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Case 1:06-cv-00554-REB-BNB Document 34-1 Filed 06/30/2006 Page 1 of 36
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 06-cv-00554-REB-BNB
ROCKY MOUNTAIN CHRISTIAN CHURCH, a Colorado nonprofit corporation, ALAN
AHLGRIM, Lead Pastor, DONALD BONDESON, Discipleship Pastor, BARB EVANS,
Director of Women’s Ministry, and DAVID PAGE, Elder,
Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY, COLORADO
Defendant.
_____________________________________________________________________
MOTION TO DISMISS AMENDED COMPLAINT
_____________________________________________________________________
Defendant Board of County Commissioners of Boulder County, Colorado (the
“County”) moves to dismiss Plaintiffs’ Amended Complaint and Jury Demand (the
“Complaint”) under Fed. R. Civ. P. 12(b)(1) and (6). In support, the County states as
follows:
Statement of the Case
Rocky Mountain Christian Church, Alan Ahlgrim, Donald Bondeson, Barb Evans,
and David Page (together “RMCC”) brought multiple state and federal law claims
against the County arising out of RMCC’s application to nearly double the size of its
existing church facility in unincorporated Boulder County. As further discussed below,
RMCC’s federal law claims and its state law inverse condemnation claim should be
dismissed.
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In approximately 1984, RMCC began construction of a church facility on its
property. (Amended Complaint and Jury Demand (“Complaint”) ¶ 59.) By 1993, RMCC
had a church building on its property that was approximately 50,000 square feet in size.
(Id. ¶ 65.) Between 1993 and 2003 the County approved five separate significant
requests from RMCC to expand the use and size of its church facilities. (Id. ¶¶ 66, 86-
88, 93-94 and 96-97; Resolution No. 2006-23, Exhibit B to Complaint, 1-2.). The
approvals can be summarized as follows:
Year Approval
1993 20-child pre-school
1994 Mom’s day out program
1998 Expansion to 103,960 square feet, addition of
k-5 elementary school
2001 Addition of 6th grade to school
2003 Addition of modular building and 7th and 8th
grades
(Ex. B to Compl., 1-2.)
By 2004, the church’s facility was well over 100,000 square feet in size and
included a sanctuary space that seated 1,400, a “Mom’s Day Out” program that
handled 40 children 5 days a week, and Christian academy that provided weekday
education to 380 children from kindergarten through eighth grade. (Compl. ¶¶ 96-97.)
In addition to multiple worship services, RMCC hosts sports programming, meetings for
non-profit organizations, social services functions, weddings, funerals, and support
groups. (Id. ¶¶ 56-57.)
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In April of 2004, RMCC filed a sixth application with the County for another
sizable expansion. (Id. ¶ 96.) The application initially included, among other things, a
request to add 152,200 square feet to the church facility and to increase the student
enrollment in the academy by another 160 students, to a total of 540 students. (Id. ¶
21.) RMCC later amended its application to request to add 132,200 square feet of new
building space and, at least temporarily, dropped its request to increase school
enrollment. (Id. ¶ 21; Ex. B. to Compl., 2.)
On September 15, 2004, the Boulder County Planning Commission held a
hearing on the application and unanimously recommended denial to the Board of
County Commissioners. (Ex. B to Compl., 3.) The Board of County Commissioners
(the “Board”) held public hearings on the application on November 7, 2005 and January
17, 2006, to consider public testimony and evidence related to the application. (Compl.
¶¶ 110 and 117.)
On February 2, 2006, the Board reached a decision on the application which was
reflected in Resolution No. 2006-23 (the “Resolution”). (Id. ¶ 119.) As further specified
in the Resolution, the County approved the following aspects of the application: (1) the
requested increase in sanctuary seating capacity from 1,400 seats to 1,550 seats; (2)
the addition of up to 10,000 square feet in permanent floor area to replace the 7,200
square-foot temporary modular building approved for school use in 2003; and (3) a
permanent school building to replace the existing modular school. Id. The County
denied the remainder of RMCC’s request. Id.
