LYNCH, Chief Judge.
The Roman Catholic Bishop of Springfield (RCB) challenges the district court's grant of summary judgment to the City of Springfield (City) and dismissal of RCB's constitutional and statutory claims against enforcement of a City ordinance that created a single-parcel historic district encompassing a church owned by RCB. Under the ordinance, RCB cannot make any changes that affect the exterior of the church, including demolition, without the permission of the Springfield Historical Commission (SHC).
RCB claims that the ordinance gives the SHC veto power over its religious decisionmaking, and in doing so violates its First Amendment rights to free speech and free exercise of religion; its rights under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq.; and its rights under the Massachusetts state constitution. The district court, on cross-motions for summary judgment, found that some of RCB's claims were not ripe for review and that its remaining claims failed as a matter of law. See Roman Catholic Bishop of Springfield v. City of Springfield (RCB), 760 F.Supp.2d 172 (D.Mass.2011).
We conclude that only a limited claim is now ripe: namely, RCB's claim based on the mere enactment of the ordinance. But those of RCB's claims which depend on the potential consequences of compliance with the ordinance are not ripe for adjudication, because RCB has not yet devised its plans for the church nor submitted any application to the SHC. We reach this conclusion for reasons different from the district court's. We reject the remaining ripe claim. We affirm in part and vacate in part the district court's grant of summary judgment and dismiss RCB's unripe claims without prejudice.
The facts in this case are undisputed.
RCB is a corporation sole,
RCB owns a church in Springfield known as Our Lady of Hope ("Church"), which was built in 1925. It was designed by the Springfield architect John Donohue in the Italian Renaissance style. In 2001, the Church was deemed eligible for inclusion on the National Register of Historic Places, but it was never so placed. And until the events at issue in this case, it was never included in nor proposed to be included in a local historic district.
In 2004, RCB began a process known as "pastoral planning," which was designed to determine how to allocate the Diocese's financial and human resources in the face of decreasing numbers of clergy and parishioners. The process was overseen by a committee of clergy and religious and lay members of the Diocese. Part of the committee's duty was to seek and incorporate the views of members of the Diocese outside the committee itself. In August 2009, the committee issued its final report. The report recommended closing the Church and combining Our Lady of Hope Parish with another local parish. The Bishop of the Diocese accepted this recommendation, and services ceased at the Church as of January 1, 2010.
According to Roman Catholic canon law, when a church goes out of service for religious worship, the Bishop comes under an obligation to protect the religious ornamentation in and on the building so that it is not put to "sordid" use.
RCB has established procedures for dealing with religious symbols when a church has been closed for worship. In order of preference, it will try to: (1) relocate the items to other locations within the Diocese; (2) relocate the items to other dioceses; or (3) place the items in storage. If none of these options are possible, the objects can be destroyed.
When a closed church is sold or leased to a third party, RCB must first convert the church from religious use to "profane" (non-sacred) use in a process known as deconsecration. As part of the deconsecration process, RCB will include a clause in the sale or lease agreement obligating the purchaser or lessee either to refrain from putting the property to "sordid" use
The MHDA delegates to cities and towns in Massachusetts the authority to designate historic districts within their boundaries. The process of creating historic districts involves first creating a historical commission or a historic district study committee, see Mass. Gen. Laws ch. 40C, §§ 3-4; Springfield did the former when it constituted the SHC in the early 1970s. The SHC consists of seven members and four alternates, appointed by the mayor and subject to confirmation by the City Council.
Under the MHDA, a municipality's historical commission must investigate and report on proposed historic districts before such districts can be approved by the municipality. Id. § 3. A proposed district "may consist of one or more parcels or lots of land, or one or more buildings or structures on one or more parcels or lots of land." Id. In assessing potential historic districts, a commission is to consider "the historic and architectural value and significance of the site, building or structure, the general design, arrangement, texture, material and color of the features involved, and the relation of such features to similar features of buildings and structures in the surrounding area." Id. § 7.
When the commission completes a preliminary report on a proposed district, it transmits the report to the municipality's planning board and to the state historical commission. Id. § 3. Not less than sixty days later, the municipal commission must hold a public hearing on the report. Id. If the commission approves the proposal following the public hearing, it transmits a final report and proposed ordinance to the city council (or equivalent body). Id. A two-thirds vote of the city council is required to approve the district. Id.
Once a historic district is approved, "no building or structure within [the] district shall be constructed or altered in any way that affects exterior architectural features" unless the historical commission first issues a certificate of appropriateness, a certificate of non-applicability, or a certificate of hardship. Id. § 6. Violation of this provision is punishable by a fine of between ten dollars and five hundred dollars per day of violation.
