In the Fall 2012 issue of Municipal Lawyer, I reviewed the five principles applied by New York courts when deciding Religious Land Use and Institutionalized Persons Act (RLUIPA)¹ cases² and sounded a note of warning that environmental review under the State Environmental Quality Review Act (SEQR)³ can run afoul of RLUIPA when used as the “primary vehicle for making a zoning decision.”⁴ Here, I will consider the issue of justiciability in as-applied RLUIPA claims. I will leave the issue of facial challenges for another day.

Before a court reaches the merits of an RLUIPA claim, as in any case, it must first decide whether it has jurisdiction to decide the case. As a threshold matter, the issues involved must be issues that can be decided by a court, not by a political body or agency,⁵ and the complainants must have standing to bring the case. In order to establish Article III standing, the plaintiff must establish three things:

First, the plaintiff must have suffered an ‘injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) ‘actual or imminent, not “conjectural or hypothetical.”‘ Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e]result [of] the independent action of some third party not before the court.’ Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be redressed by a favorable decision.⁶

If there is no injury in fact, then there is no “case or controversy” and the complainants do not have standing to bring the suit.

But the jurisdictional inquiry does not end there. Once the court has established that the issues presented are legal and not political, that the complainants have standing to sue and have brought the action within the required statute of limitations, the court must then decide mootness and ripeness. With respect to mootness, the court must determine whether some other action or failure to act has stripped the court of jurisdiction. For example, the court must examine whether a change in circumstance rendered the controversy moot, such as a challenge to a residential use variance after construction has been substantially completed.⁷ With respect to ripeness, the court must decide whether the decision is “final” and a question often implicated in the finality inquiry is whether the petitioner has exhausted available administrative remedies. Whether an RLUIPA claim is justiciable often turns on the doctrine of ripeness.

Ripeness defense in RLUIPA claims

Unlike facial challenges, which “are generally ripe the moment the challenged regulation or ordinance is passed,”⁸ “[an RLUIPA]claim does not become ripe at the first 1 whiff of government insensitivity or whenever a government official takes an adverse legal position, even if one potential response is to curtail protected activities.”⁹ In RLUIPA cases, as in many land use matters, the judicial inquiry into justiciability often focuses on ripeness. It is not unusual for defendants to move to dismiss on ripeness grounds, arguing that the decision was not final or that the plaintiff has not exhausted its administrative remedies. Plaintiffs survive the motion if they can offer persuasive proof that a definitive position on the issue has been reached and the decision inflicted an actual concrete injury in the first instance, or further pursuit of an application or administrative remedy would have been futile in the second instance.

Ripeness under Williamson

Courts faced with a ripeness defense in land use cases, including RLUIPA cases, often turn to the first prong of a two-prong test articulated by the Supreme Court in< Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City.¹⁰ In Williamson, the Supreme Court overturned damages awarded by the Sixth Circuit to a landowner as just compensation after the Sixth Circuit concluded that the application of zoning regulations to the plaintiff’s property amounted to a “taking” in violation of the Fifth Amendment. The Supreme Court reversed, finding the claim was not ripe for review because the government entity charged with implementing the regulations had not reached a final decision regarding the application of the regulations to the property. The Court concluded the claim was not ripe because, (1) the property owner did not exhaust its administrative remedies by seeking variances or waivers that would have allowed it to develop its land, thus there was no “final” decision¹¹ and (2) the property owner failed to seek just compensation through state procedures provided for that purpose before running to the court.¹² The Court determined that it did not have jurisdiction to decide the case because the claim was not ripe under either of these two independent prongs.¹³ Of the two prongs, “[t]he central question in resolving the ripeness issue, under Williamson County and other relevant decisions, is whether petitioner obtained a final decision from the [land use authority]determining the permitted use for the land.”¹⁴ Thus, under Williamson, a takings claim would not reach the second prong of the ripeness test absent a final decision under the first prong.¹⁵

The finality prong of Williamson ripeness in “as-applied” RLUIPA cases

Although Williamson involved a Fifth Amendment takings claim, the Second Circuit and other courts have employed the first prong of the Williamson test, known as the “prong-one ripeness” test,¹⁶ to determine justiciability in as-applied challenges under RLUIPA, the First Amendment, the Equal Protection Clause, and the Due Process Clause.¹⁷ Under Williamson’s “prong-one ripeness” analysis a land use claim is not ripe for judicial review unless “the initial decision maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury” and the injured party has exhausted available administrative remedies.¹⁸ This is also known as the “finality” prong of the ripeness doctrine.

