MILES CHRISTI RELIGIOUS ORDER, Cesar Bertolacci, Father, and Francisco Conte-Grand, Brother, Plaintiffs-Appellants, v. TOWNSHIP OF NORTHVILLE, Chip Snider, in his official capacity as Northville Township Manager, Jennifer Frey, in her official capacity as Director of Community Development for Northville Township, Joseph Bauer, in his official capacity as Ordinance Enforcement Officer for Northville Township, Defendants-Appellees.
No. 09-1618.
United States Court of Appeals, Sixth Circuit.
Argued: June 10, 2010. Decided and Filed: Dec. 21, 2010.
Rehearing and Rehearing En Banc Denied Jan. 24, 2011.*
629 F.3d 533
Before: BATCHELDER, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.
* Chief Judge Batchelder would grant rehearing for the reasons stated in her dissent.
III.
For these reasons, we affirm.
Before: BATCHELDER, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.
SUTTON, J., delivered the opinion of the court, in which KETHLEDGE, J., joined. BATCHELDER, C.J. (pp. 542-54), delivered a separate dissenting opinion.
OPINION
SUTTON, Circuit Judge.
A religious order and two of its members filed this action under the
I.
Since 2002, Miles Christi, an international religious order, has owned a five-bedroom house on a one-acre plot of land in a residential neighborhood in Northville, Michigan. Several fathers and brothers of the order, six in all, live there. The fathers conduct private daily masses in a small eighteen-person chapel inside the house for members of the order. Miles Christi also hosts regular Bible studies “for invited friends and their children” with attendance ranging from five (the most common) to fifteen individuals. R.1 ¶ 18. Nothing on the exterior of the house suggests that the residents use it as a church or religious organization.
In March 2003, some Northville citizens wrote letters to township officials about the Miles Christi house, complaining about increased automobile traffic and the number of cars parked there and suggesting that the order was not using the house in compliance with the neighborhood‘s residential zoning. Northville‘s Town Planner, Maureen Osiecki, replied to at least one of the letters by saying that “the priests may use this home as their residence” and that the house was “not a church, nor a parish.” R.31-10.
The complaints did not stop there. Over the next few years, Joseph Bauer, Northville‘s Ordinance Enforcement Officer, continued to receive complaints about the house. On several occasions, he drove by the property and made notes about the zoning issues implicated by the complaints, but he did not take any action.
In December 2006, a neighbor called Bauer to complain about the amount of traffic and the number of parked cars at the house. She believed that the property was being used as an office rather than as a residence. In response to these complaints, Bauer conducted more frequent surveillance of the house. On at least one occasion, he recorded the license plate numbers of the cars parked at the house.
Bauer was not the only one conducting surveillance. The fathers and brothers of Miles Christi took several photographs of an officially marked car driving by their property and recorded the times—several per day—when the car drove by.
On February 7, 2007, Bauer sent a letter to Father Cesar Bertolacci describing his surveillance of the property. “Follow-up observations,” he wrote, showed that, during Sunday mass, “vehicles were parked on grassy areas in violation” of the zoning ordinance. R.31-12. He asked Miles Christi to “describe[] the measurements of the [oratory]” and to provide “an operations plan describing activities” so that the township could “determine if the present
When building alterations . . . are to be made, or use or activity is contemplated that may produce parking demand in excess of available spaces, the Township shall require a sketch plan and other written documentation of the change or a parking study to document adequate parking is provided or will be expanded to meet anticipated needs.
Father Bertolacci responded by letter on March 1, 2007, describing the activities conducted at the home and the eighteen-person oratory. “In order to reduce any parking on the grass,” he added, Miles Christi was “willing to expand [thеir] driveway if needed.” R.31-12. Father Bertolacci “question[ed] the validity of the complaints” but assured Bauer that Miles Christi wanted to do its best both to serve the community and to live responsibly within it. Id.
