Case Information
*1 Before MOTZ, FLOYD, and THACKER, Circuit Judges. Affirmed in part, reversed in part, and remanded by published opinion. Judge Motz wrote the opinion, in which Judge Floyd and Judge Thacker joined.
COUNSEL ARGUED: Roman Paul Storzer, STORZER & GREENE, PLLC, Washington, D.C., for Appellant. Angela Macdonald Miller, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amici Supporting Appellant. Patricia Prestigiacomo Via, COUNTY ATTORNEY’S OFFICE, Rockville, Maryland, for Appellees. ON BRIEF: Robert L. Greene, STORZER & GREENE, PLLC, Washington, D.C., for Appellant. Marc P. Hansen, County Attorney, Edward B. Lattner, Division Chief, Division of Human Resources & Appeals, Paul F. Leonard, Jr., Associate County Attorney, COUNTY ATTORNEY’S OFFICE, Rockville, Maryland, for Appellees. Jocelyn Samuels, Principal Deputy Assistant Attorney General, Dennis J. Dimsey, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for the United States, Amicus Supporting Appellant. Eric C. Rass- bach, Lori H. Windham, THE BECKET FUND FOR RELI- GIOUS LIBERTY, Washington, D.C., for Christ International Ministries, Families Across America, Inc., Grace Missionary Society, and The Becket Fund for Religious Liberty, Amici Supporting Appellant.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Bethel World Outreach Ministries brought this action asserting that Montgomery County’s zoning regulations, which prevented Bethel from constructing a church, violated the Religious Land Use and Institutionalized Persons Act W ("RLUIPA"), the United States Constitution, and the Mary- land Declaration of Rights. The district court granted sum- mary judgment to the County on all claims. For the reasons that follow, we reverse the judgment of the district court as to Bethel’s RLUIPA "substantial burden" claim, affirm in all other respects, and remand for further proceedings consistent with this opinion.
I.
Bethel, a Christian church, owns a place of worship in Sil- ver Spring, Maryland, and rents a satellite facility in Gaithers- burg, Maryland. Both Silver Spring and Gaithersburg are located in Montgomery County.
Bethel’s Silver Spring church seats approximately 450 peo- ple at one time and the Gaithersburg facility seats approxi- mately 300; Bethel’s total weekly attendance at all services is about 1500. To accommodate its congregation Bethel must hold four services every Sunday—three in Silver Spring and one in Gaithersburg. The number of services restricts their length, and requires that Communion not be held until after the services.
Time and space limitations also sometimes require Bethel to cut short its important "Altar Call" practice, in which attendees may publicly dedicate their lives to Christ, join the church, or request specific prayers. After the service, the director of Altar Call traditionally conducts conversations with those who have come forward regarding their spiritual beliefs. Because the church itself lacks facilities to accommo- date these conversations, the director must use a small, parti- tioned area in the visitor center.
Even with four services each Sunday, Bethel faces over- crowding, and ushers must sometimes prevent worshipers from entering the sanctuary. Bethel also lacks facilities for other programs, including religious education, health educa- tion, and various counseling services. And because adults use all available classrooms, Bethel is unable to provide programs exclusively for youths.
For all of these reasons, in 2004 Bethel purchased a 119- acre property on Brink Road, also in Montgomery County. Bethel planned to build a new, larger church on this property.
The Brink Road property is located within a 93,000-acre area that the County designated in 1980 as an agricultural reserve. To preserve the environmental and aesthetic benefits of open spaces in the agricultural reserve, the County zoned most of it as a "rural density transfer zone" subject to a trans- ferable development rights system. Under that system, devel- opers can purchase rights from landowners in the rural density transfer zone to build in other areas of the County. The prop- erty of the landowner who sells the development rights is then subject to an easement, which restricts the density of residen- tial development permitted on that property. Prior to 2007, the easements did not affect institutional use of property in the zone, so a church was a permitted use on Bethel’s property.
Under the County’s water and sewer plan, however, the County generally did not provide public service in rural den- sity transfer zones, though it did consider case-by-case excep- tions to that policy. Before 2005, the County’s private institutional facilities policy provided a means by which insti- tutional users, including religious institutions like Bethel, could request amendments to the County’s water and sewer plan. In 2001, Bethel’s predecessor on the Brink Road prop- erty, Farm Development Company, LLC, requested such an amendment, which would have provided it with public water and sewer service, and allowed it to build four 1000-seat churches.