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The primary basis for the County’s denial of the full request as applied for by
RMCC, as further stated in the Resolution, was that the church’s property is located on
agriculturally zoned land which the County’s Comprehensive Plan has for many years
designated as agricultural lands of national importance. (Ex. B to Compl. 6-7.) The
Comprehensive Plan also designates the Church Property as a rural buffer area
between the semi-rural residential area known as Niwot and the surrounding agricultural
lands. (Id.). The Board found that the proposed facility, in contrast, was urban in nature:
it would have been 240,800 square feet in size, with attendant parking for 1,245
vehicles and room for a congregation of well over 1,500 persons drawn from many parts
of the County and surrounding counties. The proposal was not in harmony with the
rural character of the neighborhood, was an over-intensive use of agricultural land, and
violated the County’s Comprehensive Plan. (Id. 5-7.)
As a part of the Resolution, the Board stated its belief that its decision to deny
portions of RMCC’s application–its sixth in ten years--did not pose a substantial burden
on RMCC’s exercise of religion, and did not otherwise constitute a violation of the
Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. §§
2000cc to 2000cc-5. (Id. 9.) The Board also acknowledged that it is not the final or
even the appropriate arbiter of this conclusion, and therefore determined that it was
prudent and justified to authorize the County Attorney to file a declaratory judgment
action in federal district court to confirm whether the decision complies with the
mandates of RLUIPA. Id. On March 17, 2006, the County filed a declaratory judgment
4
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claim known as Board of County Commissioners v. Rocky Mountain Christian Church,
06-cv-00486-MSK-BNB. That case is pending before the Honorable Marcia S. Krieger. 1
Argument
I. This Court lacks subject matter jurisdiction over RMCC’s as-applied First
Amendment, equal protection and RLUIPA claims because they are not ripe.
The allegations in the Complaint demonstrate that many of RMCC’s claims arise
out of the County’s application of the Boulder County Land Use Code (the “Code”) to
RMCC’s property. In making such “as-applied” claims, RMCC has “the burden of
producing evidence to establish that the issues are ripe.” Signature Properties Int’l Ltd.
Partnership v. City of Edmond, 310 F.3d 1258, 1265 (10th Cir. 2002). Whether
particular claims are ripe for review bears on this court’s subject matter jurisdiction
under Article III of the United States Constitution. See New Mexicans for Bill
Richardson v. Gonzales, 64 F.3d 1495, 1498-99 (10th Cir. 1995). Therefore, a ripeness
challenge should be brought as a motion to dismiss under Fed. R. Civ. P. 12(b)(1).
Bateman v. City of West Bountiful, 89 F.3d 704, 706 (10th Cir. 1996). Because RMCC
cannot meet its burden of proving its claims are ripe, its complaint should be dismissed.
In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson
City, 473 U.S. 172 (1985), the United States Supreme Court set forth two requirements
that must be met for a takings claim to be ripe. First, "the government entity charged
with implementing the regulations [must have] reached a final decision regarding the
1
The Complaint falsely characterizes the County’s declaratory judgment claim as a strategic lawsuit
against public participation, or SLAPP suit. However, the County’s suit does not meet any traditional
definition of a SLAPP suit. See GEORGE W. PRING AND PENELOPE CANAN, SLAPPS: GETTING SUED FOR
SPEAKING OUT (Temple University Press 1996); see also Duracraft Corp. V. Holmes Product Corp., 691
N.E.2d 935, 940 (Mass. 1998)
5
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application of the regulations to the property at issue." Williamson County, 473 U.S. at
186. Second, plaintiffs must have sought "compensation through the procedures
provided by the State for doing so.” Id. at 194.
The Tenth Circuit applies the Williamson County ripeness test to non-takings
claims involving land use decisions, such as due process and equal protection claims.
