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  • RLUIPA: Linking Religion, Land Use, Ownership and the Commond Good

    Should the law offer special protection for the location, construction or expansion of houses of worship? And if so, how much? Houses of worship are symbols of religious freedom and centers of religious activity. They make possible much of what churches do: worship and ritual, transmission of faith across generations, and service to the community. They are extensions and instruments of religions exercise. But houses of worship, like other kinds of assembly uses, are intense land uses that can have significant negative impacts on surrounding properties. Permit denials seem quite appropriate when house of worship development will cause identifiable harms that cannot be mitigated, even when that means excluding a church from worshipping on a parcel it owns. Indeed, the very purpose of zoning is to control such impacts and to ensure the compatibility of various land uses in any given zone. Yet, denials may needlessly restrict religious freedom when negative externalities are either nonexistent or can be ameliorated. Thus, the general question concerning legal protections owed to houses of worship gives rise to a more specific one: when zoning codes, either by their terms or as applied, prevent houses of worship from being located, built or expanded, how closely should courts scrutinize the municipal evaluations of impacts and compatibility?