RLUIPA and light pollution?

Mon Dec 11 11:58:25 PST 2006

If RLUIPA is interpreted so as to require that neighbors put up with what under common law would be considered a nuisance, doesn't it potentially run afoul of the Establishment Clause as applied in Estate of Thornton v. Caldor, Inc.? So wouldn't it ordinarily be appropriate for courts to interpret RLUIPA in light of baseline property rights of others, so that it does not place on others the burden of dealing with a nuisance created by a religious practice?

Mark Scarberry
Pepperdine

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Mon 12/11/2006 10:59 AM
To: Law & Religion issues for Law Academics
Subject: RE: RLUIPA and light pollution?

        The first point Scott identifies -- as to substantial burden --
strikes me as quite sensible, at least given the Court's plausible
factual conclusions about the homeowners' religious beliefs.  But the
second point is hard to square with RFRA, at least unless we read
"compelling" as something far less than compelling.

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> SIDLEMAN at wi.rr.com
> Sent: Monday, December 11, 2006 10:54 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: RLUIPA and light pollution?
>
>
> At least one court has held that RFRA -- the cases of which
> have often been used precedentially in RLUIPA cases -- does
> not prevent a private or public nuisance action against
> homeowners for their extensive Christmas display.  First, the
> homeowners could not demonstrate that having such a large
> display was required by their religion.  Second, the court
> basically held that conduct rising to the level of a legal
> nuisance is simply not protected.
>
> Here's the excerpt from Osborne v. Power, 318 Ark. 858,
> 863-64, 890 S.W.2d 570, 572-73 (Ark. 1994), cert. denied, 515
> U.S. 1143 (1995):
>
> As appellants admitted in their testimony, there is nothing
> about their religious beliefs which dictates that they must
> celebrate the Christmas season by a massive display of
> electric lights. Consequently, to place limitations upon such
> activity does not constitute an impermissible burden upon the
> practice of religion. Clearly, any injunctive relief by way
> of restricting the scope or magnitude of the display is
> "content- neutral" and, accordingly, is subject to reasonable
> restraint that burdens no more speech than necessary to
> protect the rights enumerated above.
> In Western Presbyterian Church v. Board of Zoning Adjustment,
> 862 F.Supp. 538 (D.D.C.1994), a recent case involving feeding
> the homeless pursuant to a church program, the Court held
> that the zoning ordinance was unconstitutional in its total
> prohibition and allowed the feeding to be conducted. However,
> the Court noted that this license was limited to
> circumstances that did not otherwise become a nuisance, thus
> recognizing that the Religious Freedom Restoration Act, of
> itself, would not bar restrictions on activities that are nuisances.
> [end of excerpt]
>
>
> ----- Original Message -----
> From: "Vance R. Koven" <vrkoven at gmail.com>
> Date: Monday, December 11, 2006 12:17 pm
> Subject: Re: RLUIPA and light pollution?
> To: Law & Religion issues for Law Academics
> <religionlaw at lists.ucla.edu>
>
> > I would suppose that preventing a service-affecting
> impediment to the
> > Mt.
> > Palomar observatory could qualify as a compelling interest, as
> > relocating an astronomical observatory is hardly a trivial matter.
> >
> > I also assume it matters whether the light-pollution
> ordinance qualify
> > as a land-use restriction for purposes of applying RLUIPA, no? As a
> > pollution-control regulation it might, although it affects
> the use of
> > land, not fall within RULIPA's ambit.
> >
> > This thread puts me in mind of a recent to-do in Boston over a
> > homeowner'sChristmas lighting display, which is so
> extensive that it
> > has driven his neighbors bats (and he's had it up since
> October). I've
> > driven by the site, and it is formidable indeed--it's like the
> > floodlights at Fenway Park. I don't know whether Boston has a
> > light-pollution regulation (surely Bostonregulates everything), but
> > could a non-church landowner claim the benefit of RLUIPA were the
> > city, or his neighbors, to try, shall we say, to douse his lights?
> >
> > On 12/11/06, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
> > >
> > >      I sympathize with light pollution ordinances, and I'm not
> > sure that
> > > they impose a substantial burden here.  But if there's a
> > *compelling*> government interest in preventing light
> pollution, then
> > we really are in
> > > "strict in theory, feeble in fact" territory.
> > >
> > >  ------------------------------
> > >  *From:* religionlaw-bounces at lists.ucla.edu [mailto:
> > > religionlaw-bounces at lists.ucla.edu] *On Behalf Of
> > *hamilton02 at aol.com> *Sent:* Monday, December 11, 2006 8:42 AM
> > > *To:* religionlaw at lists.ucla.edu
> > > *Subject:* Re: RLUIPA and light pollution?
> > >
> > >  RLUIPA is not blanket protection from the operation of the law.
> > I would
> > > think that the federal laws at issue here would satisfy strict
> > scrutiny.  I
> > > also have some questions regarding whether the intensity of the
> > light bulb
> > > can be argued as a substantial burden on "religious exercise." 
> > RLUIPA> defines religious exercise to include any potential
> > belief, not just central
> > > beliefs, but the light intensity argument seems to me to be a
> > very tough one
> > > for the religious entities to win.  Moreover, where is the
> > burden on
> > > reducing the wattage?  RLUIPA is unlikely to assist the
> > religious entity
> > > here.
> > >
> > > Marci
> > >
> > > Marci A. Hamilton
> > > Paul R. Verkuil Chair in Public Law
> > > Benjamin N. Cardozo School of Law
> > > Yeshiva University
> > >
> > >
> > > -----Original Message-----
> > > From: stcynic at crystalauto.com
> > > To: religionlaw at lists.ucla.edu
> > > Sent: Sun, 10 Dec 2006 12:34 AM
> > > Subject: RLUIPA and light pollution?
> > >
> > > Here's an interesting situation I'd like to get some
> opinions about.
> > >
> > >
> > >
> > http://www.thedesertsun.com/apps/pbcs.dll/article?
> AID=/20061209/NEWS01/612090325>
> > >
> > > A church in Palm Desert, CA, has a giant lit cross that
> apparently
> > > violates the local light pollution ordinances (it's about 6
> > times brighter
> > > than the zoning laws allow). According to Phil Plait (
> > > http://www.badastronomy.com/bablog/2006/12/09/science-versus-
> > religion/),> an astronomer, it's causing problems for the Mt.
> > Palomar space telescope,
> > > and apparently Federal law requires that all such lights within
> > 45 miles of
> > > the observatory be shut off at night. A law professor from USC
> > says that the
> > > RLUIPA prevents any enforcement of those statutes, but that
> > strikes me as
> > > unlikely. Any thoughts?
> > >
> > > Ed Brayton
> > > _______________________________________________
> > > To post, send message to
> > Religionlaw at lists.ucla.edu<Religionlaw%40lists.ucla.edu>>
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> > > _______________________________________________
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> > --
> > Vance R. Koven
> > Boston, MA USA
> > vrkoven at world.std.com
> >
> _______________________________________________
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