On March 23, 2007, several residents of the Miles Christi house met with township officials to discuss the parking issue. Joining Bauer on behalf of the township were Chip Snider, Township Manager, and Jennifer Frey, Director of Community Development. Jennifer Frey told the order that the Miles Christi house was operating as “something other than [a] single family residence” and that “they needed to provide . . . an operations plan to support and justify the amount of parking they [were] provid[ing].” R.31-26 at 55-56. Ultimately, she said, Miles Christi would need to provide parking in the rear of its lot sufficient to meet peak demand, estimated at twenty to twenty-two people. When the residents explained that they could not feasibly locate additional parking in the rear of the lot, the officials told them that they would have to (1) request a variance from the zoning board of appeals to allow parking in the front yard and (2) submit a site plan to the Northville Planning Commission detailing the intended expansion of parking spaces and sufficient landscaping to block the view of parked cars from neighboring properties.
By June 5, 2007, Miles Christi had not submitted a site plan, prompting Bauer to issue a ticket for violating Ordinance
On September 21, 2007, Miles Christi, Father Bertolacci and Brother Francisco Conte-Grand filed this action in federal court. They challenged the legality of Northville‘s zoning ordinances as applied to the Miles Christi house and the conduct of township officials in enforcing the ordinances, invoking the free-exercise protections of the
The state court stayed the enforcement proceeding pending the outcome of the federal action. The township defendants moved to dismiss the federal case, arguing that Miles Christi has not received a “final decision” about the application of Northville‘s zoning ordinances to their property, making the religious order‘s claims unripe. The district court agreed and dismissed the complaint without prejudice, rеasoning that the township‘s final decision concerning the application of the zoning ordinances is still “unknown” because Miles Christi has not appealed the demand for a site plan to the zoning board. Miles Christi appeals.
II.
The ripeness doctrine encompasses ”
To decide whether a dispute has ripened into an action amenable to and appropriate for judicial resolution, we ask two questions: (1) is the dispute “fit” for a court decision in the sense that it arises in “a concrete factual context” and involves “a dispute that is likely to come to pass“? and (2) what are the risks to the сlaimant if the federal courts stay their hand? Warshak, 532 F.3d at 525; see Abbott Labs., 387 U.S. at 149. In the land-use context, the demands of “a concrete factual context” and “a dispute that is likely to come to pass” converge in an insistence on “finality,” an insistence that the relevant administrative agency resolve the appropriate application of the zoning ordinance to the property in dispute. In the related context of takings claims under the
No final decision. Miles Christi concedes that it has not gone to the zoning board to determine whether the ordinances require it to submit a site plan and, if so, which regulations impose this obligation and why. And it does not deny that the administrative process permits residents to seek a variance. What the religious order says instead is that Jennifer Frey‘s request that Miles Christi provide a site plan, based on a determination that the home was being used in a more intensive way than residential zoning permits, amounts to the kind of final decision necessary to overcome these ripeness concerns.
This position, however, does not square with the relevant regulations. At the time the complaint was filed, the Northville Code provided that “[t]he Zoning Board of Appeals shall be responsible for interpretations to the text of [the zoning ordinances]” and shall be responsible for “interpret[ing] the provisions or meaning of standards of [the ordinances].”
No hardship to Miles Christi. An appeal to the zoning board not only will ground this dispute in a concrete legal setting—by permitting the zoning board to clarify the township‘s application of its land-use laws to this property—but it also may help Miles Christi. The zoning board may grant a variance to the religious order, or it may provide a different intensive-use determination. Both forms of relief will considerably narrow the grounds of dispute between the parties if not end the dispute altogether. Far from imposing a hardship on Miles Christi, an appeal to the zoning board may give the order the very relief it seeks: the chance to live and serve the Northville community without further inquiries, or for that matter harassment, from the neighbors and township officials.
