Filed: Dec. 22, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-22-2004 Second Baptist v. Twp Gilpin Precedential or Non-Precedential: Non-Precedential Docket No. 04-1434 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Second Baptist v. Twp Gilpin" (2004). 2004 Decisions. Paper 42. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/42 This decision is brought to you for free and open access by the
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-22-2004 Second Baptist v. Twp Gilpin Precedential or Non-Precedential: Non-Precedential Docket No. 04-1434 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Second Baptist v. Twp Gilpin" (2004). 2004 Decisions. Paper 42. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/42 This decision is brought to you for free and open access by the O..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-22-2004
Second Baptist v. Twp Gilpin
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1434
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Second Baptist v. Twp Gilpin" (2004). 2004 Decisions. Paper 42.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/42
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 04-1434
__________
SECOND BAPTIST CHURCH OF LEECHBURG,
Appellant
v.
GILPIN TOWNSHIP, PENNSYLVANIA;
GILPIN TOWNSHIP SEWER AUTHORITY
v.
GILPIN TOWNSHIP SEWER AUTHORITY,
Third Party Plaintiff
v.
UNITED STATES OF AMERICA, DEPARTMENT OF AGRICULTURE, RURAL,
UTILITY SERVICE,
Third Party Defendant
Second Baptist Church of Leechburg,
Appellant
__________
On Appeal from the United States District Court
For the Western District of Pennsylvania
(Civ. No. 03-1454)
District Judge: Honorable Arthur J. Schwab
________
Submitted Under Third Circuit L.A.R. 34.1(a)
December 16, 2004
___________
Before: NYGAARD and GARTH, Circuit Judges, and POLLAK, District Judge*
*
The Honorable Louis H. Pollak, United States District Judge for the Eastern
District of Pennsylvania sitting by designation.
(Opinion Filed: December 22, 2004)
__________
OPINION
__________
Garth, Circuit Judge:
Appellant Second Baptist Church of Leechburg (the “Church”) appeals from the
District Court’s grant of a motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6) for
failure to state a claim, in favor of Appellees Gilpin Township (the “Township”) and
Gilpin Township Sewer Authority (the “Authority”). The Church sued the Township and
the Authority under 42 U.S.C. §§ 1983 and 2000cc et seq., challenging the facial and as
applied legality of the Township’s sewer ordinance (the “Ordinance”) under the First and
Fourteenth Amendments and the Religious Land Use and Institutionalized Person Act
(“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., as well as the corresponding provisions of the
Pennsylvania Constitution. The District Court had jurisdiction pursuant to 28 U.S.C. §
1331. We have jurisdiction pursuant to 28 U.S.C. §1291. W e will affirm.
I.
Because we write solely for the parties, we recount the facts and procedural history
only as they are relevant to the following discussion.
The Church believes and practices the Baptist faith. It has conducted religious
worship and religious outreach activities from its church building and property since
1958. Gilpin Township is a municipal corporation formed under the laws of the
Commonwealth of Pennsylvania. Gilpin Township formed the Gilpin Sewer Authority
2
and delegated to it all powers with regard to sewage within the township.
On May 7, 1984, Gilpin Township Ordinance No. 53 was enacted. The Ordinance
is commonly referred to as a “mandatory tap-in ordinance.” It requires that any principal
building that is located within one hundred fifty feet of any sewer of the sewage system
shall connect to it if so directed. On or about August 3, 2003, the Township notified the
Church that it had completed construction of its 1999 sewage extension project and that
the Church would now be required to “tap-in” to the Township sewage system because it
was located 138 feet from the sewer line and was thus covered by the Ordinance.
The Church refused to comply with the Ordinance principally because it deemed
the costs associated with the connection to be too onerous. As a result, the Township
brought an enforcement action against the Church in Pennsylvania state court. A district
justice found the Church in violation of the Ordinance but granted it time to “tap in.”
Prior to a compliance meeting before the district justice, the Church filed the present civil
action and sought a preliminary injunction. In response, the Township and the Authority
moved to dismiss the Church’s amended complaint under Fed. R. Civ. P. 12(b).
II.
The District Court granted the motion to dismiss in favor of the Township and the
Authority finding the Church failed to state a claim upon which relief could be granted.
First, it dismissed the Church’s claims predicated on RLUIPA, 42 U.S.C. §§ 2000cc. It
held that RLUIPA was inapplicable to the Ordinance because the statute applied only to
3
zoning and landmark laws and the Ordinance was neither. Second, the District Court
rejected the Church’s federal constitutional claims because it found that the Ordinance
neither interfered with nor violated the Church’s constitutional rights. The District Court
then declined to exercise supplemental jurisdiction over the Church’s state law claims and
so dismissed those as well.1
We exercise plenary review over the District Court’s grant of a motion to dismiss
for failure to state a claim. See, e.g., Board of Trustees of Bricklayers and Allied
Craftsmen Local 6 of New Jersey Welfare Fund v. Wettlin Associates, Inc., 237 F.3d 270,
272 (3d Cir. 2001). “We accept the allegations of the complaint as true and draw all
reasonable inferences in the light most favorable to the plaintiff. Only if it appears
certain that a plaintiff could prove no set of facts supporting its claim and entitling it to
relief do we affirm.”
