In Roman Catholic Bishop of Springfield v. City of Springfield (1st Cir. 2013), Plaintiff Roman Catholic Bishop (“RCB”) sued the City of Springfield alleging that the City’s creation of a single-parcel historic district encompassing RCB’s church violated RLUIPA, the United States Constitution, and State Law.  The case is important for its RLUIPA “substantial burden” and ripeness analyses.


RCB owns a church in Springfield – “Our Lady of Hope” built in 1925 and designed in the Italian Renaissance style (the “Church”).  As early as 2001, the Church could have been, but was not, included on the National Register of Historic Places.  Due to decreasing numbers of clergy and parishioners, in 2004, RCB began a process known as “pastoral planning” to determine how to best allocate the Diocese’s resources.  RCB recommended that the best allocation of the Diocese’s resources would be to combine the Church with another local parish, given the Church’s declining numbers.  The Bishop of the Diocese accepted RCB’s recommendation and the Church ceased religious worship services as of January 1, 2010.

Roman Catholic canon law requires that when a church ceases service for religious worship, the Bishop must protect its religious ornamentation to ensure that it is not put to a “sordid” use – a use that is “detrimental to the good of the souls,” including any use involving “[t]he denunciation of the Catholic Church and the Catholic Faith, the desecration of Catholic objects of devotion and worship or even any disrespectful or casual treatment of such objects, and/or the proselytizing of Catholics.”  RCB undertakes one of four actions when closing a  church:  (1) relocate the religious ornamentation to other locations within the Diocese; (2) relocate the religious ornamentation to other dioceses; (3) place the objects in storage; or (4) destroy the objects, if the first three options are not feasible.  RCB identified eight types of religious ornamentation on the exterior of the Church to be protected by the Bishop, including stone castings, inscriptions, and stained glass windows.

If RCB sells or leases a church building to another entity, it must convert the building from a religious use to a “profane” (non-sacred) use through a process known as deconsecration.  If RCB chooses to remove religious ornamentation, it proceeds under the steps outlined above.

Parishioners of RCB became upset about plans to merge the Church with another local parish.  In the fall of 2009, several parishioners and other citizens lobbied the City to designate the Church as an historic district.  In 2009, the Springfield Historical Commission (the “SHC”) issued a preliminary report in which it proposed that the Church be designated as part of a single-parcel historical district because of its historical and architectural value, as well as the fact that another Roman Catholic church in Springfield was recently demolished and the historical district for RCB’s Church “[w]as being proposed to avoid the same fate for Our Lady of Hope.”

The Massachusetts Historic Commission issued an advisory recommendation in favor of creating the single-parcel historic district.  Despite objections from RCB, as well as RCB’s request that the SHC seek a legal opinion as to the constitutional implications in connection with creating the district before taking a vote, the SHC voted to send a report supporting creation of the district to the City Council.  In December 2009, the City Council passed the ordinance creating the single-parcel historic district, the first of its kind (the “Ordinance”).

RCB has neither made any plans public as to its intention for the Church since the enactment of the Ordinance, nor has it requested permission from the SHC to alter the Church’s exterior so that the religious ornamentation is not put to a “sordid” use.

The Lawsuit

The day after the Ordinance went into effect, RCB sued the City in state court, bringing claims under the U.S. Constitution, RLUIPA, and state law.  These claims arose from RCB’s (1) “facial” challenge against the Ordinance and (2) “as applied” challenge to the SHC’s application of the Ordinance.  The City removed the case from state court to federal court. 

The Federal District Court found that RCB’s “as applied” challenge to the Ordinance was not ripe for judicial review because RCB had yet to submit an application to the SHC.  Thus, it was not known whether SHC would allow RCB to deconsecrate the Church building in accordance with its religious beliefs.  RCB’s claims regarding the enactment of the Ordinance were ripe for judicial review because a “facial” challenge to a zoning ordinance does not require that any application be made; rather it is challenging the validity of the ordinance from the date of adoption.  The District Court found that the Ordinance did not discriminate against RCB in violation of federal or state law.

The First Circuit agreed that RCB’s “as applied” challenge concerning its claims grounded on its feared inability to deconsecrate the Church pursuant to canon law were not ripe for judicial review because they are premised on future decisions by the SHC.  The Court noted that RCB had not put in the record any specific plan to sell, lease, or deconsecrate or otherwise change the exterior of the Church, nor did it present any such plans to the SHC.  Because the City never had the opportunity to accommodate some or all of RCB’s requests to deconsecrate the Church, it was not known whether RCB would suffer a burden on its religious exercise.

The Court rejected RCB’s claim that its “as applied” challenge was ripe because any application made to the SHC would be a futile gesture.  While the Court rejected this argument due to RCB’s failure to proffer any evidence that it planned to demolish the Church, it observed that such evidence taken in view of the fact that the Ordinance was enacted to prevent demolition of the Church may have been enough to establish futility and, thus, rendering RCB’s claims ripe for review.  The First Circuit dismissed without prejudice the “as applied” challenge.

