A district court in the Southern District of Florida has dismissed as unripe claims brought by Centro de Ensenanza Palabra de Fe, Inc. (“Centro”), a tax-exempt religious organization that operates a daycare center and elementary school in addition to offering religious services, against the City of Hialeah, Florida (“City”).  Centro alleged that the City had violated its federal constitutional and statutory rights by requiring it to obtain a conditional use permit to continue operating the elementary school, even though the zoning code did not require that Centro obtain a CUP when it first opened.

Centro, which has been licensed to operate as a religious organization in the City since 2005, obtained permits from the Florida Department of Health to operate a daycare, and an elementary school, in 2006 and 2007, respectively.  At this time, no conditional use permit (“CUP”) was required.  In 2008, however, the City amended its code requiring private schools, charter schools, vocational and technical schools, post-secondary education facilities, colleges and universities to obtain CUPs.  Although the amendment was not applied retroactively, it does require schools to obtain CUPs if they seek a change of status with the City or apply for a building permit.

In 2016, Centro sought a building permit to install two exit doors and relocate an interior wall.  Upon review of the plans, the City’s Zoning Department informed Centro that it needed a CUP to operate the elementary school, and that all previous building alterations made without building permits must be brought into compliance.  Although Centro submitted a CUP application in December 2016, it withdrew the application shortly thereafter.  In February and May 2017, the City’s Fire Department cited Centro for building without a permit, among other things.  In August 2017, shortly after filing its complaint, Centro ceased both elementary school and daycare operations.

Centro’s complaint alleged that the City violated RLUIPA’s substantial burden, equal terms, and exclusions and limits provisions, as well as the Florida Religious Freedom Restoration Act and 42 U.S.C. § 1983.  The City moved to dismiss all claims for lack of ripeness and failure to exhaust administrative remedies.

Upon review, the District Court found that Centro’s failure to apply for a CUP rendered the matter unripe under Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004).  In Midrash Sephardi, the 11th Circuit explained:

The congregations’ CUP challenge fails the prudential, or ‘fitness,’ prong of the ripeness inquiry.  Because the congregations have not received a final decision on a CUP application – indeed, neither party has seriously applied for a CUP – the congregations do not raise a purely legal issue which we can decided in the abstract without further factual development.

Similarly, because Centro had not followed through on its CUP application, the District Court concluded that none of Centro’s claims were ripe for review.  In other words, if Centro’s CUP application were approved, it could continue to use the property as it had in years past.

The District Court’s opinion in Centro de Ensenanza Palabra De Fe Inc. v. City of Hialeah, affirming and adopting the Report and Recommendation of Magistrate Judge Otazo-Reyes, is available here.

Original photography by Phillip Pessar, some rights reserved.