At least partially in response to this request, in 2003 the County began reviewing its private institutional facilities pol- icy and considered changes that would have prevented Farm W Development and other institutional users in the rural density transfer zone from gaining access to the public water and sewer system. The County did not at that time implement any such changes, but indicated that further review of the policy would be needed.
In 2004, after purchasing the Brink Road property, Bethel substituted itself for Farm Development on the request for public water and sewer service. Bethel planned to build a 3000-seat church, a school, a daycare building, a social hall, and offices on the property. In November 2005, the Council denied Bethel’s request and in the same meeting approved an amendment to the water and sewer plan prohibiting public water and sewer service to private institutional facilities in the rural density transfer zone.
In January 2006, Bethel filed a petition for administrative mandamus in state court, challenging the denial of its applica- tion for public water and sewer service as unlawful, arbitrary, capricious, unsupported by substantial evidence, and violative of the Maryland Declaration of Rights and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42 U.S.C. § 2000cc et seq. Two years later, the state court granted summary judgment to the County; the Court of Spe- cial Appeals later affirmed. See Bethel World Outreach Church v. Montgomery Cnty. , 967 A.2d 232 (Md. Ct. Spec. App. 2009).
While Bethel’s state court action was pending, the County Council considered the application of another religious insti- tution, Derwood Bible Church, for approval of the private well and septic system necessary to build a 1500-seat church in the rural density transfer zone. [1] In February 2006, the [1] With a private well and septic system, a property owner provides for its own water and sanitary needs and does not require access to the public water and sewer system. Montgomery County, however, still requires an owner to obtain approval from the County for large private systems. Council approved an amendment to the County’s water and sewer plan that restricted the size of new private well and sep- tic systems in rural density transfer zones. A month later, the County denied Derwood’s request because Derwood’s pro- posed private well and septic system exceeded the maximum capacity permitted by this amendment, known as the Knapp Cap.
Because the County had earlier (in November 2005) amended its water and sewer plan to prevent private institu- tional facilities from obtaining access to the public water and sewer system, the Knapp Cap’s restriction on private systems effectively imposed a size limitation on new private institu- tional facilities in the rural density transfer zone. In response to this limitation, Bethel modified its plan in order to comply with the Knapp Cap, and in January 2007 applied for a private well and septic system to support the construction of a smal- ler, 800-seat church.
In October 2007, while that application was pending, the County Council adopted an amendment to its zoning provi- sions, ZTA 07-07, which prohibits a landowner from building a private institutional facility on any property subject to a transferable development rights easement. Because Bethel’s property is subject to such an easement, ZTA 07-07 bars it from building even the smaller 800-seat church. In April 2008, the County "deferred" Bethel’s well and septic applica- tion pending submission of a proposed use consistent with ZTA 07-07 ( i.e. , agriculture or single family homes); Bethel’s appears to have been the only pending application effectively denied based on ZTA 07-07.
A month later, in May 2008, Bethel filed this action in fed- eral court alleging that ZTA 07-07 and the "deferral" of its application for a well and septic system violated its rights under RLUIPA, the First and Fourteenth Amendments, and the Maryland Declaration of Rights. After completion of dis- covery, the County moved for summary judgment. The dis- W 7 trict court conducted a hearing and then granted summary judgment to the County on all claims. Bethel noted a timely appeal. We review the district court’s grant of summary judg- ment de novo . Waller ex rel. Estate of Hunt v. City of Dan- ville , 556 F.3d 171, 174 (4th Cir. 2009).
II.
Bethel’s principal appellate argument is that the County violated the substantial burden provision of RLUIPA. See 42 U.S.C. § 2000cc(a)(1). That provision prohibits the imposi- tion or implementation of any land use regulation in a manner that:
imposes a substantial burden on the religious exer- cise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution —
[2]
The County briefly argues that the 2007 state court judgment consti-
tutes collateral estoppel or
res judicata
, barring this federal action. This
argument fails. Collateral estoppel, which only bars relitigation of issues
actually resolved in a previous suit,
see Colandrea v. Wilde Lake Cmty.
Ass’n
,
(A) is in furtherance of a compelling gov- ernmental interest; and (B) is the least restrictive means of further- ing that compelling governmental interest.
Id. [3] "Religious exercise" includes "[t]he use, building, or con- version of real property for the purpose of religious exercise." Id. § 2000cc–5(7).
A.
Before turning to the merits of Bethel’s substantial burden claim, we note that the district court’s substantial burden anal- ysis rested on two misunderstandings of the appropriate legal standards. We address these in turn.
1.
