Denial of Church's Rezoning Application Violates RLUIPA

February 2011

Religious organizations have new leverage in the local land use entitlement process as a result of a case decided this week by the Ninth Circuit Court of Appeals.  The court’s decision in International Church of the Foursquare Gospel (“ICFG”) v. City of San Leandro expands the concept of “substantial burden” under the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) and makes it more difficult for local agencies to regulate religious land uses.

RLUIPA is a federal law enacted to protect the exercise of religion, and to that end, prohibits state and local government actions that place a “substantial burden” on religious land uses unless they are the least restrictive means of serving a compelling government interest. In ICFG v. City of San Leandro, a church brought an action under RLUIPA in the United States District Court for the Northern District of California, alleging among other things that San Leandro’s denial of its rezoning application constituted a substantial burden on its exercise of religion.

ICFG proposed to build a church building on industrially-zoned property.  Although San Leandro responded by creating an overlay district to increase the number of sites available for church and other assembly uses, it did not include  ICFG’s property in the new district, and denied the church's rezoning  application.

At the trial court level, ICFG offered testimony from a realtor and a former city manager that no other suitable sites were available. The district court granted San Leandro’s summary judgment motion, finding that the realtor was unqualified and that the former city manager’s testimony merely demonstrated that there were no other buildings ready for occupancy that could immediately meet the church’s needs.

The Ninth Circuit reversed the lower court, holding ICFG had raised a triable issue of material fact with respect to whether San Leandro had imposed a substantial burden on the exercise of religion.  The Ninth Circuit found the district court erred in focusing only on whether there were objectively reasonable alternative sites, and that the district court should have instead considered whether any of the alternatives were actually available.  Relying on legal standards adopted by other federal circuits, the Ninth Circuit held that “when the religious institution has no ready alternatives, or where the alternatives require substantial delay, uncertainty, and expense, a complete denial of the religious institution’s application might be indicative of a substantial burden.”  The court agreed with ICFG that “whether alternate sites are suited and for sale in the City must be considered...”  California cities will now have to carefully scrutinize the realistic availability of alternate sites before they deny applications for religious land uses.

Published – February 2011 For more information on ICFG V. CITY OF SAN LEANDRO or any RLUIPA matter, please contact Steven L. Flower at 213-626-8484 or


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