Andon, LLC v. The City of Newport News, VA
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 4:14-cv-00076-RGD-LRL. [999751686]. [14-2358]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2358
ANDON,
LLC;
RECONCILING
MINISTRIES, LLC,
PEOPLE
TOGETHER
IN
FAITH
Plaintiffs - Appellants,
v.
THE CITY OF NEWPORT NEWS, VIRGINIA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:14-cv-00076-RGD-LRL)
Argued:
December 9, 2015
Decided:
February 9, 2016
Before WILKINSON, KEENAN, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wilkinson and Judge Harris joined.
ARGUED: Michael Bruce Ware, SCHEMPF & WARE, PLLC, Yorktown,
Virginia, for Appellants.
Darlene P. Bradberry, OFFICE OF THE
CITY ATTORNEY FOR THE CITY OF NEWPORT NEWS, Newport News,
Virginia, for Appellee.
ON BRIEF: Adrienne Michelle Sakyi,
SCHEMPF & WARE, PLLC, Yorktown, Virginia, for Appellants.
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BARBARA MILANO KEENAN, Circuit Judge:
In
erred
this
in
appeal,
we
dismissing
with
consider
whether
prejudice
a
the
district
complaint
filed
court
by
two
entities, Andon, LLC, and Reconciling People Together in Faith
Ministries, LLC (collectively, the plaintiffs) against the City
of Newport News, Virginia (the City, or Newport News).
The
plaintiffs’ complaint alleged that the City, acting through its
Board of Zoning Appeals (BZA), violated the Religious Land Use
and
Institutionalized
Persons
Act
(RLUIPA,
or
the
Act),
42
U.S.C. § 2000cc et seq., by denying the plaintiffs’ request for
a variance to permit a certain property to be used as a church
facility.
Upon our review, we conclude that the plaintiffs failed to
state
a
claim
that
the
BZA’s
decision
imposed
a
substantial
burden on the plaintiffs’ right of religious exercise.
We also
conclude that the district court did not abuse its discretion in
denying
the
plaintiffs’
request
to
amend
their
because any such amendment would have been futile.
complaint,
We therefore
affirm the district court’s judgment.
I.
In 2012, Walter T. Terry, Jr. formed a congregation for
religious worship known as Reconciling People Together in Faith
Ministries, LLC (the congregation) in Newport News, and served
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as
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its
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initially
pastor.
Although
gathered
to
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the
worship
members
in
a
of
local
the
congregation
business
owned
by
Terry, they later sought a larger location for their use.
Terry ultimately found a suitable property, which included
an office building (the building) and a small parking lot, that
was offered for “lease or sale” by Andon, LLC (Andon).
The
property is located at 6212 Jefferson Avenue in Newport News
(the property).
Andon had purchased the property, a 0.32-acre parcel of
land, in 2011.
Since 1997, the property continuously has been
classified for commercial use under the City’s zoning ordinance.
The ordinance provides that properties zoned for commercial use
may be used for a “community facility,” including a “place of
worship” or church, only when four conditions are satisfied:
(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 100 feet of
any side or rear property line which is zoned singlefamily residential; and, (d) any parking lot or street
serving such use is located 25 feet or more from a
side or rear property line zoned single family
residential.
Newport News, Va. Municipal Code § 45-519.
Although
conditions,
the
the
property
property
complied
did
not
with
satisfy
three
the
of
these
“setback”
requirement in subsection (c), because the building is located
fewer than 100 feet from the rear and side property lines that
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are adjacent to properties zoned for “single-family residential”
use. 1
Despite
knowledge
entered
into
written
a
of
lease
this
problem,
agreement
the
with
congregation
Andon
that
was
contingent on Andon obtaining “City approval” allowing operation
of a church facility on the property.
Seeking to satisfy this
contingency in the lease agreement, Andon filed with the BZA an
application requesting a variance from the setback requirement.
After
reviewing
Andon’s
application,
the
City
Codes
and
Compliance Department (the Compliance Department) filed a report
with the BZA concerning the variance request.
The report stated
that the BZA, prior to issuing a variance, must first find that:
(1) “strict application of the ordinance would produce an undue
hardship”
other
relating
properties”;
substantial
to
the
(2)
detriment
to
property
such
a
“not
variance
adjacent
shared
generally
“will
property”;
not
and
be
(3)
by
of
“the
character of the district will not be changed” by granting the
variance.