We have been down this road before. In Grace Community Church, a township issued a special use permit to a church, and one month later the township revoked the permit after a neighbor complained that the church was not complying with the conditions of the permit. 544 F.3d at
Unlike Grace Community Church, Miles Christi responds, a voluminous record makes its and the Township‘s positions “well defined.” Miles Christi Br. 44. But the existence of an extensive record—Miles Christi‘s response to the township‘s summary judgment motion, including exhibits, comprises over 750 pages—is not the same as “a concrete factual context,” which is what matters. Warshak, 532 F.3d at 525. Indeed, in Warshak, a case also dismissed on ripeness grounds, the record included numerous exhibits relating to government officials’ past conduct, see Warshak v. United States, No. 06-cv-00357 (S.D. Ohio June 12, 2006), but nothing that shed light on the material question of what government officials would do in the future, see Warshak, 532 F.3d at 526-27.
Nor do the parties’ summary judgment attachments, inсluding photographs, letters, deposition transcripts and other documents, make up for the same omission that doomed an early federal resolution of the dispute in Grace Community Church: a definitive statement from the zoning board, the entity charged with interpreting Northville‘s zoning ordinances, about which ordinances apply to Miles Christi and about whether Miles Christi must submit a site plan under the ordinances. As things now stand, “we have no idea,” Abbott Labs., 387 U.S. at 158, 163, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), whether the township‘s position, as determined by the zoning board, see
Even aside from these concerns, we cannot say as Miles Christi does that the Township‘s position is “well defined.” During the state court proceedings, Frey testified that she did not know under which ordinаnce Bauer was going to issue a ticket, only that it would be a ticket for “[violations of the zoning ordinance.” R.31-26 at 62. She also testified that she had not classified the Miles Christi house as a church but had simply determined that it was “something other than a single family residential” home. Id. at 54-55. Yet, according to the complaint, which we must take as true at this stage of the case, Frey previously told Miles Christi that it was a “small church” under the zoning ordinances and as a result would have to
Miles Christi protests that, as a matter of hardship, the township put it to a “Hobson‘s choice” of incurring “the costs and burdens associated with submitting” a site plan on the one hand or continuing constitutionally protected activities on the other. Miles Christi Br. 31-32, 51. But that is a false dichotomy. There is a third option—going to the zoning board—which may put this entire dispute to rest and which at a minimum makes Miles Christi‘s choice anything but Hobsonian. The zoning board may determine, as a matter of interpretation, that the Northville Code does not require it to submit a sitе plan. Or it may determine, as a matter of discretion, administrative grace if you will, that Miles Christi should get a variance. Either way, Miles Christi will be able to continue its current use of the house without incurring additional costs or burdens.
Miles Christi adds that the township‘s actions have had a “chilling effect” on its constitutionally and statutorily protected activities: Threatening to ticket vehicles parked on the lawn, conducting surveillance of the religious order, recording license plates and issuing a ticket for a zoning violation all have “limit[ed]” the order‘s “religious activities.” Miles Christi Br. 51-52. It is true that the existence of a constitutional claim, particularly a
But a claim does not become ripe at the first whiff of governmental insensitivity or whenever a government official takes an adverse legal position against someone, even if one potential response is to curtail protected activities. One justification for the ripeness doctrine is that it avoids the premature resolution of constitutional questions, including
The finality rule, we acknowledge, is a “prudential requirement[],” and we need not follow it when its application “would not accord with sound process.” Lucas, 505 U.S. at 1012. But for the reasons given, we fail to see why this prudential requirement should be ignored here. Both parties, to say nothing of the federal courts, may benefit from the zoning board‘s input, and the claimant, Miles Christi, faces no jeopardy in the interim, in view of the suspension of the state-law ticketing proceeding.
