| Articles | The
SPRING 2006 • Vol. XLIV
- When Eminent Domain and Free Exercise
of Religion Collide
- The Firm Launches New Website
- Spring 2006 Calendar Calls
- The Firm Departments Work Together
When Eminent Domain and Free Exercise of Religion Collide
by Aaron Gershonowitz, Esq. and Peter R. Mineo,
The Supreme Court, in Kelo v. City of New London,
125 S.Ct. 2655 (2005), held that a local government could
take private property by eminent domain to benefit commercial
development. This decision has raised a great deal of public
concern and has even prompted Congress to propose legislation
in response to the increased scrutiny. While most of the
recent debate surrounding the Kelo decision has focused
on the fact that government may take someone's house in
the interest of commercial enterprise, one should also consider
how the Kelo case affects properties designated for religious
uses. That is, assuming that the Supreme Court is correct
in ruling that government can acquire an individual's personal
property by eminent domain, what does that mean with regard
to government's ability to take your church, mosque or synagogue?
The starting point of the Kelo court's discussion is the
United States Constitution, which provides that the government
has the right to take property by eminent domain, as long
as fair compensation is paid. The Constitution, however,
placed an important limitation on the government's authority
to take private property: the taking must be for "public
use." To a large extent, the issue before the court
was defining the term "public use." In the Kelo
case, the City of New London argued that the commercial
development of a property was considered public use because
it would generate new jobs and increase tax revenues. The
Supreme Court agreed. The concern created by a decision
of this nature is that if future indirect public benefit
qualifies the property to be considered as "public
use," then the classification of "public use"
is left to the sole discretion of government. Hence, almost
anything a governmental body determines to be a public use
will be a public use and consequently, the "public
use" requirement becomes meaningless. Religious Use
The Court's holding that a development's ability to create
an increase in tax revenues would qualify a property as
being used for public use (and therefore, appropriate for
implementing eminent domain), may put religious uses at
greater risk of having property taken because of their tax
exempt status. Religious uses, on the other hand, have a
number of protections that are not available to private
parties, particularly, the constitutional protection of
freedom of religion and a federal statute called the Religious
Land Use and Institutionalized Persons Act ("RLUIPA")
42 U.S.C. S 2000cc et. seq.
Prior to Kelo, if asked whether a local government could
take a church or other religious use by eminent domain,
we would have said "probably not," based largely
on the Second Circuit's decision in Yonkers Racing Corporation
v. City of Yonkers, 858 F. 2d 855 (2d Cir. 1988) ("Yonkers").
In that case, the City of Yonkers was under a court order
to provide low income housing in specific areas of the City.
To comply with the court order, the City sought to condemn
two acres of land that were part of the St. Joseph's Catholic
Seminary. The Seminary objected to the taking of two of
its 42 acres, arguing that taking church property interfered
with its free exercise of religion.
The Second Circuit held that the City could not take the
property unless it could show that the taking "was
necessary to vindicate a compelling state interest."
The Second Circuit thus recognized the importance of the
religious use and made it very difficult for the municipality
to acquire the land. The Seminary's position was that the
taking "would substantially affect the work of St.
Joseph's" and that the site is "essential"
to the Seminary's religious mission. The court did not question
St Joseph's contention that these two acres were essential
to its mission. Instead, it asked the City of Yonkers to
justify this "burden on the Seminary's free exercise
rights," explaining that doing so was "necessary
to vindicate a compelling state interest."
The Yonkers decision is in sharp contrast to the Fourth
Department's recent decision in Faith Temple Church v. Town
of Brighton, 794 N.Y.S. 2d 249 (Fourth Dept. 2005), where
the court permitted condemnation to proceed despite the
proposed religious use. There were, however, significant
differences between the Faith Temple Church case and the
Yonkers case. In particular, Faith Temple Church merely
had a contract to purchase the land in question and was
not yet the owner or user of the property. This difference
may have prevented the church from being able to describe
the parcel at issue as being "essential" for its
purposes, which may have made it difficult for the court
to determine that the taking of the property would place
a burden on religious freedom.
The Fourth Department in Faith Temple Church gave two reasons
for not blocking the condemnation, one of which indicated
that it disagreed with the legal standard used in the Yonkers
case. The two reasons given by the court are: (1) the church
failed to demonstrate that the condemnation would be a substantial
burden on its free exercise rights and (2) a law that is
neutral and of general applicability does not need to be
justified by a compelling state interest. Id. at 252.
The first reason is easy to understand. It is based on the
fact that the church did not yet own the property. The second
reason is a bit more complex. It suggests that because the
law regarding condemnation applies equally to all, and is
not aimed at any religious group or any religious activity,
the goverment does not have to face the burden of showing
a compelling governmental interest.
Examining the relationship between the reasons behind the
Fourth Department's decision in Faith Temple Church and
the Yonkers decision raises a number of interesting points.
The first reason appears to be based on the factual difference
between the cases, that is, taking the "proposed site"
for a church raises fewer freedom of religion concerns than
actually taking an existing church. On the other hand, the
first reason could be applying a different legal standard.
The Yonkers court accepted the Seminary's claim that the
taking would significantly interfere with its religious
mission, while the Fourth Department required a hearing
to determine whether the taking would be a substantial burden
on its free exercise rights.
The second reason indicates a more direct disagreement between
the courts because in both eral applicability. Nevertheless,
the Second Circuit and the Fourth Department disagree on
whether the State must show a compelling interest. If a
compelling governmental interest is required, the likelihood
of approving the condemnation is much less.
RLUIPA, a federal statute passed to protect religious uses
against the discrimination they sometimes face at the hands
of municipalities, adds another element to the discussion.
RLUIPA, in part, prohibits municipalities from "imposing
a substantial burden on the religious exercise of a person...
or institution" unless that burden is "the least
restrictive means of furthering a compelling governmental
interest." This statute makes the burden on the municipality
more difficult than shown in the Yonkers case. In Yonkers,
the municipality had to find a compelling governmental interest
to justify the taking; it did not have to show in addition
to that, that the means used by the municipality was the
While it was fighting the condemnation in state court, Faith
Temple Church sued the Town of Brighton in federal court
alleging that the proposed condemnation was a violation
of RLUIPA, Faith Temple Church v. Town of Brighton, 2005
WL 66210 (W.D. N.Y. 2005). As a result, the federal district
court ordered a hearing on the RLUIPA issues to determine
if there is a substantial burden on freedom of religion
and whether this condemnation is the least restrictive means
to further a compelling governmental interest. Thus, the
court recognized two differences between RLUIPA and the
legal standard set in the Yonkers decision: (1) the court
will hold a hearing on the "burden" issue, whereas
the Yonkers court seemed prepared to accept the church's
view regarding what poses a burden on its religious mission
and (2) RLUIPA requires both a compelling governmental interest
and that the government use the least restrictive means.
The Yonkers court did not require that the means be the
least restrictive. Conclusion
The Kelo case has made condemnation easier for municipalities,
who can now take property with no governmental purpose except
economic redevelopment and greater tax revenues. This places
religious uses at greater risk because they do not provide
either economic development or increased tax revenues. The
Yonkers decision and Faith Temple Church RLUIPA decision
both suggest that the free exercise of religion may be a
significant road block to condemnation of religious uses.
Developments in the law of condemnation, which make it easier
for the government to take property, appear to be on a collision
course with RLUIPA, which is designed to protect religious
uses. We believe it will take years for the courts to determine
how this collision will be resolved. cases, the law at issue
was neutral and of gen-