In order to obtain a certificate of appropriateness, hardship, or non-applicability, a property owner must file with the commission an application along with "such plans, elevations, specifications, material and other information ... as may be reasonably deemed necessary by the commission to enable it to make a determination on the application."
The news that the pastoral planning process would result in the closing of the Church provoked significant adverse reaction among many Our Lady of Hope parishioners. The parish was one of the two largest parishes slated for closing in Springfield, and parishioners were unhappy with the prospect of being merged into another parish. In the fall of 2009, a number of Our Lady of Hope parishioners and other local citizens began lobbying the City to designate the Church as a historic district. A member of the state House of Representatives from Springfield, Sean Curran, wrote to the SHC about the matter, stating that "the closing of the church is a tremendous blow to the [Our Lady of Hope] parish, but just as alarming is the loss of the church as an architectural jewel." He urged the SHC to begin the historic district process "swiftly and without bureaucratic delay" in order to "save this beautiful building from the wrecking ball." Curran appeared before the SHC at a public meeting on September 3, 2009, where he made the same request. At that time, the SHC voted unanimously to undertake a preliminary report on creating a new historic district that would include the Church.
The SHC produced its preliminary report on September 17, 2009 — just two weeks after the initial meeting — outlining a proposal for the Our Lady of Hope Historic District ("District"). The proposal explained the historical and architectural reasons for creating the District. Significantly, it also stated another reason animating the proposal: the SHC noted that the Church was "slated to be closed"; that another Roman Catholic church in Springfield had recently been closed, sold, and demolished; and that the District "[wa]s being proposed to avoid the same possible fate for Our Lady of Hope."
The preliminary report proposed a single-parcel district covering only the Church and no other property. The report justified the boundaries by describing the non-historical nature of the surrounding properties. The proposal would create the first and, at the time, only
On October 19, 2009, the SHC received a letter from the Massachusetts Historical Commission in response to its preliminary report, giving an "advisory recommendation" in favor of the District. Acting within the statutory sixty-day window, the SHC held a public meeting to discuss the proposal on December 14, 2009. RCB's counsel appeared at this meeting to object to the creation of the District. He argued, inter alia, that creating the District would infringe RCB's constitutionally protected rights to free speech and free exercise of religion and that it would violate RLUIPA. He also argued that the creation of the District was designed to intrude on the pastoral planning process at the behest of Our Lady of Hope parishioners who were angry at having their parish closed. Finally, RCB's counsel asked that the SHC at a minimum seek a legal opinion as to the constitutional implications of approving the District. Despite these objections, and without seeking legal advice, at the close of the meeting the SHC voted unanimously to send a final report to the City Council.
The City Council initially referred the proposal to a Council committee for study. On December 21, 2009, RCB wrote to each Council member, reiterating its arguments against the adoption of the District and asking the Council to seek a legal opinion on the constitutionality of the District. RCB pointed out that if the Church were designated as a historic district, it would inhibit future sale of the property, the proceeds of which would benefit the merged parish. Historic district designation would also impose on the Diocese, and specifically on the merged parish, the continuing costs of maintenance, insurance, and security for the Church.
On December 29, 2009, the City Council held a public meeting on the proposal, even though it had not received a response from its study committee. RCB's counsel attended the meeting and again objected to the creation of the District. During the meeting, one councilor called in the city solicitor and asked whether the City's law department had reviewed the proposal. The solicitor said it had not and offered to discuss the proposal with the Council in executive session, but the Council declined. Also during this meeting, another councilor asked RCB's counsel why parishioners had not had an opportunity to participate in the decision of whether to close the Church. When RCB's counsel answered that they had, the councilor exclaimed, "That isn't true!" In fact, members of the Diocese, which included Our Lady of Hope parishioners, had been invited to participate in the pastoral planning process.
At the close of the meeting, the Council passed the ordinance creating the District ("Ordinance"). RCB sent a written protest to the City's mayor, but the mayor signed the Ordinance into law the next day. The Ordinance went into effect on January 20, 2010, approximately three weeks after the last services were held at the Church.
Since the enactment of the Ordinance, RCB has taken no action with regard to the deconsecration, sale, or leasing of the Church, and it has not made any submissions to the SHC seeking permission to alter the Church's exterior. As we explain, as a result of RCB's failure to take further actions with regard to the Church site, certain of its claims lack the requisite concreteness to warrant resolution of whether hypothetical outcomes transgress RLUIPA or either the federal or state constitutions.
RCB filed its complaint against the City in Massachusetts Superior Court on January 21, 2010, the day after the Ordinance went into effect. It asserted federal constitutional claims under 42 U.S.C. § 1983, federal statutory claims under RLUIPA, and state law claims under the Massachusetts Constitution and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I.
