Friends of Lubavitch, Inc et al v. Baltimore County Maryland et al

Filing 74

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 6/3/2021. (ols, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
FRIENDS OF LUBAVITCH, et al.,
Plaintiffs,

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v.

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BALTIMORE COUNTY,
MARYLAND, et al.,

Civil Action No. GLR-18-3943

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Defendants.
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MEMORANDUM OPINION
THIS MATTER is before the Court on Plaintiffs Friends of Lubavitch, Inc. (“FoL”),
Rabbi Menachem Rivkin, Sheina Rivkin, Avigail London, Uri London, Margaret Kay,
Danielle Gold, Jessica Teich, Ilan Pluznik, Abby Adelman, and Jessica Rudin’s Renewed
Motion for Leave to File Amended Complaint (ECF No. 58) and Renewed Motion for
Reconsideration (ECF No. 59). The Motions are ripe for disposition and no hearing is
necessary. See Local Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court
will deny the Motions.
I.

BACKGROUND

The facts as alleged by Plaintiffs are set forth in detail in the Court’s September 30,
2019 Memorandum Opinion (ECF No. 35) (the “2019 Opinion”), and the Court will not
reprint them here. In brief, FoL is a religious corporation that was formed to support the
global Orthodox Jewish Chabad-Lubavitch movement in Maryland and to establish
Chabad centers, a rabbinical school, and a primary school. (Compl. ¶¶ 3, 23, ECF No. 1).
Plaintiffs Rabbi Menachem Rivkin (“Rabbi Rivkin”) and Sheina Rivkin (collectively, the

“Rivkins”) have administered one of those centers, the Towson Chabad House (the
“Chabad House”), which has served Orthodox Jewish students and alumni of the nearby
Towson University and Goucher College in Baltimore County, Maryland, including the
eight other Individual Plaintiffs. (Id. ¶¶ 4–13, 18–19). The Chabad House is located at 14
Aigburth Road in Towson, Maryland (the “Property”), which FoL purchased in September
2008. (Id. ¶ 18).
This action arises from FoL’s efforts to expand the Chabad House, which began in
2011 (the “Expansion”). (Id. ¶¶ 31–32). A determination by Defendants Baltimore County,
Maryland, Baltimore County Department of Planning, and Baltimore County Board of
Appeals (collectively, “County Defendants”) temporarily suspended the Expansion upon
finding that it violated residential zoning requirements. (Id. ¶¶ 35–50). The County
eventually granted FoL a building permit to begin construction in 2016. (Id. ¶¶ 51–52).
However, construction was stalled again when a neighbor and neighborhood organization
sued FoL in the Circuit Court for Baltimore County, Maryland (the “Circuit Court”) to
enforce a covenant contained in the Chabad House deed that imposed a “setback”
requirement that would prohibit the Expansion (the “Covenant”). (Id. ¶¶ 53–56). Following
a bench trial in 2017, Judge Susan Souder ordered removal of the Expansion insofar as it
violated the Covenant. (Id. ¶¶ 57–58). In a subsequent proceeding, Judge Kathleen
Gallogly Cox ordered that the Expansion be “razed.” (Id. ¶ 63).
On December 20, 2018, Plaintiffs sued County Defendants and the Circuit Court.
(ECF No. 1). In their nine-count Complaint, Plaintiffs asserted various violations under the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc (“RLUIPA”)
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(Counts I–V); violation of the Free Exercise Clause of the First Amendment to the U.S.
Constitution (Count VI); violation of the Equal Protection Clause of the Fourteenth
Amendment (Count VII); and violation of the Due Process Clause of the Fourteenth
Amendment (Count VIII). (Compl. ¶¶ 18–84). Plaintiffs FoL and Rabbi Rivkin separately
alleged defamation (Count IX). (Id. ¶¶ 85–90). Plaintiffs brought their three constitutional
claims (Counts VI–VIII) under 42 U.S.C. § 1983. (Compl. at 18–19). Plaintiffs sought
declaratory and injunctive relief, as well as monetary damages and their attorney’s fees and
costs. (Id. at 20–21).
On February 28, 2019, County Defendants and the Circuit Court each filed a Motion
to Dismiss. (ECF Nos. 15, 20). After the motions were fully briefed, the Court issued a
Memorandum Opinion and Order on September 30, 2019 granting the motions pursuant to
Federal Rules of Civil Procedure 12(b)(1) and (b)(6) and dismissing Plaintiffs’ Complaint.
(ECF Nos. 35, 36).
On November 26, 2019, Plaintiffs filed a Motion for Leave to File Amended
Complaint and Motion for Reconsideration pursuant to Rule 59(e). (ECF Nos. 39, 40).
County Defendants filed their consolidated Opposition on January 21, 2020. (ECF No. 45).
The Circuit Court filed its consolidated Opposition the same day. (ECF No. 46). On
February 7, 2020, Plaintiffs filed a combined Reply in support of both Motions. (ECF No.
52). On September 1, 2020, this Court issued a Memorandum and Order denying Plaintiffs’
Motions without prejudice on the basis that Plaintiffs had failed to attach a proposed
amended complaint and red-lined comparison to their Motion as required by Local Rule
103.6 and Federal Rule of Civil Procedure 7(b). (ECF No. 55).
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On November 2, 2020, Plaintiffs filed a Renewed Motion for Leave to File
Amended Complaint and Renewed Motion for Reconsideration pursuant to Rule 59(e).
(ECF Nos. 58, 59). Plaintiffs attached a proposed Amended Complaint to their Motion.
(ECF No. 58-1). In the proposed Amended Complaint, among other changes, Plaintiffs
added two individual circuit court judges, the Honorable Judge Susan Souder and the
Honorable Judge Kathleen Gallogly Cox (the “Judge Defendants”). (Proposed Am. Compl.
[“Am. Compl.”] at 2, ECF No. 58-1). County Defendants filed their consolidated
Opposition on December 4, 2020. (ECF No. 66). The Judge Defendants filed their
consolidated Opposition the same day. (ECF No. 67). On January 4, 2021, Plaintiffs filed
a combined Reply in support of their Motions. (ECF No. 68). County Defendants filed a
Surreply on January 19, 2021. (ECF No. 71).
II.
A.

