Filed: Feb. 09, 2016
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2358 ANDON, LLC; RECONCILING PEOPLE TOGETHER IN FAITH MINISTRIES, LLC, Plaintiffs - Appellants, v. THE CITY OF NEWPORT NEWS, VIRGINIA, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Robert G. Doumar, Senior District Judge. (4:14-cv-00076-RGD-LRL) Argued: December 9, 2015 Decided: February 9, 2016 Before WILKINSON, KEENAN, and HARRIS, Circuit Judges. Af
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2358 ANDON, LLC; RECONCILING PEOPLE TOGETHER IN FAITH MINISTRIES, LLC, Plaintiffs - Appellants, v. THE CITY OF NEWPORT NEWS, VIRGINIA, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Robert G. Doumar, Senior District Judge. (4:14-cv-00076-RGD-LRL) Argued: December 9, 2015 Decided: February 9, 2016 Before WILKINSON, KEENAN, and HARRIS, Circuit Judges. Aff..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2358
ANDON, LLC; RECONCILING PEOPLE TOGETHER IN FAITH
MINISTRIES, LLC,
Plaintiffs - Appellants,
v.
THE CITY OF NEWPORT NEWS, VIRGINIA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:14-cv-00076-RGD-LRL)
Argued: December 9, 2015 Decided: February 9, 2016
Before WILKINSON, KEENAN, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wilkinson and Judge Harris joined.
ARGUED: Michael Bruce Ware, SCHEMPF & WARE, PLLC, Yorktown,
Virginia, for Appellants. Darlene P. Bradberry, OFFICE OF THE
CITY ATTORNEY FOR THE CITY OF NEWPORT NEWS, Newport News,
Virginia, for Appellee. ON BRIEF: Adrienne Michelle Sakyi,
SCHEMPF & WARE, PLLC, Yorktown, Virginia, for Appellants.
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider whether the district court
erred in dismissing with prejudice a complaint filed by two
entities, Andon, LLC, and Reconciling People Together in Faith
Ministries, LLC (collectively, the plaintiffs) against the City
of Newport News, Virginia (the City, or Newport News). The
plaintiffs’ complaint alleged that the City, acting through its
Board of Zoning Appeals (BZA), violated the Religious Land Use
and Institutionalized Persons Act (RLUIPA, or the Act), 42
U.S.C. § 2000cc et seq., by denying the plaintiffs’ request for
a variance to permit a certain property to be used as a church
facility.
Upon our review, we conclude that the plaintiffs failed to
state a claim that the BZA’s decision imposed a substantial
burden on the plaintiffs’ right of religious exercise. We also
conclude that the district court did not abuse its discretion in
denying the plaintiffs’ request to amend their complaint,
because any such amendment would have been futile. We therefore
affirm the district court’s judgment.
I.
In 2012, Walter T. Terry, Jr. formed a congregation for
religious worship known as Reconciling People Together in Faith
Ministries, LLC (the congregation) in Newport News, and served
2
as its pastor. Although the members of the congregation
initially gathered to worship in a local business owned by
Terry, they later sought a larger location for their use.
Terry ultimately found a suitable property, which included
an office building (the building) and a small parking lot, that
was offered for “lease or sale” by Andon, LLC (Andon). The
property is located at 6212 Jefferson Avenue in Newport News
(the property).
Andon had purchased the property, a 0.32-acre parcel of
land, in 2011. Since 1997, the property continuously has been
classified for commercial use under the City’s zoning ordinance.
The ordinance provides that properties zoned for commercial use
may be used for a “community facility,” including a “place of
worship” or church, only when four conditions are satisfied:
(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 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 25 feet or more from a
side or rear property line zoned single family
residential.
Newport News, Va. Municipal Code § 45-519.
Although the property complied with three of these
conditions, the property did not satisfy the “setback”
requirement in subsection (c), because the building is located
fewer than 100 feet from the rear and side property lines that
3
are adjacent to properties zoned for “single-family residential”
use. 1 Despite knowledge of this problem, the congregation
entered into a written lease agreement with Andon that was
contingent on Andon obtaining “City approval” allowing operation
of a church facility on the property. Seeking to satisfy this
contingency in the lease agreement, Andon filed with the BZA an
application requesting a variance from the setback requirement.
