Yes, if the procedural and due process requirements of the Eminent Domain Procedure Law are complied, a church or synagogue’s land may be taken by eminent domain.
Religious organizations often alleged that they are protected by the Religious Land Use and Institutionalized Persons Act (42 USC § 2000cc et seq.). However, the Act only applies to a zoning and landmarking law. Case law provides that a government’s exercise of eminent domain does not constitute an application of a zoning law. See St. John’s United Church of Christ v City of Chicago, 503 F3d 616 (7th Cir. 2007). St. John’s held that RLUIPA, by its own terms, does not apply to eminent domain proceedings.
Zoning and eminent domain are two distinct concepts, both of which involve land, but in very different ways.
In Congregation Ades Yereim v City of New York, 673 F. Supp 2d 94 (U.S. Dist. Ct. E. NY, 2009), the Court stated, at page 106, had Congress wished to bring the distinct, long-standing, well-known, and important governmental power of eminent domain within the ambit of RLUIPA, it surely could have said so. That it did not is compelling. See St. John’s United Church, 502 F.3d at 641 (“[g]iven the importance of eminent domain as a governmental power affecting land use, we think that if Congress had wanted to include [it] within RLUIPA, it would have said something. …Congress did not mention eminent domain…in RLUIPA’s definition of a land use regulation, which is enough for us to consider it excluded”); Faith Temple Church, 405 F. Supp. 2d 250 at 254-55 (W.D.N.Y. 2005).
In New York, the exclusive method of challenging a proposed condemnation is by complying with Section 207 of the Eminent Domain Procedure Law. This requires filing a petition directly in the Appellate Division.
In Faith Temple Church v Town of Brighton, 17 AD3d 1072 (4th Dept 2005), the Court had before it such a petition to review a determination of the Town of Brighton to condemn a parcel of land that the church contracted to purchase.
The Court stated that to overturn a legislative act, there must be a clear showing of bad faith. It also held that Petitioner failed to demonstrate that the Town’s conduct was “irrational, baseless or palpably unreasonable.” Further, it held, “Contrary to the contentions of petitioner and respondents, this Court does not have authority under the EDPL to consider petitioner’s causes of action under the Religious Land Use and Institutionalized Persons Act (42 USC § 2000cc et seq.). Those causes of action which also appear to have been raised in an action filed in United States District Court contemporaneously with the commencement of this proceeding (see Faith Temple Church v Town of Brighton, F. Supp. 2d, 2005 U.S. Dist. LEXIS 8065, 2005 WL 66210 [WD NY Jan. 12, 2005]), must be determined by that court. EDPL 207 (C) limits the scope of this Court’s review of the Town’s determination and findings, and does not confer authority to determine whether the Town would, by condemning certain property, be in violation of a federal statute (see generally Jackson, 67 NY2d at 418).”
The Court further held, petitioner has failed to demonstrate on this record that the proposed condemnation violates the Free Exercise Clause or its New York counterpart. The application of a statute such as the EDPL, an “otherwise valid, neutral, and generally applicable law[],” does not ordinarily violate the Free Exercise Clause (Cottonwood Christian Ctr., 218 F Supp 2d at 1223; see Thiry, 78 F3d at 1496; City Chapel Evangelical Free, 744 NE2d at 452). Generally, a “law that is neutral of general applicability need not be justified by a compelling government interest even if the law has the incidental effect of burdening a particular religious practice” (Church of Lukumi Babalu Aye, Inc. v Hialeah, 508 US 520, 531, 124 L Ed 2d 472, 113 S Ct 2217 [1993]). Here, the record demonstrates that the Town’s “actions are neutral and generally applicable” (Thiry, 78 F3d at 1496), and petitioner has failed to demonstrate that the proposed condemnation imposes a substantial burden on its exercise of religion (cf. McEachin v McGuinnis, 357 F3d 197, 202-203 [2004]; Ford v McGinnis, 352 F3d 582, 592-94 [2003]).
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