CANAAN CHRISTIAN CHURCH; BURTONSVILLE CROSSING, LLC; BURTONSVILLE ASSOCIATES; MARION G. SAREM, Plaintiffs – Appellants, and JENNIFER M. SAREM, Plaintiff, v. MONTGOMERY COUNTY, MARYLAND; MONTGOMERY COUNTY COUNCIL; ISIAH LEGGETT, County Executive, Defendants – Appellees.
No. 20-2185
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
March 22, 2022
PUBLISHED. Argued: September 22, 2021. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Theodore D. Chuang, District Judge. (8:16-cv-03698-TDC)
Amici Supporting Appellant.
Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge King joined. Judge Richardson wrote an opinion concurring in the judgment.
ARGUED: Roman Paul Storzer, STORZER & ASSOCIATES, P.C., Washington, D.C., for Appellants. Howard Ross Feldman, WHITEFORD, TAYLOR & PRESTON L.L.P., Baltimore, Maryland, for Appellees. ON BRIEF: Blair Lazarus Storzer, STORZER & ASSOCIATES, P.C., Washington, D.C., for Appellant Burtonsville Associates. A. Donald C. Discepolo, DISCEPOLO, LLP, Columbia, Maryland, for Burtonsville Crossing, LLC. Michelle M. Rosenfeld, LAW OFFICE OF MICHELLE ROSENFELD, LLC, Rockville, Maryland, for Appellants. Mark P. Hansen, County Attorney, John P. Markovs, Edward B. Lattner, OFFICE OF THE COUNTY ATTORNEY, Rockville, Maryland; Harry S. Johnson, Erek L. Barron, Aaron L. Casagrande, Cara C. Murray, Patrick D. McKevitt, WHITEFORD, TAYLOR & PRESTON L.L.P., Baltimore, Maryland, for Appellees. Christopher Pagliarella, YALE LAW SCHOOL FREE EXERCISE CLINIC, Washington, D.C.; Gordon D. Todd, Lucas W.E. Croslow, Matthew H. Simpson, SIDLEY AUSTIN LLP, Washington, D.C., for Amici Curiae.
In this case, we address whether Montgomery County, Maryland (the “County“), the Montgomery County Council (the “County Council“), and the Montgomery County Executive (the “County Executive“) (collectively, “Appellees“) complied with the Religious Land Use and Institutionalized Persons Act (“RLUIPA“) and the Free Exercise Clause of the First Amendment to the United States Constitution when it denied water and sewer category change requests (“WSCCRs“) submitted on behalf of Canaan Christian Church (“Canaan“) when Canaan sought to purchase and develop five neighboring pieces of land (“the Property“) from the landowners (“the Landowners“) (Canaan and the Landowners, collectively, “Appellants“). The land in question has been bound by decades of land use regulations restricting development for both religious and non-religious purposes. Because Appellants were well aware of the difficulties in development of the Property when they entered into the contract to purchase the Property, they could not have a reasonable expectation of religious land use. Further, the land use restrictions are rationally related to the government‘s interest in protecting the region‘s watershed. Therefore, we conclude that Appellees did not violate RLUIPA or the First Amendment, and we affirm the judgment of the district court.
I.
A.
Background
The Property includes five adjacent parcels of land in Burtonsville, Maryland, that are restricted from receiving sewer service. Burtonsville Crossing, LLC (“Burtonsville Crossing“) owns one parcel (the “BC Parcel“). Thomas Norris (“Norris“) and his wife, Elizabeth Norris, are the President and Vice President, respectively, of Burtonsville Crossing. Burtonsville Associates owns one parcel (the “BA Parcel“). Jonathan Jackson is the Managing Partner of Burtonsville Associates. Marion G. Sarem owns one parcel, and Jennifer M. Sarem owns two parcels (collectively, the “Sarem Parcels“).
Toward this end, the Landowners ultimately entered into a contract with Canaan. Canaan sought to purchase the Property in order to build a new church, contingent on the approval of the extension of a public sewer line to the Property. Such an extension requires the approval of a WSCCR by the Montgomery County Department of Environmental Protection (the “DEP“) to amend the 2003 Comprehensive Ten-Year Water Supply and Sewerage Systems Plan (the “Water & Sewer Plan“). The amendment process is multi-layered. Per the amendment process, the DEP requests comments on WSCCRs from the Montgomery County Planning Board (the “Planning Board“), among other agencies. The comments are then sent to the County Executive, who sends the application and a recommendation to the County Council. The Planning Board holds a public hearing on WSCCRs and submits its own recommendation to the County Council. The County Council itself will also hold a public hearing before taking action on the WSCCR, by either approving, deferring, or denying the application. The County Council may defer action pending review by the County Board of Appeals for special exception uses. If a WSCCR survives this county approval process, the County submits its approval of a proposed amendment to the state level authority, the Maryland Department of the Environment (“MDE“). MDE then reviews the proposal and makes the final decision to add approved amendments to the Water & Sewer Plan.
