” Id., at 852. As the court explained, the homeowners’ definition would invalidate floodplain and subdivision regulations in Houston because they do not usually get voter approval.
Religious Land Use and Institutionalized Persons Act
The federal Religious Land Use and Institutionalized Persons Act, or RLUIPA, has a major impact on zoning for religious uses. The statute provides in a key provision that
42 U.S.C.A. § 2000cc(1)(a). The statute is enforceable in court. Id., § 2000cc(2) (a).
Substantial burden is a strict requirement because the statute adopts “compelling governmental interest” and “least restrictive means” as the tests for judicial review of land use regulations. These tests are equivalent to the strict scrutiny judicial review that courts demand for laws that violate the free speech clause of the constitution. A “land use regulation” that is subject to strict scrutiny judicial review is defined as “a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land.” Id., § 2000cc(5). This definition does not entirely solve the problem in Powell because zoning and landmarking ordinances are included in the definition, but an historic district ordinance is not. What about other land use ordinances?
The court considered this issue in Redeemed Christian Church of God v. Prince George’s County, 17 F.4th 497 (4th Cir. 2021), which involved a major suburban county adjacent to Washington, DC. Its membership grew substantially, so it purchased property on which it planned to build an expanded facility. A private study found that the building was feasible, and the church purchased the property with the reasonable expectation that it would be able to build its new church there.
Two land use plans contained policies for county development. A General Plan provided a 20-year “blueprint for long-term growth and development.” A Growth Policy Map in the General Plan showed where and how the county should grow over the next 20 years, specified six area classifications, defined a growth boundary that designated “areas eligible to receive public water” and sewer service, and classified properties inside the growth boundary as holding zones if they were located in future water and sewer service areas. These plans identified water and sewer service as part of their land use policy.
A Water and Sewer Plan supplemented the General Plan and identified four water and sewer categories that provided different service levels. The church property was in a future water and sewer service area. The church knew it required an upgrade to a new water and sewer category under the county’s sewer and water ordinance to build the church. To get this upgrade, the church needed legislative approval from the county council that met several criteria, including environmental factors, economics and general fiscal concerns, zoning conformity, and traffic impacts.
Witnesses at a county council hearing opposed and supported the application for a category change. The council’s Transportation Committee rejected it after the county council chair opposed it at a Committee meeting called to consider it, and the county council concurred. The church sued, and the district court permanently enjoined the county from denying the application and ordered it to approve the category change.
The court agreed, decided that RLUIPA applied, and concluded that the water and sewer plan was “zoning” covered by the statute because it divided the county into different categories that restricted land use and development: “Although the precise contours of ‘zoning’ could be difficult to delineate, ‘at its core [zoning] involves the division of a community into zones based on like land use.’” Id. at 508.
But the court was more interested in how the regulation actually functioned, not labels: “If a regulation divides a community into zones, restricting or limiting how land can be used within each zone, the regulation is a zoning law subject to RLUIPA.” This conclusion, the court held, was consistent with the rule that any ambiguity in the law was to be construed in favor of the broad protection of religious exercise. Id. The court’s prior decisions were consistent with this holding, and its decision was consistent with a functionalist approach for interpreting the statute the Second Circuit adopted in Fortress Bible Church v. Feiner, 694 F.3d 208 (2d Cir. 2012). The court held that RLUIPA applied to a state-mandated environmental review when the review considered zoning issues.
Redeemed Christian reached a different result than Powell. The setting in a statute regulating land use that protected religious organizations may have made a difference. Like zoning, the county sewer and water regulation is area-based and implements county plans with distinct land use policy goals. Powell concentrated instead on the ordinance’s purpose and held its historic preservation purpose distinguished it from zoning. Had the Redeemed Christian court considered purpose, it could likewise have concluded that the purpose of the water and sewer regulation was the regulation of public services, not zoning.
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