After reviewing Andon’s application, the City Codes and
Compliance Department (the Compliance Department) filed a report
with the BZA concerning the variance request. The report stated
that the BZA, prior to issuing a variance, must first find that:
(1) “strict application of the ordinance would produce an undue
hardship” relating to the property “not shared generally by
other properties”; (2) such a variance “will not be of
substantial detriment to adjacent property”; and (3) “the
character of the district will not be changed” by granting the
variance. See Newport News, Va. Municipal Code § 45-3203(c).
Based on these restrictions, the Compliance Department
recommended that the BZA deny the variance, because the property
could be used for other purposes without a variance, and because
1
The building is located 33 feet, 85 feet, and 80 feet away
from the rear and side property lines abutting neighboring
residential properties.
4
denial of a variance would not cause Andon to suffer a hardship
unique among other commercial property owners in the vicinity.
After holding a public hearing, the BZA adopted the
Compliance Department’s recommendation and voted to deny the
variance request. Andon appealed from the BZA decision to a
Virginia state circuit court, which upheld the BZA’s
determination.
The plaintiffs filed the present suit in federal district
court alleging that the BZA’s denial of their variance request
imposed a substantial burden on the plaintiffs’ religious
exercise in violation of RLUIPA, 42 U.S.C. § 2000cc(a)(1) (the
substantial burden claim). The plaintiffs alleged that the
BZA’s action 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.”
The plaintiffs attached to their complaint an affidavit
from Terry, who stated that he “could not find a[n alternate
property] that was the appropriate size, location, and price” to
serve as a place of worship for the congregation. He also
stated in the affidavit that “[m]any of the [alternative]
buildings were too large and too expensive for [the] young
congregation.”
5
The City moved to dismiss the complaint with prejudice
under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. The district court granted the City’s motion,
denied the plaintiffs’ request to file an amended complaint, and
entered judgment in favor of the City. 2 The plaintiffs timely
filed this appeal.
II.
We review de novo the district court’s dismissal of a
complaint under Rule 12(b)(6) for failure to state a claim.
United States ex rel. Nathan v. Takeda Pharms. N. Am., Inc., 707
F.3d 451, 455 (4th Cir. 2013). To survive a motion to dismiss,
a complaint must “state a claim to relief that is plausible on
its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). When
reviewing the district court’s action, we consider the factual
allegations in the plaintiffs’ complaint as true. Bass v. E.I.
DuPont de Nemours & Co.,
324 F.3d 761, 764 (4th Cir. 2003).
2 The City also argued in its motion to dismiss that Andon
lacked standing to bring the RLUIPA claim. The district court
disagreed, and the City does not challenge this ruling on
appeal. Although a litigant’s standing presents a
jurisdictional question that may be considered sua sponte by
this Court, see Benham v. City of Charlotte, 635 F.3d 129, 134
(4th Cir. 2011), we need not address the district court’s ruling
regarding Andon’s standing, because the congregation
unquestionably had standing to file suit alleging a violation
under RLUIPA.
6
The plaintiffs argue that the district court erred in
dismissing their complaint of a RLUIPA violation, contending
that the BZA’s action denying a variance imposed a substantial
burden on their religious exercise. Citing our decision in
Bethel World Outreach Ministries v. Montgomery County Council,
706 F.3d 548 (4th Cir. 2013), the plaintiffs assert that they
plausibly alleged a claim under RLUIPA, because, as a result of
the BZA’s action, the congregation has been unable to find a
suitable location in the City for worship, and the plaintiffs
have suffered “delay, expense, and uncertainty” in establishing
a church location and in executing the lease agreement. The
plaintiffs alternatively contend that the district court abused
its discretion in refusing their request to amend their
complaint. We disagree with the plaintiffs’ arguments.
