Ren Art 10 §§100 & 101 to be Art 15 §§150 & 151, add Art 10 §§100 - 107, Civ Rts L
 
Enacts the New York religious land use and religious exercise act prohibiting unreasonable restriction on regulations affecting religious land use or affecting religious exercise of institutionalized persons.
STATE OF NEW YORK
________________________________________________________________________
9412
IN ASSEMBLY
March 3, 2022
___________
Introduced by M. of A. EICHENSTEIN -- read once and referred to the
Committee on Governmental Operations
AN ACT to amend the civil rights law, in relation to enacting the New
York religious land use and religious exercise act
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "New York
2 religious land use and religious exercise act".
3 § 2. Article 10 and sections 100 and 101 of the civil rights law, as
4 renumbered by chapter 263 of the laws of 2019, are renumbered article 15
5 and sections 150 and 151, respectively.
6 § 3. The civil rights law is amended by adding a new article 10 to
7 read as follows:
8 ARTICLE 10
9 RELIGIOUS LAND USE AND RELIGIOUS EXERCISE
10 Section 100. Definitions.
11 101. Restriction on regulations affecting religious land use.
12 102. Restriction on regulations affecting religious exercise of
13 institutionalized persons.
14 103. Government discretion in alleviating burdens on religious
15 exercise.
16 104. Judicial relief.
17 105. Rules of construction.
18 106. Broad construction.
19 107. Severability.
20 § 100. Definitions. As used in this article:
21 1. "Claimant" means a person raising a claim or defense under this
22 article.
23 2. "Demonstrates" means meets the burdens of going forward with the
24 evidence and of persuasion.
25 3. "Free exercise clause" means that portion of the first amendment to
26 the Constitution that proscribes laws prohibiting the free exercise of
27 religion.
28 4. "Government" means:
29 (a) the state;
30 (b) the governing board of a municipal corporation as such terms are
31 defined in section two of the general municipal law;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14330-02-2
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1 (c) any other governmental entity created under the authority of the
2 state or a municipal corporation, including but not limited to any
3 branch, department, agency or instrumentality; or
4 (d) any other person acting under color of state law.
5 5. "Institution" means an institution, as defined in section 2 of the
6 Civil Rights of Institutionalized Persons Act (42 U.S.C. § 1997).
7 6. "Land use regulation" means a zoning or landmarking law, or the
8 application of such a law, that limits or restricts a claimant's use or
9 development of land (including a structure affixed to land), if the
10 claimant has an ownership, leasehold, easement, servitude, or other
11 property interest in the regulated land or a contract or option to
12 acquire such an interest.
13 7. "Native American tribe" means those tribes, bands or other organ-
14 ized groups of Indians recognized in the state or considered by the
15 federal secretary of the interior to be a Native American or Indian
16 tribe or a Native American or Indian organization for any purpose.
17 8. "Person" means any natural person, partnership, corporation, compa-
18 ny, trust, association or other entity, however organized.
19 9. "Program or activity" means all of the operations of any entity as
20 described in paragraph (1) or (2) of section 606 of the Civil Rights Act
21 of 1964 (42 U.S.C. § 2000d-4a).
22 10. "Religious exercise" includes any exercise of religion, whether or
23 not compelled by, or central to, a system of religious belief. The use,
24 building, or conversion of real property for the purpose of religious
25 exercise shall be considered to be religious exercise of the person or
26 entity that uses or intends to use the property for that purpose.
27 § 101. Restriction on regulations affecting religious land use. 1.
28 Substantial burdens.
29 (a) A government shall not impose or implement a land use regulation
30 in a manner that imposes a substantial burden on the religious exercise
31 of a person, including a religious assembly or institution, unless the
32 government demonstrates that imposition of the burden on that person,
33 assembly, or institution:
34 (1) is in furtherance of a compelling interest of the government; and
35 (2) is the least restrictive means of furthering such compelling
36 interest.
37 (b) The provisions of this subdivision shall apply in any case in
38 which:
39 (1) the substantial burden is imposed in a program or activity that
40 receives government or federal financial assistance, even if the burden
41 results from a rule of general applicability; or
42 (2) the substantial burden affects, or the removal of that substantial
43 burden would affect, commerce with foreign nations, with another state
44 or municipal corporation, or with Native American tribes, even if the
45 burden results from a rule of general applicability; or
46 (3) the substantial burden is imposed in the implementation of a land
47 use regulation or system of land use regulations, under which a govern-
48 ment makes, or has in place, formal or informal procedures or practices
49 that permit the government to make, individualized assessments of the
50 proposed uses for the property involved.
51 2. Discrimination and exclusion. A government shall not impose or
52 implement a land use regulation:
53 (a) in a manner that treats a religious assembly or institution on
54 less than equal terms with a nonreligious assembly or institution;
55 (b) that discriminates against any assembly or institution on the
56 basis of religion or religious denomination; or
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1 (c) that totally excludes religious assemblies from a jurisdiction or
2 unreasonably limits religious assemblies, institutions, or structures
3 within a jurisdiction.
4 3. Definition. As used in this section, "substantial burden" may
5 include:
6 (a) being prohibited from using a property for religious exercise
7 where the use is otherwise permitted by right or special exception;
8 (b) an actual and substantial financial burden in proceeding with a
9 land use project which is not attributable to a factor or factors other
10 than the land use regulation at issue; or
11 (c) an actual and substantial delay in proceeding with a land use
12 project which is not attributable to a factor or factors other than the
13 land use regulation at issue.
