Canaan Christian Church v. Montgomery County, Maryland ( 2022 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-2185
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.
-----------------------------
AGUDATH ISRAEL OF AMERICA; JEWISH COALITION FOR RELIGIOUS
LIBERTY,
Amici Supporting Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Theodore D. Chuang, District Judge. (8:16-cv-03698-TDC)
Argued: September 22, 2021 Decided: March 22, 2022
Before KING, THACKER, and RICHARDSON, Circuit Judges.
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.
2
THACKER, Circuit Judge:
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
3
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”).
Over time, the Landowners struggled to economically dispose of their parcels. As
a result, the Landowners “decided it was necessary to join forces,” with one of the more
vocal land developers “spearheading [their] efforts” to develop the Property and engage
with the County in an attempt to gain relief from the restrictions. J.A. 1377. 1 If they could
not prevail in getting the restrictions lifted, the Landowners’ alternative plan was to sell
the Property to a religious organization because the Landowners believed that land use
regulations must submit to “[c]hurch use [which] cannot be denied.” Id. at 2361.
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
1
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
4
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.
B.
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”).
5
The 1997 Fairland Master Plan recommended that sewer service not be extended to
the area containing the BC Parcel, although water service would be evaluated on an
individualized basis. This plan also recommended that water and sewer could be extended
to the area containing the BA Parcel on an individual basis for special exception uses, such
as elderly housing, child day care centers, or animal boarding.
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.
6
Under the Water & Sewer Plan, the Property is classified as water and sewer
categories W-6 and S-6, respectively, defined as “[a]reas where there is no planned
community service either within the ten-year scope of this plan or beyond that time period.”
J.A. 818. Therefore, in order to be able to build on the Property, Appellants applied for
water and sewer category changes to W-3 and S-3, defined as “[a]reas where improvements
to or construction of new community systems will be given immediate priority and service
will generally be provided within two years or as development and requests for community
service are planned and scheduled.” Id.
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.
7
1.
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.
8
In 2003, Burtonsville Associates contracted to sell a portion of its parcel to
ElderHome, Inc., and filed another WSCCR (“WSCCR BA 2”) for a senior housing
development project. At the same time, Burtonsville Associates filed a WSCCR
(“WSCCR BA 3”) “for allowance to build a church or other special exception use.” J.A.
167. In October 2004, WSSCRs BA 2 and BA 3 were deferred, and the County Council
determined that WSCCR BA 3 needed a “more definitive proposal.” Id. at 1664. In
November 2005, these requests were again both deferred pending approval of a special
exception, and both were ultimately denied.
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
9
the initial contract to purchase the BA Parcel because it was not willing to risk paying a
nonrefundable deposit required by the contract as it was “unable to get the assurances [it]
needed that [it] could actually build the church that [it] wanted on this property.” J.A.
1126. Then, on November 6, 2009, New Hope entered into a second contract with Patuxent
Ridge to purchase the BA Parcel. The second contract contained a “Water and Sewer
Category Change Contingency” provision that conditioned the sale on the approval of an
extension of public water and sewer to the Property. The contract could be terminated if
WSCCR BA 5 was not approved by June 30, 2010.
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.
10
3.
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 Sarem 2 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.
2
In a stipulation filed in the district court, the parties agreed to proceed without the
testimony of Marion Sarem as she lived in Germany and spoke limited English. Her
nephew, Scott Sarem, served as her proxy and representative for the disposition of her
property.
11
D.
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
Hearts[3] 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
3
Norris is referring to Reaching Hearts International, Inc. v. Prince George’s
County, 584 F. Supp. 2d 766 (D. Md. 2008), aff’d, 368 F. App’x 370 (4th Cir. 2010) (per
curiam). In Reaching Hearts, discussed infra, the district court held that the adjacent Prince
George’s County had violated RLUIPA when it denied a church’s water and sewer
category change application.
12
Property, raised doubts about the accuracy of Norris’s assurances as to the feasibility of
the development. She conveyed these doubts to Canaan, stating, “[Norris] keeps insisting
that we will have no regulations issues getting water and sewer. I so far have gotten
different information from the county.” Id. at 2394B. Yet, when Coombe raised these
concerns with Norris, he continued to insist that the BCNP’s restrictions “do NOT apply
for a church. They are exempt as a matter of law.” Id. at 2396 (emphasis in original).