First, in considering whether the County imposed a sub- stantial burden on Bethel’s religious exercise, the district court erred in applying, without any modification for the land use context, the standard applicable in RLUIPA institutional- ized persons cases.
In the institutionalized persons context, we have defined a
substantial burden on religious exercise as one in which "a
state or local government, through act or omission, ‘put[s]
[3]
This provision applies only when the substantial burden (1) is imposed
in a program that receives federal assistance,
or
(2) affects interstate com-
merce,
or
(3) is imposed in the implementation of a land use regulation
involving an individualized governmental assessment.
See
42 U.S.C.
§ 2000cc(a)(2)(A)-(C). Contrary to the County’s suggestion, Bethel has
established at least one of these requirements since ZTA 07-07 prevents
Bethel from building a church on its property, an activity that clearly
affects interstate commerce.
See, e.g.
,
Westchester Day Sch. v. Vill. of
Mamaroneck
,
But the Government lacks comparable control in the land
use context. Even government action preventing a religious
organization from building a church will rarely, if ever, force
the organization to violate its religious beliefs, because the
organization can usually locate its church elsewhere.
See
Westchester Day Sch. v. Vill. of Mamaroneck
,
We note that no appellate court has applied an unmodified Lovelace -like standard in the land use context. That is, none has required a plaintiff asserting that a land use regulation imposes a substantial burden in violation of RLUIPA to prove that the regulation pressures the plaintiff to violate its beliefs. Rather, every one of our sister circuits to have considered the question has held that, in the land use context, a plaintiff can succeed on a substantial burden claim by establishing that a government regulation puts substantial pressure on it to mod- ify its behavior. See Westchester Day Sch. , 504 F.3d at 349 ("[In the land use context,] courts appropriately speak of gov- ernment action that directly coerces the religious institution to change its behavior . . . ." (emphasis in original)); Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter , 456 F.3d 978, 988-89 (9th Cir. 2006) ("[A] substantial burden on reli- gious exercise must impose a significantly great restriction or onus upon such exercise." (internal quotation marks omit- ted)); Midrash Sephardi, Inc. v. Town of Surfside , 366 F.3d 1214, 1227 (11th Cir. 2004) ("[A] substantial burden is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly." (inter- nal quotation marks omitted)); Civil Liberties for Urban Believers v. City of Chicago , 342 F.3d 752, 761 (7th Cir. 2003) ("[A] land-use regulation that imposes a substantial burden on religious exercise is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise—including the use of real property for the purpose thereof within the regulated jurisdiction generally— effectively impracticable."). We believe that this standard best accords with RLUIPA.
2.
The district court also erred in requiring Bethel to show that the County "targeted" it in order to succeed on its substantial burden claim. See Mot. Hr’g Tr. at 146, No. PJM-08-1195 (D. Md. Sept. 26, 2011) ("There’s no way in which the court can find that [Bethel has] been targeted . . . this was a generic decision that . . . preexisted even the presence of the church in the county.").
Of course, we recognize that when a plaintiff challenges an
apparently neutral law of general applicability as violative of
the
First Amendment
, it must demonstrate that the statute tar-
gets its religious beliefs or practices.
See Emp’t Div., Dep’t of
Human Res. of Or. v. Smith
,
The district court undoubtedly drew on this First Amend- ment principle in requiring Bethel to demonstrate that the County targeted it. But RLUIPA’s history indicates that Con- gress intended that the statute do more than merely codify First Amendment jurisprudence. See Madison v. Riter , 355 F.3d 310, 314-315 (4th Cir. 2003) (explaining RLUIPA’s his- tory); see also Smith v. Ozmint , 578 F.3d 246, 251 (4th Cir. 2009) (finding that RLUIPA protects an institutionalized per- son from a substantial burden on his religious exercise even when the burden is imposed by a neutral and generally appli- cable policy). Moreover, RLUIPA’s statutory language and structure reflect this intent.
First, RLUIPA’s substantial burden provision says nothing about targeting. Rather, it simply forbids government from imposing a substantial burden on religious exercise unless the Government demonstrates that it has used the least restrictive means of furthering a compelling governmental interest; that is, unless the governmental action satisfies strict scrutiny. 42 U.S.C. § 2000cc(a)(1).
