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Kellen Zale

Abstract

Boulder County, Colorado has been at the forefront of the environmental movement for decades. Starting with its citizens’ vote in 1967 to implement a tax specifically to preserve open space, the city has long been known for its progressive environmental policies. At the center of Boulder’s environmental protection efforts is a comprehensive system of land use regulations designed to mitigate the slow chokehold of ever-encroaching development on wetlands and open space, on groundwater and soils, and on wildlife and native species. Numerous communities across the country have followed Boulder’s much-praised model and enacted their own environmental zoning laws to protect unique ecosystems and natural resources from the negative effects of land users who seek to “develop their properties to the limits of the law and sometimes beyond.” However, the Rocky Mountain Christian Church, a 2000-member megachurch located in a rural area of Boulder County, persuaded the Tenth Circuit Court of Appeals to undermine decades of environmental protection efforts by the County. The court held that Boulder’s zoning laws, limiting development in environmentally sensitive rural areas, violated the megachurch’s right to religious exercise under a federal law. The federal law, known as RLUIPA–the Religious Land Use and Institutionalized Persons Act of 2000–was passed with the intention of protecting religious land users from discrimination in the zoning process. However, RLUIPA casts a far wider net: the Act allows churches to sue local governments for requiring them to comply with generally applicable zoning laws if they can show that those laws impose a “substantial burden” on their religious exercise. No evidence, or even allegation, of discrimination is required under RLUIPA. As a result, churches are now exempt from numerous zoning laws, leaving local governments to struggle with a myriad of unintended consequences. RLUIPA has not gone without criticism. Local governments and scholars alike have argued that Congress exceeded its constitutional authority under the Spending Clause, the Commerce Clause and Section 5 of the Fourteenth Amendment in enacting the Act. RLUIPA has also been criticized as a violation of the Establishment Clause, which requires that the government not prefer one religion over another, nor prefer religion over irreligion. Still others have argued that RLUIPA is bad public policy because it distorts residential land users’ expectations that their neighborhoods will not be subject to the impacts that non- residential uses such as churches create, such as excess traffic and noise. This article proposes an additional argument against RLUIPA: that by allowing religious entities to use their property in ways that no other land users can, the Act threatens to undermine local environmental protection efforts nationwide. If Boulder, with its impeccable record of environmental stewardship, could not survive an attack under RLUIPA, the environmental zoning laws of other communities face an even greater threat. RLUIPA’s message to churches is that they can expand without regard to the detrimental impact of their development. As a founding member of Rocky Mountain Christian Church explained when asked if there could be any limits on the church’s expansion, “There’s God’s limit. When he says, ‘You’re at your limit,’ that’s when we will stop.” “God’s limit,” however, may come too late for the ecosystems and natural resources that stand in the path of religious development. To those that would argue that churches should “not be treated the same as a Wal-Mart or a gas station,” this article responds that the environmental impacts to the ecosystem are exactly the same whether a 200,000-square foot mega-church or a 200,000-square foot Wal-Mart is built on a parcel of rural open space. The identity of the land user is irrelevant when measuring negative environmental impacts.

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