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.
13
During this time, the Canaan WSCCRs remained pending. On May 12, 2015, the
County Executive formally submitted a recommendation that the Canaan WSCCRs be
denied, citing the BCNP and stating, “The use of the Water and Sewer Plan’s [PIF] policy
in this instance would be in direct conflict with the [County] Council’s recent and specific
land use decisions for this part of Burtonsville.” J.A. 2551. The County Executive’s staff
report attached to the recommendation further explained, “Public sewer service for a
project located outside the planned envelope, such as the church’s development proposal,
can often be considered under the Water and Sewer Plan’s [PIF] policy. However, the
recent amendment to the 1997 Fairland Master Plan, the 2012 [BCNP], makes sewer
recommendations for this area . . . . The 2012 [BCNP] specifically recommends against
the provision of public sewer service for any use” for the Property. Id. at 2577 (emphasis
in original).
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
14
the County Executive -- recommended denial of the WSCCRs “given the specific
restrictive language included in the 2012 [BCNP]” that “no public sewer service should be
permitted for any use” for the Property. J.A. 695, 2609. The County Council held a public
hearing on the matter on June 23, 2015, and on July 21, 2015, the County Council denied
the Canaan WSCCRs.
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 most 4 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.
4
Jennifer Sarem does not join the other Landowners in the appeal.
15
II.
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.” Fed. R. Civ. P. 56(a). The facts are viewed in the light most
favorable to the non-moving party, but “it is ultimately the nonmovant’s burden to persuade
us that there is indeed a dispute of material fact. It must provide more than a scintilla of
evidence -- and not merely conclusory allegations or speculation -- upon which a jury could
properly find in its favor.” CoreTel Va., LLC v. Verizon Va., LLC, 752 F.3d 364, 370 (4th
Cir. 2014) (internal citation omitted).
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--
(A) is in furtherance of a compelling governmental
interest; and
(B) is the least restrictive means of furthering that
compelling governmental interest.
16
42 U.S.C. § 2000cc(a)(1).
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 42 U.S.C. § 2000cc(a)(1); Bethel 706 F.3d at 558; Redeemed
Christian Church of God (Victory Temple) Bowie v. Prince George’s Cnty, 17 F.4th 497,
510 (4th Cir. 2021).
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”).
17
a.
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
18
it is uncontested that if Canaan wishes to build a church of this size with public sewer
access, it would need to find a different property.
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
5
The concurrence’s discussion of “absolute” versus “complete” prohibitions is a
distinction without a difference. Post at 33. Not only is the phrase “absolute” consistent
with our precedent, common sense indicates that any regulation that “completely prevent[s]
[a religious organization] from building any church on its property, rather than simply
imposing limitations on a new building,” is an absolute restriction on religious land use.
Bethel at 558. And, while there are other facts we must consider when analyzing a
substantial burden claim, see JCAM at 261, whether a restriction is absolute or conditional
is certainly telling as to the nature of the burden on the religious organization. To prevail
on this type of claim, that burden must be substantial.
19
organization attempted to adapt to the county government’s land use restrictions, but the
government passed further restrictions making religious use impossible. See 706 F.3d at
554.
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.”
20
Andon, 813 F.3d at 515. “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.” Id. Consequently, we affirmed the dismissal of the substantial
burden claim in Andon without applying strict scrutiny to the government’s actions. Id.
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
21
court in Reaching Hearts found the county’s reasons for denying the church’s applications
were pretextual. See id. The district court further determined the passage of a land use
restriction that only affected the church’s property between its applications was not the
least restrictive means of the government achieving a compelling interest, if there had been
one. See id at 783, 788. As such, the county’s actions in Reaching Hearts failed strict
scrutiny.
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
22
plans.” J.A. 820. The Water & Sewer Plan further emphasizes that PIF uses must be
considered “in the context of [the County’s] master plans.” Id. at 827. And the relevant
master plan here, the BCNP, clearly expresses that sewer is not to be extended to this
Property “for any use.” Id. at 695.