Based
on
See Newport News, Va. Municipal Code § 45-3203(c).
these
restrictions,
the
Compliance
Department
recommended that the BZA deny the variance, because the property
could be used for other purposes without a variance, and because
1
The building is located 33 feet, 85 feet, and 80 feet away
from the rear and side property lines abutting neighboring
residential properties.
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denial of a variance would not cause Andon to suffer a hardship
unique among other commercial property owners in the vicinity.
After
holding
Compliance
public
Department’s
variance request.
Virginia
a
state
hearing,
recommendation
the
and
BZA
adopted
to
voted
the
the
deny
Andon appealed from the BZA decision to a
circuit
court,
which
upheld
the
BZA’s
determination.
The plaintiffs filed the present suit in federal district
court alleging that the BZA’s denial of their variance request
imposed
a
substantial
burden
on
the
plaintiffs’
religious
exercise in violation of RLUIPA, 42 U.S.C. § 2000cc(a)(1) (the
substantial
BZA’s
burden
action
location”
and
claim).
The
plaintiffs
“delay
in
obtaining
“uncertainty
as
caused
to
alleged
a
that
viable
whether
.
the
worship
.
.
the
[c]ongregation will be able to go forward with the lease of the
[p]roperty.”
The
plaintiffs
attached
to
their
complaint
an
affidavit
from Terry, who stated that he “could not find a[n alternate
property] that was the appropriate size, location, and price” to
serve as a place of worship for the congregation.
stated
in
buildings
the
were
affidavit
that
too
and
large
“[m]any
too
congregation.”
5
of
expensive
the
for
He also
[alternative]
[the]
young
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The
City
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moved
to
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dismiss
the
complaint
with
prejudice
under Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim.
The district court granted the City’s motion,
denied the plaintiffs’ request to file an amended complaint, and
entered judgment in favor of the City. 2
The plaintiffs timely
filed this appeal.
II.
We
review
complaint
under
de
novo
Rule
the
district
12(b)(6)
for
court’s
failure
to
dismissal
state
a
of
a
claim.
United States ex rel. Nathan v. Takeda Pharms. N. Am., Inc., 707
F.3d 451, 455 (4th Cir. 2013).
To survive a motion to dismiss,
a complaint must “state a claim to relief that is plausible on
its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When
reviewing the district court’s action, we consider the factual
allegations in the plaintiffs’ complaint as true.
Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 764 (4th Cir. 2003).
2
The City also argued in its motion to dismiss that Andon
lacked standing to bring the RLUIPA claim.
The district court
disagreed, and the City does not challenge this ruling on
appeal.
Although
a
litigant’s
standing
presents
a
jurisdictional question that may be considered sua sponte by
this Court, see Benham v. City of Charlotte, 635 F.3d 129, 134
(4th Cir. 2011), we need not address the district court’s ruling
regarding
Andon’s
standing,
because
the
congregation
unquestionably had standing to file suit alleging a violation
under RLUIPA.
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The
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plaintiffs
dismissing
their
argue
complaint
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that
of
a
the
district
RLUIPA
court
violation,
erred
in
contending
that the BZA’s action denying a variance imposed a substantial
burden
on
their
religious
exercise.
Citing
our
decision
in
Bethel World Outreach Ministries v. Montgomery County Council,
706 F.3d 548 (4th Cir. 2013), the plaintiffs assert that they
plausibly alleged a claim under RLUIPA, because, as a result of
the BZA’s action, the congregation has been unable to find a
suitable location in the City for worship, and the plaintiffs
have suffered “delay, expense, and uncertainty” in establishing
a church location and in executing the lease agreement.
The
plaintiffs alternatively contend that the district court abused
its
discretion
complaint.
refusing
their
request
to
amend
their
We disagree with the plaintiffs’ arguments.
RLUIPA
regulation
in
contains
of
land
two
use
provisions
with
respect
limiting
to
governmental
religious
exercise. 3
The first such RLUIPA provision prohibits governmental entities
from imposing land use restrictions that: (1) treat a religious
organization
“on
less
than
equal
3
terms”
with
a
nonreligious
Under RLUIPA, “‘religious exercise’ includes any exercise
of religion, whether or not compelled by, or central to, a
system of religious belief.”