Williamson’s prong-one ripeness test was applied in the seminal Second Circuit case, Murphy v. New Milford Zoning Commission.¹⁹ In Murphy, the New Milford Zoning Commission issued a cease and desist order after neighbors complained that Robert and Mary Murphy were holding weekly prayer meetings in their home for 25 or more non-family individuals, finding that the meetings were not a customary accessory use in the single-family residential zone. The Murphys did not appeal the order to the zoning board, as they could have, but instead filed RLUIPA and First Amendment Free Exercise claims in federal district court. The district court determined the RLUIPA claim was ripe for review because “only institutions such as a church…[and] not individuals” had to appeal a local land use decision to a zoning board of appeals or apply for a variance before commencing a federal action.²⁰ The district court reserved decision on the First Amendment and other claims.

The Second Circuit reversed, holding that the case was not ripe under the Williamson prong-one ripeness test and, in an interesting foray into congressional intent, concluded that it was it was not necessary to distinguish the RLUIPA claim from the Free Exercise claim to determine ripeness in the RLUIPA context. The court reasoned that RLUIPA was Congress’s attempt to codify existing Free Exercise jurisprudence, even though “[o]ur decision today does not require us to determine whether Congress in fact succeeded in this endeavor.”²¹ Therefore, although the burden to show finality (or futility) is “somewhat relaxed” when determining whether a First Amendment claim is ripe, the Second Circuit found that it was not necessary to relax the doctrine when determining an intertwined Free Exercise and RLUIPA claim. This decision was consistent with earlier (and later) Second Circuit decisions.²²

The court applied the “less relaxed” Williamson ripeness test to the Murphy facts and concluded the RLUIPA and Free Exercise claims were not ripe for judicial review. Under the first prong of Williamson, the Murphys were required to (1) obtain a final decision from the land use authority, and (2) exhaust the variance or waiver process so that the court could know exactly how the regulation was applied to the Murphys’ land, which would also (3) foreclose the possibility that administrative relief could decide the issue on non-constitutional grounds, thus keeping the federal courts from “becoming the Grand Mufti of local zoning boards.”²³

In addition, by not appealing the order, the Murphys did not establish a factual record upon which the court could act. As a result, the court could not answer key questions, to wit: Had the zoning law been applied in a discriminatory manner? Was attendance also limited at regularly scheduled secular events or had variances been granted for such events? How did New Milford arrive at less than “25” as the threshold number of non-family members who could attend the prayer meetings before a violation occurred? Could the prayer meetings have been accommodated in some way without snarling neighborhood parking? Without an appeal, and the record it produces, the court was being asked to resolve constitutional claims that hinge on factual circumstances not fully developed.

Furthermore, the court pointed out that an appeal would have immediately stayed the cease and desist order under Connecticut General Statutes, § 8-9.²⁴ Alternatively, even if the Murphys had done absolutely nothing, the court pointed out that New Milford did not have the authority to impose civil fines or imprisonment without first filing suit in Connecticut Superior Court.²⁵ Therefore, the order alone did not impose an immediate injury on the Murphys such that prong-one ripeness was not satisfied.

Finally, in the absence of a factual record that would have been established had the Murphys exhausted the administrative remedies available to them, the Second Circuit found that it could not determine whether the New Milford’s cease and desist order served a “compelling government interest” and was the “least restrictive means of furthering that compelling government interest” as is required under RLUIPA.²⁶

Departures from Williamson

Not all circuit courts apply the Williamson prong-one finality test when determining ripeness in land use and RLUIPA cases. If the court determines that the mere enactment of a land use law harms the plaintiff, the court will address the merits of the case regardless of whether a final decision has been reached.

For example the First Circuit, in Roman Catholic Bishop of Springfield v. City of Springfield,²⁷ decided July 22, 2013, considered whether a city ordinance that placed a restriction on a church parcel, and only the church parcel, in a historic district, thus subjecting the church to oversight by the city’s historic commission, violated RLUIPA and First Amendment rights. The ordinance was enacted four months after the Roman Catholic Bishop of Springfield (RCB) announced that it would close Our Lady of Hope Church, built in 1925. Under Roman Catholic canon law, the church had to be “deconsecrated” before the building could be used for another purpose. Deconsecration required the Bishop to protect religious ornamentation and, in extreme cases, demolish the church if the ornamentation could not be removed or otherwise protected before the building was put to a “profane” use, i.e., any use that was detrimental to the good of souls. Placing Our Lady of Hope Church in a historic district required the RCB to subject its “deconsecration” plans to the city’s historic commission before doing anything to the outside of the building. It was clear on the facts that the ordinance was enacted to prevent the RCB from demolishing the church, if it came to that.