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
23
does not support Appellants’ claim that they had a reasonable expectation of public sewer
access for their land use.
Where a plaintiff successfully demonstrates a substantial burden was imposed as a
result of the government’s actions, RLUIPA requires the government to withstand strict
scrutiny by demonstrating how the land use regulation is the least restrictive means of
furthering a compelling governmental interest. 42 U.S.C. § 2000cc(a)(1). But because we
hold that Appellants had no reasonable expectation of success on the WSCCRs, it is
unnecessary to apply strict scrutiny in this case.
B.
RLUIPA Equal Terms Claim
1.
RLUIPA also prohibits discrimination against religious land use:
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.
42 U.S.C. § 2000cc(b)(1).
We have not yet addressed this provision of RLUIPA. But the Eleventh Circuit has,
and it lists the four elements of an equal terms violation as (1) the plaintiff must be a
religious assembly or institution, (2) subject to a land use regulation, that (3) treats the
religious assembly on less than equal terms, with (4) a nonreligious assembly or institution.
See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d 1295,
1307 (11th Cir. 2006). The Eleventh Circuit has “also held that a violation of the Equal
24
Terms provision is not necessarily fatal to the land use regulation . . . but ‘a violation of
[the] equal treatment provision . . . must undergo strict scrutiny.’” Id. at 1308. Primera
further held:
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
25
similarly-situated comparator, the Church’s equal terms claim fails.”). We find this
reasoning persuasive. 6
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.
6
To the extent that the concurrence relies on the dissenting opinion from River of
Life to suggest that a comparator is required for an as-applied challenge but not for a facial
challenge, post at 34, we do not find this to be persuasive. First, we are not bound by a
dissenting opinion -- much less one from another circuit. Next, the dissent in River of Life
advocated rejecting the use of a similarly situated analysis, but not the use of a comparator
in general. See River of Life, 611 F.3d at 386–387 (Sykes, J., dissenting). This makes
sense, as the complete rejection of a comparator would be difficult to reconcile with the
statute, which explicitly provides that an equal terms claim must involve, or compare, a
“religious assembly or institution” that has been regulated on “less than equal terms with a
nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1).
26
a.
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
WSSCR 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
27
County’s Water & Sewer Plan specifically cautions against reading it or its PIF Policy
without consulting the appropriate master plan. In this case, the master plan affecting
Glenstone -- that is, the Potomac Plan -- afforded the County more discretion to approve
Glenstone’s WSCCR than the BCNP, as the Potomac Plan provides that it will only
“generally exclude areas zoned for low density development,” as Glenstone was, from the
extension of public sewer service. J.A. 323. In contrast, the BCNP more broadly prohibits
public sewer access to the Property on which Canaan wishes to build by specifically
providing that “no public sewer service should be permitted for any use.” Id. at 695.
Therefore, Glenstone and the Property in question in this case are not similarly situated.
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 RIULPA equal terms claim fails.
28
C.
First Amendment Free Exercise Claim
Appellants’ final claim is that the County violated the Free Exercise Clause of the
First Amendment. The Free Exercise Clause provides that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S.
Const. amend. I. Similar to a RLUIPA claim, a free exercise claim in the land use context
addresses whether the government’s application of a land use regulation unconstitutionally
burdens or discriminates against religious exercise.
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
29
by the government with a mechanism for granting exceptions also triggers strict scrutiny.
As emphasized in the recent Supreme Court case Fulton v. City of Philadelphia:
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.”
141 S. Ct. at 1879.
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
30
describes four subzones within the Rural Edge, including the subzone encompassing the
Property here. J.A. 692–697. The BCNP details specific restrictions for each subzone, in
addition to general regulations for the Rural Edge properties as a whole. The public health
problem exception is one such general regulation that affects all of the Rural Edge
properties. But just as the general regulations applicable to the W&S Plan could not
supersede the BCNP’s specific restrictions for the Property, neither can the BCNP’s
general regulations for the subzones supersede the more specific and restrictive regulations
listed for the Property.
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.
31
IV.
