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Montgomery County urges justices to deny religious burden claim

Montgomery County validly enforced a zoning requirement that two Burtonsville landowners claim prevented a Christian group from building a church on their land, the county stated Monday in urging the U.S. Supreme Court to deny the owners’ request that it hear their appeal.

Burtonsville Associates and Burtonsville Crossing LLC allege the county essentially blocked construction of the church in violation of the federal Religious Land Use and Institutionalized Persons Act by refusing to alter its master plan and extend sewer service to the planned building, as it had done for a secular facility.

Montgomery County, in its responsive high court filing, said Congress enacted RLUIPA to prohibit government from imposing a substantial burden on religious exercise through land use restrictions.

Lawmakers, however, did not require counties to make special accommodations for religious facilities in land use decisions, as that would violate the constitutional prohibition on governmental establishment of religion, wrote the county’s lead attorney, Howard R. Feldman.

He added that the county’s decision to stick with its master plan on sewer service did not substantially burden the church’s religious exercise because a septic system would still enable the church to have an 800-seat facility rather than its preference for one that would accommodate 2,000 congregants.

The landowners “advocate for a rule that a religious institution is deemed to be substantially burdened when it does not obtain exactly what it seeks when making a land use request, even if the denial leaves the potential to construct a different religious facility on the property at issue,” wrote Feldman, of Whiteford, Taylor & Preston LLP in Baltimore.

“A rule allowing a substantial burden claim based solely on whether a religious institution obtains what it wants, no matter how unrealistic or unsuitable the proposal, would allow by judicial fiat what Congress expressly warned against,” Feldman added. “Contrary to RLUIPA’s legislative history and the Establishment Clause, such a standard would immunize religious institutions from local land use regulations.”

The county’s refusal to extend sewer service — and lower court decisions upholding the refusal — have blocked Burtonsville Associates and Burtonsville Crossing’s planned sale of their land to Canaan Christian Church, a sales plan that 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 4th U.S. Circuit Court of Appeals upheld U.S. District Judge Theodore D. Chuang’s grant of summary judgment to the county. The 4th Circuit said the owners had not shown a reasonable expectation of zoning approval, which the court deemed necessary to pursue a substantial burden claim.

In their request for Supreme Court review, the owners stated through counsel that a religious group need not show a reasonable expectation of zoning approval.

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,” wrote the owners’ lead attorney, Roman P. Storzer.

The 4th 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 a smaller facility, Storzer added.

“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.

“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,” added Storzer, of Storzer & Associates PC in Washington. “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 Supreme Court has not stated when it will vote on the owners’ request for review. The case is docketed at the high court as Burtonsville Associates et al. v. Montgomery County, Md., et al., No. 22-260.

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


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