Murphy v. New Milford Zoning Commission, 402 F.3d 342 (2d Cir. 2005), does not alter this conclusion but indeed bolsters it. The Murphy claimants hosted weekly prayer meetings in their home. Id. at 345. After several complaints from neighbors, the town informed the Murphys that the zoning laws barred them “from hosting regularly scheduled meetings exceeding twenty-five non-family members.” Id. at 344. The town eventually issued a cease and desist order, and the Murphys filed a lawsuit in federal court rather than appealing to the zoning board. Id. at 345. The Second Circuit concluded that the Murphys’ claims, even those under the
There is, to be sure, one difference between the Murphys’ case and today‘s case: Northville issued a ticket to Miles Christi, while the town did not do the same to the Murphys. Yet it is not clear which way the existence of this state court enforcement аction cuts. In the criminal context, a pending state court action concerning the same issues implicated by a federal civil action requires the federal courts to abstain from resolving the civil action until the state courts have acted. Younger, 401 U.S. at 40-41. And the Younger abstention doctrine applies to at least some types of state court administrative enforcement actions. Huffman v. Pursue, Ltd., 420 U.S. 592, 594 (1975); cf. Executive Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783, 791 (6th Cir. 2004).
III.
For these reasons, we affirm.
ALICE M. BATCHELDER, Chief Judge, dissenting.
Because I believe that the majority opinion does not adequately account for the
This case revolves around Jennifer Frey‘s intensity determination, not, as Northville frames it, the possible end result of the larger zoning process. The two are in fact distinct, and Miles Christi‘s claims arise from Frey‘s decision. Miles Christi was thrust into the current controversy, not because of any actions it initiated, but solely because of actions initiated by state officials. Frey, acting pursuant to her authority as Director of Community Development, determined that Miles Christi had intensified the use of its property; yet Miles Christi was merely using its property exactly as it always had. Frey‘s decision immediately harmed Miles Christi‘s
Because Miles Christi suffered a
Further, any relief that the ZBA may ultimately provide does not impact the finality of Frey‘s intensity determination. The line between exhausting administrative remedies and obtaining a final decision is often obscure, but the two concepts are distinct. Everything that happened to Miles Christi is a result of Frey‘s decision. That decision was final and had an immediate, harmful effect. Any relief that the ZBA may provide is merely an administrative remedy, and its availability has no bearing on the finality of Frey‘s intensity determination.
I.
A review of the record below clearly demonstrates that it was Frey‘s decision that placed Miles Christi in its current position. Miles Christi is an international Catholic religious order. Since 2002, this particular community has resided in a single-family home in Northville. Also since 2002, Miles Christi has continuously used its home for private daily masses and Bible studies. From 2002 until the events in 2007 giving rise to this litigation, Miles Christi‘s use of its property remained unchanged.
Miles Christi hired an engineering firm to estimate the cost of compliance with the ordinances. That review cost about $5,000. The firm estimated the compliance cost at around $80,000, along with the cost of completing and submitting the site plan itself, which could cost an additional $30,000.
Miles Christi did not submit the site plan on the required date, and Bauer issued a civil infraction ticket to the Order on June 5, 2007. Issuance of the ticket commenced legal proceedings in state court to enforce Northville‘s requirement that Miles Christi submit a site plan. The ticket required Miles Christi to appear in state district court on June 20, 2007, and carried the potential penalty of a sizable fine.
Miles Christi did not pursue any administrative appeals with the Zoning Board of Appeals (“ZBA“) or seek a variance, but instead challenged the ticket in the state court proceeding that Northville had initiated. The Michigan district court dismissed the case, ruling that the regulation was overly vague and subjective because it contained no standard by which to judge what constituted a “more intensive use” of the property. Northville appealed, and the state circuit court reversed and remanded. On remand, the parties agreed to hold the case in abeyance pending the results of this federal litigation.
Miles Christi claims that as a result of the ticket and the threat of future enforcement—including a threat to ticket attendant vehicles if there were too many or if any were parked on the grass—it has refrained from asking friends to join it for religious or other social activities. The Order has continued to celebrate Mass in the oratory and does have on its website a notice for continuing Bible studies and religious activities.
Plaintiffs filed this suit on September 21, 2007, in federal district court raising claims under
II.
We review an order to dismiss for lack of subject matter jurisdiction de novo. Wagenknecht v. United States, 533 F.3d 412, 415 (6th Cir. 2008).
