Freedom Bapt. Church of Del. v. Tp. of Middletown

• Decision Date: 08 May 2002
• Docket Number: No. CIV.A. 01-5345.,CIV.A. 01-5345.
• Citation: 204 F.Supp.2d 857
• Parties: FREEDOM BAPTIST CHURCH OF DELAWARE COUNTY and Chris Keay, Pastor, v. TOWNSHIP OF MIDDLETOWN, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

204 F.Supp.2d 857

FREEDOM BAPTIST CHURCH OF DELAWARE COUNTY and Chris Keay, Pastor, v. TOWNSHIP OF MIDDLETOWN, et al.

No. CIV.A. 01-5345.

United States District Court, E.D. Pennsylvania.

May 8, 2002.

L. Theodore Hoppe, Jr., Shields & Hoppe, LLP, Median, PA, Anthony R. Picarello, Jr. (argued), The Becket Fund for Religious Liberty, Washington, DC, for plaintiffs.

Jennifer L. Holsten-Maddaloni (argued), Holsten and Associates, Media, PA, for defendants.

James D. Todd, Jr. (argued), U.S. Dept. of Justice, Civ. Div., Federal Programs Branch, Washington, DC, for intervener-Government.

MEMORANDUM

DALZELL, District Judge.

On September 22, 2000, the President signed the Religious Land Use and Institutionalized Persons Act of 2000, Pub.L. No. 106-274, 114 Stat. 803-807, codified at 42 U.S.C. §§ 2000cc-2000cc-5 (hereinafter the "RLUIPA"), which Congress enacted in order "[t]o protect religious liberty, and for other purposes." Freedom Baptist Church of Delaware County and its Pastor, Chris Keay, invoke this new statute against the Township of Middletown, Delaware County, and its Zoning Hearing Board because of land use restrictions that plaintiffs claim run afoul of the RLUIPA and 42 U.S.C. § 1983.

The Township¹ has filed a motion to dismiss which, among other things, asserts that the RLUIPA is unconstitutional on its face. Pursuant to 28 U.S.C. § 2403(a), the United States of America moved to intervene in order to defend the statute. On February 25, 2002, we granted the Government's unopposed motion, and later granted its request for oral argument on this important question, which we held on April 26, 2002.

After extensive briefing, including our receipt of post-argument memoranda dealing with the Establishment Clause issue first raised in the Township's reply brief, we turn now to consider at length the constitutionality of the RLUIPA.

Background

According to the complaint, Freedom Baptist Church is a non-denominational congregation of about twenty-five members. Under Pastor Chris Keay, this new assembly has been worshipping and holding services in Delaware County, Pennsylvania since late in 2000, and has attempted to make Middletown Township its home.

When the Church learned that space was available in an office building at 594 New Middletown Road in Middletown Township that D.R. Real Estate LLC owned, it entered into a lease for the use of half of the first floor of the building, reserving for itself a right of first refusal to rent the second half of the first floor. See Compl. ¶¶ 33, 37. Besides holding Sunday worship services from 8:00 a.m. to 1:00 p.m. and 5:00 p.m. to 7:30 p.m., the Church holds services from 6:30 p.m. to 9:30 p.m. on Wednesdays of each week. Id. at ¶ 34.

On April 5, 2001, defendant Jack McKeown, the Township Zoning Officer, advised one of the owners of the building that the Church's use of the property violated the Township zoning ordinances. Id. at ¶ 41. "Mr. McKeown directed that the use of the property for worship services cease." Id. at ¶ 45. After a hearing on the Church's application for a use variance, the Middletown Zoning Hearing Board allegedly denied that application, and this resulted in an appeal to the Court of Common Pleas of Delaware County, Pennsylvania. Id. at ¶ 47. Last month, we learned that the appeal in the Court of Common Pleas had been settled in early 2002, and that the application was granted, albeit subject to two conditions regarding times of use of the building and arrangements with an adjacent funeral home for overflow parking.

