402 F.3d 342 (2nd Cir. 2005), 03-9329, Murphy v. New Milford Zoning Com'n

Docket Nº:03-9329.
Citation:402 F.3d 342
Party Name:Robert MURPHY and Mary Murphy, Plaintiffs-Appellees, v. NEW MILFORD ZONING COMMISSION, George Doring, C. Brooks Temple, Charles Raymond, Lawrence Greenspan, Eleanor Florio, Patricia McRae, Mona Tito and Kathy Castagnetta, Defendants-Appellants, United States of America, Intervenor-Defendant, Becket Fund for Religious Liberty, Amicus Curiae.
Case Date:March 25, 2005
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 342

402 F.3d 342 (2nd Cir. 2005)

Robert MURPHY and Mary Murphy, Plaintiffs-Appellees,

v.

NEW MILFORD ZONING COMMISSION, George Doring, C. Brooks Temple, Charles Raymond, Lawrence Greenspan, Eleanor Florio, Patricia McRae, Mona Tito and Kathy Castagnetta, Defendants-Appellants,

United States of America, Intervenor-Defendant,

Becket Fund for Religious Liberty, Amicus Curiae.

No. 03-9329.

United States Court of Appeals, Second Circuit.

March 25, 2005.

Argued Sept. 21, 2004

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[Copyrighted Material Omitted]

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Marci Hamilton, Washington Crossing, PA (Steven E. Byrne, Farmington, CT, of counsel), for Appellants.

Vincent P. McCarthy, American Center for Law and Justice Northeast, New Milford, CT (Kristina J. Wenberg, American Center for Law and Justice Northeast, New Milford, CT, of counsel), for Appellees.

Lowell V. Sturgill, Jr., Attorney, Appellate Staff, Civil Division, Department of Justice, Washington DC (Peter D. Keisler, Assistant Attorney General, Department of Justice, Washington DC, Kevin J. O'Connor, United States Attorney for the District of Connecticut, New Haven, CT, Mark Stern, Attorney, Appellate Staff, Civil Division, Department of Justice, Washington DC, of counsel), for Intervenor-Defendant.

Anthony R. Picarello, Jr., Roman P. Storzer, Derek L. Gaubatz, The Becket Fund for Religious Liberty, Washington DC, of counsel, for Amicus Curiae The Becket Fund for Religious Liberty.

Mitchell A. Karlan, Gibson, Dunn & Crutcher, New York City, of counsel, for Amici Curiae The Anti-Defamation League, The American Jewish Committee and The Jewish Council for Public Affairs.

Christopher Rizzo, Municipal Art Society of New York, New York City, of counsel, for Amici Curiae The Municipal Art Society of New York, Preservation League of New York State, American Planning Association-New York Metro Chapter, National Trust for Historic Preservation, New York Landmarks Conservancy, The Greenwich Village Society for Historic Preservation and Brooklyn Heights Association.

Before: FEINBERG, MESKILL and B.D. PARKER, Circuit Judges.

MESKILL, Circuit Judge.

This appeal arises from an action commenced in the United States District Court for the District of Connecticut, Fitzsimmons, M.J., by Robert and Mary Murphy against the New Milford Zoning Commission, its individual members and the New Milford Zoning Enforcement Officer (collectively, "New Milford"). Following complaints of large, weekly gatherings at the Murphys' home and an investigation on the matter, New Milford informed the Murphys that under zoning regulations they were prohibited from hosting regularly scheduled meetings exceeding twenty-five non-family members. Immediately, the Murphys sued New Milford alleging various constitutional and statutory violations.

New Milford asks us to consider the propriety of July 2001 and August 2002 orders rejecting its argument that the Murphys' claims were not ripe for judicial review. In the event that we hold otherwise, New Milford has asked us to review a September 2003 decision permanently enjoining enforcement of a cease and desist order.

We agree with New Milford that the Murphys prematurely commenced this suit, such that their claims were never ripe for judicial intervention. We therefore vacate the permanent injunction and remand

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with instructions to dismiss the complaint without prejudice.

I.

The record before us reveals the following. The Murphys own a single-family home located on a cul-de-sac lined with six other single-family homes. The Murphys have been hosting Sunday afternoon prayer group meetings since 1994. They assert that their Christian beliefs require them to hold these meetings, which provide opportunity for worship and communal prayer not present at their church. The Murphys also claim that because of Robert Murphy's severe illness their home is the only acceptable location to host such meetings. The number of people who attend the meetings has varied, ranging from as few as ten to perhaps as many as sixty participants.

