The Dembiecs obtained a permit from the Town of Holderness (Town) to construct a single family home. When construction of the home was substantially completed, the Town’s compliance officer advised the petitioners that he would not issue a certificate of compliance for their new home because the existing boathouse contained a dwelling unit, and the applicable zoning ordinance allowed two dwellings on a lot only when they are in the same structure. The compliance officer informed the petitioners that they would need either to obtain a variance or to remove all plumbing from the boathouse. The petitioners applied to the zoning board of adjustment for an equitable waiver from the ordinance, which originally granted the waiver, but on rehearing, denied it. The petitioners then sought a variance, but the board denied their application. The trial court ruled that it lacked jurisdiction to hear the petitioners’ municipal estoppel claim because they had failed to exhaust their administrative remedies. The petitioners now argue that the trial court had jurisdiction over their claim because they were not required to first raise it before the zoning board of adjustment.

The court noted that usually parties must exhaust their administrative remedies before appealing to the courts; however, a petitioner need not exhaust administrative remedies and may bring a declaratory judgment action to challenge the decisions of municipal officers and boards when the action raises a question that is peculiarly suited to judicial rather than administrative treatment and no other adequate remedy is available. The court then determined that the applicable statutes did not confer upon a zoning board of adjustment the power to grant relief under the equitable doctrine of municipal estoppel. Thus, exhaustion was found not to be always required when, as in this case, resolving the factual issues did not require “specialized administrative understanding,” and when further pursuit of administrative remedies would be futile. Accordingly, the court held that the petitioners’ assertion of a municipal estoppel claim for the first time in the trial court is not barred by the exhaustion of administrative remedies doctrine.

Dembiee v Town of Holderness, 2014 WL 5859514 (NH 11/13/2014)

The opinion can be accessed at: http://law.justia.com/cases/new-hampshire/supreme-court/2014/2013-068.html

Thank you to the RLUIIPA Defense Blog for this posting. http://www.rluipa-defense.com/article.cfm?ID=375

The Northern District of California recently dismissed RLUIPA claims filed by the California-Nevada Annual Conference of the Methodist Church (the “Conference”) against the City of San Francisco. The case revolves around the sale of a Methodist Church located at 1601 Larkin Street in the Russian Hill area of San Francisco. The church was constructed after the 1906 earthquake and was home to a thriving congregation in the 1930s and 1940s. By the 1970s, however, the congregation had declined significantly, and by 2000 there were only eight members. By 2003, the church was no longer used for religious purposes.

In 2004, the Conference arranged to sell the church to Pacific Polk Properties, LLC (“Polk”) for the development of market-rate condominiums. The purchase price was $3,000,000, but as a condition of the sale, the existing church had to be demolished. The Conference and Polk sought to obtain the necessary permits and approvals for demolition, but the San Francisco Planning Department determined that the proposed demolition required an environmental impact report (“EIR”) under the California Environmental Quality Act (“CEQA”). The City issued a draft EIR in April of 2007 and then held a public hearing on the application. At the hearing, it was suggested for the first time that the church should be designated as a “landmark.”

Almost three years after the demolition application was filed, it was referred to the San Francisco Historic Preservation Board. The Conference subsequently sued in state court and in May, 2008, received an order requiring the City to cease landmark proceedings. The City appealed the decision, but the Court of Appeals unanimously affirmed, finding the City lacked authority to landmark the church.

In 2010, the permitting process for approval of Polk’s proposed development and the necessary demolition permit recommenced. After approximately three more years (ten since the original application), several revisions to the Draft EIR, modified design proposals and numerous committee and public hearings, Polk’s building permit and the demolition permit applications were granted. The Conference’s original complaint was filed on May 5, 2011, but later amended to incorporate subsequent events, including the April, 2014 approvals.

The Conference claimed that the City’s ten year delay in issuing a demolition permit substantially burdened its religious exercise in violation of RLUIPA and the First Amendment. Although its property would no longer be used for religious exercise, it claimed that the City “prevented it from converting the property into liquid assets that could then be used to further its religious mission.” For example, the Conference sought to use the money to “expand evangelical outreach programs, make needed repairs to buildings to provide safe places of worship, create new programs to expand Methodism in San Francisco, feed the poor and provide shelter for the homeless.” The court disagreed:

RLUIPA’s statutory language, its legislative history, and relevant case law establish that commercial endeavors such as that here – the sale of property for the construction of market rate condominiums – even if undertaken by the Conference in order to fund its religious mission, do not constitute “religious exercise” protected by RLUIPA.