The Church alleges that the Township's zoning ordinance creates seventeen districts, but none "where religious worship is a permitted use." Id. at ¶¶ 48-49. In those districts where religious worship is an allowed use, it is claimed to be a "conditional use and is subject to onerous requirements, i.e., there must be a minimum lot of five (5) acres as well as parking requirements", id. at ¶ 50, and the "land requirement alone would make it next to impossible for a new church to locate within the Township" because such a parcel "within the Township would be prohibitively expensive and it is also unlikely that there would be available land to meet the requirement." Id. at ¶ 51. The Church then contends that the zoning ordinance treats schools less onerously than churches, id. at ¶¶ 54-57, and that the zoning ordinance has the effect of "shutting out any religious group from locating within the Township", id. at ¶ 60.

The first four counts of plaintiffs' complaint assert claims under the RLUIPA, specifically that the Township is discriminating on the basis of religion (Count I), treating the Church "on less than equal terms as a nonreligious assembly or institution" (Count II), placing a substantial burden on their religious exercise (Count III), and "imposing and implementing land use regulations that unreasonably limit religious assemblies within a jurisdiction" (Count IV). Count V asserts that plaintiffs' First Amendment free exercise rights have been deprived, in violation of 42 U.S.C. § 1983. Counts VI, VIII, X, XII and XIV assert violations of rights under the Pennsylvania Constitution. Counts VII, IX, XI and XIII assert § 1983 claims for violations of plaintiffs' freedom of speech, assembly, equal protection and due process rights under the United States Constitution, as applied to the states through the Fourteenth Amendment.

Although plaintiffs have made claims under § 1983 and other sources of law, all parties agreed at the April 26, 2002 oral argument that the RLUIPA constitutionality question is at the heart of this case and involves "a controlling question of law" within the meaning of 28 U.S.C. § 1292(b).²

The RLUIPA

As noted at the outset, the RLUIPA became law on September 22, 2000. There is little dispute that it was adopted in response to the Supreme Court's partial invalidation in 1997 of the Religious Freedom Restoration Act of 1993, 107 Stat. 1488, 42 U.S.C. §§ 2000bb-2000bb-4, in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Of particular concern here is § 2 of P.L. 106-274, now codified at 42 U.S.C. § 2000cc. This section deals with "protection of land use as religious exercise" and establishes in subsection (a)(1) a "general rule" that:

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.

Notwithstanding the breadth of this "general rule", subsection (a)(2) immediately limits the applicability of the statute to:

any case in which —

(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability;

(B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or

(C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved.

So limited, the statute then, in subsection (b), imposes four proscriptions:

(b) DISCRIMINATION AND EXCLUSION—

(1) EQUAL TERMS.—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.

(2) NONDISCRIMINATION.—No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.

(3) EXCLUSIONS AND LIMITS.—No government shall impose or implement a land use regulation that—

(A) totally excludes religious assemblies from a jurisdiction; or

(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.

Section 4 of P.L. 106-274, now codified at 42 U.S.C. § 2000cc-2, confers a "cause of action" to aggrieved persons "in a judicial proceeding [to] obtain appropriate relief against a government", and specifically asserts that "[s]tanding to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution." The statute also, at § 7 of P.L. 106-274, amends certain sections of the Religious Freedom Restoration Act of 1993 (the "RFRA") that survived City of Boerne.³

As noted, there is really no doubt that the RLUIPA is the result of the Supreme Court's decision in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). As the House Report on H.R. 1691, the Religious Liberty Protection Act of 1999, a legislative predecessor of the RLUIPA, put it, "H.R. 1691 was introduced in part in response to the Supreme Court's partial invalidation of the Religious Freedom Restoration Act . . . which itself was enacted in 1993 in response to an earlier court decision", to wit, Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). H.R. 106-219, at 4 (1999). It is apparent that, as the legislative process went on, the bill shrank until it reached the form of S.2869, which is the text of our present law. Indeed, one of the co-sponsors of S.2869, Senator Hatch, expressed his frustration in this respect on the Senate floor when he said:

It is no secret that I would have preferred a broader bill than the one before us today....