On January 2, 2011, the district court issued its Memorandum and Order granting summary judgment to the City. RCB, 760 F.Supp.2d at 176. The court first found that certain of RCB's claims were not ripe for adjudication. To make this determination, the court recharacterized the complaint by dividing RCB's allegations "into two temporal facets: (1) violations that arise from the mere enactment of the single-parcel historic district, ... and (2) violations that arise from [RCB]'s resulting inability to deconsecrate church property." Id. at 181. The court concluded that claims falling under the first heading were ripe for review because the Ordinance forced RCB to submit to a secular authority and subjected it to the "delay, uncertainty and expense" of the approval process. Id. at 181-82. On the other hand, it found that claims falling under the second heading were not ripe because RCB had not actually applied to the SHC to make any changes to the Church, so it was unknown whether RCB would be allowed to make the changes it desired. Id. at 182-84.
As to the merits of the remaining federal claims, the court found, inter alia, that the burden the Ordinance imposed on RCB was not "substantial" under RLUIPA, id. at 185-88, and that the Ordinance did not violate the antidiscrimination provisions of RLUIPA, id. at 188-91. It then erroneously focused on the MHDA rather than the Ordinance,
RCB timely appealed on January 28, 2011.
We review a grant of summary judgment de novo, drawing all reasonable inferences in favor of the non-moving party. Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir.2011). On an appeal from cross-motions for summary judgment, the standard does not change; we view each motion separately and draw all reasonable inferences in favor of the respective non-moving party. See OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Can., 684 F.3d 237, 241 (1st Cir.2012). Neither party contends that there are any genuine issues of material fact that would justify remand for a trial.
We must begin with the City's argument that RCB's claims are not ripe for review, since the ripeness inquiry involves, as one component, the question of whether this court has jurisdiction to hear the case. See Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v. Fortuño, 699 F.3d 1, 8 (1st Cir.2012) (per curiam).
"[T]he doctrine of ripeness has roots in both the Article III case or controversy requirement and in prudential considerations." Mangual v. Rotger-Sabat, 317 F.3d 45, 59 (1st Cir.2003). The "basic rationale" of the ripeness inquiry is "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).
There are two factors to consider in determining ripeness: "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. at 149, 87 S.Ct. 1507. We generally require both prongs to be satisfied in order for a claim to be considered ripe. Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir.1995).
The fitness prong of the ripeness test has both jurisdictional and prudential components. The former, "grounded in the prohibition against advisory opinions, is one of timing." Sindicato Puertorriqueño, 699 F.3d at 8 (quoting Mangual, 317 F.3d at 59) (internal quotation mark omitted). It concerns whether there is a sufficiently live case or controversy, at the time of the proceedings, to create jurisdiction in the federal courts. See id. The prudential component asks "whether resolution of the dispute should be postponed in the name of `judicial restraint from unnecessary decision of constitutional issues'; if elements of the case are uncertain, delay may see the dissipation of the legal dispute without need for decision." Mangual, 317 F.3d at 59 (citation omitted) (quoting Reg'l Rail Reorg. Act Cases, 419 U.S. 102, 138, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974)); see also Ernst & Young, 45 F.3d at 535 ("This [fitness] branch of the test typically involves subsidiary queries concerning finality,
The hardship prong, by contrast, is "wholly prudential." Mangual, 317 F.3d at 59. It looks at "whether the challenged action creates a direct and immediate dilemma for the parties." Sindicato Puertorriqueño, 699 F.3d at 9 (quoting Verizon New Eng., Inc. v. Int'l Bhd. of Elec. Workers, Local No. 2322, 651 F.3d 176, 188 (1st Cir.2011)) (internal quotation marks omitted). "Generally, a `mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.'" Id. (quoting Simmonds v. INS, 326 F.3d 351, 360 (2d Cir. 2003)).
The City argues that, because RCB has never submitted an application for a certificate of hardship, RCB cannot present any ripe claims based on the fact that the SHC might prevent RCB from implementing its religious protocols as to symbols on the exterior of the Church. RCB responds that the issues in this case are purely legal rather than factual, so no further developments — including any developments that would result from submitting an application to the SHC — would alter the outcome. RCB also argues that it faces the hardship of having to seek the SHC's permission for every future change to the Church's exterior and that any required application for a certificate of hardship would be futile due to the City's demonstrated hostility to the Diocese's plans for the Church.