The day after the ordinance went into effect, RCB filed First Amendment Free Exercise, RLUIPA, and state constitutional claims. On appeal, the First Circuit ruled that only the facial challenge was ripe, finding that RCB’s deconsecration planning, otherwise governed by religious canon, was subject to decision making by the city historic commission. However, in the absence of an application and subsequent record, the court found that the mere enactment of the ordinance did not impose a substantial burden on the religious practice under RLUIPA, nor did the mere enactment of the ordinance show that the RCB was treated differently than non-religious institutions.

Thus, the as-applied challenge did not meet the ripeness test because the RCB had taken no action with regard to deconsecration and had not made even one submission to the historic commission. The court determined that in the absence of an application to the historic commission, RCB’s “claims lack[ed] the requisite concreteness to warrant resolution of whether hypothetical outcomes transgress RLUIPA or either the federal and state constitutions.”²⁸

Even though the First Circuit arguably reached a similar conclusion as the Second Circuit might have reached under Williamson, the First Circuit relied on traditional notions of ripeness rather than the “specialized Takings Clause ripeness doctrine” formulated in Williamson to determine that the facial challenge was ripe but the as-applied challenge was not. The court explained that under traditional ripeness, the analysis focused on two factors, “fitness” and “hardship.” On the one hand, fitness is determined based on its own two-prong analysis, (1) whether there is jurisdiction (a case or controversy) and (2) whether it is prudent to decide the case or whether it should be postponed until further administrative action might dispel the constitutional issues. On the other hand, the hardship inquiry is wholly prudential in nature-i.e., has there been a concrete injury. Thus, under the traditional ripeness analysis employed by the First Circuit, the mere enactment of the ordinance was justiciable under the two-prong “fitness” test because it created a controversy and subjected certain of RCB’s religious canons to secular oversight, but the plaintiff failed to meet the “hardship” prong because, in the absence of an application, the court could not know how the ordinance would be applied to the RCB.

Likewise, the Eleventh Circuit has declined to apply the finality prong of Williamson to RLUIPA cases where it found that the mere enactment of the law constitutes injury.²⁹ In Temple B’Nai, the court explained:

[W]here…the plaintiff alleges that the mere act of designating his or her property historic was motivated by discriminatory animus, Williamson is inappropriate because the injury is complete upon the municipality’s initial act, and staying our hand would do nothing but perpetuate the plaintiff’s alleged injury. In such cases, we think traditional notions of ripeness provide the appropriate mode of analysis, and so we apply them here.

The dispute arose in Temple B’Nai when, due to falling attendance, the Temple aligned its religious beliefs away from Conservative Judaism, “a modern approach to the religion that seeks to conserve traditional elements of the faith but nonetheless permits for some degree of modernization,” to Orthodox Judaism, which applies “a rather strict interpretation and application of Talmudic law.”³⁰ The Temple, a former Lutheran Church, had a footprint in the form of a triangle to symbolize the Christian Holy Trinity and a floor plan in the shape of a crucifix. In order to conform to Orthodox beliefs, the Temple building had to be reconfigured so the seating area faced west towards Jerusalem and men and women sat in separate sections. The required changes led to the decision to demolish the building and construct a new Temple that adhered to Orthodox precepts.

The former Temple congregation, including the Mayor, objected. The Mayor had been instrumental in organizing a reunion at the Temple for approximately 200 local Holocaust survivors. The reunion was held in March 2004. The Temple became Orthodox later that same year and the Mayor left the Temple congregation. When Temple representatives met with the Mayor to discuss the expansion plans, the Mayor was anything but receptive, allegedly referring to the Sephardic Jewish community as a “bunch of pigs” and using an expletive when the Rabbi asked if the Mayor could be quoted on that.³¹

It went downhill from there, if that is possible. The City was rebuffed when it tried to buy the property, which was next to City Hall. The Mayor directed the City’s code enforcement officer to inspect the Temple and 12 separate violations were issued over a 17-month period between 2007 and 2009. Multiple building and demolition permits were denied and a temporary moratorium on all permits for the demolition of any non-residential structures was enacted pending the City’s study of potential additions to the City’s register of historic places. Finally, in June 2010, the City’s historic preservation board designated the Temple, built in 1964, as a historic landmark, based in part upon the 2004 Holocaust survivor reunion. In fact, the Temple was the City’s first and only historic landmark. Although the historic preservation board had considered other properties for inclusion, including the City’s first 4-story hotel, the Golden Strand, built in 1946 and host to visitors from Grace Kelly to members of the Dupont, Vanderbilt and Guggenheim families, as well as the last Florida residence of Babe Ruth, only the Temple was honored with historic site designation. Designation as a historic site meant that the Temple could not be demolished. The Temple commenced a lawsuit claiming RLUIPA, First Amendment Free Exercise, and other state and federal constitutional violations.