DISCUSSION

Standard of Review
The United States Court of Appeals for the Fourth Circuit recognized in Laber v.

Harvey, 438 F.3d 404 (4th Cir. 2006), and more recently in Katyle v. Penn National
Gaming, Inc., 637 F.3d 462, 470–71 (4th Cir. 2011), cert. denied, 132 S.Ct. 115 (2011),
that the only distinction between a pre- and a post-judgment motion to amend is that the
district court may not grant the post-judgment motion unless the judgment is vacated
pursuant to Federal Rules of Civil Procedure 59(e) or 60(b). See Katyle, 637 F.3d at 470;
Laber, 438 F.3d at 427. “To determine whether vacatur is warranted, however, the court
need not concern itself with either of those rules’ legal standards.” Katyle, 637 F.3d at 471.
Thus, “[t]he court need only ask whether the amendment should be granted, just as it would
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on a prejudgment motion to amend pursuant to [Rule] 15(a).” Id. Consonant with the
federal policy in favor of resolving cases on their merits, Federal Rule of Civil Procedure
15(a)(2) provides that “[t]he court should freely give leave [to amend a complaint] when
justice so requires.” Nonetheless, leave to amend is properly denied when amendment
would prejudice the opposing party, the moving party has exhibited bad faith, or
amendment would be futile. Edell & Assocs., P.C. v. Law Offices of Peter G. Angelos, 264
F.3d 424, 446 (4th Cir. 2001) (citing Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th
Cir. 1999)).
B.

Analysis
1.

Judge Defendants

Judge Defendants argue, inter alia, that Plaintiff’s claims against them are barred by
the Eleventh Amendment. See Just Puppies, Inc. v. Frosh, 438 F.Supp.3d 448, 482 (D.Md.
2020) (“State officers sued in their official capacity are also entitled to Eleventh
Amendment immunity because such a suit ‘is not a suit against the official but rather is a
suit against the official’s office.’”) (quoting Will v. Mich. Dep’t of State Police, 491 U.S.
58, 70 (1989)). In Ex parte Young, 209 U.S. 123 (1908), however, the Supreme Court
created an exception to Eleventh Amendment immunity for claims seeking prospective
injunctive relief. As the Supreme Court has explained, the Ex parte Young exception
“permits suits for prospective injunctive relief against state officials acting in violation of
federal law.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004).
Judge Defendants argue that Plaintiffs “allege no facts to show an ongoing violation
of federal law by the judge defendants, and they seek no prospective injunctive relief
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against the judges,” but instead “seek relief from the judges’ past acts—the orders and
judgments they have already entered—which are subject to review on appeal.” (State
Judges’ Opp’n Pls.’ Renewed Mot. Leave File Am. Compl. [“Judges’ Opp’n”] at 13, ECF
No. 67). Plaintiffs respond that this is incorrect, noting that the Amended Complaint seeks
an injunction against enforcement of Judge Defendants’ orders and demolition of the
Chabad House, which describe future actions that Plaintiffs allege violate federal law.
For three reasons, the Court agrees with Judge Defendants and finds that Plaintiffs’
claims are barred by the Eleventh Amendment. First, as Judge Defendants argue, Plaintiffs
fundamentally seek relief from actions Judge Defendants have already taken—the orders
Judge Defendants issued in Plaintiffs’ cases before them. (See Am. Compl. ¶¶ 57–65). But
courts across the country have found that plaintiffs seeking relief from previous judicial
decisions do not fall within the Ex parte Young exception. See, e.g., Martino v. Campbell,
No. 8:20-CV-694-T-33SPF, 2020 WL 2307559, at *2 (M.D.Fla. May 8, 2020) (finding
that plaintiff “essentially asks this Court to vacate or reverse Judge Campbell’s past rulings
. . . . These are alleged past wrongs, not ongoing violations”); Bowling v. McCraw, No.
4:18-CV-610-ALM-CAN, 2019 WL 2517834, at *5 (E.D.Tex. Mar. 7, 2019) (“Plaintiff’s
requested injunctive relief is retroactive in nature: Plaintiff requests that the Court vacate
and/or reverse Judge McCraw’s previous orders in the state court case.”), report and
recommendation adopted, 2019 WL 3712025 (E.D.Tex. Aug. 7, 2019), reconsideration
denied, 2020 WL 5096569 (E.D.Tex. Aug. 28, 2020). Plaintiffs may argue that they do not
seek vacatur of Judge Defendants’ orders, but rather a declaration that those orders were in