Land Use Regulations Affecting the Property
The Property is located within the Patuxent River Watershed in what is known as the Rural Edge Neighborhood (“Rural Edge“). One of the three tributary headwaters for the Patuxent River originates within the Property. Before 1981, the Property was zoned “Rural.” A designation of “Rural” means development is limited to “0.2 [dwelling units/acre],” or one dwelling per five acres of land. J.A. 595. In 1981, the Property was classified as “Rural Cluster,” meaning a zone with “[l]ow density without public sewer to protect natural resources.” Id. at 4703. Over the years, the Property has been subject to a number of land use and water plans. The most relevant plans are the 1997 Fairland Master Plan, the 2003 Water & Sewer Plan, and the 2012 Burtonsville Crossroads Neighborhood Plan (the “BCNP“).
The 1997 Fairland Master Plan was supplemented by the 2003 Water & Sewer Plan. The Water & Sewer Plan was intended to address “the existing and future water supply and sewerage system needs of Montgomery County.” J.A. 814. The first stated objective of the Water & Sewer Plan provides that “water supply and sewerage systems proposed in the plan shall emphasize service to the urbanized areas of the county, [and] shall support the land-use recommendations adopted . . . in County Council-approved local area master plans.” Id.
The Water & Sewer Plan also contains a Private Institutional Facilities (“PIF“) Policy that allows the County Council to consider approving public water and/or sewer services for “buildings constructed for an organization which qualifies for a federal exemption” in areas that are outside the scope of water and sewer service areas. J.A. 824. However, the Water & Sewer Plan expressed concern about “speculative interest in sites because of their potential ability to satisfy the PIF policy requirements, not because a specific private institution has a need for that site.” Id. at 826. Therefore, the Water & Sewer Plan advised that “[t]he County will likely need to address these institutional uses in the context of its master plans, zoning and subdivision ordinances, and water quality regulations.” Id. at 827.
While the Water & Sewer Plan remained in effect, the 1997 Fairland Master Plan was then amended and replaced entirely by the BCNP in 2012. The BCNP contained stricter provisions than the 1997 Fairland Master Plan for the properties within the Rural Edge and the specific subzone of the Rural Edge encompassing the Property. The BCNP stated, “no public sewer service should be permitted for any use.” J.A. 695.
C.
History of the Property
Unfortunately for a prospective buyer, the Property has a history of land use restrictions and of WSCCRs being denied or deferred but never approved, for both secular and religious developments. Over the years, the WSCCR failures have been an impediment to both the development and the sale of the parcels.
BC Parcel
In 2002, the previous owner of the BC Parcel filed a WSCCR for the development of residential housing and a dog kennel. In 2003, the County Council deferred the request pending a decision by the County Board of Appeals on a special exception request. That request was never ruled upon. And in June 2005, Burtonsville Crossing purchased the BC Parcel. On July 27, 2009, Burtonsville Crossing filed a WSCCR for the development of a senior housing project on the BC Parcel. On July 19, 2011, the County Council denied this WSCCR.
2.
BA Parcel
In March 1969, Burtonsville Associates purchased the BA Parcel. A Burtonsville Associates representative described the purchase as one meant “to turn a quick profit.” J.A. 1376. It did not work out that way, however. For approximately 30 years, Burtonsville Associates failed to “profitably market the land.” Id.
a.
1997 – 2007
Between 1997 and 2007, Burtonsville Associates filed four WSCCRs. In 1997, Burtonsville Associates filed a WSCCR (“WSCCR BA 1“) for an elderly housing development project. The County Council deferred action on WSCCR BA 1 pending approval by the County Board of Appeals for a special exception request. This request was denied in 2000.
In 2007, ElderHome, Inc., assigned its rights to purchase the BA Parcel to Patuxent Ridge, LLC (“Patuxent Ridge“), and Burtonsville Associates filed yet another WSCCR (“WSCCR BA 4“) for an elderly housing development project. Because WSCCR BA 2, which was filed for the earlier elderly housing development proposal, was still pending at the time, WSCCR BA 4 was denied as “premature.” J.A. 1704.
b.
New Hope Contracts
In January 2009, New Hope Korean Church (“New Hope“) entered into the first of three contracts with Patuxent Ridge to purchase the BA Parcel. The sale was contingent on obtaining water and sewer service for the parcel. However, New Hope was “unaware that the category sewer change was needed,” and “just thought that the water and sewer line needed to be extended.” J.A. 1104.