Id. (citations omitted). Applying that standard here, we conclude
that the District Court properly granted the Township’s motion to dismiss.
A. Religious Land Use and Institutionalized Persons Act
RLUIPA provides in pertinent part as follows:
No government shall impose or implement a land use regulation in a
manner 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 interest; and
1
The Church does not appeal that portion of the District Court’s decision.
4
(B) is the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. § 2000cc(a)(1)(A), (B). RLUIPA defines a “land use regulation” as
“a zoning or landmarking law . . . that limits or restricts a claimant’s use or development
of land (including a structure affixed to land), if the claimant has a . . . property interest in
the regulated land . . .” Id. at § 2000cc-5(5). Thus, “a government agency implements a
‘land use regulation’ only when it acts pursuant to a ‘zoning or landmarking law’ that
limits the manner in which a claimant may develop or use property in which the claimant
has an interest.” Prater v. City of Burnside,
289 F.3d 417, 434 (6 th Cir. 2002).
Applying the foregoing to the present case, the District Court correctly held that
the Ordinance does not fall within the RLUIPA definition of a “land use regulation”
because the mandatory sewer tap was not enacted pursuant to a zoning or landmarking
law.
On appeal, the Church argues that although the Ordinance does not directly
involve a zoning or landmarking law, such laws could have been indirectly involved in
the passage of the Ordinance. The Church cites no authority of precedential value to
support this novel position and we see no reason to construe RLUIPA in such broad
terms. Because the Ordinance is outside the scope of RLUIPA, the Church’s claims
under that statute must fail.
B. First and Fourteenth Amendments
In the District Court below, the Church alleged that enforcement of the Ordinance
5
would violate its rights to free exercise, free speech, free assembly, equal protection and
due process. The District Court did not address each of the Church’s constitutional
claims individually. Rather, it found that by enforcing the Ordinance, the Township and
the Authority would not restrict the time of day or length of time the Church could
worship, or the manner or content of the Church’s religious services. Furthermore, it
found that the Ordinance did not directly or indirectly inhibit the Church’s access to its
property. Thus, it concluded that the Church “simply cannot show that the neutral
township ordinance at issue . . . interferes with or violates its free exercise of religion, its
freedom of speech, its freedom of assembly, its right to the equal protection of the laws,
and its right to due process of law.” Dist. Ct. Op. at 5.
On appeal, the Church contends that the District Court failed to engage in a proper
analysis of its First Amendment and equal protection claims. As an initial matter, the
Church does not substantively address its free speech, freedom of assembly or due
process claims in its brief on appeal. Therefore, it has waived those issues before this
Court. See Laborers' Int'l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994)
(“An issue is waived unless a party raises it in its opening brief, and for those purposes a
passing reference to an issue . . . will not suffice to bring that issue before this court.”)
(citations and internal quotation marks omitted).
With respect to its free exercise and equal protection claims, while we agree that
the District Court could have provided a more substantial analysis of the Church’s claims,
6
we are satisfied that it reached the correct result in granting the Township’s and the
Authority’s motion to dismiss.
“If a law is ‘neutral’ and ‘generally applicable,’ and burdens religious conduct only
incidentally, the Free Exercise Clause offers no protection.” Tenafly Eruv Assoc., Inc. v.
Tenafly, 309 F.3d 144, 165 (3d Cir. 2002) (citing Employment Div. v. Smith,
494 U.S.
872, 879 (1990)). In the present case, the Church concedes that the Ordinance is neutral.
Reading the amended complaint in the light most favorable to the Church, we find no
facts that would support a claim either that the Ordinance is not generally applicable or
that it directly burdens the Church’s religious conduct. Pursuant to Smith, therefore, the
Church’s Free Exercise claim was properly dismissed.
Finally, as to its Equal Protection claim, the Church failed to plead any facts to
establish under Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), that it was
treated differently from similarly situated
assemblies. 473 U.S. at 439 (“all persons
similarly situated should be treated alike”). The present dispute is before this Court on a
Fed. R. Civ. P. 12(b)(6) motion to dismiss and the Church’s arguments about what it
would prove through discovery are thus irrelevant. Its complaint fails to state a claim for
relief under the Fourteenth Amendment and therefore we will deny that portion of the
Church’s appeal as well.
III.
Accordingly, we will AFFIRM the judgment of the District Court.