Like the First Circuit in Roman Catholic Bishop of Springfield, decided a month earlier, the Eleventh Circuit declined to apply Williamson’s prong-one finality ripeness test to determine whether Temple B’Nai’s claims were ripe for review. Instead, the court focused on the “fitness” and “hardship” inquiries imbedded in traditional ripeness principles. The court found that the Temple’s RLUIPA, Free Exercise, and other constitutional claims were justiciable because the Temple suffered a concrete injury stemming from the initial act of designating it a historic site. It was not necessary to further develop the record to answer the constitutional issue of “whether the City designated the Temple to be a historic site for discriminatory reasons” because “the record is sufficiently developed so as to render that issue fit for judicial resolution.” In fact, “that issue became as ripe as it will ever be the moment the Temple was initially designated a landmark.”³²

The public face of government

The Eleventh Circuit cited to the First Circuit’s reasoning in Roman Catholic Bishop of Springfield when it determined that the Temple’s allegations were ripe for review, even in the absence of a final land use decision as required in Williamson. Certainly, the two cases have a similar fact pattern. Both buildings were given single-site historic landmark designation in an effort to prevent possible demolition. Also, the plans for historic landmark designation were set in motion by members of the former congregation of Our Lady of Hope Church, and-arguably-the City Commission of Sunny Isles where three of the five Commissioners who designated the building a historic landmark (the Mayor and two others) were former members of the Temple’s Conservative congregation.³³

However, in these two cases the “public face” of the government-officials’ deeds and words-infused the records with a veneer of finality sufficient to satisfy traditional notions of ripeness, even in the absence of a “final” land use decision as required under Williamson. For example, in addition to the alleged name-calling and expletive used by the Mayor of Sunny Isles Beach, the Temple B’Nai court specifically relied on two lengthy quasi-judicial public hearings held before the Preservation Board and the City Commission to determine that the issue was “clearly primed and at the ready for judicial review.”³⁴ During the public hearing before the City Commissioners, Gerry Goodman, a member of the former congregation and current commissioner asked the Rabbi why the Temple was closed on certain days, which prevented the commissioner from visiting a memorial plaque he had purchased for a loved one when he wanted to. That same commissioner also asked the Rabbi whether the Rabbi had called the commissioner an anti-Semite in the local newspaper. Immediately following Councilman Goodman’s questions, Commissioner George “Bud” Scholl, who identified himself as the former chairman of the historic preservation board and “the only non-Jew on the Commission,” characterized the argument for adopting an ordinance that would “burden [Temple B’Nai’s]property rights” as “emotional” and “a little flimsy.” The Eleventh Circuit quoted his comments at length. “Despite Commissioner Scholl’s comments” the ordinance was adopted. Councilman Scholl cast the only dissenting vote.³⁵

Similarly, in Roman Catholic Bishop of Springfield, the First Circuit found that the City Council’s actions were sufficient to infer unconstitutional intent. For example, on at least two occasions RCB’s attorney warned the City Council that creating the single-parcel historic district might violate RCB’s constitutional rights. Although the ordinance was referred to the City’s law department, the City Council acted before waiting for a response. In fact, during the public hearing, the City Council called in the City solicitor and asked whether the law department had reviewed the ordinance. The solicitor stated that the review had not yet been completed and offered to consult with the Council in executive session. The offer was refused. Not only had the City Council acted before it heard from its law department, it also voted without the benefit of a report from the Council subcommittee to which the ordinance had been referred for study. Finally, the court noted that during the public hearing, one member of the City Council asked RCB’s attorney why parishioners had not been invited to participate in the pastoral planning process. When the attorney responded that they had, the councilman accused him of lying. Taken together, the First Circuit concluded that the City Council’s actions implied unconstitutional animus toward the RCB.

However, the facts of these two cases diverge in one important area. In Roman Catholic Bishop of Springfield, the RCB filed its lawsuit the day after the challenged ordinance was enacted without filing even one land use application. RCB’s as-applied challenges were dismissed because they were based on speculative future harm, although, as discussed above, its facial challenges were considered ripe for review. In contrast, the Temple B’Nai Zion had filed several applications for permits and each had been denied. Even so, the Eleventh Circuit did not base its decision on the denial of those applications or the failure to seek a final resolution of how the property would ultimately be affected by the historic landmark designation, which would have been an essential element under Williamson; rather, the court determined that the alleged discriminatory designation of the property as historic inflicted a present injury under the traditional “fitness” and “hardship” doctrine of ripeness.

Thus, at least two circuit courts have declined to apply the severe Williamson prong-one “finality” ripeness test to RLUIPA challenges where the complainant can reasonably show discriminatory animus on the part of the land use authority. Unfortunately, some individuals serving on municipal governing boards continue to make that showing relatively easy. Thus far, however, the Second Circuit continues to rely on the finality prong of the Williamson ripeness test when deciding whether federal challenges to the application of land use regulations, including RLUIPA claims, are ripe for review.