Accordingly, for the reasons set forth herein, we affirm.
AFFIRMED
32
RICHARDSON, Circuit Judge, concurring in the judgment:
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
RLUIPA’s Equal Terms provision: “(1) the plaintiff must be a religious assembly or
institution, (2) subject to a land use regulation, that (3) treats the religious assembly on less
than equal terms, with (4) a nonreligious assembly or institution.” Maj. Op. at 24. This
1
I agree with much of the majority’s reasoning on the Substantial Burden claim.
Because it is clear that Canaan did not have any reasonable expectation that the County
would approve their request for sewer requests and therefore self-imposed the burden,
Maj. Op. at 22, I would not decide the more complex question of whether the burden was
substantial. Cf. Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d 338, 352 (2d
Cir. 2007) (discussing the absolute/conditional distinction in terms of whether a different
plan might be accepted that would “meet the same needs”). But whatever “absolute rather
than conditional” means, Jesus Christ is the Answer Ministries, Inc. v. Baltimore Cnty.,
915 F.3d 256, 261 (4th Cir. 2019), it cannot require a complete prohibition on all religious
uses of land as the majority suggests today, Maj. Op. at 19–20. The absolute/conditional
distinction is a tool courts have used to interpret the phrase “substantial burden,” and the
category of “burdens” must cover more than bans. There must be some restrictions on
religious use that fall short of outright prohibition that still impose a religious burden. See
Jesus Christ is the Answer, 915 F.3d at 260–61 (“land use regulations can substantially
burden religious exercise where an organization acquires property expecting to use it for a
religious purpose but is prevented from doing so by the application of a zoning ordinance”).
33
interpretation is true to the text of the Equal Terms provision, § 2000cc(b)(1), which
demands that “[n]o 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.” There are, however, a few points of divergence
worth discussing briefly.
First, there are at least two ways to bring an Equal Terms claim under RLUIPA,
through a facial challenge or through an as-applied challenge, and this case deals only with
an as-applied challenge. See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.
Broward Cnty., 450 F.3d 1295, 1308–09 (11th Cir. 2006). If a locality wrote a zoning law
that explicitly gave worse terms to religious assemblies than other assemblies—museums
get sewers by the river, but churches don’t—that would violate the Equal Terms provision
facially. See, e.g., Digrugilliers v. Consol. City of Indianapolis, 506 F.3d 612, 614–15 (7th
Cir. 2007). If a locality treated religious assemblies worse than nonreligious assemblies in
the “processing, determining, and deciding” of otherwise religiously neutral zoning rules—
the rule says no institutions can get a sewer by the river, but the museums get an exception
in practice that churches don’t—that would be an as-applied violation. See, e.g., Rocky
Mountain Christian Church v. Bd. Of Cnty. Comm’rs, 613 F.3d 1229, 1236–38 (10th Cir.
2010).
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
34
comparator because the face of the statute violates the Equal Terms provision of RLUIPA.
And any discussion of whether the religious building was similarly situated to a museum
would be irrelevant, considering the plain command of the Equal Terms provision.
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.” 42 U.S.C. §
2000cc(b)(1). As I’ve said, in a facial challenge, it will be plain whether equal terms have
been offered. But the question is more complicated in the as-applied context, where the
charge is that the locality has used an otherwise neutral rule to impose unequal terms. And
it is here that requiring some comparison might make some sense. See, e.g., River of Life,
611 F.3d at 387 (Sykes, J., dissenting).
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
35
situated” suggests that some similarity is required beyond what the plain text
contemplates—that the other building was an assembly or institution, that it was governed
by the same zoning law or rule, and that the rule gave the comparator better terms.
“Similarly situated” appears to add more, perhaps requiring district courts to consider
similarity with respect to the “purpose” of the regulation. See Maj. Op. at 25 (citing Signs
for Jesus v. Town of Pembroke, 977 F.3d 93, 109–10 (1st Cir. 2020) (looking “to the
purpose of the underlying regulation.”)). The better analysis would simply look at whether
the same restrictions are placed on religious and nonreligious assemblies. Congress has
instructed us to look to the equality of terms, so we should not look beyond that
prescription, especially given that it is easier to determine the equality of terms than the
equality of effects or use or purpose. See Laycock & Goodrich, supra, at 1063.