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error and an order from this Court enjoining the effects of the orders. In the Court’s view,
this is a distinction without a difference; the relief they seek is a nullification of the orders.
Second, and relatedly, the relief Plaintiffs seek is fundamentally a request for the
Court to mandate that Judge Defendants amend or alter their decisions. But “[f]ederal
courts do not have the authority to order state courts to alter a judgment.” Scott v. Morrison,
995 F.2d 1064, 1993 WL 212730, at *1 (4th Cir. 1993) (citing D.C. Ct. of Appeals v.
Feldman, 460 U.S. 462, 483 (1983)). Put differently, federal district courts “do not have
jurisdiction . . . over challenges to state court decisions in particular cases arising out of
judicial proceedings even if those challenges allege that the state court’s action was
unconstitutional.” Feldman, 460 U.S. at 486. Instead, “[Plaintiffs’] proper avenue of relief
is in the state judicial system.” Scott, 1993 WL 212730, at *1.
Finally, even if the Court did construe the Amended Complaint as seeking
prospective injunctive relief against Judge Defendants, Plaintiffs would not be entitled to
relief under Ex parte Young because Judge Defendants lack a “special relationship” to the
purportedly unlawful state action. As another Fourth Circuit court has explained,
“the Young exception is not without boundaries. Plaintiffs must demonstrate a ‘special
relation’ between the state officer sued and the allegedly unconstitutional statute to escape
the bar of the Eleventh Amendment.” Falwell v. City of Lynchburg, Va., 198 F.Supp.2d
765, 782–83 (W.D.Va. 2002) (citations omitted). Federal courts thus may enjoin state
officers where those officers are “clothed with some duty in regard to the enforcement of
the laws of the state, and who threaten and are about to commence proceedings, either of a
civil or criminal nature, to enforce against parties affected an unconstitutional act.” Id. at
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782 (quoting Ex parte Young, 209 U.S. at 156–57). As the Supreme Court explained, “[t]he
fact that the state officer, by virtue of his office, has some connection with the enforcement
of the act, is the important and material fact[.]” Ex parte Young, 209 U.S. at 157. But
“Plaintiffs’ allegations that [Defendant] has a general obligation to enforce the laws are not
sufficient to make him a proper party to litigation challenging” those laws. Falwell, 198
F.Supp.2d at 784. Applying this requirement to a state judge, the Falwell Court found:
Judge Perrow is not clothed with any ability or duty to enforce
the challenged statutes against the Plaintiffs; his role is to
adjudicate cases brought before him—whether they are
between the Commonwealth and a criminal defendant, church
trustees and their congregation, or the trustees and some other
party. In the event that he should preside over such a case,
Judge Perrow would still not bear a sufficient connection to the
challenged statute within the meaning of Young or the
Eleventh Amendment.
Falwell, 198 F.Supp.2d at 785. The same logic applies to Judge Defendants in this matter.
Because Judge Defendants are not “clothed with some duty” in regard to the laws
underlying Plaintiffs’ claims in this case, the Court finds that the Ex parte Young exception
does not apply to them. Accordingly, Plaintiffs’ claims against them are barred by the
Eleventh Amendment.
For these reasons, the Court finds that Plaintiffs’ proposed Amended Complaint is
futile to the extent it asserts claims against Judge Defendants. The Court will therefore
deny Plaintiffs’ Motion for Leave to File Amended Complaint to assert those claims.