As recently as October 16, 2013, the Second Circuit upheld the application of Williamson to an RLUIPA dispute. In St. Vincent De Paul Place v. City of Norwich,³⁶ St. St. Vincent’s de Paul Place and Joseph’s Polish Roman Catholic Congregation (together, the “Church”) filed RLUIPA, § 1983 civil rights, federal and state constitutional claims, and other state claims against the City of Norwich when the City denied the Church’s application for a special use permit to provide services to the homeless. The Church wanted to relocate a soup kitchen and shelter in a former religious school building located at 120 Cliff Street that had been used by the Roman Catholic Diocese from 1925 until 2010. The Church had obtained a temporary six-month zoning permit to use the Cliff Street property after it had been constructively evicted from a location it had leased in downtown Norwich from 2000 until 2012 because the downtown building had been structurally compromised. Although the Church diligently searched for other property to buy or lease during the term of the temporary permit, it found no feasible alternative to the Cliff Street location.

The Church applied to the City for a special use permit, which was denied on December 18, 2012, “despite extensive evidence during multiple sessions of the public hearing that denial of St. Vincent’s application would leave St. Vincent with no alternative locate to operate.”³⁷ On January 7, 2013, the code enforcement officer publicly stated that he would issue violations that would force the soup kitchen to vacate the Cliff Street premises. On January 4, 2013, eight days before the temporary permit was due to expire, the Church sued the City in Connecticut District Court. The City issued violations on January 14, 2013, subjecting the Church to civil penalties. The Church appealed the violations to the Zoning Board of Appeals (the “ZBA”) and on February 1, 2013, filed an application for a variance to operate the Cliff Street property.

The district court granted the City’s motion to dismiss, finding that the Church failed the first prong of the Williamson ripeness inquiry, which “conditions federal review on a property owner submitting at least one meaningful variance application…which is necessary to determine whether a plaintiff will be granted an administrative exception to the normal land use requirements.³⁸ No such application had been filed at the time the action was commenced. Nor had the Church “demonstrated that application for a variance would be futile or merely remedial.”³⁹ The Church urged the district court to apply the more relaxed ripeness inquiry established for First Amendment claims in Dougherty v. Town of North Hempstead Board of Zoning Appeals.⁴⁰ The Church argued that a variance application and final land use determination was not a prerequisite of judicial review under Dougherty. However, the district court declined to apply Dougherty, where, as here, no First Amendment retaliation claim was made by the Church.

The decision was appealed to the Second Circuit.⁴¹ The Church again argued on appeal that the lower court should have applied Dougherty, not Williamson, to the ripeness inquiry.⁴² However, on May 14, 2013, before the circuit court could decide the merits, the ZBA denied the Church’s application for a variance and the court asked for letter briefs from the parties on the implications of the ZBA’s determination to their positions. On October 16, 2013, the Second Circuit vacated the lower court’s dismissal and remanded the case for a decision on the merits. The Second Circuit acknowledged the district court’s reliance on Williamson and clarified its holding in Dougherty that a First Amendment retaliation claim is afforded a relaxed ripeness inquiry where, like Dougherty, the plaintiff suffers an immediate injury and where pursuing additional administrative remedies would not clarify or develop the record as to the alleged injury.⁴³ The court found that the ZBA’s determination rendered the issue ripe “even under the more stringent ripeness inquiry of Williamson County.”⁴⁴

Therefore, as of now, there does not appear to be a movement away from Williamson in the Second Circuit. Whether and to what extent other federal appellate courts, including future Second Circuit decisions, move away from Williamson toward a more relaxed finality analysis when determining RLUIPA and Free Exercise claims is yet to be seen.

Exceptions to the finality doctrine

The Williamson prong-one ripeness test is not mechanically applied and is subject to certain, fact-based exceptions. Plaintiffs are excused only where they can show futility, i.e., that there is no available administrative remedy, or that the zoning authority has “dug in its heels and made clear that all such applications will be denied.”⁴⁵ An 9 alternative way zoning authorities “dig in their heels” is to exercises delay and obstruction, rather than outright disapproval, to deny the project.⁴⁶

RLUIPA plaintiffs often plead futility. Again, the resolution of this issue is informed by Fifth Amendment takings claims that invoke Williamson County and its progeny’s ripeness analysis. In the first instance, futility is generally rejected unless at least one application has been filed and administrative remedies to an adverse decision have been sought and rejected. However, if there is no administrative discretion to grant relief, then the futility exception applies.