As to the first component of the fitness question, we conclude that one aspect of RCB's complaint satisfies Article III's case or controversy requirement: specifically, RCB's claim that the enactment of the Ordinance itself burdens RCB's religious practices and undermines its religious freedom. There is no doubt that the City intends to enforce the Ordinance against RCB and that RCB must submit several categories of its decisionmaking, otherwise governed by religious doctrine, to the SHC. RCB has already protested to the City regarding the practical effects of these facts on its ownership and potential disposition of Church property, including financial burdens. Under
But the prudential component of the fitness prong, as well as the entirely prudential hardship prong, present much closer questions as to the aspects of RCB's claim concerning the potential future results of the application process. We do not agree with RCB that there are no further factual developments that could be relevant to the outcome of this case. Indeed, both the district court and the City have emphasized a key missing fact: RCB did not put in the record any specific plan for the sale and/or deconsecration of the Church. Nor does the record indicate that RCB made any such proposal to the City (via the Council or the SHC) before filing the instant lawsuit. Nothing has yet been presented to the SHC. Instead, RCB filed this lawsuit the very next day after the Ordinance went into effect. As such, the City has had no opportunity to demonstrate whether or not it will accommodate some, all, or none of RCB's requests for changes to the exterior of the Church. Indeed, RCB has not settled upon any plan for future use of the property that would necessarily entail changes to the Church's exterior. Without knowing what RCB can or cannot do with the Church under the Ordinance, we cannot know to what extent, if any, RCB will suffer from a burden on its religious practice.
This uncertainty likewise casts doubt on RCB's argument that any application to the SHC would be futile. The City has made it clear, both in the proceedings leading to passage of the Ordinance and throughout this lawsuit, that its purpose in passing the Ordinance was to prevent demolition of the Church. If RCB had proffered evidence that it in fact planned to demolish the Church, in accordance with the requirements of its deconsecration procedures, then RCB may have been able to make the futility argument. See Gilbert v. City of Cambridge, 932 F.2d 51, 61 (1st Cir.1991) (stating, in zoning context, that futility may be sufficient to show ripeness where the plaintiff faces "a sort of inevitability...: the prospect of refusal [of an application] must be certain (or nearly so)," not merely possible or even probable). But the City has not represented that it would deny all applications to alter the exterior of the Church in any way, and RCB has not offered evidence to suggest that the City would deny all such applications. Given this uncertainty, we cannot conclude that RCB's claims premised on its feared inability to deconsecrate the Church according to its religious principles, as a result of future SHC decisions, are now fit for adjudication.
In reaching this conclusion, we rely on traditional notions of ripeness. We do not rely, as did the district court, on specialized Takings Clause ripeness doctrine. In regulatory takings cases, a property owner must follow the procedures for requesting the applicable zoning relief, and have its request denied, before bringing a claim in court. Williamson Cnty. Reg'l Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 190-91, 105 S.Ct. 3108, 87 L.Ed.2d 126 (1985). But the Supreme Court has stated that this requirement "is compelled by the very nature of the inquiry
Here, by contrast, the Ordinance's effect on RCB's free exercise rights may well become clear at a different point than that contemplated by takings law. While constitutional challenges to land use regulations may implicate Williamson County's ripeness doctrine in some cases, we find no such necessary implication here. It is significant, in this respect, that the Ordinance is designed to apply only to the Church, unlike the neutral and generally applicable zoning or environmental ordinances that are almost always at issue when a regulatory takings claim is alleged.
To the extent that RCB has argued that the mere existence of the Ordinance creates a ripe controversy, we find that its claims are ripe. With regard to this attack on the enactment of the Ordinance, RCB has credibly alleged that the requirement of submitting to the SHC's authority presently imposes delay, uncertainty, and expense, which is sufficient to show present injury. See Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 288 (5th Cir.2012) (considering inability to use property as intended as a factor in the ripeness inquiry). Of course, the extent and significance of this alleged injury is a merits question. For the purposes of the ripeness inquiry, it is enough to note that it is self-evidently plausible that they exist.
RCB also argues that the requirement of subjecting its religious decisions regarding deconsecration to secular administrators at all creates a present burden on its free exercise of religion. Cf. Metro. Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265 n. 13, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991) (concluding that constitutional separation-of-powers challenge to "veto power" of administrative board was ripe "even if the veto power has not been exercised to respondents' detriment," because "[t]he threat of the veto hangs over the [decision-makers subject to the veto power] like the sword over Damocles, creating a `here-and-now subservience' ... sufficient to raise constitutional questions"). Finally, RCB points out that if it were to make any changes to the exterior of the Church without the SHC's permission, it would be subject to a statutory fine for each day the changes persisted. See Mass. Gen. Laws ch. 40C, § 13.
Under these circumstances, we conclude that RCB's challenges to the enactment of the Ordinance satisfy the prudential fitness and hardship requirements of the ripeness test. Because these challenges
We turn to the merits of the ripe claim, beginning with RCB's RLUIPA arguments.
RCB first argues that the Ordinance violates RLUIPA's "substantial burden" provision, 42 U.S.C. § 2000cc(a), which states:
42 U.S.C. § 2000cc(a)(1). The parties do not dispute that the Ordinance is a "land use regulation" within the meaning of the statute. RCB, 760 F.Supp.2d at 186.