The court did not, however dismiss the Conference’s First Amendment claim, which, unlike its RLUIPA claim, was “based upon a broader notion of unequal treatment.” Viewing the Conference’s first amended complaint in the most favorable light, the court found that the Conference may prove that the City acted with an intentional pattern and practice of discrimination, through approximately a decade of bureaucratic proceedings, as opposed to the RLUIPA claim, which was limited to the denial of the demolition permit. Finally, the court dismissed the Conference’s “course of conduct” regulatory takings claim, but granted the Conference leave to amend its complaint to specify what, if any decision by the City established a regulatory taking.

The decision in California-Nevada Annual Conf. of the Methodist Church v. San Francisco, No. 11-cv-02338 (N.D. CA 2014) is available here.

Plaintiffs who were denied the opportunity to install a shooting range, challenged eleven regulations made by the city that fell into the category of zoning restrictions, construction requirements and business operations. The Plaintiffs alleged that the zoning restrictions infringed on their right to free speech and their right to use firearms. Plaintiffs Rhonda Ezell, Joseph Brown, and William Hespen, along with Action Target, Inc. and Second Amendment Foundation, Inc. originally brought suit against the City of Chicago after regulations prohibited them from bringing a mobile fire range in Chicago. Plaintiffs filed a claim against the City of Chicago and the Seventh Circuit concluded that the Plaintiffs could succeed on their claim that a general ban on firing ranges was unconstitutional. The City in response enacted regulatory provisions, including licensing provisions, construction requirements, environmental regulations and zoning restrictions for firing ranges. Plaintiffs’ challenge to the zoning restrictions were unsuccessful as the City’s Zoning Board of Appeals found that the ranges proposed were not compatible with commercial use and that the requests did not involve a manufacturing district or to locate the gun range within 500 feet of restricted areas. Plaintiffs were also required to follow construction requirements which consisted of ballistic proof doors, separate ventilation systems and sound limitations, and the Plaintiffs were also restricted to certain business operations, such as the prohibition of individuals under eighteen, standard hours of operations and the City’s requirement of having a range master on staff, who would be responsible for insuring adherence to call regulations.

The Federal District Court found that each regulation was to be addressed under the second amendment, but that the level of scrutiny for each regulation varies. Applying strict scrutiny to the zoning ordinance because it restricted certain Second Amendment activities, the court decided that the City did not meet its burden because the City’s concern for regulating ranges to prevent stolen firearms and to prevent lead-contaminated air and waterways did not sufficiently substantiate a connection between those interests and the ordinance. The Court however found that provision requiring firing ranges to be at least 500 feet away from residential zoning districts such as schools, daycare facilities, and places of worship was significantly less burdensome than the general zoning ordinance, and therefore survived strict scrutiny, as this provision did not strip plaintiffs of a reasonable locations to operate a firing range.

With respect to the City’s regulations concerning construction standards for firing ranges, the court found that the City’s construction standard did not restrict any second Amendment activity whatsoever and therefore applied intermediate scrutiny. The Court found that the requirements only placed a minor burden on the construction of the range, specifically noting that the requirement for ballistic proof walls and doors for the safety of those outside and near the range outweighed the Plaintiffs’ additional costs of installation. The court further found that separate ventilation systems was to minimize the lead exposure of the firing range outweighed the Plaintiffs’ costs of installation. The regulation on the sound limit of the range was also upheld under intermediate scrutiny, as the City’s concerns in monitoring the noise emanating from the range between 8 p.m. and 8 a.m. outweighed the Plaintiffs’ concerns of being singled out amongst other businesses in Chicago.

The court further found that the provision affecting the business operations of ranges did not restrict the Plaintiffs’ interest in the use of firearms, and only placed a minor burden on the Second Amendment rights of the entire adult population in Chicago. The court said that imposing age requirements to protect minors from lead exposure and firearm accidents outweighed the Plaintiffs’ concerns in losing business, as protecting minors is an important governmental interest. Restrictions on hours of operations to reduce disturbance at nights however fell short in surviving scrutiny, as the City did not provide evidence showing that a range has a greater impact on traffic or police inquires than any other business or locations. The City’s requirement in having a range master present survived intermediate scrutiny, as the effort to minimize safety risks associated with the operation of a firing range outweighed the Plaintiffs’ concerns in acquiring additional costs. The provision requiring an FOID card also survived scrutiny, as assurance of knowing a person passes a criminal history and mental illness background check outweighed the Plaintiffs’ concerns that potential employees from out of state would be banned. The court concluded in finding that the claim for a cumulative effect should be dismissed because the Plaintiffs failed to adequately develop the contention with either facts or case law, and that the Plaintiffs’ first amendment rights were not violated because the ordinances did not preclude plaintiff from participating in firearms training.

