New York Zoning and Municipal Law Blog
The U.S. Fourth Circuit Court of Appeals upheld the dismissal of an action claiming the denial of a variance for a church use was a violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). In Andon, LLC v. The City of Newport News, the Court held that the denial of a setback variance to permit a church use did not impose a substantial burden on the religious exercise of the church.
A congregation found a building for lease located in a commercial zoning district which permits religious uses, provided it meets the following requirements:
“(a) access is provided from a public street directly to the property; (b) no use is operated for commercial gain; (c) no building or structure, nor accessory building or structure is located within 100 feet of any side or rear property line which is zoned single-family residential; and, (d) any parking lot or street serving such use is located 25 feet or more from a side or rear property line zoned single family residential.” Newport News, Va. Municipal Code § 45–519.
The building at issue met three of the four requirements. However it is located within 100 feet of the rear or side of a residential district. The congregation entered into a lease of the building, subject to obtaining “City Approval.”
The building owner, Andon, applied to the City and was advised a variance from the setback requirements was required.
“After reviewing Andon’s application, the City Codes and Compliance Department (the Compliance Department) filed a report with the BZA concerning the variance request. The report stated that the BZA, prior to issuing a variance, must first find that: (1) “strict application of the ordinance would produce an undue hardship” relating to the property “not shared generally by other properties”; (2) such a variance “will not be of substantial detriment to adjacent property”; and (3) “the character of the district will not be changed” by granting the variance. See Newport News, Va. Municipal Code § 45–3203(c). Based on these restrictions, the Compliance Department recommended that the BZA deny the variance, because the property could be used for other purposes without a variance, and because denial of a variance would not cause Andon to suffer a hardship unique among other commercial property owners in the vicinity.”
The BZA denied the variance, adopting the recommendation and reasoning of the Compliance Department. The property owner and congregation filed suit claiming, among other things, a violation of RLUIPA. The congregation claimed there were no other locations that were an appropriate size, location and price and thus the BZA denial of a variance imposed a substantial burden on religious practice.
The District Court dismissed the complaint on the City’s motion for failure to state a claim. The Circuit Court undertook a de novo review of the claim by Plaintiffs that the denial of the variance constituted a “substantial burden” on religious exercise. In reviewing the claim the Court noted the applicable rule as follows:
“To state a substantial burden claim under RLUIPA, a plaintiff therefore 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.”
The Court, in upholding the lower court held, when the church entered into the lease, the zoning did not permit the use and the denial of the variance did not alter any “pre-existng expectation that the plaintiffs would be able to use the property for a church facility.” Rather the Court found:
“Because the 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.”
The Court also rejected the argument that the denial of the variance placed a substantial burden on the church, due to the lack of other available locations in the area, noting that “ordinary difficulties” in locating appropriate property is not a substantial burden under RLUIPA.
Finally, the Court rejected the claim that the mere denial of the variance imposed a substantial burden because the Court viewed such a position as effectively “…granting an automatic exemption to religious organizations from generally applicable land use regulations.”