RLUIPA defines "religious exercise" as "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 it specifically provides that "[t]he use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise," id. § 2000cc-5(7)(B). The district court correctly determined that deconsecration constitutes religious exercise under the statute. RCB, 760 F.Supp.2d at 186. The City concedes that point for purposes of this appeal.
The Supreme Court has not decided whether a district court's ultimate conclusion as to the existence of a substantial burden under RLUIPA is an issue of fact or law, nor the appellate standard of review for this issue. Nor have the circuit courts answered the question. See, e.g., World Outreach Conference Ctr. v. City of Chicago, 591 F.3d 531, 539 (7th Cir.2009). Of course, if a district court had made subsidiary findings resolving disputed issues of fact, those findings would be subject to clear error review. But because this case was resolved on summary judgment, that situation is not before us.
Rather, in the circumstances presented here — where there are no contested findings of fact, and where neither party argues that there are material issues of fact for trial — we view the question of whether a "substantial burden" exists as a question of law subject to de novo review. Among the reasons for our approach are two considerations.
First, the corollary question of whether the government's interest is compelling is generally treated as a question of law. See, e.g., McRae v. Johnson, 261 Fed. Appx. 554, 557 (4th Cir.2008) (per curiam); United States v. Hardman, 297 F.3d 1116, 1127 (10th Cir.2002) (interpreting analogous RFRA provision).
Second, in cases raising challenges under the Free Speech Clause of the First Amendment, we have stated that an appellate court "must conduct an `independent review of the evidence on the dispositive constitutional issue' ... in order to safeguard precious First Amendment liberties."
RCB bears the burden of demonstrating that the enactment of the Ordinance imposes a "substantial burden" on its religious exercise. RLUIPA does not define "substantial burden," although the background of the statute's enactment provides some indication of Congress's intended meaning.
The pertinent background begins with Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876, in which the Supreme Court held that the Free Exercise Clause does not relieve individuals of the obligation to comply with neutral laws of general applicability that burden their religious exercise.
Congress responded again by passing RLUIPA, this time relying on the Spending and Commerce Clauses and targeting only two areas of state regulation: land use and institutionalized persons. See Cutter v. Wilkinson, 544 U.S. 709, 715, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005). RLUIPA established the same rule for these two limited areas that Congress had attempted to apply more broadly in the RFRA: it prohibited state and local governments from placing a substantial burden on religious exercise unless the government could show that it had a compelling interest and that it had used the least restrictive means to achieve that interest. Compare RFRA, Pub.L. No. 103-141, § 3(b), with 42 U.S.C. § 2000cc(a)(1). The congressional record accompanying the passage of RLUIPA in the Senate indicates that the sponsors of the law intended the phrase "substantial burden" to be "interpreted by reference to Supreme Court jurisprudence." 146 Cong. Rec. S7776 (daily ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy).
The Supreme Court, however, has never provided a working definition of "substantial burden" in this context. As the Second
The First Circuit has not offered its own interpretation of "substantial burden" for RLUIPA land use purposes. The parties offer various abstract formulations to us. A number of other circuits have announced tests in terms of such abstract formulations, but the standards they have announced have not been consistent. See, e.g., Bethel World Outreach Ministries v. Montgomery Cnty. Council, 706 F.3d 548, 556 (4th Cir.2013) ("[A] plaintiff can succeed on a [RLUIPA] substantial burden claim by establishing that a government regulation puts substantial pressure on it to modify its behavior."); Westchester Day Sch., 504 F.3d at 349 (formulating the question as whether "government action... directly coerces the religious institution to change its behavior" (emphasis omitted)); Living Water Church of God v. Charter Twp. of Meridian, 258 Fed.Appx. 729, 737 (6th Cir.2007) (asking whether, "though the government action may make religious exercise more expensive or difficult, does the government action place substantial pressure on a religious institution to violate its religious beliefs or effectively bar a religious institution from using its property in the exercise of its religion?"); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir.2004) (substantial burden is one that "place[s] more than an inconvenience on religious exercise" and is "akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly"); San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004) ("[F]or a land use regulation to impose a `substantial burden,' it must be `oppressive' to a `significantly great' extent."); Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir.2003) ("[I]n the context of RLUIPA's broad definition of religious exercise, a land-use regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise ... effectively impracticable.").
In the absence of Supreme Court guidance, we do not adopt any abstract test, but rather identify some relevant factors and use a functional approach to the facts of a particular case. We recognize different types of burdens and that such burdens may cumulate to become substantial. At least one circuit has moved in this direction, see World Outreach Conference Ctr., 591 F.3d at 539 ("[W]hether a given burden is substantial depends on its magnitude in relation to the needs and resources of the religious organization in question."), and academic commentary has suggested the same, see R. Bernstein, Note, Abandoning the Use of Abstract Formulations in Interpreting RLUIPA's Substantial Burden Provision in Religious Land Use Cases, 36 Colum. J.L. & Arts 283, 305-10 (2013) (explaining common factors that courts have considered in assessing "substantial burden" under RLUIPA, regardless of how the standard has been formulated).