Signature Properties, 310 F.3d at 1266; Bateman, 89 F.3d at 709; and Landmark Land
Company of Oklahoma, Inc. v. Buchanan, 874 F.2d 717 (10th Cir. 1989), abrogated on
other grounds by Federal Lands Legal Consortium ex rel. Robart Estate v. U.S., 195
F.3d 1190 (10th Cir. 1999). Under reasoning similar to that used by the Tenth Circuit in
Signature Properties, Bateman, and Landmark Land, the Second Circuit—the only
circuit to directly address this issue—has determined that the first prong of the
Williamson County test applies to First Amendment and RLUIPA claims. See Murphy v.
New Milford Zoning Comm’n, 402 F.3d 342, 350 (2d Cir. 2005).
Under the first prong of the ripeness test, a federal court “must allow the local
authority a chance to take final action. Until it has a final action before it, a court is
unable to evaluate whether property was taken and whether the local authorities'
position was arbitrary.” Landmark Land, 874 F.2d at 722; see also Bateman, 89 F.3d at
709. RMCC does not meet the first prong of the Williamson County ripeness test for
several reasons. First, the County’s denial of the RMCC’s application could be modified
as a result of a remand of the County’s pending declaratory judgment action, as the
Board contemplated in its Resolution. Second, the County’s decision could be voided
and remanded as a result of RMCC’s Colo. R. Civ. P. 106(a)(4) claim. Third, the extent
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of RMCC’s alleged substantial burden cannot be determined by its single development
application. Finally, the land use regulations that were applied by the County could be
voided by RMCC’s declaratory judgment claim, which would render the County’s
decision moot.
RLUIPA prohibits a governmental entity from applying a land use regulation "in a
manner that imposes a substantial burden on the religious exercise of a person ...
unless the government demonstrates that imposition of the burden ... is in furtherance of
a compelling government interest; and ... [the burden imposed] is the least restrictive
means of furthering that compelling governmental interest." 42 U.S.C. § 2000cc(a)(1).
In rendering its decision on RMCC’s application, the Board explained that it did not
believe its decision violated any of the provisions of RLUIPA, but stated that “the Board
recognizes that it is not the final or even the appropriate arbiter of the applicability of
[RLUIPA] to its decision on the Docket.” (Ex. B to Compl. 9.) It further found that “if a
final judicial ruling on this question determines that the Board's decision does not
comply with the mandates of [RLUIPA], the Board will conduct appropriate proceedings
to modify its decision accordingly.” Id. Under the Board’s instruction, the County
initiated a declaratory judgment lawsuit seeking guidance in this area. (See Civil Action
No. 06-cv-00486-MSK-BNB).
The County’s Resolution and its pending declaratory judgment claim
demonstrate that RMCC’s RLUIPA, First Amendment and Fourteenth Amendment
claims are not yet ripe for review. The County’s denial of RMCC’s application was not a
final determination on the application. Because of the lack of clarity in the law under
7
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RLUIPA, the Board sought, at its own expense, federal court determination of the
unsettled federal issues involved. If, as RMCC repeatedly alleges, the County’s
decision on the application would constitute a violation of RLUIPA, then the County has
made clear in writing that it will voluntarily modify its decision accordingly. The only
determination the Court could make at this point is whether the County’s determination,
absent any further modification in response to the County’s declaratory judgment action,
would constitute a RLUIPA violation. It would be a waste of this Court’s resources to
determine the validity of a decision that is explicitly subject to modification.
The RLUIPA, First Amendment, and equal protection claims also are not ripe
because of RMCC’s pending state law claim under Colo. R. Civ. P. 106(a)(4). Under
Rule 106(a)(4), the state district court reviews the record of the proceeding below for an
abuse of discretion by the governmental body according to state law. If the court finds
that an abuse of discretion occurred, the court remands the disputed decision to the
lower tribunal for further review in light of the district court’s decision. See, e.g.
Anderson v. Board of Adjustment for Zoning Appeals, 931 P.2d 517 (Colo. App. 1996).
Therefore, the County’s decision is still subject to review and remand through the
pending state law claim.
