Losing My Religion: Eminent Domain, Open Space, and the RLUIPA

Abstract

Is a local government's power of eminent domain limited by the Religious Land Use and Institutionalized Persons Act (RLUIPA)? Courts in three different jurisdictions have held that the statutory coverage of RLUIPA is clear and unambiguous: eminent domain and zoning are two distinct concepts, and therefore, municipalities conferred with the power of eminent domain do not violate the RLUIPA if the takings are for a public use. Faith Temple Church v. Town of Brighton, 405 F.Supp.2d 250 (W.D.N.Y. 2005); St. John's United Church of Christ v. City of Chicago, 401 F.Supp.2d 887 (N.D.Ill. 2005), 2007 U.S. App. LEXIS 21914 (7th Cir. 2007); City and County of Honolulu v. Sherman, 129 P.3d 542, 547 (Haw. 2006). A new case now pending before the United States District Court of the District of New Jersey, Albanian Associated Fund v. Township of Wayne (Case No.: 2:06-cv-3217), promises to have wider implications than previously decided cases. In a motion for summary judgment, the Albanian court has suggested that eminent domain is outside the scope of RLUIPA, but a taking pursuant to an open space plan is subject to the land use provisions of RLUIPA. This case is also complicated by the recent New Jersey Appellate Court and the New Jersey Supreme Court decisions in Mount Laurel Township v. Mipro Homes, LLC., 878 A.2d 38 (2005), 910 A.2d 617 (2006), which held that a municipality has the authority to exercise eminent domain for open space preservation, regardless of its true motives. Land use law practitioners and scholars are encouraged to pay close attention to this case as it develops.