This approach involves consideration of the common-usage understandings of the term "substantial burden," a term used in many areas of law without particular
On the other hand, we agree with the Second Circuit's observation that RLUIPA does not mean that any land use restriction on a religious organization imposes a substantial burden — such a conclusion would stretch First Amendment jurisprudence too far, see Westchester Day Sch., 504 F.3d at 349-50, and moreover would be contrary to congressional intent, see 146 Cong. Rec. S7776 (daily ed. July 27, 2000) ("This Act does not provide religious institutions with immunity from land use regulation....") (joint statement of Sens. Hatch and Kennedy).
We do identify some factors that courts have considered relevant when determining whether a particular land use restriction imposes a substantial burden on a particular religious organization, but we do not suggest that this is an exhaustive list. One factor is whether the regulation at issue appears to target a religion, religious practice, or members of a religious organization because of hostility to that religion itself. See Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 898 (7th Cir. 2005) (noting that city had allowed rezoning of parcel owned by Protestant church but imposed additional processes on, and ultimately denied, Greek Orthodox church's rezoning application for adjacent parcel); id. at 900 (warning of the "vulner-ability of religious institutions — especially those that are not affiliated with the mainstream [Christian] sects ... to subtle forms of discrimination"); cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532-33, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).
Another is whether local regulators have subjected the religious organization to a process that may appear neutral on its face but in practice is designed to reach a predetermined outcome contrary to the group's requests. See, e.g., World Outreach Conference Ctr., 591 F.3d at 537-38 (finding that religious organization stated a RLUIPA substantial burden claim where city insisted that organization seek a permit it did not need, then used other processes to "pull[] the rug out from under" organization's application, id. at 537); Guru Nanak Sikh Soc'y of Yuba City v. County of Sutter, 456 F.3d 978, 989 (9th Cir.2006) (finding substantial burden where the religious organization "readily agreed to every mitigation measure suggested by [regulators], but the County, without explanation, found such cooperation insufficient," and the "broad reasons" given for the county's denials "could easily
Courts have also looked to whether the land use restriction was "imposed on the religious institution arbitrarily, capriciously, or unlawfully." Westchester Day Sch., 504 F.3d at 350. This may occur where, for instance, local regulators disregard objective criteria and instead act adversely to a religious organization based on the objections of a "small but influential" group in the community. Id. at 346 (noting that "[m]any of the[] grounds" for zoning board's denial of religious institution's building permit application "were conceived after the [board] closed its hearing process, giving the school no opportunity to respond," and that "the stated reasons for denying the application were not supported by evidence," leading the district court to "surmise[] that the application was in fact denied because the [board] gave undue deference to the public opposition of the small but influential group of neighbors who were against the school's expansion plans"). It may also occur where local regulators base their decisions on misunderstandings of legal principles. See Saints Constantine, 396 F.3d at 899-900 (describing "repeated legal errors" by the city, suggesting that errors were indicative of city either being "deeply confused about the law" or "playing a delaying game," and warning of risks to religion where, as in zoning processes, "a state delegates essentially standardless discretion to nonprofessionals operating without procedural safeguards").
Taken together, these factors reveal that the substantial burden analysis often "backstops the explicit prohibition of religious discrimination in" RLUIPA's subsection (b) much in the same way as "the disparate-impact theory of employment discrimination backstops the prohibition of intentional discrimination." Id. at 900. Under the substantial burden framework, a court may block application of a land use regulation under RLUIPA's subsection (a) where the context raises an "inference" of hostility to a religious organization, even when the evidence does not necessarily show the explicit discrimination "on the basis of religion" contemplated by subsection (b). Id. Several courts have been sensitive to these concerns. See, e.g., Westchester Day Sch., 504 F.3d at 350-51; World Outreach Conference Ctr., 591 F.3d at 535-38 (reversing dismissal of religious organization's RLUIPA substantial burden claim, while affirming dismissal of organization's RLUIPA discrimination claim).
We start with two bedrock observations: first, that a religious organization is protected from government burdens which are imposed based on the organization's religious beliefs; and second, that the Ordinance at issue in this case cannot be viewed as a neutral law of general applicability in the Smith sense.
As to the first issue, a government may not single out for special benefit or burden a religious group or institution solely because of its religious beliefs. See id. at 532. Here, nothing in the language nor the background of the Ordinance indicates that hostility to Catholicism or Catholics motivated the City's decisionmaking process. The language of the Ordinance does not target deconsecration as such.