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
36
not in most cases, we should instead focus on what the provision requires us to look at:
whether equal terms were actually applied.
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 42 U.S.C. § 2000cc(a)(1) with § 2000cc(b)(1). Some courts have suggested that
the Equal Terms provision might be unconstitutional without it, going beyond Congress’s
power under Section Five of the Fourteenth Amendment. See River of Life, 611 F.3d at
370. That issue is not before us, and more to the point, the canon of constitutional
avoidance operates in ambiguity; it doesn’t let us rewrite clear statutory language. United
States v. Locke, 471 U.S. 84, 96 (1985) (quoting George Moore Ice Cream Co. v. Rose,
289 U.S. 373, 379 (1933)).
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
37
the two institutions, Canaan and Glenstone Museum, were governed by separate master
plans on account of their different geographic locations. That alone means that they were
not given less than equal terms by the same law or regulation. As the majority rightly
points out, the Glenstone Museum was subject to the Potomac Plan, a master plan covering
three towns near Rockville, Maryland and which allowed some leeway for sewer
extensions, while Canaan was subject to the Burtonsville Plan, a master plan covering a
smaller area about 15 miles east of Rockville and which did not allow a sewer extension
for any use. Because Canaan and Glenstone were subject to the rules of two different
master plans—the real source of binding rules about where sewer extensions could go—
they weren’t treated differently by the same land use regulation. Thus, Canaan cannot
point to any nonreligious institution or assembly that received better terms under the same
regulation, so I agree with the majority that Canaan’s claim must be dismissed.
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
38
an exception to that rule: “This Plan recommends against providing public sewer service
for Rural Edge properties under any circumstances, other than for relief of documented
public health problems.” J.A. 709 (emphasis added). Taking both of those together, I read
the full rule to be that sewers will not be granted for any use except in one certain
circumstance—a public-health problem. That may seem like a small difference, but I
believe it changes the Free Exercise analysis, if only slightly.
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
39
granting exceptions was committed to a commissioner’s “sole discretion,” triggering strict
scrutiny. Id. The Fulton court also pointed to Sherbert v. Verner, 374 U.S. 398 (1963), as
an example of a mechanism for “individualized exemptions.” In Sherbert, South Carolina
denied unemployment benefits to the plaintiff under a law with a “good cause” exception.
Id. at 401. These examples show that “individualized exemptions” are those that look to
the particular justifications of an individual and weigh them under overly flexible and
discretionary standards like “good cause” or “necessity” or “reasonableness,” and without
objective standards. See also Church of the Lukumi Babalu Aye v. City of Hialeah, 508
U.S. 520, 537–38 (1993) (using a standard that looked to whether certain killings of
animals were “necessary”). What we’re looking for is unconstrained discretion to make
essentially ad-hoc decisions about what circumstances warrant an exception. By allowing
room for discretionary exceptions, we no longer have a rule of general application, and the
First Amendment bristles. Cf. Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 133
(1992) (“The First Amendment prohibits the vesting of such unbridled discretion in a
government official.”).
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
2
It may well be that the unfettered discretion to not enforce the Plan could come
from outside the zoning regulations themselves—consider something like prosecutorial
discretion that permits nonenforcement of generally applicable criminal laws, see
Saikrishna Prakash, The Chief Prosecutor, 73 GEO. WASH. L. REV. 521, 532, 536–63
(2005). But see Smith, 494 U.S. at 884–85 (finding a criminal law generally applicable
(Continued)
40
properties in Canaan’s area. J.A. 695. There is only one exception to the Burtonsville
Plan’s rule against sewer in the Northern Properties, but that exception is for “relief of
documented public health problems.” J.A. 709. This is not a procedure that grants some
official unfettered discretion to make ad-hoc decisions about which reasons deserve
exceptions. It doesn’t use some amorphous, open-ended standard like “feasible” or
“appropriate.” Zoning officials can only perform the ministerial task of checking for a
documented public-health problem. They must look to an objective fact about the land: Is
there a documented public-health problem? If there is, you may get a sewer. If not, you
don’t. So while there is an exemption to the general no-sewer rule for Canaan’s property,
it is not discretionary in the way that would trigger strict scrutiny under Fulton.