In August 2000, New Milford's zoning office and the New Milford Zoning Commission received complaints from the Murphys' neighbors regarding the prayer meetings. Neighbors complained of large numbers of cars traveling to and from the Murphys' home, of these cars parking in the street and causing access problems and of excessive noise when meeting attendees departed. In response, the Zoning Commission directed the Zoning Enforcement Officer (ZEO) to investigate. She visited the Murphys' property on three Sundays and found that from thirteen to twenty cars lined the Murphys' driveway, their rear yard and the cul-de-sac. The ZEO presented her findings to the Zoning Commission, which in turn issued an opinion concluding that the weekly, sizable prayer meetings were not a customary accessory use in a single-family residential area. Based on this opinion, on November 29, 2000, the ZEO sent the Murphys an informal letter advising them that their meetings violated zoning regulations. Two days later the Murphys sued New Milford alleging numerous constitutional and statutory claims.

Thereafter, on December 19, 2000, the ZEO issued a formal cease and desist order charging the Murphys with violating New Milford's single-family zoning regulations. See New Milford Single Family District Regs. Ch. 25. The order requested that the Murphys no longer use their home "as a meeting place by a diverse group of people (25 to 40), who are not 'family' ..., on a regularly scheduled basis." By its very terms, the cease and desist order did not apply to all meetings at the Murphys' residence, but only those that were regularly scheduled and included twenty-five or more non-family participants. Critical to our decision today, the Murphys did not appeal the cease and desist order to the Zoning Board of Appeals, where they could have sought a variance from the zoning regulations. 1 See Conn. Gen.Stat. §§ 8-6(a)(3), 8-6a, 8-7.

Instead, the Murphys proceeded with their suit in federal court. They amended their complaint to assert that the cease and desist order violated, among other things, their First Amendment rights to assemble peaceably and to exercise their religion freely, the Religious Land Use and Institutionalized Persons Act (RLUIPA),

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42 U.S.C. § 2000cc, 2 and the Connecticut Act Concerning Religious Freedom (CACRF), Conn. Gen.Stat. § 52-571b--a state analogue to RLUIPA. 3

The district court granted the Murphys a temporary restraining order and then a preliminary injunction enjoining enforcement of the cease and desist order. 4 Ruling on the preliminary injunction request, the district court held that the RLUIPA claim was ripe for judicial review. The court first reasoned that RLUIPA required only institutions such as a church, temple or synagogue, and not individuals such as the Murphys, to appeal a local land use decision to a zoning board of appeals or to apply for a variance before initiating a federal suit. See Murphy v. Zoning Comm'n, 148 F.Supp.2d 173, 184-85 (D.Conn.2001). The court next characterized the Murphys' claims as "primarily legal rather than factual" and concluded that "the parties have made a sufficient factual showing" to permit the court to decide the preliminary injunction motion. Id. at 186. Finally, the district court concluded that the Murphys suffered immediate and substantial hardship because the only means of complying with the cease and desist order was to terminate the prayer meetings. See id. at 186-87. In granting the preliminary injunction the district court held only that the RLUIPA claim was ripe; it explicitly reserved decision on the ripeness of the remaining First Amendment and state statutory claims. See id. at 183 n. 5, 186 n. 12.

New Milford then moved to dismiss the Murphys' complaint based in part on the argument that the remaining claims were not ripe. The district court disagreed; tracking the previous ruling on the RLUIPA claim, it allowed these claims to proceed. See Murphy v. Zoning Comm'n, 223 F.Supp.2d 377, 384-87 (D.Conn.2002). The court held that the Murphys were not required to appeal the cease and desist order to the New Milford Zoning Board of Appeals or to submit a variance application before litigating the claims because both steps would be merely remedial, "rather than part of the decision-making process." Id. at 385.

Ultimately, on September 30, 2003, the district court granted the Murphys a permanent injunction. It held that the cease and desist order violated RLUIPA, the CACRF and the Murphys' First Amendment rights to freely exercise their religion and to peaceably assemble. See Murphy v. Zoning Comm'n, 289 F.Supp.2d 87, 102-09, 114-15, 126 (D.Conn.2003). The district court also denied New Milford's affirmative defenses that: (1) both RLUIPA and the CACRF violated the Establishment Clause of the First Amendment and (2) Congress exceeded its powers under

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the Commerce Clause and section five of the Fourteenth Amendment by enacting RLUIPA. See id. at 117-26.

New Milford appealed, asserting that the Murphys' claims were never ripe for federal judicial intervention and that, assuming otherwise, the district court improperly ruled on the merits.

II.

As we are obliged to do, we first consider the ripeness issue. See Vandor, Inc. v. Militello, 301 F.3d 37, 38 (2d Cir.2002) (per curiam). Ripeness is a jurisdictional inquiry. See id. As such, we must presume that we cannot entertain the Murphys' claims "unless the contrary appears affirmatively from the record." Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991) (internal quotation marks omitted). And, to establish jurisdiction in this zoning dispute the Murphys have the "high burden" of proving...

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