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2.

County Defendants
a.

RLUIPA
i.

Substantial Burden

RLUIPA provides that “[n]o government shall impose or implement a land use
regulation in a manner 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). To state a RLUIPA
substantial burden claim, a plaintiff “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.” Hunt Valley Baptist
Church, Inc. v. Balt. Cnty., Md., No. ELH-17-804, 2017 WL 4801542, at *25 (D.Md. Oct.
24, 2017) (quoting Andon, LLC v. City of Newport News, 813 F.3d 510, 514 (4th Cir.
2016)).
In its 2019 Opinion, the Court found that Plaintiffs failed to state a substantial
burden claim against County Defendants because: (i) County Defendants could not be
liable for the Circuit Court’s decision in that County Defendants’ actions did not “cause”
the Circuit Court judgment or its razing remedy; (ii) County Defendants did not
substantially burden Plaintiffs’ ability to expand the Chabad House, particularly given that
County Defendants eventually approved Plaintiffs’ plans; (iii) Plaintiffs failed to show that
they had a reasonable expectation of their religious land use on the Property because, as
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the Circuit Court of Baltimore County concluded, Plaintiffs knew about the Covenant when
they bought the Property; and (iv) the Circuit Court’s finding had a preclusive effect on
this litigation. (Sept. 30, 2019 Mem. Op. [“2019 Op.”] at 20–22, ECF No. 35).
Plaintiffs have moved for leave to amend their Complaint to add certain allegations
disclaiming foreknowledge of the Covenant. (See, e.g., Am. Compl. ¶¶ 18, 19, 31).
Plaintiffs’ proposed amendments, however, cannot overcome the preclusive conclusions
of the state courts. Specifically, the Circuit Court held as follows:
Therefore, although Rabbi Rivkin testified that he did not have
actual notice of the Setback Covenant until July 2016,
Defendant is charged with constructive notice of the Setback
Covenant and is liable thereto. Also, even though Rabbi Rivkin
and Rabbi Kaplan said they did not have actual notice of the
Setback Covenant, Defendant is charged with actual notice.
Michael Schleupner’s [sic] testified that a title search
conducted in 2008 when Defendant purchased 14 Aigburth
Road revealed the restrictive covenants. Also, the title
insurance policy included an exception to coverage for the
1950 restrictive covenants. Thus, Defendant had actual
notice of the Setback Covenant in 2008.
(Apr. 7, 2017 Cir.Ct. Mem. Op. [“Cir. Ct. Op.”] at 10–11, ECF No. 15-4) (citation omitted)
(emphasis added). If there was any ambiguity concerning whether the Circuit Court’s
holding reached the issue of Plaintiffs’ knowledge of the Covenant, the Maryland Court of
Special Appeals was emphatic in its affirmance:
FOL acted with actual knowledge of the restrictive covenants
and intentionally completed construction of the offending
Building prior to the completion of trial. FOL seems to suggest
that it had only constructive knowledge of the restrictive
covenants but the circuit court found that FOL had actual
knowledge as of 2008. FOL offers no explanation for why this
finding by the circuit court is clear error. Contrary to FOL’s
characterization of facts on appeal, the record reveals that . . .
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FOL was a “willful violator” of the Setback Covenant. Despite
receiving actual notice of the restrictive covenants in 2008
and again in July 2016, Rabbi Rivkin testified that FOL
decided to “go ahead and build” anyway and to proceed
“aggressively.”
(Oct. 23, 2018 Ct.Spec.App. Mem. Op. [“Ct. Spec. App. Op.”] at 40, ECF No. 15-5)
(citations omitted) (emphasis added).
As this Court held in its 2019 Opinion:
[T]he issue of whether FoL knew about the Covenant was the
same in state court as it is here. Further, FoL had a fair
opportunity to contest the issue in state court before the Circuit
Court entered a final judgment on the merits. As a result, this
Court concludes that the state court’s decision has preclusive
effect here.
(2019 Op. at 22–23 n.8) (citations omitted). That finding is undisturbed by Plaintiffs’
proposed amendments to their Complaint. Thus, the Amended Complaint still fails to
adequately allege that Plaintiffs had a reasonable expectation of their religious land use on
the Property. Moreover, Plaintiffs’ proposed amendments do not disturb this Court’s
findings that Plaintiffs failed to allege that County Defendants were the proximate cause
of the Circuit Court’s actions that harmed Plaintiffs, or that County Defendants
substantially burdened Plaintiffs’ ability to expand the Chabad House. Accordingly, the
Court finds that Plaintiffs’ proposed Amended Complaint is futile to the extent it continues
to assert substantial burden RLUIPA claims against County Defendants. The Court will
therefore deny Plaintiffs’ Motion for Leave to File Amended Complaint to the extent the
proposed amendments seek to support those claims.