What is significant about the First Circuit’s decision is that it expressly disavows application of the ripeness test established in the United States Supreme Court case Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985), a test developed in the context of a “takings” challenge.  The Williamson County ripeness test requires an applicant to obtain a final, definitive position about how it could use its property, including exhaustion of the variance process, from the governmental agency that implements the zoning regulations before its clams are ripe for review to confer a court with subject matter jurisdiction.  Instead, the Court focused on “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”  Abbott Labs v. Gardner, 387 U.S. 137, 148 (1967).  The Court’s rejection of the Williamson County test may be good news for religious institutions bringing these types of claims, as they may now be able to have their claims heard by courts without first obtaining a final decision.  The Court cited the Second Circuit decision Dougherty v. Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83 (2d Cir. 2002) which also chose not to apply the Williamson County test for non-takings constitutional challenges, and which was extended by Murphy v. New Milford Zoning Comm’n, 402 F.3d 342 (2d Cir. 2005), to support its finding.

RCB’s “facial” challenge to the Ordinance was ripe for review because it satisfied the case or controversy requirement since it was premised on the mere enactment of the Ordinance, as opposed to the SHC’s application of the Ordinance.  Because the “facial” challenge claims rest only on the existence of the Ordinance, further factual development is not necessary, and the Ordinance imposes on RCB a “direct and immediate dilemma.”

RLUIPA “Substantial Burden”

Interpretation and application of RLUIPA’s “substantial burden” provision was an issue of first impression in the land use context for the First Circuit.  After reciting what tests its sister circuits have used to determine whether a governmental action constitutes a substantial burden under RLUIPA, the First Circuit refused to adopt an “abstract test” and instead identified “relevant factors” for use as a “functional approach to the facts of a particular case.”  Thus, the First Circuit articulates a new standard for RLUIPA “substantial burden” claims focusing on the actual burden rather than an abstract test.  It observed that a “burden does not need to be disabling to be substantial” and disagreed with “those courts that have suggested that nothing short of coercion to change or abandon one’s religious beliefs can meet the substantial burden test.”

The First Circuit identified the following non-exhaustive list of factors to consider:

·         Whether the land use regulation targets a religion, religious practice, or members of the religious institution due to hostility to that religion

·         Whether local regulators have subjected the religious institution to a process that appears neutral and generally applicable, but in practice is designed to reach a predetermined outcome contrary to the religious institution’s requests

·         Whether the land use regulation was imposed on the religious institution arbitrarily, capriciously, or unlawfully, such as where local regulators acted adversely to a religious institution based on the objections of a “small but influential” group of individuals, as in Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 349 (2d Cir. 2007).

The Court analogized the substantial burden analysis to employment law’s disparate-impact theory for discrimination claims:  “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.’”  Thus, a substantial burden may arise where the context raises an “inference” of hostility to a religious institution without evidence to show explicit discrimination.

RCB failed to establish that the enactment of the Ordinance imposed a substantial burden on its religious exercise.  The Court found that nothing in the Ordinance indicates hostility against Catholicism, nor does the Ordinance include language targeting the religious practice known as deconsecration.  While the Ordinance was not a rule of general applicability and risked misuse by the government, the broad discretion afforded to the SHC does constitute a process that will result in the denial of any request made by RCB to the SHC.  The Court also rejected RCB’s argument that the financial burden of maintaining the church due to the enactment of the Ordinance constitutes a substantial burden.  These alleged expenses did not place “substantial pressure” on RCB to modify its religious practice.  Further, the fact that RCB may face statutory penalties if it chooses to make changes to the Church building also does not amount to a substantial burden.

The Court expressed concern about the process in which the Ordinance was enacted, particularly the fact that it was intended, among other things, to prevent the Church from being demolished.  In the end, however, this was not enough to establish a substantial burden.

Other Federal and State Claims

RCB argued that the Ordinance violated RLUIPA’s “equal terms” provision because at the time of its creation, the single-parcel historic district was the only single-parcel district in the City.  The First Circuit concluded that RCB’s claim failed because RCB did not point to any specific secular institution that was treated differently than RCB by the City.  Instead, RCB compared itself to every secular institution in the City, none of which were located in a single-parcel historic district.  Further, the fact of the Ordinance’s existence does not establish that the City treated RCB on less than equal terms with secular institutions.

RCB could not establish that the Ordinance violated its First Amendment right to the free exercise of religion for the same reasons that its RLUIPA substantial burden claim proved unsuccessful.  The Court rejected RCB’s state law claims for the same reasons it rejected its federal claims. 

The First Circuit concluded its decision by observing that “RCB has presented a serious set of challenges,” and stated that questions of religious burden are “necessarily individualized and context sensitive.”  (citing Gonzalez v. O. Ceutra Espirita Beneficente do Vegetal, 546 U.S. 418, 436 (2006)).  Perhaps cautious of its decision, the Court closed by stating that it has “written narrowly today” and its “analysis is grounded in the present set of facts.”

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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.