Ezell v City of Chicago, 2014 WL 4813419 (ND Ill. 9/29/2014)

The opinion can be accessed at: http://isra.org/Portals/6/ISRA%20Documents/alerts/ezell-v-chicago-decision-09292014.pdf

Elissa Fay Smith owned residential property in the City of Keego Harbor. Her property adjoined a landscaping business owned by defendants Holly Hills Development, LLC, Shecter Landscaping, Inc., and Kenneth Shecter. On December 14, 2004, the Oakland County Circuit Court entered a Consent Judgement against the defendants, which restricted the Shecters in their use of the property and required them to conform to the City’s zoning ordinance. The Oakland County Circuit Court granted Smith’s voluntary dismissal as to her claims against the Shecter Defendants. The only remaining claim is Count I against the City of Keego Harbor (the City), claiming deprivation of Smith’s rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The City raised four primary arguments in favor of dismissal: (1) that Smith did not have standing to enforce the Consent Judgment against the Shecters, or to compel the City to enforce its zoning ordinance; (2) that Smith’s claims were not ripe for adjudication because she has not received a final decision from the City; (3) that Smith had no constitutionally protected property interest in the City’s actions with respect to the Shecters; and (4) that Smith failed to state a claim under the Fourth and Fourteenth Amendments or under 42 U.S.C. § 1983.

The court agreed that because Smith was not a party to the Consent Agreement, she lacked standing to enforce it. Smith’s claim to compel the City to enforce its zoning ordinance public rights actions similarly failed for lack of standing, since the enforcement of zoning ordinances must be brought by public officials vested with such responsibility. Because Smith lacked standing to enforce either the Consent Judgment or the zoning ordinance, the Court lacked subject matter jurisdiction under Article III. Accordingly, the City’s motion to dismiss was granted.

Smith v City of Keego Harbor, 2014 WL 6632163 (ED MI 11/21/2014)

Posted by: Patricia Salkin | November 25, 2014

OH Appeals Court Upholds Denial of Area Variance to Church

Faith Walk Fellowship Church sought a variance to use the single family residence it owned as a church (which was a permitted use in a single-family residential district), and to install a gravel parking lot for six vehicles on an adjacent, vacant lot. The application was denied on grounds that the proposed use did not conform to setback requirements, that accessory off-street parking spaces must be paved, and that Faith Walk failed to incorporate a means of screening the proposed parking spaces. The Cleveland Board of Zoning Appeals denied the variance request on grounds that it would have an adverse effect on neighboring property owners, would be inconsistent with the character of the surrounding neighborhood, and that granting a variance would be contrary to the purpose and intent of the city’s zoning code. The court of common pleas affirmed the Board’s decision, and Faith Walk appealed.
Cleveland Ordinance 337.02(f)(1) permits “[t]he following buildings and uses, if located not less than fifteen (15) feet from any adjoining premises in a Residence District not used for a similar purpose: (1) Churches and other places of worship, but not including funeral chapels or mortuary chapels[.]” Faith Walk argued that the Board should have construed the words “adjoining premises” to mean the house situated on the adjoining lot (located more than 15 feet from Faith Walk’s house), not the adjoining lot itself. The court disagreed, finding the word “premises” was plainly used to indicate not only structures and dwellings, but the lands on which those structures or dwellings are located.

The court noted that the defining aspect of area variances is that the practical difficulties undue hardship standard refers to the characteristics of the land, not conditions personal to the owner of the land. Thus, Faith Walk had to show that the 15–foot setback requirement did not refer to conditions personal to it as the owner of the land in question but rather referred to the conditions especially affecting the lot in question. There was no evidence that Faith Walk could not erect on the property a church that conformed to setback requirements. That it could not use the existing structure on the land for use as a church was a condition personal to Faith Walk, not the property. Because Faith Walk had not argued that the board committed errors of law in rejecting the requested variance, the court affirmed the denial of the variance request.

