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Real Property – No RLUIPA Claim for Variance Denial

Andon LLC v. City of Newport News, Va. (Lawyers Weekly No. 001-030-16, 14 pp.) (Keenan, J.) No. 14-2358, Feb. 9, 2016; USDC at Newport News, Va. (Doumar, J.) 4th Cir.

Holding: A worship group that leased a commercial property to use for a church, contingent on the owner obtaining a variance from a setback requirement, which the city denied, have not stated a claim under the Religious Land Use and Institutionalized Persons Act; the 4th Circuit affirms dismissal of plaintiff’s complaint and denial of leave to amend.

Plaintiffs argue the district court erred in dismissing their complaint of a RLUIPA violation, contending the denial by the Board of Zoning Appeals (BZA) of a variance imposed a substantial burden on their religious exercise.

To state a substantial burden claim under RLUIPA, a plaintiff must show that a government’s imposition of a regulation regarding land use, or application of such a regulation, caused a hardship that substantially affected the plaintiff’s right of religious exercise. We addressed the scope of substantial burden claims under RLUIPA in our decision in Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548 (4th Cir. 2013). In that case, we emphasized that a critical function of RLUIPA’s substantial burden restriction is to protect a plaintiff’s reasonable expectation to use real property for religious purposes.

Reasonable Expectation

Here, plaintiffs never had a reasonable expectation that the property could be used as a church. When plaintiffs entered into the prospective lease agreement, the property was not a permitted site for a community facility such as a church and had not met applicable setback requirement for that type of use for at least 14 years. Before the seller of the property filed the application seeking a variance, the zoning administrator had informed the seller that the application would not be approved for failure to meet the setback requirement. Thus, plaintiffs assumed the risk of an unfavorable decision, and chose to mitigate the impact of such a result by including the contingency provision in the lease. Unlike the governmental action at issue in Bethel, the BZA’s denial of the variance in the present case did not alter any pre-existing expectation that plaintiffs would not be able to use the property for a church facility, or cause them to suffer delay and uncertainty in locating a place of worship.

Because plaintiffs knowingly entered into a contingent lease agreement for a non-conforming property, the alleged burdens they sustained were not imposed by the BZA’s action denying the variance, but were self-imposed hardships. A self-imposed hardship generally will not support a substantial burden claim under RLUIPA, because the hardship was not imposed by governmental action altering a legitimate, pre-existing expectation that a property could be obtained for a particular land use.

We hold that, under these circumstances, plaintiffs have not satisfied the substantial burden requirement of governmental action under RLUIPA. Our conclusion is not altered by plaintiffs’ further contention that they have been unable to find another property that meets the congregation’s desired location, size and budgetary limitations. The absence of affordable and available properties within a geographic area will not by itself support a substantial burden claim under RLUIPA.

Because plaintiffs did not have a reasonable expectation to use the property as a church and any burden on their religious exercise was self-imposed, plaintiffs cannot articulate any set of facts demonstrating that an amendment would survive the city’s motion to dismiss. The district court did not abuse its discretion in denying leave to amend.

Judgment affirmed.

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