October 5, 2026
Some of the most difficult municipal land use decisions are those that involve requests for zoning relief by religious organizations. These decisions implicate the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and application of RLUIPA to zoning matters can be challenging and uncertain under existing caselaw. One major element of RLUIPA may now be clarified by the United States Supreme Court.
On October 1, 2026, the Court agreed to hear Missionaries of Saint John the Baptist, Inc. v. Frederic, No. 25-1131, a religious land use dispute from Park Hills, Kentucky. The Court will decide whether a land use regulation that prohibits a religious institution from building a religious structure on its own property is a “substantial burden” on religious exercise under RLUIPA. The Court has never defined that standard in the land use context, and lower courts have applied competing tests for more than two decades. The ruling is likely to set a single national standard governing how courts will review municipal decisions on zoning applications from churches, synagogues, mosques, and other religious institutions. Together with Grand v. City of University Heights, which we reported on here in September, and which will be argued on December 9, 2026, this is the second religious land use case the Court will hear this Term.
Background
The Missionaries own a property in a residential district of Park Hills on which a Catholic church is located. The church predates the City’s 1974 zoning ordinance and is a legal nonconforming use. The Missionaries leased an adjacent residential parcel to build an outdoor grotto, consisting of a shrine, a plaza, a walking path, and a retaining wall. The zoning ordinance permits these types of accessory religious structures only for churches located on an arterial street, which this church is not.
Notably, the City did not deny the project. In April 2021, the Park Hills Board of Adjustment (akin to a zoning board of appeals) approved the Missionaries’ request for a conditional use permit and setback variances for the adjacent parcel. Two neighbors challenged that approval in state court, arguing that the Board’s approval violated the City’s accessory structure on arterial streets limitation. The trial court upheld the Board, but the Kentucky Court of Appeals reversed, partially based on its conclusion that the Board exceeded its authority in approving the proposed improvements. In December 2025, the Kentucky Supreme Court affirmed the Board’s decision, holding that denial was not a substantial burden because the Missionaries could build a somewhat smaller grotto on the existing church parcel, the ordinance treated religious and nonreligious projects alike, and the Missionaries leased the adjacent parcel knowing that a grotto was not permitted there without zoning relief.
The Court Will Focus on Substantial Burden Test
While the Missionaries presented two questions, the Court granted review of only one: whether the arterial-street restriction is a substantial burden. The Court declined to consider whether the arterial-street requirement violates RLUIPA’s separate “equal terms” provision or whether the Kentucky courts correctly ruled on the authority of the Board of Adjustment.
RLUIPA bars a government from imposing a land use regulation that substantially burdens religious exercise unless the government shows that the regulation is the least restrictive means of furthering a compelling governmental interest. 42 U.S.C. § 2000cc(a), a test (known as “strict scrutiny”) that is almost impossible to satisfy. The statute does not define “substantial burden,” and federal courts around the country have come up with different definitions.
The Seventh Circuit in Chicago, in Civil Liberties for Urban Believers v. City of Chicago (2003), originally held that a regulation violated the substantial burden test if it rendered the religious exercise “effectively impracticable.” Later Seventh Circuit decisions have applied a more flexible approach. The Sixth Circuit, in Livingston Christian Schools v. Genoa Charter Township (2017), weighs factors such as whether feasible alternatives exist; whether the regulation causes substantial delay, uncertainty, and expense; and whether the hardship was self-imposed. Other courts ask whether the regulation pressures the institution to modify its religious behavior. The Missionaries argue that the Kentucky Supreme Court’s reliance on alternatives and prior knowledge improperly narrowed RLUIPA’s protections.
The Potential Impacts
Variances, special uses, and conditional use permits are the kind of “individualized assessments” that bring a zoning decision within RLUIPA’s substantial burden provision. If the Court holds that barring a religious structure on an institution’s property is a substantial burden, routine decisions on accessory structures, setbacks, bulk, and similar standards could trigger strict scrutiny, a test local governments rarely satisfy, along with exposure to attorney’s fees.
Conversely, a ruling endorsing the Kentucky Supreme Court’s approach would confirm that the availability of reasonable alternatives and an applicant’s prior knowledge of a restriction remain relevant defenses.
Either way, the decision will shape how municipalities review religious land use zoning applications. Illinois municipalities are also subject to the Illinois Religious Freedom Restoration Act, 775 ILCS 35, which independently applies a substantial burden standard to local government action.
What Comes Next
Briefing will proceed over the coming months, with oral argument likely in early 2027 and a decision expected by the end of the Term in June 2027. The Commonwealth of Kentucky filed an amicus brief supporting the Missionaries’ petition, and additional amicus participation from state and local government organizations is likely. We will continue to monitor this case and will provide updates following oral argument and the Court’s decision. Please contact Peter Friedman or any Elrod Friedman LLP attorney with questions about this case or the application of RLUIPA to local land use decisions.