Posted by: Patricia Salkin | October 15, 2013

11th Circuit Court of Appeals Finds Temple’s RLUIPA and State FRFRA Claims Ripe for Review

Temple B’Nai Zion (“Temple”) is a Jewish organization that operates a synagogue in the City of Sunny Isles Beach, Florida (“City”). Before operating as a synagogue, the building used to be a Christian church. As such, the Temple made modifications to “minimize Christian symbols on the property,” and eventually it began operating as a Conservative Judaic house of worship. When the Temple’s members began to decrease significantly, it brought in Rabbi Lankry in 2004 to help increase membership and raise funds. Rabbi Lankry began to align the Temple with the strict and traditional Orthodox Judaism, as opposed to the more modernized Conservative Judaism. The Temple claimed that this change caused some congregants to become angry, including Norman Edelcup, the City’s mayor (“Mayor”). The Mayor had been a member of the Temple’s congregation before it became an Orthodox synagogue. He even proposed the idea earlier in 2004 that the Temple host a reunion for several hundred Holocaust survivors, which was held successfully. The Mayor left the Temple later that year after it became Orthodox.

As a part of the Temple’s switch from Conservative to Orthodox, it considered changing several structural issues in order to align the building more closely with its orthodox beliefs: (1) the synagogue did not face east toward Jerusalem, it faced west; (2) the floor plan was in the shape of a crucifix; (3) the seating area did not have separate sections for men and women; and (4) the building was shaped like a triangle as a symbol of the Christian Holy Trinity. The Temple decided that in order to address these issues, it would be best to demolish the building and rebuild it altogether. When the Mayor and Rabbi Lankry met to discuss the changes, the Mayor reacted negatively and made several rude comments to Rabbi Lankry regarding the Temple. Thereafter, the Mayor directed an inspection of the Temple, which led to twelve code violation notices from the City.

In 2009, an outside Orthodox Jewish congregation requested to use some of the Temple’s space for religious services, which the Temple agreed to. Because this resulted in a significant increase in members using the Temple’s property, the Temple applied for building permits to begin the demolition and reconstruction. The City denied these permits.

On two separate occasions in 2006 and 2008, the City’s Historic Preservation Board (“Preservation Board”) considered several properties for potential “historic designation.” A historic designation would require the property to be preserved and make it impermissible to alter or demolish the property. Among those properties considered was the Temple, but the Preservation Board ultimately chose not to take any action in this regard. After the Temple applied for building permits for its planned construction in 2009, the Preservation Board revisited designation of the Temple as a historic site. The City hired a historic preservation officer to investigate whether the Temple met the criteria for such designation. As it turned out, the 2004 hosted gathering of Holocaust survivors rendered the Temple “the site of an historic event with significant effect upon the community, City, state, or nation.” The Temple again unsuccessfully applied for a demolition permit. Thereafter, the Preservation Board held a hearing to consider the Temple’s historic designation. A 4-1 Preservation Board vote in favor of the Temple’s designation as a historic site resulted in a Resolution that legally prevented the Temple from altering or demolishing the building.

The Temple appealed the Preservation Board’s decision to the City Commission. Before making its decision, the City Commission held a public hearing in June of 2010 where both citizens and City Commissioners apparently complained about the Temple and Rabbi Lankry. Alternatively, one Commissioner made a statement that it would be wrong to take the away the Temple’s property rights by affirming the historic designation. Nevertheless, the City Commission affirmed the Preservation Board’s decision in another 4-1 vote.

In response, the Temple did not appeal the City Commission’s decision; rather, the Temple filed suit in the district court, alleging that the City’s designation of the Temple as a historic landmark was a violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), the Florida Religious Freedom Restoration Act of 1998 (“FRFRA”), the Free Exercise Clause of the Florida Constitution, as well as the Equal Protection, Free Exercise, and Substantive Due Process Clauses of the United States Constitution. The district court dismissed the Temple’s complaint, finding the action unripe for review. The district court opinion cited to the Williamson County ripeness test, which states that challenges to land use decisions are “not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” The district court held that here, the Temple needed to submit building plans to the City, request a waiver of variance, and receive a final decision in that regard before the constitutional, RLUIPA, and FRFRA issues would be ripe for review. The Temple appealed the district court’s decision to the United States Court of Appeals for the Eleventh Circuit.

In its review, the Eleventh Circuit explained that traditionally, two factors are considered regarding an issue’s ripeness: “(1) the fitness of the issues for judicial decision, and (2) the hardship of the parties of withholding court consideration.” Although the court acknowledged the relevance of the Williamson County ripeness test in the context of land use decisions, it determined that the test was inapplicable here. If the action before the court had been an appeal of the City’s land use decision, then the Williamson County test would have been appropriate. However, the Temple’s action alleged that the City’s decision was an act of discrimination. The court here reasoned that this was a substantively different issue than a challenge of a land use decision. Thus, the court concluded that “traditional notions of ripeness” should instead be applied, and under these notions, the Temple’s issue was developed enough to be rendered justiciable. The Eleventh Circuit cited a First Circuit decision with facts similar to the present case, in which a Catholic Church was designated by its city as a historical district. The court in that case similarly held that while an appeal of the land use decision would not be ripe without the church having submitted a variance application, the church’s discriminatory claims regarding the historic designation were ripe.

In the present case, the Eleventh Circuit found that all of the Temple’s constitutional, RLUIPA, and FRFRA issues “satisf[ied] the fitness and hardship requirements of [the] traditional ripeness jurisprudence, and that the Temple’s claims in this regard [were] therefore ripe for judicial review.” Furthermore, the court held that it would be unfair to delay the resolution of the Temple’s claims of discriminatory injury because it would impose further hardship on the Temple. The court made it clear that it did not take any position on the merits of the Temple’s challenge; its decision was merely with respect to the ripeness and justiciability of the issues. The district court’s decision dismissing the Temple’s claims as unripe was vacated by the Eleventh Circuit and remanded to the district court for further resolution.

Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach, Florida, 2013 WL 4574206 (11th Cir. 8/29/2013)

The opinion can be accessed at: http://www.ca11.uscourts.gov/opinions/ops/201212984.pdf


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