By its terms, the Ordinance does not forbid the SHC from inquiring into the religious criteria that RCB uses to determine how it will apply its religious protocols, nor from second-guessing the religious conclusions reached by RCB as to what is sacred. In this respect, the Ordinance stands in contrast with at least some
As to the second issue, we do not view the Ordinance as a "neutral law of general applicability" in the sense that the Supreme Court used the term in Smith. See 494 U.S. at 879, 110 S.Ct. 1595 (quoting United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (Stevens, J., concurring in the judgment)); id. at 879-82, 110 S.Ct. 1595. Rather, the City, through the SHC and City Council, is vested with discretion to decide when to create a historic district. The strictures imposed as a result of historic district status do not apply automatically by statute to the general population, but apply once certain officials of the City decide that they will apply. Historic district or landmark ordinances are different from other types of zoning rules in that their entire purpose is to prevent only particular property owners in limited areas from changing the appearance of particular properties.
One of the dangers of a discretionary system such as this one is the prospect that the government's discretion will be misused. In this case, there were some troubling circumstances surrounding the City's enactment of the Ordinance. For instance, the Ordinance was proposed after the news was released that RCB planned to close the Church, and it was supported by parishioners opposed to the (otherwise unreviewable) closing decision and those sympathetic to their cause. The record does not indicate any interest in including the Church in a historic district before that decision in the late summer of 2009.
The SHC, City Council, and mayor pressed the Ordinance through the approval
In the end, however, these troubling facts surrounding the enactment of the Ordinance are not outcome determinative, because this exercise of discretion (that is, designating the Church as a single-parcel historic district) does not establish a process, apparently neutral, that in fact will result in the denial of any request that RCB may make to the SHC. See, e.g., World Outreach Conference Ctr., 591 F.3d at 537-38; Guru Nanak Sikh Soc'y, 456 F.3d at 989. The Ordinance requires only that RCB submit any plans to alter the exterior of the Church to the SHC. Should the SHC in fact prevent RCB, when it does have specific plans for the site, from undertaking any portion of its religious practice of deconsecration, the significance of the Ordinance's background can be evaluated anew in the context of any later challenge.
In addition to the two concerns outlined above, we evaluate the actual, tangible burdens that existence of the Ordinance imposes on RCB. RCB represented to the City Council that it must bear a financial burden of maintaining the Church, which falls on the newly merged parish and constrains RCB's decisions about how to allocate the Diocese's resources. But the mere existence of some expenses does not put "substantial pressure on [RCB] to modify its behavior." Bethel World Outreach, 706 F.3d at 556. There are many scenarios under which RCB would be paying to maintain the Church, only some of which are fairly traceable to the Ordinance. Further, RCB did not submit evidence of the degree of these expenses, nor of the Church's property value before or after passage of the Ordinance. See, e.g., First Covenant Church of Seattle, 840 P.2d at 183 (noting, in constitutional substantial burden analysis, evidence that landmark ordinance "reduce[d] the value of the Church's property by almost half").
RCB does face statutory penalties if it makes any changes to the Church without the SHC's permission, see Mass. Gen. Laws ch. 40C, § 13, but this possibility does not mean that the process of application to the SHC is itself burdensome. The Ordinance asks RCB only to delay the decisions it makes pursuant to its deconsecration plans while the SHC evaluates its application, a process that, according to the SHC's own rules, should take no more than sixty days.
Because we decide that RCB has not shown a substantial burden, we need not address the question of whether the Ordinance is "in furtherance of a compelling governmental interest" and is "the least restrictive means of furthering" that interest. 42 U.S.C. § 2000cc(a)(1)(A)-(B).
RCB also argues before this court that the Ordinance violates another provision of RLUIPA, the "equal terms" provision,
The circuits disagree as to the applicable comparator in a RLUIPA "equal terms" analysis. Compare Midrash Sephardi, 366 F.3d at 1230-31 ("natural perimeter" of inquiry is the universe of entities which qualify as "assembl[ies] or institution[s]"), with Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 264 (3d Cir.2007) (religious institution must show that a secular comparator is similarly situated in relevant respects). RCB does not point to any particular secular institution or class of institutions that was treated differently than was RCB. Rather, RCB compares itself to every secular institution in the City of Springfield, none of which are included in a single-parcel historic district. Under any reasonable interpretation of the equal terms provision, this argument fails.
The MHDA empowers municipalities to choose how many parcels to include in any given historic district. The City has enacted a number of historic districts over the years, of varying sizes, and often including both secular and religious buildings. The City complied with the MHDA's process for designating the District, as it presumably did in all other instances when it created historic districts.
