In Anash, Inc. v. Borough of Kingston, (3rd Cir., July 30, 2026), the U.S. 3rd Circuit Court of Appeals in a 2-1 decision ordered a Pennsylvania federal district court to issue a preliminary injunction allowing a rabbi and his congregation access to two buildings that allegedly violated zoning provisions once building code violations were cured. Rabbi Shimon Hellinger had acquired two properties, one used for office space and a yeshiva, and the other used for group living for ten Orthodox Jewish students who were members of the rabbi's congregation. The rabbi did not respond to notices of violations issued by zoning and code enforcement officials. On the day before Rosh Hashanah, enforcement officials obtained administrative search warrants and condemned the properties through no-occupancy orders. The rabbi and his yeshiva filed suit alleging that the official actions violated the Religious Land Use and Institutionalized Persons Act. The district court refused to grant a preliminary injunction. The 3rd Circuit affirmed the denial of a preliminary injunction against building code enforcement because building codes are not land use regulations covered by RLUIPA. However, the court reversed the denial of a preliminary injunction against enforcement of the zoning regulations, saying in part:
... [I]t is likely that the implementation of the 2023 Zoning Ordinance substantially burdens Rabbi Hellinger and his congregation’s religious exercise. ...
... [I]n Holt v. Hobbs, ... the Supreme Court adjudicated a RLUIPA substantial-burden claim by an institutionalized person. It held that a prison policy that required an inmate to “engage in conduct that seriously violates [his] religious beliefs” was a substantial burden....
... [A]lthough they are not identical, RLUIPA’s institutionalized persons provisions and its land-use provisions both use a substantial-burden standard subject to strict scrutiny.... The structural similarity allows the situations ... under which RLUIPA protects religious beliefs of institutionalized persons to be translated into the land-use context... Doing so yields two substantial-burden scenarios – both related to the protection of religious belief. The first occurs when a person is forced to choose between following the precepts of his religion and avoiding the effect of a land use regulation.... The second occurs when a land use regulation places substantial pressure on a person to substantially modify his behavior in violation of his beliefs....
... [A] land use regulation imposes a substantial burden on religious exercise if it restricts access to real property that is otherwise available for the proposed exercise of religion. Second, a land use regulation – even one of general applicability – imposes a substantial burden if it limits the use of real property that is otherwise available for the proposed exercise of religion so as to prevent the proposed exercise of religion on the property. Third, even when the imposition or implementation of a land use regulation does not directly impede religious exercise, the land use regulation may still impose a substantial burden if it has a significant adverse effect on real property that is used or otherwise available for the proposed exercise of religion....
... [I]t is unlikely that the Kingston Defendants will be able to demonstrate a compelling governmental interest in perpetuating the condemnation orders after the Building Code violations have been remediated....
Judge Restrepo dissented, saying in part:
The majority’s opinion contravenes a cohesive body of law among our sister circuits interpreting the substantial burden provision of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”).... Commentators have described the courts as “coalesce[ing] around a totality-of-the-circumstances test, examining whether the government’s actions substantially inhibit religious exercise, rather than merely inconveniencing it.”... But the majority does not engage with this caselaw and merely offers in a footnote the vague statement that “[o]ur sister circuits have taken a variety of approaches” followed by a string cite.....
Instead, the majority relies on RLUIPA’s separate provisions governing prison inmates despite recognizing that the substantial burden analysis in the prison context is “not applicable” to RLUIPA land use cases.... RLUIPA land use decisions uniformly caution against relying on principles from prison cases because “land-use regulations do not typically compel plaintiffs to ‘violate their beliefs’ in the way that, for example, prison rules might require an inmate to engage in conduct that goes against his or her religious tenets....
Unlike the majority, I would follow the approach and guidance of our sister circuits. The circuits consider two factors that are particularly apposite here: (1) whether the plaintiff had a reasonable expectation of religious land use or whether the plaintiff’s burden was self-imposed; and (2) whether the plaintiff had ready alternatives....
Separate from the merits, this appeal fails on justiciability grounds....