RLUIPA contains two provisions limiting governmental
regulation of land use with respect to religious exercise. 3
The first such RLUIPA provision prohibits governmental entities
from imposing land use restrictions that: (1) treat a religious
organization “on less than equal terms” with a nonreligious
3Under RLUIPA, “‘religious exercise’ includes any exercise
of religion, whether or not compelled by, or central to, a
system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). And
“[t]he use, building, or conversion of real property for the
purpose of religious exercise shall be considered to be
religious exercise of the person or entity that uses or intends
to use the property for that purpose.” 42 U.S.C. § 2000cc-
5(7)(B).
7
organization; or (2) discriminate against any organization on
the basis of religion. 42 U.S.C. § 2000cc(b)(1), (2).
The second RLUIPA provision addressing governmental
regulation of land use, on which the plaintiffs base their
claim, does not require a showing of discriminatory governmental
conduct. 42 U.S.C. § 2000cc(a)(1); see Bethel, 706 F.3d at 557.
Instead, this provision prohibits a governmental entity from
imposing or implementing a
land use regulation . . . that imposes a substantial
burden on the religious exercise of a person,
including a religious assembly or institution, unless
the government demonstrates that imposition of the
burden on that person, assembly, or institution (A) is
in furtherance of a compelling governmental interest;
and (B) is the least restrictive means of furthering
that compelling governmental interest.
42 U.S.C. § 2000cc(a)(1).
To state a substantial burden claim under RLUIPA, a
plaintiff therefore must show that a government’s imposition of
a regulation regarding land use, or application of such a
regulation, caused a hardship that substantially affected the
plaintiff’s right of religious exercise. See Bethel, 706 F.3d
at 556; Guru Nanak Sikh Soc’y of Yuba City v. Cty. of Sutter,
456 F.3d 978, 988-89 (9th Cir. 2006); Civil Liberties for Urban
Believers v. City of Chicago,
342 F.3d 752, 761 (7th Cir. 2003).
We addressed the scope of substantial burden claims under RLUIPA
in our decision in Bethel.
8
The plaintiff in Bethel asserted a substantial burden claim
against a county that had adopted two land use regulations after
the plaintiff had purchased property for the then-permitted
purpose of constructing a large church. 706 F.3d at 553-55.
The first regulation at issue in Bethel banned extension of
public water and sewer services to certain classifications of
property, including the plaintiff’s property.
Id. at 553. In
response to the county’s implementation of this regulation, the
plaintiff modified its construction plans and proposed to build
a smaller church that operated on a private septic system.
Id.
at 554. Before those plans were approved, however, the county
adopted a second regulation applicable to the plaintiff’s
property, which prohibited the construction of private
institutional facilities including churches.
Id.
Although the county regulations we considered in Bethel did
not target religious exercise and applied generally to both
secular and religious uses, we concluded that the plaintiff
nevertheless presented a triable RLUIPA claim, because the
regulations substantially pressured the plaintiff to modify and
ultimately to abandon its pre-existing plan to construct a
church.
Id. at 556-59. And, we explained, although other real
property may have been available for the plaintiff to purchase,
the “delay, uncertainty, and expense” of selling the plaintiff’s
property and finding an alternate location increased the burden
9
imposed on the plaintiff’s religious exercise. Id. at 557-58.
In reaching this conclusion, we emphasized that a critical
function of RLUIPA’s substantial burden restriction is to
protect a plaintiff’s reasonable expectation to use real
property for religious purposes.
Id. at 556-57; see Petra
Presbyterian Church v. Vill. of Northbrook,
489 F.3d 846, 851
(7th Cir. 2007) (explaining that when an organization buys
property “reasonably expecting to obtain a permit, the denial of
the permit may inflict hardship” on the organization).