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ii.

Equal Terms

RLUIPA prohibits a government from imposing or implementing a land use
regulation “in a manner that treats a religious assembly or institution on less than equal
terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1). In its 2019
Opinion, the Court dismissed Plaintiffs’ equal terms claim on the basis that Plaintiffs had
failed to name a comparator organization or institution to which a factfinder might refer in
determining whether Plaintiffs were treated on equal terms with nonreligious assemblies
or institutions. (2019 Op. at 23–25). The Court found that Plaintiffs’ allegations on
information and belief—specifically, that “[o]n information and belief the Defendants did
not impose on any secular organization or institution the same or similar conditions and
burdens that they imposed on [Plaintiffs],” (Compl. ¶ 70)—were insufficient under the
pleading standards set forth in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007), noting that the information was not
“particularly within defendants’ knowledge and control.” Mann Bracken, LLP v. Exec.
Risk Indem., Inc., No. DKC 15-1406, 2015 WL 5721632, at *7 (D.Md. Sept. 28, 2015)
(quoting Kajoshaj v. N.Y.C. Dep’t of Educ., 543 F.App’x 11, 16 (2d Cir. 2013)).
Plaintiffs propose amending their Complaint to remove the “[o]n information and
belief” language and to add generalized allegations that no secular organization has been
subjected to the treatment they experienced in conjunction with attempting to build the
Expansion. (See Am. Compl. ¶ 70). To prevail on an equal terms claim, however, a plaintiff
“must identify a similarly situated comparator.” Canaan Christian Church v. Montgomery
Cnty., Md., 491 F.Supp.3d 39, 67 (D.Md. 2020) (citation omitted). Plaintiffs have failed to
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do so. Accordingly, the Court finds that Plaintiffs’ proposed Amended Complaint is futile
to the extent it continues to assert equal terms RLUIPA claims against County Defendants.
The Court will therefore deny Plaintiffs’ Motion for Leave to File Amended Complaint to
the extent the proposed amendments seek to support those claims.
iii.

Nondiscrimination

RLUIPA’s non-discrimination provision states that “[n]o government shall impose
or implement a land use regulation that discriminates against any assembly or institution
on the basis of religion or religious denomination.” 42 U.S.C. § 2000cc(b)(2). The
provision incorporates elements of an equal protection analysis. See Hunt Valley, 2017
WL 4801542, at *29. “Under that precedent, a plaintiff must demonstrate that the
government decision was motivated at least in part by discriminatory intent, which is
evaluated using the ‘sensitive inquiry’ established in Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 266–68, 97 S.Ct. 555, 50 L.Ed.2d
450 (1977).” Jesus Christ Is the Answer Ministries, Inc. v. Balt. Cnty., Md., 915 F.3d 256,
263 (4th Cir. 2019), as amended (Feb. 25, 2019).
Courts may examine several factors to determine whether a decision-making body
was motivated by discriminatory intent:
(1) evidence of a “consistent pattern” of actions by the
decisionmaking body disparately impacting members of a
particular class of persons; (2) historical background of the
decision, which may take into account any history of
discrimination by the decisionmaking body or the jurisdiction
it represents; (3) the specific sequence of events leading up to
the particular decision being challenged, including any
significant departures from normal procedures; and (4)