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.
without discussing prosecutorial discretion). As Canaan does not suggest that background
principles provide the zoning authority with broad discretion to not enforce the
Burtonsville Plan, we need not resolve this possibility.
41
Cuomo, 141 S. Ct. 63, 67–68 (2020)). But the phrase “comparable” is not self-defining
and may even be misleading. Compare Tandon, 141 S. Ct. at 1297 (comparing at-home
religious gatherings to movie theaters and restaurants), with id. at 1298 (Kagan, J.,
dissenting) (comparing instead at-home religious gatherings to at-home secular
gatherings). “Comparable” suggests an all-things-considered test, which involves a
potentially infinite set of inputs. That is not what is meant here. Much like my discussion
of the Equal Terms provision above, where “comparable” and “similarly situated” suggest
a wide view, our view here should be more focused. In Fulton, the Court makes clear that
we look to the “asserted interests” of a rule and consider whether exempted secular conduct
undermines those asserted interests in a similar way to religious conduct. 141 S. Ct. at
1877; see also Tandon, 141 S. Ct. at 1296; Doe v. San Diego Unified Sch. Dist., 19 F.4th
1173, 1185–86 (9th Cir. 2021)(Ikuta, J., dissenting) (“[T]he majority errs at the first step
in the framework by focusing on the School District’s reasons for offering an exemption,
rather than the interest that the School District actually asserts to justify the mandate.”). If
the government regulates religious activities while excepting secular activities for which
its stated interest equally applies, then it unjustifiably belittles the religious practices.
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
42
animals—and then considered whether the secular exceptions cut against those purposes.
Id. at 543–46. Many did, and that was enough to prove that the law was not generally
applicable. Exterminating pests is inflicting harm on animals, allowing hunters to bring
carcasses to their homes is a potential threat to public safety, and allowing fisherman to eat
their catches without food inspection poses risks to public health. See id. Any one of those
would have been enough to pull that law out of rational-basis review. Once you have even
a single exception that cuts against the justification of a regulation, religious exercise must
get that same treatment. Tandon, 141 S. Ct. at 1296; see also Fulton, 141 S. Ct. at 1877;
Fraternal Ord. of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3d
Cir. 1999) (Alito, J.) (holding that a medical exception to a no-beard policy triggered this
exception because it cut against Newark’s purpose of making police easily identifiable
while an undercover-officer exception did not because it did not cut against the purpose).
So instead of “comparable,” it may be more accurate to think of this as the “contradictory-
secular-exception” rule. 3
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
3
Some have referred to this as a “most-favored nation” rule. See Calvary Chapel
Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2612–13 (2020) (Kavanaugh, J., dissenting from
denial of application for injunctive relief) (citing Douglas Laycock, The Remnants of Free
Exercise, 1990 S. Ct. Rev. 1, 49–50). You might think of things that way—once you
identify the category of things that cut against the asserted public interest, the religious use
must get the best treatment within that category. But because so much work is being done
by constructing the category, this doesn’t strike me as the most useful framing.
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“declining water quality in the Patuxent River Watershed,” and thereby, to protect public
health and safety, considering that the Watershed provides drinking water to two of
Maryland’s most populous counties. J.A. 694, 792. Here no exception contradicts that
purpose. The only exception is for “relief of documented public health problems.” J.A.
709. To get a sewer, a landowner would need to prove an existing public-health
emergency, and such an exception would be approved only when the sewer would improve
public health and safety rather than threaten it. So there’s no secular exception that
contradicts the public-health and water-quality purposes of the sewer ban. 4
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.
4
A counterexample may be helpful. Imagine an exception for public schools. The
school exception would cut against the purported interest in public health and safety
because a school sewer in the watershed—just like most other sewers in the watershed—
would threaten water quality. It would do so for an important public purpose, the education
of children, but would still trigger this contradictory-secular-exception rule despite its
otherwise noble goal.
44