For example, in Suitum v. Tahoe Regional Planning Agency,⁴⁷ the Supreme Court ruled that the plaintiff’s takings claim was ripe for review where the landowner’s Lake Tahoe property could not be developed because it was located in a watershed and no administrative appeal was available. The Court invoked the “two independent prudential hurdles” under Williamson County: (1) final decision, and (2) just compensation procedures. The Court found that finality was satisfied because there was no question that Suitum could not develop her land and the regional plan did not provide for variances or exceptions. The only remaining ripeness issue required the Court to determine whether the plaintiff’s failure to market her “Transferable Development Rights (TDRs)” to others before filing suit constituted a failure to obtain a final decision as to the number and value of the TDRs. On this issue, the Court determined that although the parties “contest the relevance of the TDRs to the issue of whether a taking has occurred, resolution of that legal issue will require no further agency action of the sort demanded by Williamson County.”⁴⁸

Likewise, in Hoehne v. County of San Benito,⁴⁹ the Ninth Circuit held that the takings claim was ripe under Williamson because the county board of supervisors was required to reject subdivision plans that did not comply with the county’s general land use plan. The court stated:

It would have been futile for the Hoehnes to seek a zoning variance to accommodate their application because the supervisors, by legislative act, changed the zoning designation from a minimum lot size of five acres to one of forty acres. The record does not show that any other type of variance was available to the Hoehnes. The County indicates that the landowners could have sought a variance from the General Plan policy against development on slopes greater than thirty degrees. However, variance is not available for exceptions to the requirements of the General Plan.⁵⁰

Thus, where the local zoning authority has no discretion to grant a variance, waiver or some other relief, the futility exception is a viable defense to the finality prong of the Williamson ripeness analysis.

The absence of administrative relief is a straightforward exception to the finality requirement. The more difficult claim is that administrative relief is futile because the zoning authority has “dug in its heels,” especially where government obfuscation is not obvious. In fact, even though “[g]overnment authorities may not burden property by imposing repetitive or unfair land-use procedures in order to avoid a final decision,”⁵¹ the futility exception has been applied narrowly and some courts have even held that “no amount of delay or hostility alone is enough to trigger the futility exception.”⁵² No better example of government delay can be found than Sherman v. Town of Chester.⁵³ In Sherman, the plaintiff purchased a 398-acre tract of land in 2000 for $2.7 million and applied to the planning board for subdivision approval for a 385-unit residential development that would include an equestrian facility, baseball field, tennis courts, clubhouse, on-site restaurant, and a golf course. Over the next 11 years, the town followed on a course of action that included, among other things:

1. The imposition of a moratorium on development made retroactive to the exact date of plaintiff’s application;
2. The adoption of a new master plan during SEQR review of the project;
3. The modification of the zoning regulations six times during the review of the project without alerting the plaintiff – each zoning modification affected the plaintiff’s development plan and necessitated substantial and costly modifications to the project; meanwhile, the plaintiff was busy amending the plan and his SEQR documents to comply with the last amended, soon-to-be-obsolete zoning law;
4. The refusal of the Town to consider the plaintiff’s application while it considered another developer’s application;
5. The appointment to the Planning Board of individuals opposed to the plan;
6. The replacement of the Town engineer and subsequent cost to bring a new engineer up to speed;
7. A delay of months, apparently without reason, before the Planning Board would set a public hearing, which was then conditioned on paying $25,000 in consultant fees, for which invoices were not provided in a timely manner; and,
8. Subsequent review was conditioned on another payment of $40,000 in consultant fees.

In approximately year eight of the review, the plaintiff partnered with a business whose representative was obviously an observant, Orthodox Jew, after which the town became, according to the plaintiff, even more hostile. The plaintiff claimed multiple impermissible intentions including that the Town wanted to make his property a de facto nature preserve, retaliation for commencing lawsuits and “because Plaintiff is Jewish, one of his business associates is Jewish…the Town residents are worried about Plaintiff  creating a Hasidic community.”⁵⁴ The plaintiff argued that the town had reached a “[s]ecret final decision” to block him from developing his property and alleged violations of several constitutionally protected rights, including freedom of religion, freedom to petition, substantive and procedural due process, equal protection and a taking without just compensation.⁵⁵ The Town moved to dismiss.

Incredibly, given the record, the court granted the town’s motion, finding that the claims were unripe under Williamson’s prong-one ripeness analysis because, even after 11 years of trying, the plaintiff had not received a final decision. Apparently, seemingly endless administrative hoop-jumping does not constitute futility unless the plaintiff can prove the proverbial brick wall at the end of its travails. “At the end of the day, Plaintiff still has not developed his property, has not derived any monetary gain from it, and, more importantly, has not received a final decision on his plans.”⁵⁶ The court explained that:

[Even though]the ripeness doctrine does not require litigants to engage in futile gestures such as to jump through a series of hoops, the last of which is certain to be obstructed by a brick wall, the presence of that brick wall must be all but certain for the futility exception to apply…Here, all that is known is that Plaintiff has jumped through many hoops-more, perhaps, than sound policy should require-and there are one or more hoops in the future. The inference that there is a brick wall at the end is hard to establish, and it is not established here, though it is a close case.”⁵⁷

Therefore, because there was no final decision and because the plaintiff could not show that all development plans would be rejected, the court dismissed the proceeding.