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contemporary statements by decisionmakers on the record or
in minutes of their meetings.
Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 819 (4th Cir. 1995). “Under
RLUIPA, a plaintiff need only establish a prima facie claim of religious discrimination,
after which the defendant bears the burden of persuasion on all elements of the claim.”
Jesus Christ Is the Answer, 915 F.3d at 263.
With respect to Plaintiffs’ nondiscrimination claim, the Court found:
Plaintiffs have not pleaded facts to support a prima facie claim
of religious discrimination. They have not pleaded any
consistent pattern of actions disparately impacting FoL or
similarly situated groups. As discussed above, many of
Plaintiffs’ allegations are directed at the Circuit Court
judgment, making them immaterial to the County’s liability.
With respect to the County’s actions, Plaintiffs’ allegations
regarding disparate treatment or impact are on information and
belief, which is impermissible here where the information at
issue is public. Plaintiffs have also not pleaded any history of
discrimination by the County. Plaintiffs have not alleged what
the County’s normal procedures are and therefore have not
pleaded a deviation from those procedures. Plaintiffs have also
not pleaded any statements from County decision-makers or
community members that evidences any discriminatory intent.
This distinguishes this case from Jesus Christ is the Answer,
which involved allegations of specific comments about the
race and religion of the plaintiffs and where the County Board
of Appeals denied the plaintiffs’ petition even though County
officials did not oppose it, which they did here.
(2019 Op. at 26–27). On these bases, the Court dismissed the claim.
Plaintiffs propose curing the deficiencies in their nondiscrimination claim by adding
two discriminatory statements allegedly made by Arnold Jablon, Baltimore County’s
Director of Permits, Approvals, and Inspections. (See Am. Compl. ¶¶ 32, 37). Specifically,
Plaintiffs allege that Jablon said to Rabbi Rivkin, “Don’t try to convert me. I’m Reform,”
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and that, referencing Plaintiffs, Jablon said to FoL’s attorney, “Don’t call them Jewish like
me. They are extreme Jews like evangelical Christians.” (Id.). Plaintiffs’ proposed
Amended Complaint does not meaningfully address the other deficiencies identified by the
Court, including the absence of allegations concerning: (a) a consistent pattern of actions
disparately impacting FoL or similarly situated groups; (b) allegations regarding disparate
treatment or impact that identify similarly situated comparators; (c) a history of
discrimination by County Defendants; or (d) what the County’s normal procedures are and
the alleged deviations from those procedures.
The two statements allegedly made by Jablon in 2014 must be viewed in context:
specifically, that the County ultimately approved Rabbi Rivkin’s application for the
Expansion. (See Am. Compl. ¶ 51; Ct. Spec. App. Op. at 7–8). Thus, in the end, after
following processes for seeking an exception to County zoning regulations that Plaintiffs
do not allege were abnormal, 1 County Defendants granted Plaintiffs the relief they sought:
permission to build the Expansion. It was the Circuit Court that ordered Plaintiffs to
discontinue work on and ultimately raze the Expansion, and it made its decisions based on
the existence of the Covenant, not on County zoning regulations. To the extent Plaintiffs
allege that they were harmed by the process imposed by County Defendants for obtaining
an exception to the zoning regulations—i.e., receiving a citation and notice and being
forced to attend multiple hearings—they do not allege that the process differed from that

1

Plaintiffs broadly allege “no secular organization or institution has been subjected
to” the process to which County Defendants subjected them, (see Am. Compl. ¶ 73), but
they do not attempt to describe the County’s normal process for evaluating zoning issues
or how their experience deviated from that process.
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imposed on any similarly situated comparator institution. See Bethel World Outreach
Ministries v. Montgomery Cnty. Council, 706 F.3d 548, 560 (4th Cir. 2013) (“The
application of a neutral ordinance may violate RLUIPA’s nondiscrimination provision if it
differentially treats similarly situated religious assemblies on the basis of denomination.”)
(quoting Church of Scientology of Ga., Inc. v. City of Sandy Springs, 843 F.Supp.2d 1328,
1361 (N.D.Ga. 2012)). 2
Viewing the allegations holistically, the Court finds that Plaintiffs have not
plausibly alleged that County Defendants imposed any meaningful burden on Plaintiffs
that arose out of discriminatory intent. Accordingly, the Court finds that Plaintiffs’
proposed Amended Complaint is futile to the extent it continues to assert nondiscrimination
RLUIPA claims against County Defendants. The Court will therefore deny Plaintiffs’
Motion for Leave to File Amended Complaint to the extent the proposed amendments seek
to support those claims. 3
iv.

Total Exclusion

RLUIPA prohibits a government from imposing or implementing a land use
regulation that “totally excludes religious assemblies from a jurisdiction.” 42 U.S.C.