42 U.S.C. § 2000cc-5(7)(A).
And
“[t]he use, building, or conversion of real property for the
purpose of religious exercise shall be considered to be
religious exercise of the person or entity that uses or intends
to use the property for that purpose.”
42 U.S.C. § 2000cc5(7)(B).
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organization; or (2) discriminate against any organization on
the basis of religion.
The
second
regulation
of
42 U.S.C. § 2000cc(b)(1), (2).
RLUIPA
land
provision
use,
on
which
addressing
the
plaintiffs
governmental
base
their
claim, does not require a showing of discriminatory governmental
conduct.
42 U.S.C. § 2000cc(a)(1); see Bethel, 706 F.3d at 557.
Instead,
this
provision
prohibits
a
governmental
entity
from
imposing or implementing a
land use regulation . . . 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 governmental interest;
and (B) is the least restrictive means of furthering
that compelling governmental interest.
42 U.S.C. § 2000cc(a)(1).
To
state
a
substantial
burden
claim
under
RLUIPA,
a
plaintiff therefore must show that a government’s imposition of
a
regulation
regarding
land
use,
or
application
of
such
a
regulation, caused a hardship that substantially affected the
plaintiff’s right of religious exercise.
See Bethel, 706 F.3d
at 556; Guru Nanak Sikh Soc’y of Yuba City v. Cty. of Sutter,
456 F.3d 978, 988-89 (9th Cir. 2006); Civil Liberties for Urban
Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003).
We addressed the scope of substantial burden claims under RLUIPA
in our decision in Bethel.
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The plaintiff in Bethel asserted a substantial burden claim
against a county that had adopted two land use regulations after
the
plaintiff
had
purchased
property
for
the
then-permitted
purpose of constructing a large church.
706 F.3d at 553-55.
The
banned
first
regulation
at
issue
in
Bethel
extension
of
public water and sewer services to certain classifications of
property, including the plaintiff’s property.
Id. at 553.
In
response to the county’s implementation of this regulation, the
plaintiff modified its construction plans and proposed to build
a smaller church that operated on a private septic system.
at 554.
Id.
Before those plans were approved, however, the county
adopted
a
property,
second
which
regulation
applicable
prohibited
the
to
the
construction
institutional facilities including churches.
plaintiff’s
of
private
Id.
Although the county regulations we considered in Bethel did
not
target
secular
religious
and
religious
nevertheless
exercise
presented
uses,
a
and
we
applied
concluded
triable
RLUIPA
generally
that
the
claim,
to
both
plaintiff
because
the
regulations substantially pressured the plaintiff to modify and
ultimately
church.
to
abandon
Id. at 556-59.
its
pre-existing
plan
to
construct
a
And, we explained, although other real
property may have been available for the plaintiff to purchase,
the “delay, uncertainty, and expense” of selling the plaintiff’s
property and finding an alternate location increased the burden
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imposed on the plaintiff’s religious exercise.
In
reaching
function
this
of
conclusion,
RLUIPA’s
protect
a
property
for
we
emphasized
substantial
plaintiff’s
religious
reasonable
purposes.
burden
Id. at 557-58.
that
critical
restriction
expectation
Id.
a
is
to
use
real
556-57;
at
to
see
Petra
Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851
(7th
Cir.
2007)
(explaining
that
when
an
organization
buys
property “reasonably expecting to obtain a permit, the denial of
the permit may inflict hardship” on the organization).
The
circumstances
of
the
present
case
different from those presented in Bethel.
are
materially
The plaintiffs here
never had a reasonable expectation that the property could be
used
as
a
church.
When
the
plaintiffs
entered
into
the
prospective lease agreement, the property was not a permitted
site for a community facility such as a church, and had not met
applicable
setback
least 14 years.
requirements
for
that
type
of
use
for
at
Before Andon filed the application seeking a
variance, the Zoning Administrator had informed Andon that the
application
would
not
setback requirement.
be
approved
for
failure
to
meet
the
Thus, the plaintiffs assumed the risk of
an unfavorable decision, and chose to mitigate the impact of
such a
result
by
including
the
contingency
provision
in
the
lease.
Accordingly, unlike the governmental action at issue in
Bethel, the BZA’s denial of the variance in the present case did
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not alter any pre-existing expectation that the plaintiffs would
be able to use the property for a church facility, or cause them
to suffer delay and uncertainty in locating a place of worship.
