In an important decision, the court in Aldon, LLC v. City of Newport News, Virginia (E.D. Va. Nov. 20, 2014), clarified the standing requirements under RLUIPA.  Few courts have addressed RLUIPA’s standing requirements.  The Court also held that “the difficulty associated with finding an affordable location in an urban area alone does not amount to a substantial burden.”

Plaintiff Reconciling People Together in Faith Ministries, LLC (Congregation) is a small religious group native to Newport News Virginia (City).  The Congregation was formed in 2012 and held its meetings at a local business owned by the pastor, but eventually determined that this space did not have the appropriate “size or amenities” to accommodate the Congregation’s religious needs.   The Congregation searched for other properties and identified 6112 Jefferson Avenue, Newport News, Virginia (Property) as a new possible location to practice its religion.  The Property, owned by Plaintiff Andon, LLC (Andon), consists of approximately 12,503 square feet, with a small parking lot and single brick building.

The Property is located in the CI zone, where churches are permitted if they satisfy certain requirements: (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 one hundred (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 twenty-five (25) feet or more from a side or rear property line zoned single family residential.

The Property satisfies conditions (a), (b), and (d), but not (c).  After signing the lease, the Congregation discussed with local officials whether it would be permitted to operate the Property as a church, and then learned that any such application likely would be denied.  Nevertheless, the Congregation applied for a variance to use the Property as a church.  The Board of Zoning Appeals denied the application for failure to demonstrate hardship.  The Newport News Circuit Court affirmed the Board’s decision.

Thereafter, Plaintiffs sued the City alleging the denial of the variance violated RLUIPA’s substantial burden provision.  Plaintiffs claimed that the Congregation suffered “delay in obtaining a viable worship location” and “uncertainty as to whether or not the Congregation will be able to go forward with the lease of the Property.”

The City moved to dismiss Plaintiffs’ claim on two grounds: (1) lack of standing and (2) failure to state a claim upon which relief can be granted.  The Court  concluded that Plaintiffs had standing to assert the claim, but dismissed the complaint with prejudice for failure to state a claim.

Standing

The City first argued that the Court should dismiss Plaintiffs’ claim because Plaintiffs failed to allege that all Plaintiffs were engaged in religious exercise, and that RLUIPA required that all Plaintiffs prove a substantial burden on their religious exercise.  The Court concluded that “there is no requirement that a plaintiff be engaged in religious exercise to bring a RLUIPA claim.”  According to the Court, the only standing requirement a plaintiff must satisfy under RLUIPA is the ‘general rules of standing under Article III of the Constitution.’”  There are three requirements to establish Article III standing: “(1) the plaintiff must allege that he or she suffered an actual or threatened injury that is not conjectural or hypothetical, (2) the injury must be fairly traceable to the challenged conduct; and (3) a favorable decision must be likely to redress the injury.”  The Court found that Plaintiff Andon, as owner of the Property, satisfied these requirements.  First, Andon’s allegation of lost future profits was sufficient to constitute an actual injury.  Further, “[a]ny injury Andon suffered, such as the loss of benefit from lease payments, can be easily traced to the City’s denial of the variance application . . . [and] a favorable decision could redress Andon’s injury.”

Substantial Burden Claim

In the Fourth Circuit, “a plaintiff can succeed on a, substantial burden claim by establishing that a government regulation puts substantial pressure on it to modify its behavior.”  Further, “[w]hen a religious organization buys property reasonably expecting to build a church, governmental action impeding the building of that church may impose a substantial burden.”  Delay, uncertainty, and expense may also give rise to a substantial burden claim in the Fourth Circuit.

The Court, however, concluded that Plaintiffs failed to properly plead a substantial burden claim.  First, the Court found that the Congregation had no reasonable expectation to build a church on the Property, since the local zoning officials informed it that any application for a variance to use the Property as a church would be denied.  The Court found the fact that the lease was conditioned on obtaining zoning approval was also evidence of some doubt on the part of the Congregation as to whether it would be allowed to use the Property as it desired.

Next the Court considered whether Plaintiffs’ claim that the variance denial would cause it unreasonable delay, uncertainty, and expense could support a substantial burden claim.  The Court distinguished the Seventh Circuit’s decision in Saints Constantine v. New Berlin, 396 F.3d 895 (7th Cir. 2005), to conclude that “[a]lthough the Congregation has suffered uncertainty in whether it will lease the Property, the time and money expended in finding a new property will be minimal.  It does not have to sell a property or even void a lease, as the lease between Andon and the Congregation is conditioned on the granting of the variance.”  The Court noted the City’s good faith in the present case – unlike New Berlin in Saints Constantine, which had the “whiff” of bad faith.

The Court observed that it was questionable “whether the land use regulation has caused the Congregation to modify its behavior, which is required under the Fourth Circuit test.”  Even if it did, the Court determined “the mere fact that the CI zoning designation did not permit a church cannot support a substantial burden.  Otherwise, ‘every zoning ordinance that didn’t permit churches everywhere would be a prima facie violation of RLUIPA.’”  Because the Congregation had no reasonable expectation to use the Property as a church, any delay, uncertainty, and expense was of its own making.  The Congregation did not allege that it looked at all, or even most of, the available properties; only that it considered some locations.  Finally, the Court found that Plaintiffs would not be able to properly state a claim even if they amended their complaint, since “the Congregation attempted to lease and not buy the Property, the costs incurred by the Congregation’s delay and uncertainty in locating a worship space can be attributed simply to the difficulties associated with finding an affordable property in an urban market.  As reiterated by other courts, the cost of having to search for an affordable location alone does not amount to a substantial burden.”  Because “Plaintiffs rely solely on the unaffordability of alternative properties in Newport News to establish the Congregation’s delay and uncertainty in finding a worship place, Plaintiffs cannot plausibly allege a substantial burden.”

The decision in Aldon, LLC v. City of Newport News, Virginia (E.D. Va. Nov. 20, 2014), can be accessed 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.

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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.

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