Ripeness is a justiciability doctrine arising from both
Courts generally consider three factors to determine if a claim is ripe: (1) “the likelihood that the harm alleged by [the] plaintiffs will ever come to pass“; (2) “whether the factual record is sufficiently developed to produce a fair adjudication of the merits of the parties’ respective claims“; and (3) “the hardship to the parties if judicial relief is denied at this stage in the proceedings.” Adult Video Ass‘n v. U.S. Dep‘t of Justice, 71 F.3d 563, 568 (6th Cir. 1995) (internal alterations, quotation marks and citations omitted). The test has also been articulated as “two basic questions: (1) is the claim fit for judicial decision in the sense that it arises in a concrete factual context and concerns a dispute that is likely to come to pass? and (2) what is the hardship to the parties of withholding court consideration?” Warshak v. United States, 532 F.3d 521, 525 (6th Cir. 2008) (en banc) (internal alterations, quotation marks, and citation omitted).
The United States Supreme Court has articulated an additional “finality” requirement for ripeness in the land-use context. See Williamson Cnty. Reg‘l Planning Comm‘n v. Hamilton Bank, 473 U.S. 172, 186 (1985). In Williamson County, a
We have previously cited with approval to a threshold test used by the Second Circuit when determining whether to apply Williamson County‘s prudential finality requirement to
In Insomnia, we noted that the Second Circuit had “declined to apрly the finality requirement in a limited set of
I therefore would consider on review whether Williamson County‘s prudential finality requirement applies to Miles Christi‘s specific
B. Murphy‘s Threshold Test—Immediate Harm
The district court found that Miles Christi did not suffer an immediate harm from Northville‘s decision.1 It found that Miles Christi‘s decision to cancel the Bible study and limit visitors was voluntary because Northville did not issue a cease-and-desist order. “Defendants did not require, or even suggest[,] that Plaintiffs limit the number of guests to the property.” R.50 at 11. It found further support from the fact that Miles Christi‘s decision to limit visitors could not cure the reason for the infraction ticket, which was a failure to submit a site plan, and from the fact that the religious activities are currently ongoing on the property. It did not specifically consider any other harms.
Miles Christi argues that it did suffer immediate harms from Northville‘s decision, including: suppression of speech in the cancellation of a Bible study due to police surveillance; the “chilling” of speech and religious activities due to the threat of vehicle tickets or zoning citations; having to pay $5000 for an unnecessary engineering study; being put to the choice of either paying for an expensive site plan or curtailing or eliminating the Order‘s religious activities because of Frey‘s intensity decision; and being ticketed, haled into state court, and potentially subjected to a substantial civil fine. Miles Christi stresses the
Northville argues that requiring the site plan does not inflict a harm, but is merely a necessary procedural step towards obtaining a final decision; and that the civil infraction ticket is not a harm, because the proceedings have been stayed. Northville claims that the ticket can still be appealed to the ZBA, although at oral argument it contended that even that step would not result in a final decision because the local authority would still have to determine exactly what Miles Christi would have to do to conform its property to local ordinances. The town points out that Miles Christi has not yet been subjected to any fines or criminal sanctions, and claims that Miles Christi would not need to eliminate its religious activities, but merely needs to resolve the parking problem associated with the activities. Finally, Northville disagrees that its activities chilled Miles Christi‘s speech.