Sherman was decided by the district court on March 20, 2013, and-not surprisingly-is on appeal. It is likely that the Second Circuit will be asked to more clearly define what constitutes governmental “heel-digging” and when delay constitutes a “final” decision under the Williamson prong-one “finality” standard. The Second Circuit’s decision on appeal will have wide implications for land use cases, including those claiming RLUIPA violations. Stayed tuned.

¹ 42 U.S.C. § 2000cc.
² The five general principles are: (1) religion is beneficial to public welfare; (2) a court will not second-guess legitimate, sincerely held professed religious practice; (3) local boards must make every effort to accommodate religious use; (4) religious use cannot be prohibited in a residential district and it is unclear whether it can be prohibited in a commercial district; and, (5) generating tax revenue is not a legitimate purpose of zoning.
³ State Environmental Quality Review Act, ECL Article 8.
⁴ Fortress Bible Church v. Feiner, 694 F.3d 208, 216 (2d Cir. 2012) (SEQRA is a land use regulation within the purview of RLUIPA, which applies “when a government uses a statutory environmental review process as the primary vehicle for making zoning decisions”).
⁵ Powell v. McCormack, 395 U.S. 486, 518 (1969) (“It is well established that the federal courts will not adjudicate political questions.”).
⁶ United States v. Windsor, 133 S. Ct. 2675, at 2685-86 (2013), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992) (footnote and citations omitted).
⁷ Dreikausen v. Zoning Bd. of Appeals, 98 N.Y.2d 165, 173, 746 N.Y.S.2d 429, 434 (2002).
⁸ Suitum v. Tahole Reg’l Planning Agency, 520 U.S. 725, 736 n.10 (1997).
⁹ Miles Christi Religious Order v. Twp. of Northville, 629 F.3d 533, 540 (6th Cir. 2010) (RLUIPA claim unripe where religious order failed to seek zoning board interpretation or variance prior to commencement of federal proceeding).
¹⁰ 473 U.S. 172, 193 (1985) (takings claim not ripe where petitioner did not seek a variance from land use regulations or use state procedures to obtain just compensation).
¹¹ Id. at 194.
¹² Id. (“Under Tennessee law, a property owner may bring and inverse condemnation action to obtain just compensation fro an alleged taking of property under certain circumstances. . . . Respondent has not shown that the inverse condemnation procedure is unavailable or inadequate, and until it has utilized that procedure, its takings claim is premature.”).
¹³ Horne v. Dep’t of Agric., 133 S. Ct. 2053 (2013) (explaining that takings claim in Williamson County not ripe because the plaintiff could not show it had been injured by the Government’s action when there had been no final decision and was also not ripe because the plaintiff had not sought compensation through the procedures provided by the state); see also Murphy v. New Milford Zoning Comm’n, 402 F.3d 342 (2d Cir. 2005) (the two-prong ripeness test in Williamson consists of two distinct requirements, independent of each other, either one sufficient to strip the court of jurisdiction).
¹⁴ Palazzolo v. Rhode Island, 533 U.S. 606, 608 (2001).
¹⁵ St. Vincent De Paul Place, Norwich, Inc. v. City of Norwich, 3:13-cv-00017-WWE, 2013 U.S. Dist. LEXIS 34495, at *7 (D. Conn. Mar. 13, 2013) (“The Williamson County ripeness test consists of two prongs, but only the first prong is applicable here as this [land use]case does not involve a takings challenge.”).
¹⁶ Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 348 (2d Cir. 2005).
¹⁷ Congregation Rabbinical College of Tartikov, Inc. v. Vill. of Pomona, 915 F. Supp. 2d 574, 597 (S.D.N.Y. 2013).
¹⁸ Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 192 (1985).
¹⁹ 402 F.3d 342.
²⁰ Id. at 346.
²¹ Id. at 350, n.6.
²² See Dougherty v. Town of North Hempstead Bd. of Appeals, 282 F.3d 83 (2d Cir. 2002) (applying the finality requirement to First Amendment retaliations claims in the context of a land use challenge); Adrian v. Town of Yorktown, 210 Fed. Appx. 131 (2d Cir. 2006) (district court erred in applying Williamson prong-one ripeness in a First Amendment context without first evaluating whether constitutional injury had already been inflicted).