On July 27, 2009, Burtonsville Associates filed another WSCCR (“WSCCR BA 5“) in an effort to develop the BA Parcel for New Hope. New Hope subsequently terminated
But, for reasons not apparent in the record, New Hope also terminated the second contract, and on April 15, 2010, entered into a third contract with Patuxent Ridge to purchase the BA Parcel. Up to this point, Patuxent Ridge had retained the right to purchase the BA Parcel from Burtonsville Associates. But in May 2010, Patuxent Ridge assigned the right to purchase the BA Parcel to Burtonsville Crossing. Patuxent Ridge also assigned to Burtonsville Crossing its rights under the third contract to sell the BA Parcel to New Hope.
On July 19, 2011, the County Council deferred the New Hope WSCCR BA 5. But New Hope did not pursue the WSCCR BA 5 and instead terminated the third contract in November 2011. Ultimately, in February 2012, New Hope‘s attorney contacted the DEP and requested that WSCCR BA 5 filed by Burtonsville Associates be withdrawn.
Sarem Parcels
The three Sarem Parcels were initially purchased by Parviz and Iradi Sarem in 1977. These parcels were subject to inter-family transfers, and Marion and Jennifer Sarem ultimately became the sole owners of the parcels. Jennifer Sarem2 has been aware of the restrictions against public water and sewer service on her parcels since purchasing them:
Q: And that home [on Jennifer Sarem‘s parcels] utilizes an on-site septic system and well; is that correct?
A: Yes.
Q: And is that because the property is not designated to receive public water and sewer service?
A: Yes.
Q: And has that been the case as long as you‘ve owned the properties?
A: Yes . . . .
Q: And I believe you said that as long as you‘ve owned the properties that they‘ve been outside of the areas that the County has designated for public water and sewer service; is that correct?
A: Yes . . . .
J.A. 1037–41.
Canaan‘s Contracts and WSCCRs
Canaan is an evangelical Christian church that was established in 1996 in Wheaton, Maryland. Since that time, Canaan‘s membership has expanded significantly from roughly 20 to 2,000. The original church facility was built with a capacity of 250 seats, and the growth of the church ultimately led to overcrowding, a division of worship services into multiple sessions, a restricted amount of programs that could be offered, and a restricted amount of participants those programs could accommodate. Consequently, Canaan sought to obtain a larger facility to accommodate its religious needs. Canaan considered the Property as a possibility to fulfill its needs.
On behalf of the Landowners, Norris began discussing the sale of the Property with Canaan‘s real estate agent, Nurit Coombe (“Coombe“), in February 2013. Norris assured Coombe that Canaan would have no issues getting sewer access for the Property. He opined, “the County cannot delay or hinder development in any way, as the Reaching Hearts3 case proves,” and committed that the Landowners were “prepared to take [the County] to court” if necessary. J.A. 2369–2370. However, Ms. Coombe‘s independent research, including discussions with representatives of the County, review of the BCNP -- the relevant land and water use regulation -- and the history of the WSCCRs for the
Despite the concerns, Canaan proceeded with the contracts on the Property between June and July 2013. In order to get public water and sewer to the Property, the sale was contingent on the approval of WSCCRs. On June 26, 2013, the Landowners submitted four WSCCRs on behalf of Canaan.
However, on July 30, 2013, Canaan notified the Landowners that it would be terminating the contract. Coombe told the Landowners, “the buyers after thorough discussions with attorneys and the county decided that this project has a low probability to go thru [sic].” J.A. 2513. Canaan officially terminated the contract on August 27, 2013.
On May 16, 2014, Canaan entered into a second contract with the Landowners. This contract contained another contingency clause regarding the approval of a WSCCR for the Property. The key difference between this contract and the first contract was that the second contract cited RLUIPA and provided that the Landowners would “at once, in the name of the Church, file actions in the United States District Court for the Southern District of Maryland [sic] or the Circuit Court for Montgomery County” if the category change request was denied. J.A. 2518.
The report also speculated that public water service could potentially be considered for the Property but noted that “neither the applicants nor the church have indicated that water service alone would accomplish the planned site improvements.” J.A. 2577. Indeed, Appellants did not subsequently pursue approval for septic and public water alone, and feasibility studies for this alternative were not conducted while the County was reviewing the submitted WSCCRs. Since the denial of the WSCCRs, the County has determined an 800 seat facility using septic could be feasible.
In June 2015, the Planning Board held a meeting and unanimously voted to recommend denial of the WSCCRs, based on the BCNP. Additionally, the Transportation and Environment Committee -- one of the agencies that submits comments on WSCCRs to
On September 26, 2016, Canaan and the Landowners modified their 2014 contract to extend the time to file a lawsuit contesting the denials of the WSCCRs.