Because the plaintiffs knowingly entered into a contingent
lease
agreement
burdens
they
denying
the
Petra
for
a
sustained
variance,
Presbyterian
non-conforming
were
but
not
imposed
were
Church,
property,
by
the
self-imposed
489
F.3d
at
the
alleged
BZA’s
action
hardships.
851
(because
See
the
plaintiff purchased property with knowledge that the permit to
use the property for a church would be denied, the plaintiff
“assumed the risk of having to sell the property and find an
alternative
generally
site
will
for
not
its
church”).
support
a
A
self-imposed
substantial
burden
hardship
claim
under
RLUIPA, because the hardship was not imposed by governmental
action altering a legitimate, pre-existing expectation that a
property
could
be
obtained
for
a
particular
land
use.
See
Bethel, 706 F.3d at 556-58; Petra Presbyterian Church, 489 F.3d
at 851.
Therefore, we hold that under these circumstances, the
plaintiffs
have
not
satisfied
the
“substantial
requirement of governmental action under RLUIPA. 4
4
We do not reach the
speculative contention that
the property, instead of
agreement, the financial
(Continued)
burden”
See Bethel,
merits of the plaintiffs’ separate,
if the congregation had purchased
entering into a contingent lease
loss sustained would have been
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706 F.3d at 556; Guru Nanak Sikh Soc’y of Yuba City, 456 F.3d at
988-89; Civil Liberties for Urban Believers, 342 F.3d at 761.
Our conclusion is not altered by the plaintiffs’ further
contention that they have been unable to find another property
that
meets
the
congregation’s
budgetary limitations.
desired
location,
size,
and
The absence of affordable and available
properties within a geographic area will not by itself support a
substantial burden claim under RLUIPA.
See Civil Liberties for
Urban Believers, 342 F.3d at 762 (concluding that the “scarcity
of affordable land available” and costs “incidental to any highdensity
urban
associated
land
with
use”
location”
represent
and
do
not
“ordinary
support
difficulties
a
substantial
burden claim under RLUIPA).
We further observe that if we agreed with the plaintiffs
that the BZA’s denial of a variance imposed a substantial burden
on their religious exercise, we effectively would be granting an
automatic
exemption
to
religious
applicable land use regulations.
organizations
from
generally
Such a holding would usurp the
role of local governments in zoning matters when a religious
group
is
religious
seeking
uses
a
over
variance,
and
secular
uses.
impermissibly
See
Petra
sufficient to state a substantial burden claim.
pass judgment on facts not before us.
12
would
favor
Presbyterian
We decline to
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Church, 489 F.3d at 851 (reasoning that the substantial burden
requirement must be taken seriously, or religious organizations
would be free “from zoning restrictions of any kind”); Civil
Liberties for Urban Believers, 342 F.3d at 762 (explaining that
no
“free
pass
for
religious
land
uses
masquerades
among
the
legitimate protections RLUIPA affords to religious exercise”).
The
plain
result.
language
of
RLUIPA,
however,
prevents
such
a
By requiring that any substantial burden be imposed by
governmental action and by carefully balancing individual rights
and compelling governmental interests, the language of RLUIPA
demonstrates
that
Congress
did
not
intend
for
RLUIPA
to
undermine the legitimate role of local governments in enacting
and implementing land use regulations.
See Petra Presbyterian
Church, 489 F.3d at 851; Civil Liberties for Urban Believers,
342 F.3d at 762.
Finally, we conclude that the district court did not abuse
its discretion in denying the plaintiffs’ request to amend their
complaint.
101
F.3d
See HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross,
1005,
1010
standard of review).
(4th
Cir.
1996)
(stating
the
applicable
Because the plaintiffs did not have a
reasonable expectation to use the property as a church and any
burden
on
their
religious
exercise
was
self-imposed,
the
plaintiffs cannot articulate any set of facts demonstrating that
an amendment would survive the City’s motion to dismiss.
13
Thus,
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we
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agree
with
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the
district
Pg: 14 of 14
court
complaint would have been futile.
that
any
amendment
to
the
See Scott v. Family Dollar
Stores, Inc., 733 F.3d 105, 121 (4th Cir. 2013) (“Denying leave
to amend is appropriate when . . . the amendment would have been
futile.”).
III.
For these reasons, we affirm the district court’s judgment
dismissing with prejudice the plaintiffs’ complaint against the
City.
AFFIRMED
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