The circumstances of the present case are materially
different from those presented in Bethel. The plaintiffs here
never had a reasonable expectation that the property could be
used as a church. When the plaintiffs entered into the
prospective lease agreement, the property was not a permitted
site for a community facility such as a church, and had not met
applicable setback requirements for that type of use for at
least 14 years. Before Andon filed the application seeking a
variance, the Zoning Administrator had informed Andon that the
application would not be approved for failure to meet the
setback requirement. Thus, the plaintiffs assumed the risk of
an unfavorable decision, and chose to mitigate the impact of
such a result by including the contingency provision in the
lease. Accordingly, unlike the governmental action at issue in
Bethel, the BZA’s denial of the variance in the present case did
10
not alter any pre-existing expectation that the plaintiffs would
be able to use the property for a church facility, or cause them
to suffer delay and uncertainty in locating a place of worship.
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. See
Petra Presbyterian Church, 489 F.3d at 851 (because the
plaintiff purchased property with knowledge that the permit to
use the property for a church would be denied, the plaintiff
“assumed the risk of having to sell the property and find an
alternative site for its church”). A self-imposed hardship
generally will not support a substantial burden claim under
RLUIPA, because the hardship was not imposed by governmental
action altering a legitimate, pre-existing expectation that a
property could be obtained for a particular land use. See
Bethel, 706 F.3d at 556-58; Petra Presbyterian
Church, 489 F.3d
at 851. Therefore, we hold that under these circumstances, the
plaintiffs have not satisfied the “substantial burden”
requirement of governmental action under RLUIPA. 4 See Bethel,
4 We do not reach the merits of the plaintiffs’ separate,
speculative contention that if the congregation had purchased
the property, instead of entering into a contingent lease
agreement, the financial loss sustained would have been
(Continued)
11
706 F.3d at 556; Guru Nanak Sikh Soc’y of Yuba
City, 456 F.3d at
988-89; Civil Liberties for Urban
Believers, 342 F.3d at 761.
Our conclusion is not altered by the plaintiffs’ further
contention that they have been unable to find another property
that meets the congregation’s desired location, size, and
budgetary limitations. The absence of affordable and available
properties within a geographic area will not by itself support a
substantial burden claim under RLUIPA. See Civil Liberties for
Urban Believers, 342 F.3d at 762 (concluding that the “scarcity
of affordable land available” and costs “incidental to any high-
density urban land use” represent “ordinary difficulties
associated with location” and do not support a substantial
burden claim under RLUIPA).
We further observe that if we 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. See Petra Presbyterian
sufficient to state a substantial burden claim. We decline to
pass judgment on facts not before us.
12
Church, 489 F.3d at 851 (reasoning that the substantial burden
requirement must be taken seriously, or religious organizations
would be free “from zoning restrictions of any kind”); Civil
Liberties for Urban
Believers, 342 F.3d at 762 (explaining that
no “free pass for religious land uses masquerades among the
legitimate protections RLUIPA affords to religious exercise”).
The plain language of RLUIPA, however, prevents such a
result. By requiring that any substantial burden be imposed by
governmental action and by carefully balancing individual rights
and compelling governmental interests, the language of RLUIPA
demonstrates that Congress did not intend for RLUIPA to
undermine the legitimate role of local governments in enacting
and implementing land use regulations. See Petra Presbyterian
Church, 489 F.3d at 851; Civil Liberties for Urban
Believers,
342 F.3d at 762.
Finally, we conclude that the district court did not abuse
its discretion in denying the plaintiffs’ request to amend their
complaint. See HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross,
101 F.3d 1005, 1010 (4th Cir. 1996) (stating the applicable
standard of review). Because the plaintiffs did not have a
reasonable expectation to use the property as a church and any
burden on their religious exercise was self-imposed, the
plaintiffs cannot articulate any set of facts demonstrating that
an amendment would survive the City’s motion to dismiss. Thus,
13
we agree with the district court that any amendment to the
complaint would have been futile. See Scott v. Family Dollar
Stores, Inc., 733 F.3d 105, 121 (4th Cir. 2013) (“Denying leave
to amend is appropriate when . . . the amendment would have been
futile.”).
III.
For these reasons, we affirm the district court’s judgment
dismissing with prejudice the plaintiffs’ complaint against the
City.
AFFIRMED
14