Faith Walk Fellowship Church v City of Cleveland, 2014 WL 6065658 (OH App. 11/13/2014)

The opinion can be accessed at: http://www.supremecourt.ohio.gov/rod/docs/pdf/8/2014/2014-ohio-5035.pdf

Emmick owned approximately 400 acres that included an uninhabitable residence and a barn that was in disrepair. The property also included approximately one mile of shoreline along noncontiguous parcels, separated by a parcel owned by another property owner. In March 2002, Emmick applied to the County for a coastal development permit (“CDP”) to connect an existing well to the house. In June 2002, Emmick obtained over-the-counter permits authorizing dry-rot removal and roof and deck repairs. Emmick began work on the residence pursuant to the over-the-counter construction permits, but a county inspector told Emmick he had to stop work until the County issued the CDP. Emmick complied and the County did not issue a formal stop-work order. Emmick did not begin any of the work under the CDP when he died in March 2003 and SDS Family Trust (“SDS”) succeeded to the property.

Two years after Emmick initially applied for the CDP the County approved the CDP (“CDP–1”) conditioned upon SDS’s offer to dedicate a lateral easement for public access along the shorefront portion of the property. In December 2004, SDS applied to the County for another coastal development permit (“CDP–2”) to construct a 4,576–square–foot barn to replace the existing barn, which had collapsed, and for the removal of the condition requiring an offer to dedicate a lateral coastal access easement imposed by CDP–1. The Commission determined that the easement condition contained in CDP–1 was permanent and binding on the landowner, and removal of the easement condition would violate the policy favoring public access to coastal resources.

County Code section 23.03.040 exempts from CDP requirements: “All repair and maintenance activities that do not result in any change to the approved land use of the site or building, or the addition to, enlargement or expansion of the object of such repair maintenance….” The court found that the repairs here were done pursuant to the over-the-counter permits, and fell within the exemption of section 23.03.040. Emmick did not make the repairs for which he sought authorization under CDP–1, and therefore the easement requirement amounted to an unconstitutional taking. Furthermore, because neither Emmick nor SDS accepted any benefit from CDP–1, the court granted SDS’s petition for a writ of administrative mandamus.

Bowman v California Coastal Commission, 179 Cal. Rptr.3d 299 (CA App. 10/23/2014)

The opinion can be accessed at: http://www.courts.ca.gov/opinions/documents/B243015A.PDF

The Town of South Bristol Planning Board (Planning Board) issued a negative declaration of environmental significance and site plan approval for a 24–unit townhouse construction project. As a result of the developer’s conversion of the project to one involving condominiums, the Planning Board issued a second negative declaration and site plan approval in 2009. On October 19, 2012, the Planning Board approved a re-subdivision of the site from 24 individual lots to 2 lots. Plaintiff commenced this action on July 17, 2013 seeking a declaration that, the 2009 site plan approval had automatically terminated because “significant work” had not been timely commenced on the project. Defendants moved pursuant to, CPLR 3211(a)(5) to dismiss the complaint on the ground that all causes of action were time-barred. Plaintiff cross-moved pursuant to CPLR article 63 for a preliminary injunction halting any construction work or development of the site. Supreme Court granted defendants’ motions and denied plaintiff’s cross motion.
The court found that although a six-year limitations period governs declaratory judgment actions, if such claim could have been brought in another form, then the shorter limitations period applies. Here, Town Law § 274–a (11) provided for a 30–day limitations period for challenging “a decision of the planning board or any officer, department, board or bureau of the town” under CPLR article 78. Therefore, plaintiff’s challenge to the Town Code Enforcement Officer’s determination of the meaning of “significant work” under Code § 170–94(J) could have been brought in a CPLR article 78 proceeding under Town Law § 274–a (11) and was time-barred.

Plaintiff further contented that the Town Code Enforcement Officer’s determination was not an administrative action and thus there was “nothing to appeal.” However, Code § 170–92(B) specifically provided for an appeal to the Zoning Board of Appeals where it is alleged that there is an error in any order or decision made by an administrative officer or body in the enforcement of the Code. Accordingly, the court found that the plaintiff also failed to pursue the available administrative appeal. The order of the Supreme Court was therefore affirmed.

