As the saying goes, sometimes we need to risk it to get the biscuit. Little progress would be made if mankind allowed the potential for failure to discourage otherwise worthy undertakings. Unfortunately for religious institutions, the Fourth Circuit in Andon v. City of Newport News (“Andon”) gave its stamp of approval in December 2015 to a prevailing trend in case law that the assumption of risk does not bolster the likelihood of success on a substantial burden claim under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) The fight for the perfect property can be a roll of the dice. An ideal location for your organization may not initially be zoned to permit your proposed use. In this situation one assumes a degree of risk in making arrangements to secure the property. If efforts at mediation fail and litigation ensues, a court may consider the assumption of risk a factor weighing in favor of the government. This was most recently the fate of Reconciling People Together in Faith Ministries (“the church”) in Andon when it attempted to purchase property to be used as a church facility in Newport News, Virginia. Dissatisfied with the limitations of its current worship space, the church sought a larger location. The ideal spot was an office building in Newport News owned by developer Andon, LLC. Though the property was zoned for commercial use, certain community facilities, such as churches, were permitted uses so long as they conformed to additional conditions. The property satisfied all but one, a residential setback requirement.
Aware of the problem, the church nevertheless entered into a lease agreement with the developer contingent on obtaining city approval to use the property as a church. Newport News ultimately denied the developer’s variance request because there was no showing that strict enforcement of its zoning laws would produce an undue hardship “not shared generally by other properties.” With no other path of recourse, the church and developer filed suit under RLUIPA. Particularly, they alleged that the variance denial amounted to a substantial burden for delaying the move to a viable worship location and creating uncertainty with the lease.
Burdens that accompany handling red tape in land use can seem substantial in themselves, but substantiality is a question of relativity and degree. Since courts recognize that many of these inconveniences are common to all, they tend to look for the outlier–the burden that is, simply enough, “substantial.” Courts have adopted and applied different tests to give meaning to the term, but a unifying theme is that a substantial burden exists where government has somehow undermined a landowner’s “reasonable expectation” to use property for religious exercise. An assumption of risk, however, naturally detracts from the reasonableness of such an expectation.
The Fourth Circuit seized on this consideration in Andon. Where courts have found delay and uncertainty as amounting to substantial burden, religious organizations had generally owned property in zones that at least initially permitted the proposed uses. There was, in other words, minimal risk in acquiring the property. And this prerequisite is usually sufficient to establish the all-important reasonable expectation that government must honor.
Yet when this precondition is unsatisfied, the Fourth Circuit insisted that there is normally no reasonable expectation to use the property for religious exercise. An unfavorable zoning decision would still impose injury, but courts tend to characterize these injuries as “self-imposed.” As a consequence, the adverse decision will not invite a substantial burden finding just because things did not go the religious organization’s way. For this reason it is better to think of RLUIPA as a warranty for zoning malpractice than as an insurance policy for shouldering risk in a volatile marketplace. Such has been the pattern in case law–on, and on, Andon.
Hopes for legal remedy are nonetheless not dashed by a religious organization’s assumption of risk. Indeed, regulations requiring parties to take these sorts of risks may themselves be unlawful by RLUIPA’s terms. Where a religious organization has assumed risk, moreover, it may still suffer the fate of an arbitrarily unfavorable zoning decision. Here is where RLUIPA can most powerfully provide relief. If you have any questions on where RLUIPA can safeguard your land use goals, do not hesitate to contact an attorney at Dalton & Tomich, PLC