RMCC’s claim also is not ripe because the only application that the County has
rejected for the use of the land was an application for a grandiose expansion including a
larger gym and additional classroom space—an application that RMCC described as
“maximum build-out.” (Compl. ¶ 98.) The Complaint contains no allegation that RMCC
submitted, or that the County considered, a more modest proposal for a church
8
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expansion or a proposal for an alternative use for what RMCC calls the Second Parcel.
RMCC also asserts, in a conclusory fashion, that the Board has acted in a manner that
is hostile toward its religion and religion in general, but alleges no facts to support these
claims. (Id. ¶¶ 19, 23-24.)
A single development proposal cannot establish a final decision on what level of
development will be permitted. In MacDonald, Sommer & Frates v. Yolo County, 477
U.S. 340 (1986), the appellant “alleged the denial of only one intense type of residential
development.” MacDonald, 477 U.S. at 352 n.8. The Court rejected the appellant’s
takings claim, stating “appellant has submitted one subdivision proposal and has
received the Board's response thereto. Nevertheless, appellant still has yet to receive
the Board's ‘final, definitive position regarding how it will apply the regulations at issue to
the particular land in question.’” Id. (quoting Williamson County, 473 U.S. at 191). The
Court went on to note that “[r]ejection of exceedingly grandiose development plans does
not logically imply that less ambitious plans will receive similarly unfavorable reviews.”
Id. at n.9. Especially considering the County’s long history of approving other
applications on RMCC’s property, RMCC’s RLUIPA, First Amendment, and equal
protection claims are not ripe under the MacDonald analysis.
In addition, the County’s decision would be void, and this action therefore moot, if
RMCC succeeded on its state law declaratory judgment claim. In that claim, RMCC
argues that the County’s regulations constitute an impermissible delegation of
legislative authority and cannot be enforced against RMCC to deny its application.
(Compl. ¶ 158.) If the Court found that the County’s regulations were unenforceable,
9
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the case, at the very least, would have to be remanded to the County with direction to
take action consistent with the Court’s determination.
It would be a waste of judicial resources to litigate a federal civil rights claim over
a decision to deny a particular use only to discover, by operation of a state court review
of the decision or the underlying regulations, that the decision is void. Therefore,
RMCC’s RLUIPA, First Amendment, and Fourteenth Amendment claims should be
dismissed for lack of ripeness.
II. RMCC lacks standing under RLUIPA to challenge the County’s limitation of
churches in the Forestry District.
RMCC "bears the burden…of coming forward with evidence of specific facts
which prove standing." Bear Lodge Multiple Use Ass'n. v. Babbitt, 175 F.3d 814, 821
(10th Cir. 1999). It must "clearly and specifically set forth facts sufficient to
satisfy…Article III standing requirements." Whitmore v. Arkansas, 495 U.S. 149, 155
(1990). To establish standing, RMCC must allege: "(1) an injury in fact, (2) a causal
connection between the injury and the challenged act, and (3) a likelihood that the injury
will be redressed by a favorable decision." Roe No. 2 v. Ogden, 253 F.3d 1225, 1228-
29 (10th Cir. 2001). The injury in fact must be "an invasion of a judicially cognizable
interest which is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical." State of Utah v. Babbitt, 137 F.3d 1193, 1202 (10th Cir.
1998).
For its sixth claim for relief, RMCC claims that the Boulder County Land Use
Code (the “Code”) “unreasonably limits religious assemblies, institutions and
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structures…by not authorizing churches in the Forestry District…” (Compl. ¶ 188.)
However, RMCC admits that its property “has been at all times since 1984[] in an
Agricultural (A) zone district.” (Id. ¶ 61.) RMCC has not alleged that it owns or has
attempted to acquire property in the Forestry District. Thus, RMCC has failed to allege
that the County’s limitation on churches in the Forestry District caused RMCC an injury
sufficient to establish standing. Furthermore, the limitation on uses in the Forestry
District is not confined to religious institutions; many other similar uses, such as day
care centers and educational facilities, are also not permitted in the Forestry District.