E.
Procedural History
On November 14, 2016, Appellants brought this action against Appellees, asserting five causes of action: (1) a RLUIPA substantial burden claim; (2) a RLUIPA unreasonable limits claim; (3) a RLIUPA equal terms claim; (4) a First Amendment free exercise claim; and (5) a Fourteenth Amendment equal protection claim.
The parties filed cross motions for summary judgment on all claims. The district court held a hearing on these motions on September 23, 2020. On September 30, 2020, the district court denied Appellants’ motion for summary judgment and granted summary judgment to Appellees. On October 29, 2020, Canaan and most4 of the Landowners appealed three claims: 1) the RLUIPA substantial burden claim; 2) the RLUIPA equal terms claim; and 3) the First Amendment free exercise claim.
We review a grant of summary judgment de novo. Calloway v. Lokey, 948 F.3d 194, 201 (4th Cir. 2020). A district court may grant summary judgment only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
III.
A.
RLUIPA Substantial Burden Claim
1.
Pursuant to the substantial burden provision of RLUIPA:
No 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--
- is in furtherance of a compelling governmental interest; and
- is the least restrictive means of furthering that compelling governmental interest.
Unlike in an institutionalized persons RLUIPA substantial burden case, where a plaintiff must show that the defendant pressured him to violate his beliefs, 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 modify its behavior” as opposed to its beliefs. Bethel World Outreach Ministries v. Montgomery Cnty. Council, 706 F.3d 548, 556 (4th Cir. 2013); see Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006). This “protects against non-discriminatory, as well as discriminatory, conduct that imposes a substantial burden on religion.” Bethel, 706 F.3d at 557. If a plaintiff demonstrates that the land use regulation imposes a substantial burden, the defendant must then satisfy strict scrutiny by demonstrating that the land use regulation is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. See
2.
We utilize a two step analysis to determine whether or not a substantial burden is imposed: we ask (1) whether the impediment to the organization‘s religious practice is substantial and (2) whether the government or the religious organization is responsible for the impediment. Jesus Christ Is the Answer Ministries, Inc. v. Baltimore Cnty., 915 F.3d 256, 261 (4th Cir. 2019) (“JCAM“).
In the land use context, the impediment is substantial if “the property would serve an unmet religious need, the restriction on religious use is absolute rather than conditional, and the organization must acquire a different property as a result.” JCAM, 915 F.3d at 261 (citing Bethel, 706 F.3d at 557–58).
For instance, the religious facilities in Bethel “inadequately serve[d] [the church‘s] needs,” as the facilities were “overcrowded, requiring ushers to turn people away from services and limiting Bethel‘s ability to offer various programs,” causing the church “to hold four services every Sunday, and to shorten services, interfering with [religious practices],” and “creat[ing] a sense of disunity because the congregation [was] divided into so many separate services.” 706 F.3d at 558. We concluded that the restrictions on the church were absolute because “the County ha[d] completely prevented Bethel from building any church on its property, rather than simply imposing limitations on a new building,” which would have required the church to acquire different property to accommodate its religious needs. Id. at 558. However, “[t]he absence of affordable and available properties within a geographic area will not by itself support a substantial burden claim under RLUIPA.” Andon, LLC v. City of Newport News, 813 F.3d 510, 516 (4th Cir. 2016).
In this case, there is undisputed evidence of an unmet religious need. The burdens described by Appellants are similar to those described in Bethel: an overcrowded facility, the need for multiple services to accommodate the number of members, and a lack of space for programs. Compare Appellants’ Opening Br. at 3–5, with Bethel, 706 F.3d at 558. And
However, Appellants have not presented evidence that the restriction on religious use is absolute.5 See JCAM, 915 F.3d at 261 (holding that there is “usually” a substantial burden where a property that would serve an unmet religious need is faced with “absolute, rather than conditional,” restrictions, which would force the religious organization to acquire another property instead) (citing Bethel, 706 F.3d at 557–58). To the contrary, the County indicated during and after its review of the Canaan WSCCRs that alternatives might have been more successful. For instance, the evidence demonstrates the County‘s consideration of approving religious land use for smaller buildings and for septic with public water service only. During the initial review of the WSCCRs, the County suggested an application for water service only might have different results, but it did not pursue this analysis at the time as it believed Appellants were only interested in developments allowing public sewer service. After the review process, the County also independently conducted a feasibility study and concluded an 800 seat church could probably be operated on the Property using septic. This distinguishes this case from Bethel, where the religious
Nonetheless, Appellants argue the restriction on religious use in this case is absolute despite the fact that the County considered and approved a smaller facility serviced by septic on the Property. Appellants assert that an 800 seat church is well below the 2,000 seat facility Canaan needs and would be “inadequate.” Appellants’ Reply Br. at 4–5. However, this argument is inconsistent with Bethel, inasmuch as Appellants presented no evidence that the County “has completely prevented [Canaan] from building any church on its property, rather than simply imposing limits on a new building.” Bethel, 706 F.3d at 558. The fact that there are practical and legal restrictions preventing a larger development on the Property does not amount to a RLUIPA substantial burden violation. Therefore, Appellants do not demonstrate that they satisfy the first step in the analysis -- that is, that the impediment on a religious practice is substantial.
b.
