For the second time in a month, a federal appellate court has chosen not to apply the ripeness test established by the United States Supreme Court in Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 (1985) when evaluating the ripeness of claims taken under RLUIPA and the U.S. Constitution. The Williamson County ripeness test requires that a landowner “obtain[] a final decision regarding the application of the zoning ordinance . . . to its property” before his or her claims ripen to confer a federal court with subject matter jurisdiction over those claims. Id. at 186. Last month, the U.S. Court of Appeals for the First Circuit, in Roman Catholic Bishop of Springfield v. City of Springfield (1st Cir. 2013), disavowed the use of the Williamson County ripeness test to determine the ripeness of RLUIPA and federal Constitution claims, instead relying on traditional notions of ripeness (read our prior post about this case here). Last week, the U.S. Court of Appeals for the Eleventh Circuit, in Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach (11th Cir. 2013), also relied on traditional notions of ripeness instead of the Williamson County ripeness test, examining (1) whether the issues are fit for judicial review and (2) the hardship to the parties if the court does not consider the claims. What follows is a summary and analysis of the decision in Temple B’Nai Zion, Inc.
Background
Temple B’Nai Zion (the “Temple”) is a Sephardic Jewish organization operating a Jewish synagogue in the City of Sunny Isles Beach, Florida. The Temple purchased the land on which it currently operates a synagogue from an Epiphany Lutheran Church in 1977. In 1986, the Temple began operating as a Conservative Judaic house of worship. Conservative Judaism, as stated by the Court, is “a modern approach to the religion that seeks to conserve traditional elements of the faith but nonetheless permits for some degree of modernization and rabbinical development.” Over the years, however, the Temple’s membership waned from 400 families to just 100 families. To increase membership and raise additional funds, the Temple repurposed itself as an Orthodox synagogue. As stated by the Court, “Orthodox Judaism is a formulation of the religion that adheres to a rather strict interpretation and application of Talmudic law. In Orthodox synagogues . . . men and women must be seated in separate sections, and the alignment of the synagogue must be such that the congregation faces east – toward Jerusalem – during prayers.” This move from Conservative Judaism to Orthodox Judaism angered some congregants.
In 2006, the Temple sought to make certain modifications to its synagogue in accordance with its religious beliefs: (1) have the seating area face east (as opposed to west); (2) change the floor plan, which was in the shape of a crucifix from when the building was used as a Lutheran church; (3) create separate seating areas for men and women; and (4) change the building’s triangular shape, which was meant to symbolize Christianity’s Holy Trinity. The Temple decided that the best way to address these issues would be to demolish the building and construct a new synagogue.
Shortly thereafter, the Temple met with the mayor, who had formerly been a member of the Temple when it operated under the precepts of Conservative Judaism, to discuss the Temple’s desire to demolish the building to construct a new synagogue. Those meetings went so poorly that the mayor referred to the Sephardic Jewish community as a “bunch of pigs.” When asked by the Temple’s rabbi if he could quote the mayor to that effect, the mayor responded, “I don’t care what the [expletive] you do.” After the meetings, and at the mayor’s direction, the City’s code enforcement officer inspected the Temple and 12 separate code violations were issued to the Temple between September 2007 and February 2009.
In 2009, another Orthodox Jewish congregation entered into a lease with the Temple to use the synagogue simultaneously with the Temple. Due to the increased usage of the property and larger membership, the Temple applied for two building permits to demolish and reconstruct the synagogue as it has proposed approximately three years earlier. The building permits were denied.
After the denial of the building permits, the City explored the possibility of designating the property on which the synagogue is situated as a historic landmark. While the City had first considered designating the Temple’s property as a historic landmark as early as 2006, the Temple alleges that the City intensified its efforts in response to its renewed interest to construct a new synagogue. The City hired a historic preservation consultant, who submitted a Historic Landmark Designation Report to the City’s Preservation Board recommending that the Temple’s property be designated a historic landmark. The consultant’s recommendation was based in large part on a 2004 Holocaust remembrance ceremony held by the synagogue at its property, which was attended by 200 Holocaust survivors. The Preservation Board approved the consultant’s report and set a hearing to consider whether to designate the Temple’s property as a historic landmark.