2

While it is true that “RLUIPA’s nondiscrimination provision doesn’t require a
comparison to similarly situated entities,” Jesus Christ Is the Answer, 915 F.3d at 263
(citing Chabad Lubavitch of Litchfield Cnty., Inc. v. Litchfield Historic Dist. Comm’n, 768
F.3d 183, 199 (2d Cir. 2014)), “such evidence is certainly germane to a selective
enforcement analysis.” Chabad Lubavitch, 768 F.3d at 199. Likewise, the absence of such
evidence, while not fatal, weighs in County Defendants’ favor in determining whether
Plaintiffs have adequately pleaded discriminatory intent.
3
Because the analysis is the same under the Equal Protection Clause, the Court will
also deny Plaintiffs’ Motion for Leave to File Amended Complaint to the extent the
proposed amendments seek to support that claim.
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§ 2000cc(b)(3)(A). In Vision Church v. Village Of Long Grove, the Seventh Circuit held
that that the government defendant, “by permitting churches in all residential districts as a
special use, has not completely or totally excluded religious assemblies from its
jurisdiction.” 468 F.3d 975, 990 (7th Cir. 2006). 4 In the present case, the Court dismissed
Plaintiffs’ RLUIPA total exclusion claim upon finding that (a) Plaintiffs do not allege that
County Defendants totally excluded FoL from the jurisdiction, and (b) County zoning
regulations permit “buildings for religious worship” as of right and “community buildings”
with a “special exception.” (2019 Op. at 28).
Plaintiffs have not made meaningful changes in the Amended Complaint to address
the Court’s prior holding regarding their total exclusion claim. Plaintiffs attempt to evade
the “total” portion of the “total exclusion” claim by alleging that County zoning regulations
“totally exclude” Towson University and Goucher College students from receiving certain
religious services because “[n]o Orthodox Jewish institution exists less than 7 miles distant
from the Chabad House.” (Am. Compl. ¶ 76). As other courts have held, this is not the
showing Plaintiffs must make to survive a motion to dismiss a RLUIPA total exclusion
claim. See Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, N.Y., 945
F.3d 83, 125 (2d Cir. 2019) (“The exclusion provision of RLUIPA forbids
the total exclusion of religious assemblies from a jurisdiction. The challenged laws do not
totally exclude all religious assemblies from Pomona. The district court correctly dismissed

4

The Fourth Circuit has cited Vision Church approvingly, albeit with respect to a
different section of RLUIPA. See Bethel, 706 F.3d at 560 (citing Vision Church, 468 F.3d
at 990–92).
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these claims.”) (footnote and citations omitted), cert. denied, 141 S. Ct. 885 (2020); Adhi
Parasakthi Charitable, Med., Educ., & Cultural Soc’y of N. Am. v. Twp. of W. Pikeland,
721 F.Supp.2d 361, 386 (E.D.Pa. 2010) (“Plaintiff’s claim for a total exclusion under
RLUIPA must be denied for the same reason . . . . Plaintiff’s religious use simply has not
been totally excluded from Defendant’s jurisdiction.”).
Plaintiffs’ proposed Amended Complaint does not allege that they have been totally
excluded from the County. Accordingly, the Court finds that Plaintiffs’ proposed Amended
Complaint is futile to the extent it continues to assert total exclusion RLUIPA claims
against County Defendants. The Court will therefore deny Plaintiffs’ Motion for Leave to
File Amended Complaint to the extent the proposed amendments seek to support those
claims.
v.

Unreasonable Limitations

RLUIPA’s unreasonable limitation provision prohibits the imposition or
implementation of a land use regulation that “unreasonably limits religious assemblies,
institutions, or structures within a jurisdiction.” 42 U.S.C. § 2000cc(b)(3)(B). The Fourth
Circuit has clarified that “[w]hile a religious institution may succeed on a substantial
burden claim when government defeats its reasonable expectation of being able to build
on a particular property, RLUIPA’s unreasonable limitation provision prevents
government from adopting policies that make it difficult for religious institutions to locate
anywhere within the jurisdiction.” Bethel, 706 F.3d at 560 (noting that a regulation
requiring special use permit to locate in a residential district left religious assemblies with

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“a reasonable opportunity to build within the Village” (citing Vision Church, 468 F.3d at
990–92)).
The Court dismissed Plaintiffs’ unreasonable limitation claim on the basis that, as
noted above, Plaintiffs have not alleged that religious organizations like FoL are without a
reasonable opportunity to build within the County. (2019 Op. at 29). Plaintiffs’ Amended
Complaint does not include sufficient facts for the Court to plausibly infer that the County
uses its zoning provisions to “make it difficult” for religious institutions like FoL “to locate
anywhere within the jurisdiction.” Bethel, 706 F.3d at 560 (citation omitted). Instead,
Plaintiffs’ proposed amendments on this subject only clarify that “if the Chabad House is
demolished”—an action that, if it occurs, will have been caused by the state courts, not
County Defendants—“no student of at Towson University or Goucher College will
realistically be able to obtain on Sabbaths and Jewish holidays dietary permissible (kosher)
prepared meals and religious instruction.” (Am. Compl. ¶ 78). Once again, this allegation
does not satisfy Plaintiffs’ burden for their unreasonable limitation claim. Accordingly, the
Court finds that Plaintiffs’ proposed Amended Complaint is futile to the extent it continues
to assert unreasonable limits RLUIPA claims against County Defendants. The Court will
therefore deny Plaintiffs’ Motion for Leave to File Amended Complaint to the extent the
proposed amendments seek to support those claims.
b.