As to the second step of the analysis, we consider whether the religious organization had a reasonable expectation of religious land use and whether the burden is self-imposed. Andon, 813 F.3d at 515 (citing Bethel, 706 F.3d at 557–58). Here, even if the impediment in this case was substantial, Appellants cannot demonstrate they had a reasonable expectation of religious land use.
A burden is self-imposed, for example, where a religious organization “knowingly entered into a contingent lease [or purchase] agreement for a non-conforming property.”
In contrast, burdens on a religious organization may not be self-imposed where the organization acquires land with a reasonable expectation of land use but the government subsequently makes development and use practically impossible. For instance, the church in Reaching Hearts International, Inc. v. Prince George‘s County submitted WSCCR applications and modified its development plans in response to land use restrictions that changed between its application attempts. See 584 F. Supp. 2d 766, 785 (D. Md. 2008), aff‘d, 368 F. App‘x 370 (4th Cir. 2010) (per curiam). Although there were no objections to these applications at public hearings or otherwise during the process, the applications were denied. See id. at 774–75, 779. Meanwhile, secular applicants, including a property in the same area, were approved. See id. at 775. In Reaching Hearts, the county relied on environmental reasons as its justification for denying the church‘s application, citing concerns about development next to a reservoir and the impact on water quality. However, it “did not adduce any evidence at trial that demonstrated that an approval of any of [the church‘s] applications would have any impact—much less a negative impact—on [the reservoir]. [The county] did not produce any data, studies, or reports on this issue,” nor did the county demonstrate why the church‘s use of the land would impact the reservoir differently than other surrounding properties. Id. at 788 (emphasis in original). The district
Appellants suggest this case is akin to Reaching Hearts or Bethel, where “a religious organization buys property reasonably expecting to build a church, [but] governmental action imped[es] the building of that church.” Bethel, 706 F.3d at 557. But this case more closely resembles Andon. While Reaching Hearts and Bethel dealt with land use regulations being changed after the purchase of property by a religious organization, Andon describes a situation where parties “knowingly entered into a contingent lease agreement for a non-conforming property.” Andon, 813 F.3d at 515. The latter is the case here. Appellants’ burdens were “self-imposed hardships.” Id. As a result, Appellants could not have a reasonable expectation that the Property could be used as a church.
Appellants assert that they had a reasonable expectation of approval of the WSCCR based on the Water & Sewer Plan‘s PIF Policy, which allowed for qualifying institutions to be considered for approval of public water and sewer. While it is undisputed that Canaan qualifies as a PIF, the Water & Sewer Plan‘s PIF Policy is not the controlling regulation. Rather, the controlling regulation is the master plan, the BCNP. The Water & Sewer Plan states “water and sewer service decisions should follow and implement the land use and development guidance established in the County‘s General Plan and local area master
The undisputed facts surrounding the negotiations for the purchase of the Property, as well as the terms of the contracts themselves, clearly demonstrate that Appellants were well aware of the regulations restricting the Property. Because Appellants knowingly entered into a contingent sale agreement for property that was expressly excluded from receiving public sewer access under the master plan, they could not have had a reasonable expectation of the County approving their WSCCRs for public sewer access.
Appellants also rely on Reaching Hearts in an attempt to support their claim that their expectation of religious land use with public sewer access was reasonable under the existing “state of the law and the track record of the agencies that would be reviewing its application.” Appellants’ Opening Br. 43 (emphasis in original). However, Reaching Hearts is not helpful to Appellants in this regard either for a number of reasons.
First, unlike in Reaching Hearts, here the County did not pass any land use restrictions affecting the Property after Canaan entered into contracts with the Landowners. Next, although the County cites environmental reasons for its denial of the WSCCRs, unlike in Reaching Hearts, here the County also provided evidence supporting these concerns. Finally, the “track record of the agencies that would be reviewing” the WSCCRs in this case demonstrates that applications involving the Property, both religious and secular, were not likely to be approved and Appellants knew it. Thus, Reaching Hearts
Where a plaintiff successfully demonstrates a substantial burden was imposed as a result of the government‘s actions,
B.
