RLUIPA and light pollution?

[Vance R. Koven]

The last paragraph of Steve's post touches on the second point I raised in
my original one, which is that a light pollution ordinance isn't a land use
restriction within the meaning of RLUIPA. One could violate a light
pollution rule as plausibly with your automobile headlights as with a fixed
lighting display. By the same token, although pollution control laws
certainly do affect how people use land, and are thus literally land use
regulations, the history of RLUIPA suggests strongly to me that that's not
what Congress had in mind, unless Congress assumed that pollution control
was always going to be a compelling interest that trumped a
religiously-motivated polluter.

I'm also not sure that the Boston homeowner whose Christmas display angers
his neighbors would concede, as did the litigants in Osborn v. Power did,
that his religion didn't compel him to put up such a display (and centrality
isn't, is it, necessary to prevail in a RLUIPA case).

For information, the link I got to the story is here:
http://www.boston.com/news/local/massachusetts/articles/2006/11/20/hey_whats_the_bright_idea/

Since it's several weeks old, it might not work.


On 12/11/06, Steven Jamar <stevenjamar at gmail.com> wrote:
>
> Eugene,
>
> You just are not thinking with sufficient circularity. :)
>
> There is no substantial burden because it is merely a time place and
> manner restriction.
>
> A time place and manner restriction is not  by its terms a
> substantical burden.
>
> I mean this only partly in jest.  Just as we have the "secondary
> effects" doctrine in free speech/pornography zoning cases, so we have
> would find RLUIPA does not reach all conduct that it could be
> interpreted to reach.
>
> The language could be construed Eugene's way, and then we play games
> about what is or is not a substantial burden.  And I submit that
> deciding that issue will bring into play all sorts of concerns and
> weighing and so on that will result in allowing states to regulate
> light pollution.
>
> All that said, I don't think there is a substantial burden here.
>
> I think that mere neighbor annoyance is not a compelling state
> interest -- I agree with that.  But at some point the mere annoyance
> can become too intrusive and even a common law nuisance the abatement
> of which would be adequately compelling.
>
> Also, if we look at the aims of the law, the context in which it was
> passed, and the variety of limitations built around it, then I come to
> the conclusion that this is not the sort of activity it was meant to
> reach.  I would conclude that it is intended to reach things that are
> more in the nature of prohibitions than mere limitations.
>
> Steve
>
>
>
> --
> Prof. Steven Jamar
> Howard University School of Law
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-- 
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com
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