Posted by: Patricia Salkin | June 27, 2013

4th Circuit Court of Appeals Clears Path for Mega Church RLUIPA Challenge on Substantial Burden Grounds

Bethel World Outreach Ministries of Montgomery County, Maryland (Bethel) filed suit against the Montgomery County Council after they were denied a permit to build a new church. Although Bethel already owns a place of worship in Silver Spring, Maryland and leases another one in Gaithersberg, Maryland, both within the limits of Montgomery County, these facilities are too small for a growing congregation of about 1500. Further, Bethel holds four services every Sunday, 3 in Silver Spring and one in Gaithersberg, thereby restricting its ability to hold communion and its “Altar Call” practice. The church also lacks facilities for religious education, health education and counseling services.  Due to the popularity of the church and its inadequate facilities, in 2004 Bethel purchased a 119-acre property on Brink Road in Montgomery County. Brink Road is located within a 93,000-acre area designated by the County in 1980 as an agricultural reserve. The county zoned most of the area as a “rural density transfer zone” which enabled developers to purchase rights from landowners in the area and transfer those rights to other areas of the county. The property of the landowner who sells the development rights is then subjected to an easement restricting the density of residential development permitted on the property. A major issue with developing in the density transfer zone is that the county generally did not provide water and sewage public services to the rural areas of that zone. After purchasing the property, Bethel submitted plans for a 3,000-seat church, a school, daycare building, social hall, and offices on the property to the County. The plan was rejected in 2005 at the same meeting in which the County approved an amendment prohibiting water and sewer service to private institutional facilities in the transfer zone.

Bethel filed a petition for administrative mandamus in state court challenging the denial of its application for public water and sewer service as unlawful. While that action was pending, another church, Derwood Bible Church, attempted to build a private well and a 1500-seat church in the same zone. During the pendency of Derwood’s application, the County approved an amendment restricting the size of new private well and septic systems in rural density transfer zones. This amendment became known as the “Knapp Cap.” In response to the Knapp Cap, Bethel modified its petition to meet the restrictions to support the construction of a smaller 800-seat church. While that application was pending in 2007, the Council passed ZTA 07-07 which prohibited a landowner from building a private institutionalized facility on any property subject to a transfer development easement. In April of 2008 the County “deferred” Bethel’s application.

Bethel filed this present action in May 2008 alleging that ZTA 07-07 and the “deferral” of its application violated its rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), the First and Fourteenth Amendments and the Maryland Declaration of Rights. After a hearing, the District Court granted summary judgment to the County on all of Bethel’s claims. Bethel appealed to the Circuit Court of Appeals. On appeal, Bethel’s chief argument is that the District Court erred in holding that there was no question of material fact as to whether ZTA 07-07 substantially burdened their religious exercise. The Court agreed with Bethel and cited two applications of incorrect legal standards the District Court used. First, the Court determined that the District Court had used the substantial burden standard as applied to institutionalized persons and not to land uses. Second, the Court found that the District Court erred by requiring Bethel to show that the County had “targeted” it in order to succeed on its substantial burden claim. While the Court recognizes the “targeted” standard comes from First Amendment jurisprudence dealing with facially neutral laws, they acknowledge that RLUIPA does not carry the same requirement, and all that is necessary to meet the substantial burden standard is discriminatory or non-discriminatory conduct that has the effect of imposing a substantial burden on religion.

With respect to Bethel’s substantial burden claim, the Court held that when a religious organization buys property reasonably expecting to build a church, governmental action impeding the building of that church may impose a substantial burden even if other suitable properties are available. The reasoning behind this is that there is burden on the delay, uncertainty and expense of selling the current property and finding new one. Furthermore, the Court found it significant that Bethel was prohibited from building any church in the area, as opposed to being permitted to build subject to conditions and restrictions. The Court rejected that county’s argument that there was no substantial burden because Bethel already has two facilities in which they conduct services, pointing to the considerable evidence Bethel presented regarding the inadequacy of their current spaces. The Court further rejected the County’s argument that even if there is a substantial burden, it did not violate RLUIPA because it is the least restrictive means of advancing a legitimate governmental interest as the court was unimpressed by the lack of evidence showing that ZTA 07-07 is the least restrictive means.

Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548 (4th Cir. 2013)

The opinion may be accessed at

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