Bristol Homeowners Environmental Preservation Associates, LLC v Town of South Bristol, 2014 WL 5901427 (NYAD 4 Dept. 11/14/2014)

The opinion can be accessed at: https://www.nycourts.gov/courts/ad4/Clerk/Decisions/2014/11-14-14/PDF/0921.pdf

Pursuant to the NY EDPL 207, petitioner sought judicial review of the County’s determination to condemn certain real property for the purpose of expanding a runway at a public airport. The court rejected petitioner’s contention that the County failed to demonstrate that an actual public use, benefit, or purpose will be served by the proposed taking. In analyzing whether the taking was excessive, both in volume and in nature, the court noted that while it is well established that a condemnor cannot take, by use of the power of eminent domain, property not necessary to fulfill the public purpose, it is generally accepted that the condemnor has broad discretion in deciding what land is necessary to fulfill that purpose. The court concluded that respondent neither abused nor improvidently exercised its discretion in determining the scope of the taking. In assessing an agency’s compliance with the substantive mandates of the statute, the court reviewed the record to determine whether the agency identified the relevant areas of environmental concern and made a reasoned elaboration of the basis for its determination. Since it found the agency did so, and the determination was unanimously confirmed without costs and the petition is dismissed.

Eisenhauer v County of Jefferson, 2014 WL 5904610 (NYAD 4 Dept. 11/14/2014)

The opinion may be accessed at: https://www.nycourts.gov/courts/ad4/Clerk/Decisions/2014/11-14-14/PDF/1118.pdf

Plaintiff applied for and was granted, by the City of Troy, a certificate of occupancy for a business described as a gift shop. Soon after the business opened, a complaint was made to the City claiming that adult material was being sold on premises. The Code Inspector found that the majority of the store’s inventory consisted of adult material and that viewing booths had been constructed without seeking a permit for such. As a result, the Inspector issued a stop work order and padlocked the entrance, leaving a message for the owner that the business was being shut down based on a zoning violation.

Plaintiff did not seek a CPLR Article 78 review of the matter, but rather brought a constitutional challenge seeking a reinstatement of its certificate of occupancy and damages, asserting among other things, that the City Code did not specify a zone where adult materials may be sold. The Court noted that the City’s Assistant Plans Examiner stated that if a particular use is not set forth in the Code as permitted as of right or subject to special permit (as was the case with adult uses), that the zoning board has authority to grant use variances.
The Court concluded that since the plaintiff did not disclose the extent of the adult material when applying for the certificate of occupancy and therefore neglected to follow the procedure set forth in the Code, and harm was speculative and that under the circumstances, plaintiff’s challenge to the constitutionality of the Code was not ripe for review.

With respect to plaintiff’s due process claim based on the allegation that the City neglected to reinspect the property or issue an appearance ticket for City Court, the appellate court noted that “where, as asserted here, the alleged deprivation arises from an unauthorized act of a governmental employee, it ‘will not support a due process claim…if adequate…post-deprivation remedies are available.’” Here, the court said, the plaintiff should have brought a CPLR Art. 78 petition for relief. Plaintiff also failed to respond to three notices of violation, and therefore his due process claim was properly dismissed.

Your Place, LLC v City of Troy, 2013 WL 6474899 (NYAD 3 Dept. 11/20/2014)

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2014/518620.pdf

Editors Note: The following is reprinted from the RLUIPA Defense Blog with permission:

In an important decision, the court in Aldon, LLC v. City of Newport News, Virginia (E.D. Va. Nov. 20, 2014), clarified the standing requirements under RLUIPA.  Few courts have addressed RLUIPA’s standing requirements.  The Court also held that “the difficulty associated with finding an affordable location in an urban area alone does not amount to a substantial burden.”

Plaintiff Reconciling People Together in Faith Ministries, LLC (Congregation) is a small religious group native to Newport News Virginia (City).  The Congregation was formed in 2012 and held its meetings at a local business owned by the pastor, but eventually determined that this space did not have the appropriate “size or amenities” to accommodate the Congregation’s religious needs.   The Congregation searched for other properties and identified 6112 Jefferson Avenue, Newport News, Virginia (Property) as a new possible location to practice its religion.  The Property, owned by Plaintiff Andon, LLC (Andon), consists of approximately 12,503 square feet, with a small parking lot and single brick building.

The Property is located in the CI zone, where churches are permitted if they satisfy certain requirements: (a) access is provided from a public street directly to the property; (b) no use is operated for commercial gain; (c) no building or structure, nor accessory building or structure is located within one hundred (100) feet of any side or rear property line which is zoned single-family residential; and (d) any parking lot or street serving such use is located twenty-five (25) feet or more from a side or rear property line zoned single family residential.

The Property satisfies conditions (a), (b), and (d), but not (c).  After signing the lease, the Congregation discussed with local officials whether it would be permitted to operate the Property as a church, and then learned that any such application likely would be denied.  Nevertheless, the Congregation applied for a variance to use the Property as a church.  The Board of Zoning Appeals denied the application for failure to demonstrate hardship.  The Newport News Circuit Court affirmed the Board’s decision.