By analogy, the Supreme Court has recognized in a different context that landmark laws — which operate similarly to single-parcel historic districts — are not necessarily operating in a discriminatory manner when they single out particular parcels for special treatment:
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 132, 98 S.Ct. 2646, 57
The mere fact of the Ordinance's existence does not demonstrate that RCB was treated on less than equal terms with nonreligious institutions, particularly where RCB does not point to any relevant comparators.
RLUIPA's congressional record indicates that the sponsors of the law in the Senate intended the phrase "substantial burden" to be interpreted consonantly with the Supreme Court's usage of the phrase in the First Amendment context. See 146 Cong. Rec. S7776 (daily ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy). Our analysis of RCB's ripe First Amendment free exercise claim is thus similar to our analysis of the ripe "substantial burden" question under RLUIPA.
Because we do not view the Ordinance as a neutral law of general applicability, we will assume, favorably to RCB, that it is subject to strict scrutiny.
Given the limited nature of the only ripe claim before us, the Supreme Court's decision in Lukumi is not to the contrary. There, a municipality passed ordinances relating to animal sacrifice that were clearly designed to prevent adherents of Santería from taking part in a specific religious practice, for the stated purpose of prohibiting a religious exercise that a number of citizens considered to be "inconsistent with public morals, peace or safety." 508 U.S. at 535, 113 S.Ct. 2217. The evidence as a whole revealed that "suppression of the central element of the Santeria worship service was the object of the ordinances," id. at 534, 113 S.Ct. 2217, which constituted "an impermissible attempt to target petitioners and their religious practices," id. at 535, 113 S.Ct. 2217.
Here, by contrast, there is no evidence that suppression of Catholic religious practices was the object of the Ordinance. The text of the Ordinance requires only that RCB file an application with the SHC before making any changes to the exterior of the Church. The language of the Ordinance does not require RCB to perform or forego any particular practice, and it does not prohibit deconsecration or even closing of the Church outright. While the circumstances of the Ordinance's enactment reveal that the Ordinance was motivated at least in part by a desire to prevent demolition
This is not to say, of course, that a government's benign motives will always defeat a claim of substantial burden; a law passed without any evidence of animosity may still, by its objective terms, impose such a burden. But that is not this Ordinance. Again, the question of whether any future outcome of RCB's submission of an application to the SHC might constitute a substantial burden is not properly before this court. We hold simply that the existence of the Ordinance itself is not an unconstitutional burden on RCB's free exercise of religion.
RCB's complaint alleged that the Ordinance violated its rights under the First Amendment's Free Speech Clause. RCB alludes to that claim in its briefing before this court, but it does not develop the argument, instead using the free speech claim solely to bolster its argument that the free exercise claim should be subject to strict scrutiny as a "hybrid" claim. RCB has thus waived this issue on this appeal. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990).
We note, however, that the district court found that the free speech claim was unripe, because the question of whether the Ordinance interferes with RCB's right to express itself through religious symbols on the Church would not be cognizable until the SHC acted on an application to remove any of those symbols. See RCB, 760 F.Supp.2d at 184. Since neither party asks us to disturb that ruling, we will not do so.
Finally, RCB argues that the enactment of the Ordinance violates its free exercise right under Article 46, Section 1 of the Amendments to the Massachusetts Constitution, which provides that "[n]o law shall be passed prohibiting the free exercise of religion." In interpreting this provision, Massachusetts has rejected the Supreme Court's Smith rule and retained the strict scrutiny standard even for laws that are neutral and generally applicable. Attorney General v. Desilets, 418 Mass. 316, 636 N.E.2d 233, 236 & n. 4 (1994). Because we have rejected RCB's federal constitutional challenge as to that part of its claim which is ripe, RCB's ripe state constitutional claim also fails, for the same reasons articulated above.
RCB has presented a serious set of challenges. As the Supreme Court has stressed, the question of religious burdens is necessarily individualized and context-sensitive. See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006). Accordingly, we have written narrowly today. Our analysis is grounded in the present facts of this case.
It appears from the district court's decision that the court granted summary judgment
The judgment of the district court is affirmed in part and vacated in part. The district court's grant of summary judgment to the City on Counts 5, 6, 7, 10, 11, and 12 of RCB's complaint is affirmed. We vacate the grant of summary judgment to the City on Counts 3 and 4 of the complaint and remand with instructions to dismiss those counts without prejudice. We vacate and remand with instructions to dismiss without prejudice Counts 1, 2, 8, and 9 of the complaint, to the extent these counts allege a challenge to the potential future effects of the application process under the Ordinance. To the extent that Counts 1, 2, 8, and 9 allege a challenge to the mere enactment of the Ordinance, the grant of summary judgment to the City is affirmed. Each party shall bear its own costs.
For ease, the remainder of this opinion will refer to a potential certificate of hardship, without intending to exclude the possibility that RCB might have applied for one of the two other types of certificates.
