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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, Esq.

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 at Risk

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.

Legal Standards

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 "least restrictive."

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-

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