In March 2009, the City of Brewer, Maine granted the Rock Church of Greater Bangor, Inc. a building permit to renovate space and operate a church in 4,500 square feet of a building it leased from Dana Cassidy, a shopping center owner. The Church received its certificate of occupancy in 2011 and began conducting religious services at that location. As the Churchs congregation grew in size, it entered into discussions with the shopping center owner to lease additional building space to accommodate its growing congregation. In February 2012, the Church agreed to pay $7,000 per month to lease 14,000 square feet in the same building, more than triple the square footage the Church had previously leased. The City, however, denied the Churchs building permit application and, in March 2012, the Church withdrew from its agreement and relocated elsewhere. Cassidy sued the City under RLUIPAs unequal terms, discrimination, and unreasonable limitations clauses in the Federal District Court for the District of Maine.

In September 2012, a Federal Magistrate judge, issued a recommended decision, addressing the shopping center owners standing to bring claims under RLUIPA: “Although I agree with Plaintiff that there is no wholesale bar against him serving as a plaintiff in a RLUIPA action, I nevertheless conclude that third-party standing rules stand in the way of Plaintiff serving in that capacity in this action because an award of money damages and a declaratory judgment from this Court would do nothing to vindicate Rock Churchs alleged right to freely exercise religion with an expanded space in Plaintiffs commercial building.” The Magistrate Judge also found that the shopping center owners claim was not ripe for review.

In November 2012, the Federal District Court found that, as recommended by the Magistrate Judge, the shopping center owners claims were not ripe for review. The Court found that the Churchs failure to appeal the decision of the code enforcement officer to the zoning board of appeals would not prove futile because the zoning board may or may not have agreed with the code enforcement officer that the Churchs planned expansion would cause it to lose its previously grandfathered status of a nonconforming use. Because the Church had failed to exhaust its administrative remedies, the Court lacked jurisdiction to entertain the shopping center owners claims.

Although the Federal District Court did not reach the issue of standing, it observed:

“This commercial landlord plaintiff, who is not a religious institution and whose church tenant has abandoned his lease, does not meet those requirements in bringing this RLUIPA challenge against the City of Brewer. But there are cases that read RLUIPAs language as requiring that a plaintiff meet only the Article III standing requirement and not the additional prudential requirements. See, e.g., Oblates of St. Josephs v. Nichols, 2002 U.S. Dist. LEXIS 27671, at *21 (E.D. CA 2002) (“It seems clear that as to plaintiffs claims under [RLUIPA], Congress intended to eliminate prudential standing requirements.”); Dixon v. Town of Coats” 2010 WL 2347506, at *4 (E.D.N.C. 2010) (same); c.f. United States v. Adeyemo, 624 F.Supp. 2d 1081, 1085 (N.D. CA 2008) (interpreting identical language in the Religious Freedom Restoration Act, 42 U.S.C. Section 2000bb-1(c), and holding that only Article III standing requirements need be met).””

We will keep close watch as to whether the shopping center owner appeals the decision of the Federal District Court to the First Circuit. For now, you can read the Magistrate Judges recommended decision here and the Federal District Court decision here.

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Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of Dwight Merriam Dwight Merriam

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of…

Dwight H. Merriam founded Robinson+Cole’s Land Use Group in 1978. He represents land owners, developers, governments and individuals in land use matters, with a focus on defending governments in RLUIPA cases. Dwight is a Fellow and Past President of the American Institute of Certified Planners, a former Director of the American Planning Association (APA), a former chair of APA’s Planning and Law Division, Immediate Past Chair of the American Bar Association’s Section of State and Local Government Law, Chair of the Institute of Local Government Studies at the Center for American and International Law, a Fellow of the Royal Institution of Chartered Surveyors, a Fellow of the American Bar Foundation, a member of the Rocky Mountain Land Use Institute National Advisory Board, a Fellow of the Connecticut Bar Foundation, a Counselor of Real Estate, a member of the Anglo-American Real Property Institute, and a Fellow of the American College of Real Estate Lawyers.

He teaches land use law at the University of Connecticut School of Law and at Vermont Law School and has published over 200 articles and eight books, including Inclusionary Zoning Moves Downtown, The Takings Issue, The Complete Guide to Zoning, and Eminent Domain Use and Abuse: Kelo in Context. He is the senior co-author of the leading casebook on land use law, Planning and Control of Land Development (Eighth Edition). Dwight has written and spoken widely on how to avoid RLUIPA claims and how to successfully defend against them in court. He is currently writing a book on the subject, RLUIPA DEFENSE, for the American Bar Association.

Dwight has been named to the Connecticut Super Lawyers® list in the area of Land Use Law since 2006, is one of the Top 50 Connecticut Super Lawyers in Connecticut, and is one of the Top 100 New England Super Lawyers (Super Lawyers is a registered trademark of Key Professional Media, Inc.). He received his B.A. (cum laude) from the University of Massachusetts, his Masters of Regional Planning from the University of North Carolina, where he was the graduation speaker in 2011, and his J.D. from Yale. He is a featured speaker at many land use seminars, and presents monthly audio land use seminars for the International Municipal Lawyers Association. Dwight has been cited in the national press from The New York Times to People magazine and has appeared on NBC’s The Today Show, MSNBC and public television.

Dwight also had a career in the Navy, serving for three tours in Vietnam aboard ship, then returning to be the Senior Advisor of the Naval ROTC Unit at the University of North Carolina in Chapel Hill where he taught Defense Administration and Military Management as an Assistant Professor in the undergraduate and graduate curriculum in Defense Administration and Military Management. He left active duty after seven years to attend law school, but continued on for 24 more years as a reserve Surface Warfare Officer with two major commands, including that of the reserve commanding officer of the Naval Undersea Warfare Center. He retired as a Captain in 2009 after 31 years of service.