14 § 102. Restriction on regulations affecting religious exercise of
15 institutionalized persons. 1. A government shall not impose a substan-
16 tial burden on the religious exercise of a person residing in or
17 confined to an institution as defined in section one hundred of this
18 article, even if the burden results from a rule of general applicabil-
19 ity, unless the government demonstrates that imposition of the burden on
20 that person:
21 (a) is in furtherance of a compelling interest of the government; and
22 (b) is the least restrictive means of furthering such compelling
23 interest.
24 2. The provisions of this section shall apply in any case in which:
25 (a) the substantial burden is imposed in a program or activity that
26 receives government assistance;
27 (b) the substantial burden affects, or the removal of that substantial
28 burden would affect, commerce with foreign nations, with another state
29 or municipal corporation, or with Native American tribes.
30 § 103. Government discretion in alleviating burdens on religious exer-
31 cise. A government may avoid the preemptive force of any provision of
32 this chapter by changing the policy or practice that results in a
33 substantial burden on religious exercise, by retaining the policy or
34 practice and exempting the substantially burdened religious exercise, by
35 providing exemptions from the policy or practice for applications that
36 substantially burden religious exercise, or by any other means that
37 eliminates the substantial burden.
38 § 104. Judicial relief. 1. (a) A person may assert a violation of this
39 article as a claim or defense in a judicial proceeding and obtain appro-
40 priate relief against a government. Jurisdiction and standing to assert
41 a claim or defense under this article shall be governed by the general
42 rules of jurisdiction and standing under New York law.
43 (b) The attorney general may bring an action for injunctive or declar-
44 atory relief to enforce compliance with this article. Nothing in this
45 article shall be construed to deny, impair, or otherwise affect any
46 right or authority of the attorney general or of any agency, officer, or
47 employee of the state, acting under any law other than this article, to
48 institute or intervene in any proceeding.
49 (c) An action may be brought as provided in paragraph (a) or (b) of
50 this subdivision as soon as any final government action occurs.
51 2. If a plaintiff produces prima facie evidence to support a claim
52 alleging a violation of this article, the government shall bear the
53 burden of persuasion on any element of the claim, except that the plain-
54 tiff shall bear the burden of persuasion on whether the law (including a
55 regulation) or government practice that is challenged by the claim
56 substantially burdens the plaintiff's exercise of religion.
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1 3. The court, in its discretion and in an appropriate case, may award
2 actual damages and reasonable attorney's fees to a prevailing claimant.
3 4. If the only jurisdictional basis for applying a provision of this
4 article is a claim that a substantial burden by a government on reli-
5 gious exercise affects, or that removal of that substantial burden would
6 affect, commerce with foreign nations, another state or municipal corpo-
7 ration, or with Native American tribes, the provision shall not apply if
8 the government demonstrates that all substantial burdens on, or the
9 removal of all substantial burdens from, similar religious exercise
10 throughout the state would not lead in the aggregate to a substantial
11 effect on commerce with foreign nations, another state, or with Native
12 American tribes.
13 § 105. Rules of construction. Nothing in this article shall:
14 1. Be construed to authorize any government to burden any religious
15 belief.
16 2. Create any basis for restricting or burdening religious exercise or
17 for claims against a religious organization, including any religiously
18 affiliated school or university, not acting under color of law.
19 3. Create or preclude a right of any religious organization to receive
20 funding or other assistance from a government or the federal government,
21 or of any person to receive government funding for a religious activity;
22 provided, however, that a government may be required to incur expenses
23 in its own operations to avoid imposing a substantial burden on reli-
24 gious exercise.
25 4. Authorize a government to regulate or affect, directly or indirect-
26 ly, the activities or policies of a person other than a government as a
27 condition of receiving funding or other assistance, or restrict any
28 authority that may exist under other law to so regulate or affect such
29 activities or policies, except as provided in this article.
30 5. With respect to a claim brought under this chapter, be construed as
31 proof that a substantial burden on a person's religious exercise
32 affects, or removal of that burden would affect, commerce with foreign
33 nations, another state, or with Native American tribes, shall not estab-
34 lish any inference or presumption that the legislature intends that any
35 religious exercise is, or is not, subject to any law other than this
36 article.
37 6. Be construed to restrict, negate or otherwise weaken any
38 protections afforded under the Religious Land Use and Institutionalized
39 Persons Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc, et seq.
40 7. Preempt any other state law that is equally as protective of reli-
41 gious exercise as, or more protective of religious exercise than, this
42 article.
43 § 106. Broad construction. This article shall be construed in favor of
44 a broad protection of religious exercise, to the maximum extent permit-
45 ted by the terms of this article, the Constitution of the state of New
46 York and the Constitution of the United States.
47 § 107. Severability. If any clause, sentence, paragraph, section or
48 part of this article shall be adjudged by any court of competent juris-
49 diction to be invalid and after exhaustion of all further judicial
50 review, the judgment shall not affect, impair or invalidate the remain-
51 der thereof, but shall be confined in its operation to the clause,
52 sentence, paragraph, section or part of this article directly involved
53 in the controversy in which the judgment shall have been rendered.
54 § 4. This act shall take effect immediately.