Free Exercise

“Under the Supreme Court’s free exercise doctrine, a neutral government decision
of general applicability is subject to rational basis review, even where it has the incidental
effect of burdening religious exercise.” Jesus Christ Is the Answer, 915 F.3d at 265
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(citing Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 879 (1990)). A decision
that aims “to infringe upon or restrict practices because of their religious motivation,”
however, is subject to strict scrutiny. Id. (quoting Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 533 (1993)).
Notably, where a plaintiff has not stated a RLUIPA claim, there is no need for the
court to separately consider the claim under the First Amendment because RLUIPA
provides more protection for a religious exercise than the Free Exercise Clause. See
Ryidu-X v. Foxwell, No. CV CCB-18-2213, 2019 WL 4060388, at *11 (D.Md. Aug. 27,
2019) (citing Lovelace v. Lee, 472 F.3d 174, 198 (4th Cir. 2006) (“RLUIPA incorporates
and exceeds the Constitution’s basic protections of religious exercise.”) (emphasis
added))). As set forth above, Plaintiffs’ proposed amendments to their RLUIPA claims
are futile. Accordingly, the Amended Complaint fails to state a claim under the Free
Exercise Clause. The Court will therefore deny Plaintiffs’ Motion for Leave to File
Amended Complaint to the extent the proposed amendments seek to support that claim.
c.

Due Process

In its 2019 Opinion, the Court inferred that Plaintiffs sought to advance a
substantive due process claim. Plaintiffs have not objected to that inference in their briefing
on the instant Motions. To survive a motion to dismiss on a substantive due process claim,
a plaintiff must allege: (1) “that it possessed a ‘cognizable property interest, rooted in state
law’”; and (2) “that [defendants] deprived it of this property interest in a manner ‘so far
beyond the outer limits of legitimate governmental action that no process could cure the
deficiency.’” Siena Corp. v. Mayor & City Council of Rockville, Md., 873 F.3d 456, 461
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(4th Cir. 2017) (first quoting L.M. Everhart Constr., Inc. v. Jefferson Cnty. Planning
Comm’n, 2 F.3d 48, 51 (4th Cir. 1993); then quoting Sylvia Dev. Corp., 48 F.3d at 827).
A cognizable property interest requires “a legitimate claim of entitlement” that “stem[s]
from an independent source such as state law.” Id. (citing Bd. of Regents v. Roth, 408 U.S.
564, 577 (1972)).
Plaintiffs define the property interest at issue as their interest in the Property as
residents. (Am. Compl. ¶ 84). The proposed Amended Complaint further states that
“Defendants’ implementation of the Baltimore County land use regulations arbitrarily
denies to these Plaintiffs rights” they are guaranteed under the Fourteenth Amendment.
(Id.). While this sentence is not a model of clarity, the Court infers that Plaintiffs mean to
allege that the County zoning regulations have deprived them of their ability to build and
maintain structures on the Property as they see fit, including by expanding the Chabad
House.
This claim must fail for two reasons. First, County Defendants have not prohibited
Plaintiffs from expanding the Chabad House; the state courts did so on the basis of the
Covenant. Second, Plaintiffs have not adequately alleged that the actions of any Defendant
deprived them of their property “in a manner so far beyond the outer limits of legitimate
governmental action that no process could cure the deficiency.” Siena Corp., 873 F.3d at
461 (internal quotation marks and citation omitted). Accordingly, the proposed Amended
Complaint fails to state a claim for a violation of the Due Process Clause. The Court will
therefore deny Plaintiffs’ Motion for Leave to File Amended Complaint to the extent the
proposed amendments seek to support that claim.
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d.

Defamation

Defamation is a state-law claim. In its 2019 Opinion, having dismissed all of
Plaintiffs’ federal claims, the Court dismissed their defamation claim for lack of
jurisdiction. See 28 U.S.C. § 1367(c) (providing that “district courts may decline to
exercise supplemental jurisdiction over a claim [if] . . . the district court has dismissed all
claims over which it has original jurisdiction”). Because the Court will not grant Plaintiffs’
Motion for Leave to File Amended Complaint with respect to their federal claims, the Court
will not reconsider its decision to dismiss Plaintiffs’ defamation claim.
III.

CONCLUSION

For the foregoing reasons, the Court will deny Plaintiffs’ Renewed Motion for
Leave to File Amended Complaint (ECF No. 58). Because it will not grant Plaintiffs leave
to amend their Complaint, the Court will also deny Plaintiffs’ Renewed Motion for
Reconsideration (ECF No. 59). A separate Order follows.
Entered this 3rd day of June, 2021.

/s/
George L. Russell, III
United States District Judge

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