Religious burden claim against Montgomery County appealed to Supreme Court

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Burtonsville landowners are urging the U.S. Supreme Court to review and revive their claim that Montgomery County illegally enforced a zoning requirement that prevented a Christian group from building a church on their land.

The two owners allege Montgomery essentially blocked construction of the church in violation of the Religious Land Use and Institutionalized Persons Act by refusing to alter the county’s master plan and extend sewer service to the planned building, though the county had allowed an extension for a secular facility.

The federal law, known by its acronym RLUIPA, prohibits government from imposing substantial burdens on religious exercise through land use restrictions.

Montgomery County has denied the alleged violation.

The county’s refusal to extend sewer service — and lower court decisions upholding the refusal — have blocked Burtonsville Associates and Burtonsville Crossing LLC’s planned sale of their land to Canaan Christian Church, a sales plan which has been in place since 2013.

The landowners have lobbied the county on behalf of themselves and the church, as well as pressing their legal claims in court, so far to no avail.

In March, the 4^th U.S. Circuit Court of Appeals upheld U.S. District Judge Theodore D. Chuang’s grant of summary judgment to the county.

The 4^th Circuit said Canaan Christian Church had no “reasonable expectation” that the county would change its master plan upon request and held that the county complied with RLUIPA by telling the church it could build a smaller facility. In addition, the county did not treat the church on “less than equal terms” with the secular building that was afforded a sewer service extension, the 4^th Circuit said.

In the petition for Supreme Court review, the owners’ attorney stated that a religious group need not show it had a reasonable expectation of zoning approval before it can claim a denial substantially burdened its religious exercise under the law.

To require such a showing would turn “RLUIPA into a statute limiting federal courts to sit as boards of zoning appeals, determining simply whether under local zoning law a permit should have been expected to be granted,” the owner’s counsel of record, Roman P. Storzer, wrote in the petition filed with the justices this month.

“RLUIPA is nothing of the sort, but is a federal civil rights statute limiting … the situations in which local government may take zoning actions that impose substantial burdens on religious exercise,” added Storzer, of Storzer & Associates PC in Washington. “The 4^th Circuit’s rejection of a thorough review of the actual burdens facing a religious congregation claiming a substantial burden on its religious exercise, in favor of a rule that requires as a necessary condition of a finding of substantial burden that the congregation had a reasonable expectation of zoning approval, is inconsistent with this (Supreme) Court’s decisions and in conflict with a number of circuits.”

The 4^th Circuit was also wrong to allow Chuang, who sits in the Greenbelt federal courthouse, to conclude without a hearing that the county satisfied RLUIPA by telling the church it could build an 800-seat facility rather than one that accommodates 2,000 congregants, as it had requested.

“Of course a church is not entitled to a finding of substantial burden simply because it says it needs a facility of a certain size,” Storzer wrote in the petition.

“But the church is entitled to have a court examine whether denying a building of a certain size that it alleges it requires is in fact a substantial burden,” Storzer added. “It is incumbent on the court to review that question, and it should not be the case that just because a local government offers to allow a church of a smaller size, the inquiry is over and the plaintiff loses, as the court held here.”

The 4^th Circuit also should not have permitted Chuang to conclude without a hearing that the county was justified in extending sewer service for the Glenstone Museum in Potomac but not for the planned church. Chuang had concluded that the museum and church did not fall under the same master plan.

“Here, the county treated the church differently from a secular institution or assembly, the museum, by denying it the same relief under the same relevant condition, namely a specific recommendation in the applicable master plan against sewer access,” Storzer wrote. “It was incumbent on the court to analyze whether the asserted difference between the permitted museum and the forbidden church – that they were subject to two different master plans – was a meaningful difference in light of the county’s asserted interests, as other circuits have done.”

Montgomery County declined to comment Tuesday on the case or the owners’ petition.

The county has until Nov. 15 to respond to the owners’ request for Supreme Court review. The county is being represented at the high court by Howard R. Feldman of Whiteford, Taylor & Preston LLP in Baltimore.

The justices have not stated when they will vote on the owners’ request. The case is docketed at the high court as Burtonsville Associates et al. v. Montgomery County, Md., et al., No. 22-260.

The 4^th Circuit’s published decision in the case is docketed as Burtonsville Associates et al. v. Montgomery County, Md., et al., No. 20-2185.