²³ Murphy, 402 F.3d at 349 (quoting Hoehnev. Cnty. of San Benito, 870 F2d 529, 532 (9th Cir. 1989)).
²⁴ Conn. Gen. Stat. § 8-9 ; see also New York counterpart provisions at Town Law § 267-a(6), Village Law § 7-712-a(6), and General City Law § 81-a(6).
²⁵ Conn. Gen. Stat. § 8-12, citing Gelinas v. Town of West Hartford, 225 Conn. 575 (1993).
²⁶ 42 U.S.C. § 2000cc(a)(1).
²⁷ No. 11-1117, 2013 U.S. App. LEXIS 14781 (1st Cir. July 22, 2013).
²⁸ Id. at *15.
²⁹ Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach, No. 12-12984, 2013 U.S. App. LEXIS 18091, at *20-21 (11th Cir. Aug. 29, 2013).
³⁰ Id. at *3.
³¹ Id. at *5.
³² Id. atat *23.
³³ The decision does not clearly articulate a direct connection between the Mayor and the City’s Historic Preservation Board. However, the connection can be inferred from the statements and actions of the 13
Mayor. Also, the City Commission, headed by the Mayor, is the appointing authority for the City’s Historic Preservation Board and Advisory Committee.
³⁴ Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach, No. 12-12984, 2013 U.S. App. LEXIS 18091, at *26 (11th Cir. Aug. 29, 2013).
³⁵ Id. at *11-14.
³⁶ 2013 U.S. Dist. LEXIS 34495 (D. Conn. Mar. 13, 2013).
³⁷ Id. at 3-4.
³⁸ Id. at 9, see also Id. at 8 (finding that the second ripeness prong of Williamson, the requirement of a property owner to seek just compensation, is not applicable where the case does not involve a takings challenge).
³⁹ Id. at 11.
⁴⁰ 282 F.3d 83 (2d Cir. 2002).
⁴¹ St. Vincent De Paul Place v. City of Norwich, 2013 U.S. App. LEXIS 20859 (2d Cir. 2013).
⁴² Id. at 4, n1 “Under Dougherty, a claim is ripe if “(1) . . . the [plaintiff] experienced an immediate injury as a result of [a defendant’s]actions and (2) [if] requiring the [plaintiff]to pursue additional administrative remedies would further define their alleged injuries.” Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 351 (2d Cir. 2005) (citing Dougherty, 282 F.3d at 90)).”
⁴³ In Dougherty, the plaintiff filed an Article 78 in state court after he was denied a building permit to do construction on his non-conforming bungalow unit, which denial was upheld by the ZBA. No application for a variance was filed. Plaintiff also filed in federal court claiming due process and equal protection violations. During the pendency of the federal action, a building permit was issued (apparently in error) and substantial work was done on the unit before the permit was revoked by the Town. The district court dismissed the complaint under Williamson because Dougherty had not submitted an application to the ZBA for a variance. The district judge also denied Dougherty’s request to amend his compliant to add a First Amendment retaliation claim, holding, without any discussion, that such an amendment would likewise be found unripe under Williamson. On appeal, the Second Circuit agreed that the complaint was not ripe under Williamson, but found that the district court erred in denying the motion to amend the complaint. The circuit court reasoned that Dougherty’s First Amendment retaliation claims “should not be subject to the application of the Williamson ripeness test” because he suffered an immediate injury the moment the Town revoked his permit and additional administrative action would do nothing to further define his injury.
⁴⁴ Id. at 4.
⁴⁵ Murphy v. New Milford Zoning Comm’n, 402 F.3d 342, 349 (2d Cir. 2005).
⁴⁶ Sherman v. Town of Chester, 12 Civ. 647 (ER), 2013 US Dist. LEXIS 38774, *21-22 (S.D.N.Y. Mar. 20, 2013).
⁴⁷ 520 U.S. 725 (1997).
⁴⁸ Id. at 739.
⁴⁹ 870 F.2d 529 (9th Cir. 1989).
⁵⁰ Id. at 534-35.
⁵¹ Palazzolo v. Rhode Island, 533 U.S. 606, 621 (2001).
⁵² Sherman v. Town of Chester, 12 Civ. 647 (ER), 2013 US Dist. LEXIS 38774, *22 (S.D.N.Y. Mar. 20, 2013) (citing Missere v. Gross, 826 F. Supp. 2d 542 (S.D.N.Y. 2011)).
⁵³ Id.
⁵⁴ Id. at *12.
⁵⁵ Id, at *13.
⁵⁶ Id, at *12-13 (emphasis added).
⁵⁷ Id, at *25.

Reprinted with permission from: Municipal Lawyer Journal, Fall 2013, Vol. 27 No. 3, publisher by the New York State Bar Association, One Elk Street, Albany, NY 12207.