RLUIPA Equal Terms Claim
1.
No government shall impose or implement 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.
We have not yet addressed this provision of
A plaintiff bringing an as-applied Equal Terms challenge must present evidence that a similarly situated nonreligious comparator received differential treatment under the challenged regulation. If a plaintiff offers no similarly situated comparator, then there can be no cognizable evidence of less than equal treatment, and the plaintiff has failed to meet its initial burden of proof.
450 F.3d at 1311 (emphasis in original).
This “similarly situated nonreligious comparator” analysis has been favored by several other of our sister circuits, “with most holding that a comparator for an equal terms claim must be similarly situated with regard to the regulation at issue.” Tree of Life Christian Sch. v. City of Upper Arlington, 905 F.3d 357, 368 (6th Cir. 2018) (emphasis in original) (citing Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1173 (9th Cir. 2011); Elijah Grp., Inc. v. City of Leon Valley, 643 F.3d 419, 424 (5th Cir. 2011); River of Life Kingdom Ministries v. Vill. of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010)); see also Signs for Jesus v. Town of Pembroke, 977 F.3d 93, 109–10 (1st Cir. 2020) (“[S]everal circuits . . . generally require that the comparators be similarly situated with respect to the purpose of the underlying regulation . . . . Absent the existence of such a
2.
For a comparator here, Appellants primarily rely on the example of the Glenstone Museum (“Glenstone“), a secular organization which applied for and received a WSCCR from the County in 2012. Critically, Glenstone is in a different part of the County and was subject to the Potomac Subregion Master Plan (“Potomac Plan“), not the BCNP. While the BCNP had a specific prohibition for the Property against public sewer “for any use,” the Potomac Plan only “generally” excluded public sewer service for the area where Glenstone was located. J.A. 323, 695. Appellants argue that the particular differences between the two master plans are not meaningful. Appellants further contend that the PIF Policy and what they refer to as a “newly formulated . . . ‘Specific Restrictive Language’ policy” are the appropriate land use and decision-making criteria. Appellants’ Opening Br. at 2, 52. Appellants contend that under these considerations, Glenstone was treated more favorably than Canaan. We disagree.
The “‘Specific Restrictive Language’ policy” is not actually a policy articulated by the County. Rather, Appellants simply attempt to convert the County‘s process for interpreting and applying master plans to WSCCRs into a “policy” to serve Appellants’ purposes. In attempt to do so, Appellants emphasize the County‘s distinction between “specific” prohibitions, such as the BCNP‘s prohibition against public sewer for the Property “for any use,” and “general” restrictions, such as the Potomac Plan‘s recommendation that the County follow the Water & Sewer Plan, which would “generally exclude” the property Glenstone owned from sewer service with “limited” approvals of service to properties adjacent to existing lines. J.A. 323, 695, 4142. Appellants suggest this distinction between general and specific restrictions in the master plans was a formal policy crafted by the County through the process of reviewing the Canaan WSCCRs. But as noted above, that is not accurate. The County was not using a formal policy to grant or deny WSCCRs based on how general or specific the relevant master plan‘s language was. Rather, the County was simply interpreting each master plan to determine whether a WSCCR for property falling under that plan could be granted.
b.
Appellants note that Glenstone also qualified as a PIF, and they argue the approval of Glenstone‘s WSCCR is evidence of disparate treatment by the County. Again, Appellants’ continued focus on the PIF Policy misses the mark. Appellants misconstrue the relationship between the PIF Policy and master plans by referencing the PIF Policy in isolation or treating it as controlling over master plans. As previously described, the
c.
Likewise, Appellants fail to identify a comparator subject to the BCNP that was treated more favorably than Canaan. The history of denied or deferred WSCCRs for both religious and secular developments on the Property demonstrate the County‘s consistency in applying the master plan when reviewing applications for water and sewer extensions. Appellants point out, correctly, that those previous development attempts fall under earlier master plans, with most of the described attempts occurring under the 1997 Fairland Master Plan. It is notable, though, that even under the more lenient 1997 Fairland Master Plan, the County did not approve any of the secular WSCCRs submitted for the Property. Thus, Appellants cannot show the County discriminated against religious land use development for the Property, and their
First Amendment Free Exercise Claim
Appellants’ final claim is that the County violated the Free Exercise Clause of the
For the purpose of a free exercise claim in the land use context, a facially neutral and generally applicable regulation is subject only to rational basis review, “even where it has the incidental effect of burdening religious exercise.” Emp‘t Div., Dep‘t of Human Res. v. Smith, 494 U.S. 872, 879 (1990); see Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1876–77 (2021) (declining to overrule Smith). But, a government restriction that is not neutral but is meant “to infringe upon or restrict practices because of their religious motivation” is subject to strict scrutiny. JCAM, 915 F.3d at 261 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 546 (1993)). For instance, where a religious organization alleges that a government decision restricted use of their property in response to community opposition to the religious organization, “[t]his allegedly discriminatory motive triggers strict scrutiny.” Id. Individualized assessments
The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it “invite[s]” the government to decide which reasons for not complying with the policy are worthy of solicitude, Smith, 494 U.S. at 884, 110 S.Ct. 1595—here, at the Commissioner‘s “sole discretion.”
Here, Appellants again assert that the appropriate land use regulations are the PIF Policy and an “improvised policy shift,” which Appellants have elsewhere referred to as a “specific restrictive language policy.” Appellants’ Opening Br. at 50. In the context of their free exercise claim, Appellants argue that these policies are not neutral and generally applicable. Rather, Appellants claim the WSCCR denials were the result of “an individualized determination.” Id.
Appellants rely on Fulton as support for their claim that the WSCCRs were reviewed under a discretionary system that could have accorded them an exception. However, as detailed above, the evidence does not demonstrate that the decision to deny the WSCCRs was based on a discretionary policy. Rather, the decision was based on the BCNP, which expressly prohibited the extension of sewer service to the Property “for any use” without exception. J.A. 695. Consequently, Fulton is inapplicable.
The concurrence points to the “public health problem exception” language in the BCNP to suggest the master plan‘s restrictions against public sewer service for the Property contains an exception. Post at 38–39. But this is a misreading of the BCNP. The BCNP
The BCNP is facially neutral and generally applicable, and Appellants fail to offer evidence that the County had a discriminatory motive that would trigger strict scrutiny. Therefore, rational basis is the appropriate level of review here. Rational basis review “requires merely that the law at issue be ‘rationally related to a legitimate governmental interest.‘” Bethel, 706 F.3d at 561 (citing Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 649 (10th Cir. 2006); Brown v. City of Pittsburgh, 586 F.3d 263, 284 (3d Cir. 2009); Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 292 (5th Cir. 2001)).
Appellants have not shown that BCNP is not rationally related to a legitimate governmental interest. To the contrary, as the district court concluded, the County‘s plan to protect the “sensitive” “tributary headwaters, which originate in the [Property]” is a legitimate interest and the BCNP furthers that interest by restricting development to prevent damage to the watershed. J.A. 702, 4901. Thus, the County‘s actions withstand rational basis review.
Accordingly, for the reasons set forth herein, we affirm.
AFFIRMED
I agree with most of Judge Thacker‘s fine majority opinion and fully agree with its judgment.1 I write separately for two reasons. First, to point out a few minor concerns with the majority‘s reading of the Equal Terms provision of the Religious Land Use and Institutionalized Persons Act. Second, to expand on Judge Thacker‘s Free Exercise analysis because I believe there is a complication that makes this a closer question than it may at first seem. Neither difference changes my view of the outcome, and I agree that all of Canaan‘s claims were properly dismissed.
I. Equal Terms
I agree with the majority that there are four elements to a prima facie claim under
First, there are at least two ways to bring an Equal Terms claim under
In my view, only the as-applied challenge requires the plaintiff to bring forward a comparator of any kind. See River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367, 387 (7th Cir. 2010) (Sykes, J., dissenting). If the face of a zoning rule gives better terms to the museum than to the church, a plaintiff need not bring forward any
Here the majority endorses the requirement that a plaintiff bring forward a “similarly situated nonreligious comparator” as many other circuits have. Maj. Op. at 25 (citing Primera Iglesia, 450 F.3d at 1311). But given that our case no doubt falls in the as-applied bucket, this holding should not be read to extend beyond this case to potential facial challenges. A zoning rule that said “museums get sewers near the river but churches don‘t” should not be saved by arguing that churches are somehow not similarly situated to museums in light of the purpose of the regulation.
Second, even in the as-applied context, I do not agree that the nonreligious comparator need be “similarly situated.” See Douglas Laycock and Luke W. Goodrich, RLUIPA: Necessary, Modest, and Under-Enforced, 39 Fordham Urb. L.J. 1021, 1061 (2012). The text of the statute requires that a plaintiff like Canaan prove that they were treated “on less than equal terms with a nonreligious assembly or institution.”
After all, in an as-applied challenge, the specific facts of the properties, the proposed uses, and the zoning processes will all matter. But requiring a comparator to be “similarly
This analysis won‘t always mean the religious assembly will get the same outcome as the non-religious assembly: As long as book clubs and churches are both subject to a rule saying, “no buildings with more than 100 seats,” it would be acceptable to okay the 85-seat book club and turn down the 15,000-seat megachurch. See id. If a locality applies a rule like that equally, it has not violated the equal terms provision, and any further search for similarity between those buildings can only add confusion.
In my view, the language of “similarly situated” will encourage lower courts to look to any difference between properties or uses that could have justified different treatment based on some speculated purpose. See River of Life, 611 F.3d at 371 (“‘Purpose’ is subjective and manipulable.“). Thus, while it would not change the result here and maybe
Third, the majority suggests that there is a strict-scrutiny defense to an Equal Terms claim, but I disagree. See Maj. Op. at 24. The statutory language can‘t be read to justify such a defense, especially where the previous subsection regarding substantial burdens explicitly lays out a strict-scrutiny defense and the Equal Terms subsection does not. Compare
Whether there is a strict-scrutiny defense is yet another divergence that may not matter in practice. Strict scrutiny is often deadly. And it is hard to imagine a compelling governmental interest that requires treating churches, mosques, and temples differently from the Elks Lodge, the library, and the museum. And further yet, many compelling interests that would pass muster under any strict-scrutiny defense are likely to be represented already in the neutral and equally applicable zoning laws of many towns and cities. Still, we should not add this atextual hurdle.
While these minor differences are worth mentioning, they would not change the outcome here. I agree with the majority that Montgomery County should prevail because
II. Free Exercise
Here I write to expand on the Free Exercise holding because I believe there is one more thread that needs tying off. The majority opinion finds that the Burtonsville Plan created a categorical ban on sewers without exception, which is therefore subject only to rational-basis review. Maj. Op. at 29 (citing Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1876 (2021)). But I read the policy as an almost total ban on sewers on the Properties—almost but not quite. The Burtonsville Plan lays out specific rules for the Properties here—the Northern Properties within the Rural Edge—and those rules say, “no public sewer service should be permitted for any use.” J.A. 695. So no sewer for a museum or a church or a swimming pool. But a few pages later, the Burtonsville Plan contemplates
As the majority says, the Free Exercise clause subjects neutral and generally applicable regulations only to rational-basis review. Maj. Op. at 28 (citing Emp. Division v. Smith, 494 U.S. 872, 879 (1990)). The Supreme Court has clarified in recent years what it means for a law to be generally applicable under the Free Exercise Clause. Two notable classes of exceptions make an otherwise generally applicable law subject to heightened scrutiny: (1) where officials may use broad discretion to grant individualized exceptions—call that the unconstrained-discretion rule; and (2) where secular exceptions undermine the government‘s asserted rationale for the generally applicable law—call that the contradictory-secular-exception rule. I discuss each in turn.
A. The Unconstrained-Discretion Rule
The first exception to rational-basis review under the Free Exercise Clause is for those laws and regulations that may otherwise be general and neutral, but which provide for “individualized exemptions.” In Fulton, the Supreme Court explained that “the creation of a formal mechanism for granting exceptions renders a policy not generally applicable” where it “invites the government to decide which reasons for not complying with the policy are worthy of solicitude.” 141 S. Ct. at 1879 (cleaned up). In that case, a process for
The regulations governing Canaan‘s sewer application do not, in fact, violate this unfettered-discretion rule because the Burtonsville Plan is binding over the Water & Sewer Plan.2 Under the Burtonsville Plan, “no public sewer service should be permitted” on
B. The Contradictory-Secular-Exception Rule
There is another class of exceptions that has gotten more play in recent years. Heightened scrutiny is also triggered when religious exercise is treated worse than any comparable secular activity. As the court in Fulton puts it: “A law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government‘s asserted interests in a similar way.” 141 S. Ct. at 1877.
The Supreme Court has sometimes referred to this as an exception that ensures that churches receive equal treatment to “comparable secular activity.” Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam) (citing Roman Cath. Diocese of Brooklyn v. Cuomo
The Fulton court uses Church of Lukumi as its example of what counts as a “comparable activity.” 141 S. Ct. at 1877. The City‘s ban on “unnecessary” killings of animals was essentially gerrymandered to capture the religious animal sacrifice of the Santeria religion but made exceptions for secular practices like butchering, hunting, and extermination. Church of Lukumi, 508 U.S. at 527–28. The Court began by considering the asserted purposes of the regulation—public health and safety and protection of
This case does not trigger the contradictory-secular-exception rule because a public health exception does not cut against the asserted public-health interest in keeping sewers out of the watershed. The purpose of the ban on sewers in the watershed is to protect the
Because there is no unconstrained discretion here and because there is no contradictory secular exception, the Free Exercise Clause is not offended, and this claim was rightly dismissed.