In Murphy, the Second Circuit applied the finality requirement, holding that a cease-and-desist letter, alone, was not sufficient to constitute an injury. The plaintiffs held large Christian prayer meetings in their home, hosting between 10 and 60 persons weekly. Murphy, 402 F.3d at 345. After the neighbors complained about the traffic, number of cars, and noise from these gatherings, the town investigated and then sent an informal letter to the plaintiffs, advising them that the large prayer meetings were not a “customary accessory use in a single-family residential area.” Id. at 344. Two days later the plaintiffs sued in federal district court. The town later sent a formal cease-and-desist letter, which the plaintiffs incorporated into their amended complaint. The plaintiffs did not appeal the cease-and-desist order or request a variance. The district court found for the plaintiffs and issued an injunction against enforcement of the regulations. The Second Circuit reversed. First, it held that the cease-and-desist order did not subject the plaintiffs to an immediate injury. The town did not have the power to enforce the lеtter by arrests or fines without taking the additional step of bringing an action in state court, so there was no threat of immediate harm. Id. at 351. Also, an appeal of the order to the zoning board would have yielded an automatic stay of enforcement. Next, the court held that the record was insufficiently developed, and that further administrative actions below would help to define it. Id. at 351-52. The court relied heavily on the zoning board‘s power under Connecticut law to find facts and apply zoning regulations to those facts, and to review the town‘s decision de novo. Id. at 352. Accordingly, the court applied the finality requirement, and because the plaintiffs did not request a variance or appeal the cease-and-desist order to the zoning board, the
In Insomnia, we held that the requirement to file a new plan is not an immediate injury in the context of an administrative process voluntarily instigated by the plaintiff. Insomnia, 278 Fed.Appx. at 615-16. The plaintiff corporation alleged that the Land Use Control Board (“LUCB“) denied its application to subdivide two parcels of land into three out of hostility to the “adult entertainment” industry. The LUCB instructed Insomnia Inc. to resubmit its application as a planned development instead of a subdivision, which would allow closer regulation of the property. Id. at 611. Insomnia Inc. appeаled the denial to the Memphis City Council, was denied, and then sued in federal district court claiming
I believe that, taken in context of the record as a whole, Northville‘s actions went further than the actions of the municipal actors in either Murphy or Insomnia. Context is vital in these cases because
Miles Christi has alleged sufficient “immediate harms” that it would be imprudent to apply the finality requirement to its claims. First, Miles Christi claims that it cancelled a Biblе study on account of the pretextual police surveillance. This alleged harm occurred at a specific time in the past, and like the landowner‘s takings claim in Lucas, cannot be cured by a later administrative ruling. Second, it claims that Northville‘s threats to ticket cars parked on the grass and the potential for further civil infraction tickets “chilled” the Order‘s religious activities. This is likewise an immediate harm to protected
Third, Miles Christi paid $5000 for an engineering estimate. Although in Insomnia
Finally, Frey‘s decision put Miles Christi to the choice of submitting an expensive site plan or drastically curtailing or ceasing its protected activities. When it refused, it was ticketed, haled into state court, and now faces the potential of a civil fine. As noted, this case is not like Insomnia, or most other land-use cases, because Plaintiffs did not seek a change in use on their own and in fact claim that their use has not changed. It is also unlike Murphy, where the town had not yet taken the step of bringing the plaintiffs to court in order to subject them to a civil penalty. Here, Northville has tried to force Miles Christi into an expensive—and, Miles Christi claims, unwarranted—site review process and haled it into state court when it refused. Miles Christi has suffered immediate harm.
Miles Christi‘s claim that Northville‘s reasons are pretextual is supported by Northville‘s statement at oral argument that “football parties and tailgate parties” do not change “the residential nature of the use; whereas, what they‘re doing here,
Because I would hold that Miles Christi has alleged sufficient immediate injuries, I need not address whether requiring Miles Christi to pursue additional administrative remedies would further define its allegations, and I would hold that the finality requirement does not apply to its
C. Frey‘s decision was “final”
In order to determine if Miles Christi‘s remaining claims under equal protection, due process, and RLUIPA are ripe, we must determine if Miles Christi has received a final decision. I would hold that it has.4
As I have already noted, “the finality requirement is concerned with whether the initial decisionmaker has arrived at a definite position on the issue that inflicts an actual, concrete injury.” Williamson County, 473 U.S. at 192. The developer in Williamson County sued the local land planning committee in a
Relying heavily on the specific local procedures, the Court held that the developer had not obtained a “final decision” because it did not apply for available variances from the Board or the commission. Id. at 188-89. Between the commission and the Board, the developer could have pursued up to five variances, any or all of which would have significantly ameliorated the commission‘s eight objections to the plat. This was critical because unless the developer applied for variances before submitting the plat for approval, the commission could reject the plat on any grounds, including those that could well be covered by variances. Id. at 190. Also, without knowing which regulations would or would not ultimately apply, a court could not determine whether the local rules would allow the developer to build his subdivision in an economically feasible way, and therefore neither a court nor a jury could value the taking.