Moreover, as Bethel points out, RLUIPA contains a sepa- rate provision forbidding discrimination. See id. § 2000cc(b)(2) (prohibiting government from imposing or implementing "a land use regulation that discriminates against any assembly or institution on the basis of religion or reli- gious denomination"). In construing a statute, a court must presume that Congress did not intend to enact superfluous provisions. See Astoria Fed. Sav. & Loan Ass’n v. Solimino , *12 12
Therefore, it seems clear that the substantial burden provi- sion protects against non-discriminatory, as well as discrimi- natory, conduct that imposes a substantial burden on religion. Accordingly, a religious organization asserting that a land use regulation has imposed a substantial burden on its religious exercise need not show that the land use regulation targeted it.
With these principles in mind, we turn to the merits of Bethel’s substantial burden claim.
B.
Initially, we consider whether Bethel has presented evi-
dence of a triable issue of fact as to whether the County has
imposed a substantial burden on its religious exercise. When
[4]
This is not to say that a religious organization can state a RLUIPA sub-
stantial burden claim simply by alleging that it received an adverse land
use ruling. Certainly, Congress did not intend to permit religious organiza-
tions to exempt themselves from neutral zoning provisions.
See
146 Cong.
Rec. S7776 (daily ed. July 27, 2000) (joint statement of Sens. Hatch and
Kennedy). Thus, a court will likely find that a religious organization has
not pled a substantial burden claim merely by alleging that it moved to an
area in which generally applicable zoning provisions bar construction of
churches and then was denied exemption from the zoning provisions to
build its church.
See, e.g.
,
Petra Presbyterian Church v. Vill. of North-
brook
,
The County contends that Bethel could not reasonably expect to build a church when it purchased the Brink Road property because at that time the County had long been con- sidering changes to its private institutional facilities policy to limit such institutional uses. Further, the County argues, "[t]here were no guarantees that Bethel would get all the nec- essary approvals to build what it wanted." Appellee’s Br. at 50. But the County does not contest that it permitted churches in the rural density transfer zone at the time Bethel bought the property, and modern zoning practices are such that landown- ers are rarely guaranteed approvals. Bethel has at the very least offered evidence raising a question of material fact as to whether it had a reasonable expectation of being able to build a church.
Moreover, we find it significant that the County has com-
pletely prevented Bethel from building any church on its
property, rather than simply imposing limitations on a new
building.
See, e.g.
,
Westchester Day Sch.
, 504 F.3d at 352
(considering as a factor in its substantial burden analysis
whether village’s denial of school’s application was condi-
tional or absolute);
Guru Nanak
,
Although the County suggests that Bethel’s burden is not substantial because the organization already owns one facility and rents another, Bethel has presented considerable evidence that its current facilities inadequately serve its needs. Specifi- cally, insufficient space forces Bethel to hold four services every Sunday, and to shorten services, interfering with Com- munion and the church’s "Altar Call" practice. Bethel’s pres- ent facilities are overcrowded, requiring ushers to turn people away from services and limiting Bethel’s ability to offer vari- ous programs. Bethel’s pastor testified that the lack of ade- quate facilities creates a sense of disunity because the congregation is divided into so many separate services.
If Bethel’s proffered evidence is believed, a fact finder
could certainly conclude that Bethel’s current facilities do not
adequately serve its religious purposes, and that the planned
800-seat church would alleviate Bethel’s burden.
See West-
chester Day Sch.
,
But of course a governmental regulation violates RLUIPA by imposing a substantial burden on religious exercise only if the regulation fails to satisfy strict scrutiny. See 42 U.S.C. § 2000cc(a)(1). That is, if the County has offered undisputed facts showing that it has used the least restrictive means of furthering a compelling governmental interest, we must none- theless uphold the district court’s grant of summary judgment.
The County maintains that it has done this. It points to its interest in preserving agricultural land, water quality, and open space and managing traffic and noise in the rural density transfer zone. Assuming, without deciding, that this consti- tutes a compelling interest, the County has failed to demon- strate that, as a matter of law, ZTA 07-07 is the least restrictive means of furthering that interest. The County has presented no evidence that its interest in preserving the integ- rity of the rural density transfer zone could not be served by less restrictive means, like a minimum lot-size requirement or an individualized review process. We therefore reverse the district court’s grant of summary judgment to the County on Bethel’s substantial burden claim.
III.
We can more quickly resolve Bethel’s remaining argu- ments.
A.
In addition to its substantial burden claim, Bethel asserts that the district court erred in granting the County summary judgment on two other RLUIPA claims—its RLUIPA dis- crimination claim and its RLUIPA unreasonable limitation claim.
1.
The nondiscrimination provision of RLUIPA provides: "No 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).
ZTA 07-07 is facially neutral: it applies to all private insti- tutional facilities, not just churches or other religious struc- tures. Bethel maintains, however, that it has offered extensive evidence proving that the County adopted ZTA 07-07 because of its hostility to large churches, and this violated RLUIPA’s nondiscrimination provision.