Meanwhile, the Temple applied for another demolition permit in April 2010 that the City denied. In May 2010, the City Commission enacted a moratorium on the acceptance and processing of all applications to demolish non-residential structures while the City considered potential additions to the City’s historic site register. Allegedly, the Temple’s property was the only property under consideration for such designation.
In June 2010, the Preservation Board approved the designation of the Temple’s synagogue as a historic landmark. The resolution, which took effect immediately, required the Temple to “preserve the [landmarked] portions of the Temple B’Nai Zion from modification in its exterior appearance, including alteration and/or demolition.” It further declared that “no building permits shall be issued to alter and/or demolish the aforementioned portions of Temple B’Nai Zion.” The Temple appealed the decision of the Preservation Board to the City Commission. The City Commission consisted of four members of the Jewish faith, including three commissioners who were members of the Temple congregation when it was operated as a Conservative house of worship. Some of them apparently were angered by the Temple’s shift from Conservative Judaism to Orthodox Judaism. The City Commission voted to uphold the designation of the Temple’s property as a historic landmark.
The Temple sued in federal court, alleging that the City’s designation of its property as a historic landmark violated RLUIPA, the U.S. Constitution, and state law. The District Court dismissed the Temple’s claims as unripe under the Williamson County ripeness test. In particular, the District Court found that because the Temple’s principal complaint was its inability to expand due to the historic designation, it should have submitted building plans and requested a waiver or variance before filing suit. The Court also dismissed as unripe the Temple’s facial challenge to the City’s Code of Ordinance’s standards for designation as a historic landmark, preferring that claim be brought after the Temple submitted building plans and request a waiver or variance, if brought at all.
The Eleventh Circuit reversed the decision of the District Court. The Eleventh Circuit observed that although many of its sister circuits have applied Williamson County’s final decision requirement to RLUIPA and constitutional claims, it viewed that test as “an inappropriate tool for the specific facts presented here.” The Court stated:
“In our view, where, as here, the plaintiff alleges that the mere act of designating his or her property historic was motivated by discriminatory animus, Williamson County 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.”
Relying on the First Circuit’s decision in Roman Catholic Bishop of Springfield, the Eleventh Circuit found that the issue of whether the City designated the Temple as a historic site for discriminatory reasons satisfied the traditional ripeness principles. In particular, the Court found that (1) the issues are fit for judicial review because no further factual development is necessary and (2) delaying resolution of the Temple’s claims where no further factual development was possible would impose a hardship on the Temple.
The Takeaway
A trend may be emerging among the federal appellate courts to apply traditional ripeness principles, and not the Williamson County ripeness test, to determine the fitness of RLUIPA and constitutional claims for judicial review. This may have far-reaching implications, as Williamson County’s“final decision” requirement necessitates that a plaintiff seek a variance and perhaps other administrative relief before bringing suit in federal court. If this trend continues, plaintiffs may have the merits of such claims heard sooner rather than later. This may be seen in the Temple B’Nai Zion case, where under the Williamson County test the Temple would need to seek a building permit and variance before bringing suit, but did not have to do so under traditional ripeness principles for its claims to be deemed ripe for review. Still, the First and Eleventh Circuits limited their decisions to the specific facts of each case, leaving the door open for future application of Williamson County to certain non-takings claims.
Could other courts soon continue this apparent trend or perhaps even limit the Williamson County test to takings claims, the context in which it was established? The next court to weigh-in on this issue may be the Second Circuit in this case currently on appeal.* For now, RLUIPA and constitutional claims alleging discriminatory animus by the government agency may be found as ripe for judicial review under traditional notions of ripeness where the alleged injury is complete and cannot be further defined.
*Robinson & Cole LLP represents a party in the case.