The Court was careful to distinguish “finality,” which was required, from “exhaustion,” which was not. “[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definite position on the issue that inflicts an actual, concrete injury . . . .” Id. at 193. Exhaustion, however, “generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate.” Id. To illustrate the difference, the Court provided several examples. The developer would not have had to seek a declaratory judgment in state court to challenge the zoning actions because such an action would “clearly [be] remedial.” Id. at 193. “Similarly, [the developer] would not be required to appeal the Commission‘s rejection of the preliminary plat to the Board of Zoning Appeals, because the Board was empowered, at most, to review that rejection, not to participate in the Commission‘s decisionmaking.” Id. These procedures “would result in a judgment whether the Commission‘s actions violated any of [the owner‘s] rights. In contrast, resort to the procedure for obtaining variances would result in a conclusive determination by the Commission whether it would allow [the owner] to develop the subdivision in the manner [the owner] proposed.” Id.
The Second Circuit has outlined four policy considerations that underlie the finality requirement in land-use cases:
First, . . . requiring a claimant to obtain a final decision from the local land use authority aids in the development of a full record. Second, . . . only if a property owner has exhausted the variance process will a court know precisely how a regulation will be applied to a particu-
lar parcel. Third, a variance might provide the relief the property owner seeks without requiring judicial entanglement in constitutional disputes. . . . Finally, . . . federalism principles also buttress the finality requirement. Requiring a property owner to obtain a final, definitive position from zoning authorities evinces the judiciary‘s appreciation that land use disputes are uniquely matters of local concern more aptly suited for local resolution.
Id. at 348 (internal citations omitted); see Insomnia, 278 Fed.Appx. at 613 (citing Murphy factors).6
We have held plaintiff‘s RLUIPA and equal protection claims unripe where the plaintiff‘s position before the local land use authority was undefined. Grace Cmty. Church v. Lenox Twp., 544 F.3d 609, 618 (6th Cir. 2008) (hereinafter “Grace Church“). In Grace Church, a local Christian church applied for a special use permit to operate a residential facility. Id. at 611. The town granted the permit, but with several restrictions. Id. When the commission investigated an alleged violation, the pastor appeared before the commission but had no comment. Id. Faced with the one-sided evidence, the commission revoked the permit, and the church did not seеk reconsideration, apply for a new permit, or appeal. Instead, it filed suit a year later in federal district court claiming violations of RLUIPA and equal protection. The district court dismissed for lack of ripeness, and we affirmed. Relying on Murphy‘s policy considerations, we found that the record was insufficiently developed because the church was essentially silent during the local proceedings. Id. at 616. Furthermore, the church had not availed itself of any of the available avenues for local relief, denying the town the opportunity to render a final decision. Id. Therefore, we dismissed the suit as unripe.
The district court held that because Miles Christi did not appeal Northville‘s decision to the ZBA or otherwise avail itself of the zoning process, it did not obtain a final decision. Miles Christi responds that the district court confused exhaustion with finality, that Frey was the initial decisionmaker as empowered by local regulations, and that her testimony for Northville is determinative of Northville‘s final position on the matter under
I again note that Northville and the majority improperly conflate Frey‘s intensity determination with the possible end result of the zoning process. Because the two issues are distinct, and because Miles Christi focuses its complaint on the former, we must focus on Frey‘s decision and its effects. See also Suitum, 520 U.S. at 739 (distinguishing the determination that the petitioner‘s land fell within a protected zone from petitioner‘s possible option to apply for the right to
At the meeting with Fr. Bertolacci, Frey informed him that she had determined that Miles Christi‘s use of its property had intensified to the point where it had become a non-residential use. That determination was within her authority as Director of Community Development. As a result, Northville demanded a site plan and issued a civil infraction ticket when Miles Christi did not comply. As explained above, that ticket had the effect of haling Plaintiffs into state court.
Following Frey‘s determination and the issuance of the ticket, Miles Christi had a number of administrative options available to it. First, the Order could have appealed Frey‘s decision requiring a site plan to the ZBA under
While the majority opinion attempts to paint this option as something else—an “ordinance interpretation“—it is purely an “appeal,” similar to the appeal available to the plaintiff in Williamson County, which the Supreme Court held the plaintiff did not need to exhaust to have a final decision. Here, the ZBA was not involved in making the initial decision and would be merely reviewing Frey‘s decision.7 Although the ZBA‘s standard of rеview is not a dispositive factor, I would note that the review here would likely not be de novo, as in Murphy, but would be done with some level of deference. Miles Christi did not have to exhaust this option.
Second, Miles Christi could file with the Planning Commission a request for a waiver from, or modification of, the parking and landscaping requirements under
One thing Miles Christi could not do was file a request for a variance to be free from the site plan requirement. After a thorough review of the regulations, I find no variance listed in
Given these available oрtions, I would hold that, while Miles Christi has not exhausted its opportunities for administrative relief, it has obtained a final decision sufficient to ripen its claims. Frey, the initial decisionmaker, was empowered as the Director of Community Development to make the decision she did for Northville. That decision is subject to local appeal, but exhausting appeals is not required under Williamson County. Other available actions would not change Frey‘s decision that Miles Christi‘s use of the property had become more intensive. Therefore, “the initial decisionmaker has arrived at a definite position on the issue that inflicts an actual, concrete injury,” and Miles Christi has obtained a final decision.
This result is supported by Murphy‘s policy considerations, because (1) the record on the narrow question is sufficient, (2) the regulation is being applied to this parcel to require a site plan, and (3) the available variances do not provide the requested relief. The fourth factor, the respect for federalism, which is particularly strong in local land-use situations, does not support this conclusion, but no single factor is dispositive.
Frey‘s allegedly unwarranted decision also distinguishes this case from Grace Church. Unlike in that case, where the Church had sought the special permit and then refused to cooperate in dеveloping a full record, Frey‘s decision thrust the site review requirement upon Miles Christi. The fact that Miles Christi did not participate in the process is irrelevant here because the very question before us is whether it can be forced to. Also, the parties developed a full record of the events leading up to Frey‘s decision in state court. The parties’ positions are well defined and ready for adjudication.
Because Miles Christi suffered an immediate injury, the finality requirement does not apply. Even if it did, Miles Christi has obtained a final decision from the initial decisionmaker. I turn, finally, to the general ripeness standards to ensure that they are also satisfied.
As stated above, the general test for ripeness has been articulated as “two basic questions: (1) is the claim fit for judicial decision in the sense that it arises in a concrete factual context and concerns a dispute that is likely to come to pass? and (2) what is the hardship to the parties of withholding court consideration?” Warshak v. United States, 532 F.3d 521, 526 (6th Cir. 2008) (en banc) (internal alterations, quotation marks, and citation omitted).
Given the foregoing discussion and the substantial overlap in the inquiries, I conclude that these factors are satisfied. The concrete factual context is Northville‘s conduct, Frey‘s intensity determination, and the resulting harms alleged by Miles Christi. Because the majority withholds judicial consideration, Miles Christi will have no recourse but to engage in the zoning process it did not initiate and argues was unlawfully required, and which cannot provide a complete remedy, or to cease or scale back its religious activities in the hope of avoiding future problems. Even the latter approach, however, will not prevent Miles Christi from being fined in the already progressing state court suit. Accordingly, I would hold that Miles Christi‘s claims are ripe, and that the district court erred in dismissing them.
III.
I would reverse the district court‘s dismissal for lack of subject matter jurisdiction and remand for further proceedings. Accordingly, I respectfully dissent.