Bethel did produce evidence indicating that County resi-
dents opposed Bethel’s proposed facilities and also opposed
the large sanctuary proposed by Derwood Bible Church.
Bethel further points to the undisputed sequence of events
leading up to the County’s adoption of ZTA 07-07 as evi-
dence of discrimination.
See Sylvia Dev. Corp. v. Calvert
Cnty.
, 48 F.3d 810, 819 (4th Cir. 1995) (recognizing the
sequence of events leading up to a challenged decision as pro-
bative of whether the decision-making body was motivated by
discriminatory intent (citing
Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp.
,
This evidence could certainly support an inference that the
County took the measures it did to prevent Bethel and Der-
17
wood from going forward with their building plans. Bethel,
however, has failed to put forth any evidence that the County
took those measures because Bethel and Derwood are reli-
gious organizations. Rather, the County and the residents
involved in the process consistently expressed concern with
the
size
of the proposed facilities, which they considered
incompatible with the character of the agricultural reserve.
And Bethel has not presented evidence that the concern with
size was pretextual by, for example, pointing to other facili-
ties of the same size in the rural density transfer zone.
Cf.
Reaching Hearts
,
Because Bethel has failed to offer evidence that the County
discriminated against it on the basis of religion, we must
affirm the district court’s grant of summary judgment to the
County on Bethel’s RLUIPA nondiscrimination claim.
[5]
Bethel also unconvincingly contends that the County discriminated
between
religious denominations, pointing to the County’s approval of the
Archdiocese of Washington’s 2001 water and sewer category change
request, and conceptual approval of the Archdiocese’s preliminary plan to
build a church and associated school. But because the Archdiocese never
went forward with plans to build anything other than a cemetery on its
property, it cannot be considered a similarly situated entity for purposes
of proving discriminatory treatment.
See Church of Scientology of Ga.,
Inc. v. City of Sandy Springs
,
2.
Bethel’s unreasonable limitation claim fares no better. RLUIPA’s unreasonable limitation provision provides that government shall not impose or implement a land use regula- tion that "unreasonably limits religious assemblies, institu- tions, or structures within a jurisdiction." 42 U.S.C. § 2000cc(b)(3)(B). While 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 pre- vents government from adopting policies that make it difficult for religious institutions to locate anywhere within the juris- diction. See Vision Church v. Vill. of Long Grove , 468 F.3d 975, 990-92 (7th Cir. 2006) (regulation requiring special use permit to locate in a residential district left religious assem- blies with "a reasonable opportunity to build within the Vil- lage").
ZTA 07-07 merely prohibits religious assemblies, along with other institutional uses, on properties in the rural density transfer zone that are encumbered by transferable develop- ment rights easements. Bethel has failed to produce any evi- dence suggesting that religious organizations are left without a reasonable opportunity to build elsewhere in the County. Thus, we hold that Bethel’s unreasonable limitation claim fails as a matter of law and the district court did not err in granting summary judgment to the County on this claim.
B.
Finally, Bethel contends that the district court erred in granting summary judgment to the County on Bethel’s consti- tutional claims, i.e. , Bethel’s contentions that the County vio- lated its free exercise and equal protection rights under the United States Constitution and the Maryland Declaration of Rights.
We follow the Maryland courts in interpreting the free exercise and equal protection provisions of the Maryland Dec- laration of Rights in pari materia with their federal counter- parts. See, e.g. , Evans v. State , 914 A.2d 25, 67 (Md. 2006) (equal protection); Stover v. Prince George’s Cnty. , 752 A.2d 686, 695 (Md. Ct. Spec. App. 2000) (free exercise).
Under the Free Exercise Clause, "a law that is neutral and
of general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect
of burdening a particular religious practice."
Church of the
Lukumi Babalu Aye
,
Thus, in resolving Bethel’s free exercise challenge we
apply rational basis scrutiny, which requires merely that the
law at issue be "rationally related to a legitimate governmen-
tal interest."
Grace United Methodist Church v. City of Chey-
enne
,
Nor did the district court err in granting summary judgment to the County on Bethel’s equal protection claim. Bethel has failed to present evidence that the County discriminated against it on the basis of religion. Bethel’s "class of one" claim must fail because the County’s actions survive rational basis scrutiny. See generally Willis v. Town of Marshall , 426 F.3d 251, 263 (4th Cir. 2005).
IV.
For the reasons set forth above, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED