CASSIDY v. BREWER, CITY OF et al

Filing 18

ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE adopting in part Report and Recommendations re 10 Report and Recommendations for 6 Motion to Dismiss for Failure to State a Claim. By JUDGE D. BROCK HORNBY. (mnw)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DANA CASSIDY,
PLAINTIFF
v.
CITY OF BREWER AND BEN
BREADMORE, in his individual
capacity and official capacity as
Code Enforcement Officer for
Brewer, Maine,
DEFENDANTS

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CIVIL NO. 1:12-CV-137-DBH

ORDER AFFIRMING RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
On September 12, 2012, the United States Magistrate Judge filed with
the court, with copies to counsel, her Recommended Decision that the
defendants’ motion to dismiss be granted. Report and Recommended Decision
re Def.’s Mot. to Dismiss (ECF No. 10). The plaintiff filed an objection to the
Recommended Decision on September 26, 2012. Pl.’s Objection to Report and
Recommended Decision (ECF No. 11). I held oral argument on November 15,
2012.

I have reviewed and considered the Recommended Decision, together

with the entire record. I make a de novo determination.
I do not decide the difficult question whether, on top of constitutional
standing requirements, a plaintiff suing for religious discrimination under the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc to
2000cc-5

(RLUIPA),

must

also

satisfy

so-called

prudential

standing

requirements. If he must, then the Magistrate Judge is certainly correct that
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 RLUIPA’s language as requiring that a plaintiff meet only the Article
III standing requirements and not the additional prudential requirements.1
See, e.g., Oblates of St. Joseph v. Nichols, 2002 U.S. Dist. LEXIS 27671, at *21
(E.D. Ca. April 26, 2002) (“It seems clear that as to plaintiffs’ claims under 42
U.S.C.

§ 2000cc,

Congress

intended

to

eliminate

prudential

standing

requirements.”); Dixon v. Town of Coats, 2010 WL 2347506, at *4 (E.D.N.C.
June 9, 2010) (same); cf. 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. § 2000bb-1(c), and holding that only Article III
standing requirements need be met). As the Magistrate Judge also ruled, this
plaintiff does meet the Article III standing requirements.
Instead, I agree with the Magistrate Judge that the complaint here does
not satisfy the ripeness requirement, although my reasoning is slightly
different.2

Because Rock Church, the tenant, chose not to pursue its

expansion in the plaintiff landlord’s premises, there never was a final decision
42 U.S.C. § 2000cc-2(a):
A person may assert a violation of this chapter as a claim or
defense in a judicial proceeding and obtain appropriate relief
against a government. Standing to assert a claim or defense
under this section shall be governed by the general rules of
standing under Article III of the Constitution.
2 I agree with Oblates of St. Joseph, 2002 U.S. Dist. LEXIS 27671, at *22-23, that the statute
does not remove the prudential requirements for ripeness.
1

2

by the City. The code enforcement officer is not the City’s final decision-maker.
Cf. CRC Health Group, Inc. v. Town of Warren, 2012 U.S. Dist. LEXIS 133920,
at *5 (D. Me. Sept. 19, 2012).

The plaintiff argues that any appeal to the

zoning board of appeals would have been futile, and that his religious
discrimination argument could not generate a variance. Perhaps so as to the
variance, but I do not know how the board of appeals would have acted on the
Church’s appeal, whether it would have agreed with the code enforcement
officer’s decision that the Church was planning an expansion that would lose
its previously grandfathered status as a nonconforming use, or whether the
board of appeals’ decision and its rationale would have altered the shape of the
religious discrimination claim that the plaintiff now wants to present.

The

Church’s decision to walk away from its permit request without pursuing an
appeal to the City’s final decision-maker makes the plaintiff’s claim of liability
unripe for a federal court to adjudicate.3

Since the First Circuit has not yet addressed the issue, I follow the Second Circuit and the
Ninth Circuit in applying to the RLUIPA claim the ripeness requirement from Supreme Court
takings jurisprudence. See Guatay Christian Fellowship v. Cnty. of San Diego, 670 F.3d 957,
976-80 (9th Cir. 2011) (applying Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172 (1985)); Murphy v. New Milford Zoning Comm’n, 402 F.3d 342,
347-50 (2d Cir. 2005) (same). This case does not fit the Williamson exception to the finality
requirement, i.e., when a reviewing board can say only whether the reviewed decision violated
any rights. Williamson, 473 U.S. at 193. Instead, the Brewer board of appeals has powers of
its own, not just for variance decisions, but “to hear any appeal by any person, affected directly
or indirectly from any decision, order, rule or failure to act of the Code Enforcement Officer”
and to “interpret the provisions of the Ordinance which are called into question,” making a
record of “the appropriate order, relief or denial thereof.” Brewer, Me., Ordinances ch. 34, art.
III, § 301, art. IV, § 400.1, art. II, § 200.6. (The First Circuit has chosen not to apply
Williamson ripeness requirements when the plaintiffs attack an entire zoning ordinance as
invalid, see Smithfield Concerned Citizens for Fair Zoning v. Smithfield, 907 F.2d 239, 242-43
(1st Cir. 1990), but that is not the case here.)
3

3

It is therefore ORDERED that the Recommended Decision of the Magistrate
Judge is hereby ADOPTED

IN PART.

The defendants’ motion to dismiss is

GRANTED for lack of ripeness.
SO ORDERED.
DATED THIS 19TH DAY OF NOVEMBER, 2012
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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