Thereafter, Plaintiffs sued the City alleging the denial of the variance violated RLUIPA’s substantial burden provision.  Plaintiffs claimed that the Congregation suffered “delay in obtaining a viable worship location” and “uncertainty as to whether or not the Congregation will be able to go forward with the lease of the Property.”

The City moved to dismiss Plaintiffs’ claim on two grounds: (1) lack of standing and (2) failure to state a claim upon which relief can be granted.  The Court  concluded that Plaintiffs had standing to assert the claim, but dismissed the complaint with prejudice for failure to state a claim.

Standing

The City first argued that the Court should dismiss Plaintiffs’ claim because Plaintiffs failed to allege that all Plaintiffs were engaged in religious exercise, and that RLUIPA required that all Plaintiffs prove a substantial burden on their religious exercise.  The Court concluded that “there is no requirement that a plaintiff be engaged in religious exercise to bring a RLUIPA claim.”  According to the Court, the only standing requirement a plaintiff must satisfy under RLUIPA is the ‘general rules of standing under Article III of the Constitution.’”  There are three requirements to establish Article III standing: “(1) the plaintiff must allege that he or she suffered an actual or threatened injury that is not conjectural or hypothetical, (2) the injury must be fairly traceable to the challenged conduct; and (3) a favorable decision must be likely to redress the injury.”  The Court found that Plaintiff Andon, as owner of the Property, satisfied these requirements.  First, Andon’s allegation of lost future profits was sufficient to constitute an actual injury.  Further, “[a]ny injury Andon suffered, such as the loss of benefit from lease payments, can be easily traced to the City’s denial of the variance application . . . [and] a favorable decision could redress Andon’s injury.”

Substantial Burden Claim

In the Fourth Circuit, “a plaintiff can succeed on a, substantial burden claim by establishing that a government regulation puts substantial pressure on it to modify its behavior.”  Further, “[w]hen a religious organization buys property reasonably expecting to build a church, governmental action impeding the building of that church may impose a substantial burden.”  Delay, uncertainty, and expense may also give rise to a substantial burden claim in the Fourth Circuit.

The Court, however, concluded that Plaintiffs failed to properly plead a substantial burden claim.  First, the Court found that the Congregation had no reasonable expectation to build a church on the Property, since the local zoning officials informed it that any application for a variance to use the Property as a church would be denied.  The Court found the fact that the lease was conditioned on obtaining zoning approval was also evidence of some doubt on the part of the Congregation as to whether it would be allowed to use the Property as it desired.

Next the Court considered whether Plaintiffs’ claim that the variance denial would cause it unreasonable delay, uncertainty, and expense could support a substantial burden claim.  The Court distinguished the Seventh Circuit’s decision in Saints Constantine v. New Berlin, 396 F.3d 895 (7th Cir. 2005), to conclude that “[a]lthough the Congregation has suffered uncertainty in whether it will lease the Property, the time and money expended in finding a new property will be minimal.  It does not have to sell a property or even void a lease, as the lease between Andon and the Congregation is conditioned on the granting of the variance.”  The Court noted the City’s good faith in the present case – unlike New Berlin in Saints Constantine, which had the “whiff” of bad faith.

The Court observed that it was questionable “whether the land use regulation has caused the Congregation to modify its behavior, which is required under the Fourth Circuit test.”  Even if it did, the Court determined “the mere fact that the CI zoning designation did not permit a church cannot support a substantial burden.  Otherwise, ‘every zoning ordinance that didn’t permit churches everywhere would be a prima facie violation of RLUIPA.’”  Because the Congregation had no reasonable expectation to use the Property as a church, any delay, uncertainty, and expense was of its own making.  The Congregation did not allege that it looked at all, or even most of, the available properties; only that it considered some locations.  Finally, the Court found that Plaintiffs would not be able to properly state a claim even if they amended their complaint, since “the Congregation attempted to lease and not buy the Property, the costs incurred by the Congregation’s delay and uncertainty in locating a worship space can be attributed simply to the difficulties associated with finding an affordable property in an urban market.  As reiterated by other courts, the cost of having to search for an affordable location alone does not amount to a substantial burden.”  Because “Plaintiffs rely solely on the unaffordability of alternative properties in Newport News to establish the Congregation’s delay and uncertainty in finding a worship place, Plaintiffs cannot plausibly allege a substantial burden.”

The decision in Aldon, LLC v. City of Newport News, Virginia (E.D. Va. Nov. 20, 2014), can be accessed here.

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