Posted by: Patricia Salkin | April 24, 2016

4th Circuit Court of Appeals Holds Church Never had Reasonable Expectation to Use Property as Place of Worship

Editor’s Note: This posting is republished with permission from the RLUIPA Defense Blog

The U.S. Court of Appeals for the Fourth Circuit affirmed the dismissal of a church’s claim that denial of a setback variance substantially burdened its religious exercise under the Religious Land Use & Institutionalized Persons Act (RLUIPA). In 2012, a religious congregation, Reconciling People Together in Faith Ministries, LLC (the “Congregation”), was formed in the City of Newport News, Virginia. The Congregation initially worshipped at a local business owned by its pastor, but sought to find an alternate location for religious use. The Congregation found a 0.32 acre property, owned by Andon, LLC, at 6212 Jefferson Avenue in the City that it believed would meet its religious needs. The Property is in the City’s commercial zoning district permitting a “community facility” subject to four conditions, one of which the Property does not meet: “no building or structure, nor accessory building or structure is located within 100 feet of any side or rear property line which is zoned single-family residential.”

Although the Congregation was aware that the Property did not meet one of the zoning requirements for “community use,” it entered into a lease agreement with Andon that was contingent upon Andon obtaining City approval to allow a church facility on the Property. To this end, Andon filed an application to vary the setback requirement with the City’s Board of Zoning Appeals (the “BZA”). However, the City Codes Compliance Department recommended denial of the application “because the property could be used for other purposes without a variance, and because denial of a variance would not cause Andon to suffer a hardship unique among other commercial property owners in the vicinity.” The BZA adopted the Compliance Departments recommendation and denied the application.

Andon and the Congregation both sued alleging a violation of RLUIPA’s substantial burden provision, because the variance denial caused “delay in obtaining a viable worship location” and “uncertainty as to whether … the [C]ongregation will be able to go forward with the lease of the [P]roperty.” According to the Congregation, it “could not find a[n alternative property] that was the appropriate size, location, and price” to be used by the Congregation as a place of worship, since “[m]any of the [alternative] buildings were too large and too expensive for [the] young congregation.”

The Fourth Circuit concluded that the Congregation could not establish a substantial burden claim because it never had a reasonable expectation that it could use the Property as a church. Important to the Court’s analysis, the Congregation was aware of the setback requirement before it agreed to lease the Property. Also, prior to Andon’s filing of the variance application, the City’s Zoning Administrator informed it that the application would be denied for failure to meet the setback requirement. “Because the plaintiffs knowingly entered into a contingent lease agreement for a non-conforming property, the alleged burdens they sustained were not imposed by the BZA’s action denying the variance, but were self-imposed hardships.”

The Court also decided that the Congregation’s alleged inability to find another suitable property did not affect the result. According to the Court, the absence of alternate property capable of accommodating religious needs will not by itself support a substantial burden claim under RLUIPA. Further, the Court observed that if it “agreed with the plaintiffs that the BZA’s denial of a variance imposed a substantial burden on their religious exercise, we effectively would be granting an automatic exemption to religious organizations from generally applicable land use regulations. Such a holding would usurp the role of local governments in zoning matters when a religious group is seeking a variance, and impermissibly would favor religious uses over secular uses.”

Andon, LLC v City of Newport News, Va., 813 F3d 510 (VA 2/9/2016)

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