Written by Franklin Zemel and Ariel Deray
Leaders of the Islamic Center of Western Suburbs wanted to build a mosque in DuPage County, where religious institutions are authorized to operate in residential districts as “conditional uses” so long as they are approved by the county. Applicants must proceed through a multistep process to obtain approval for a conditional use. The group hired a team of legal, planning and engineering experts to assist with the conditional use application. The Islamic Center met or exceeded all applicable zoning regulations. Despite having everything in order, the zoning board denied the application, expressing concern that if the Islamic Center chose to develop at another location in the future, the property “could become vacant and create blight.”
These types of denials have become a recurring theme for many Islamic religious institutions seeking to establish themselves or expand in cities across America. The federal government has been trying to help.
In December 2015, the U.S. Department of Justice launched a program to  “promote religious freedom, challenge religious discrimination, and enhance our efforts to combat religion-based hate violence and crimes.” As part of this program, the DOJ conducted a series of roundtable discussions with religious leaders, civil rights organizations and community members.
Despite, federal support for religious freedoms, it’s local governments, townships and municipalities that continue to discriminate in the most subtlest of ways
Although discrimination against Muslims manifests itself in many very obvious ways such as with employment or violence, according to the final report , it also manifests within a very “subtle” context — religious land-use zoning.
Put simply, municipalities discriminate against Muslims by denying them the permits necessary to build places of worship. In some instances, the rejection is outright — the municipality refuses to issue the necessary approval. In others, the denial is not as direct — the municipality makes the approval process so costly and drawn out that the religious group cannot afford to undergo the application process. In either scenario, the result is the same: The religious group is “kept out” of the municipality and its members are denied their First Amendment rights.
Despite, federal support for religious freedoms, it’s local governments, townships and municipalities that continue to discriminate in the most subtlest of ways.
For example, in the Township of Bernards, New Jersey, “churches,” auditoriums and theaters are required by ordinance to have one parking space for every three seats. When the Islamic Society of Basking Ridge (ISBR) submitted a site plan to the township to build a mosque, the township required ISBR to construct parking spaces far exceeding the 1-to-3 ratio. The township claimed that the term “church” referred exclusively to Christian churches, despite the fact that the ordinance provided a definition of “church” that included places of worship for any religion.
In Bensalem Township, Pennsylvania, religious institutions are permitted to operate as a matter of right only in the “Institutional District.” Religious groups must seek relief from the township if they want to be located outside the district. The Bensalem Masjid, a Muslim nonprofit, searched five years for an appropriate location to build its mosque, but was unable to find a property within the Industrial District, where it could operate as a matter of right. The group then applied for zoning relief from the township to build its mosque outside the Industrial District. The local government denied the application. The group still has no mosque or place of worship anywhere in the township.
After RLUIPA’s enactment in 2000, municipalities found ways to enact zoning ordinances, which, on their face, do not appear to discriminate against religious institutions, but have the actual effect of infringing upon religious freedoms
Local governments’ zoning decisions are regulated by the Religious Land Use and Institutionalized Persons Act (RLUIPA) in addition to the First Amendment. RLUIPA prohibits land-use regulations that:
- impose a substantial burden on religious exercise;
- treat religious assemblies on less than equal terms with nonreligious assemblies;
- totally exclude religious assemblies from a jurisdiction; and
- impose unreasonable limitations on religious assemblies
A joint statement  in 2000 by Senators Hatch (R-Utah) and the late Edward Kennedy (D-Massachusetts) — sponsors of the RLUIPA — stated:
Churches in general, and new, small, or unfamiliar churches in particular, are frequently discriminated against on the face of zoning codes and also in the highly individualized and discretionary processes of land use regulation. … Churches have been excluded from residential zones because they generate too much traffic, and from commercial zones because they don’t generate enough traffic.
After RLUIPA’s enactment in 2000, municipalities found ways to enact zoning ordinances, which, on their face, do not appear to discriminate against religious institutions, but have the actual effect of infringing upon religious freedoms. For example, municipalities often cite traffic, parking and noise ordinances as justifications for denying permits to mosques and other religious institutions. These seemingly content-neutral laws allow municipalities to mask their discriminatory motives behind what appear to be legitimate concerns.
Local governments typically have the upper hand in religious land-use zoning decisions. However, if communities can spot the warning signs early, they can gain a competitive advantage
Spotting the warning signs in a zoning code can help communities defeat local government opposition to potential projects. Community leaders who spot these warning signs should seek legal council regarding challenging the legality of the zoning code.
- Does the zoning code require religious institutions to be “compatible” with or “consistent with the character” of other properties in the “vicinity”? Many zoning codes condition application approval on ill-defined and vague criteria, vesting city officials with unbridled discretion to deny a religious institution’s application for any reason, including their subjective beliefs about the particular religious group.
- Does the zoning code in any way distinguish between religious and non-religious institutions? For example, the code may permit religious institutions in residential districts, but require 300 feet of main road frontage for religious institutions and only 200 feet of main road frontage for buildings with other uses. Although on its face, this provision does not totally exclude religious institutions from the residential district, it may still be unlawful if it makes locating in the particular district virtually impossible or extremely costly.
- Does the zoning code ban religious institutions in commercial districts, but permit any of the following in commercial districts?
- Day care centers
- Recreational facilities such as movie theaters
- Personal improvement services such as aerobic, music and/or dance studios
- Locations where people gather for meetings and/or other business related to trade associations or unions
Importantly, the relevant inquiry is not whether the above examples actually exist within the particular district, but whether they are permitted to exist.
- Finally, does the zoning code permit “public comment” as part of the approval process? If it does, then the code may very well be unlawful.
Local governments typically have the upper hand in religious land-use zoning decisions. However, if communities can spot the warning signs early, they can gain a competitive advantage, and with the help of a legal expert, defeat local government opposition to a religious institutional project.
*Image: A parking garage in Old Montreal. Flickr/AV Dezign 
Franklin Zemel is a partner in the Fort Lauderdale office of Arnstein & Lehr LLP and is the Chair of the Firm’s Religious Land Use Law Group.
Ariel R. Deray is an associate in the Fort Lauderdale office of Arnstein & Lehr LLP, where she is a member of the firm’s Religious Land Use Practice Group.