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A09412 Summary:

BILL NOA09412
 
SAME ASNo Same As
 
SPONSOREichenstein
 
COSPNSR
 
MLTSPNSR
 
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.
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A09412 Text:



 
                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

        A. 9412                             2
 
     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

        A. 9412                             3
 
     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.

        A. 9412                             4
 
     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.
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