Such limitations are in harmony with the County’s neutral and generally applicable
Comprehensive Plan. RMCC’s sixth claim for relief should be dismissed.
III. RMCC’s facial free exercise claims should be dismissed because the Code does
not facially discriminate against religion or burden free exercise rights.
In its seventh and eighth claims for relief (Compl. ¶¶ 194-253), RMCC alleges
that the County violated the Church’s free exercise rights under the U.S. and Colorado
Constitutions 2 through the enactment of the Code. The facial constitutionality of a law is
a “purely legal question . . .” U.S. v. Quinones, 313 F.3d 49, 59 (2nd Cir. 2002); see
also U.S. v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003) (“a facial challenge to the
constitutionality of a statute is a question of law . . .”). Thus, a facial challenge may be
decided on a motion to dismiss. See Thomas v. City of Baxter Springs, 369 F.Supp.2d
1291, (D. Kan 2005). A court considering a facial challenge must “begin with the
2
Analysis of these issues is essentially the same under the Colorado and United States Constitutions.
See, e.g. Z.J. Gifts D-2, L.L.C. v. City of Aurora, 93 P.3d 633, 640 (Colo. App. 2004) (free speech); Young
Life v. Division of Employment and Training, 650 P.2d 515, 526 (Colo. 1982) (free exercise); Lujan v.
Colo. State Bd. Of Educ., 649 P.2d 1005 (Colo. 1982) (equal protection); Kemp v. State Bd. Of
Agriculture, 790 P.2d 870, 873 (Colo. App. 1989) (petition).
11
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precept that ‘[a] facial challenge to a [law] is ... the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists
under which the [law] would be valid.’” West v. Derby Unified School District No. 260,
206 F.3d 1358, 1367 (10th Cir. 2000) (quoting U.S. v. Salerno, 481 U.S. 739, 745
(1987)). “Because facial challenges push the judiciary towards the edge of its traditional
purview and expertise, courts must be vigilant in applying a most exacting analysis to
such claims.” Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973).
The Tenth Circuit has made an “unequivocal declaration that [a] church has no
constitutional right to be free from reasonable zoning regulations nor does a church
have a constitutional right to build its house of worship where it pleases.” Grace United
Methodist Church v. City of Cheyenne, ____ F.3d _____, 2006 WL 1681321, *6 (10th
Cir. June 20, 2006) (quotation omitted). “Neutral rules of general applicability normally
do not raise free exercise concerns even if they incidentally burden a particular religious
practice or belief” and “need only be rationally related to a legitimate governmental
interest to survive a constitutional challenge.” Id. *3. Therefore, a rational basis test
applies unless the court examines the text of the challenged ordinance and determines
that the “regulation at issue was motivated by discriminatory animus . . .” Grace United
Methodist Church, 2006 WL 1681321 at *5. For example, in Church of Lukumi Babalu
Aye v. City of Hialeah, 508 U.S. 520, 535 (1993), the Supreme Court looked at “the
ordinances when considered together” to determine that they accomplished a “religious
gerrymander, an impermissible attempt to target petitioners and their religious
practices.” (quotations and citations omitted).
12
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The Code does not show discriminatory animus toward religion. Church uses do
not require special use review in the County’s Agricultural Zoning District unless traffic
generation, occupancy, or size of the use exceeds certain standards. (Code, art. 4-
102(B)(6)(b) and (F), attached as Exhibit A). 3 In fact, every use in the Agricultural
District that generates traffic volumes of 150 average trips per day, has an occupant
load of 100 persons, has a wastewater flow of more than 2000 gallons per day, or has a
total floor area greater than 25,000 square feet is subject to special review. (Id. art. 4-
102(F)). Thus, under art. 4-102(F) of the Code, RMCC’s large expansion would have
made RMCC subject to special review regardless of whether the proposed use was
religious.
Furthermore, the Code specifically lists thirty-nine uses that are subject to special
use review in the Agricultural District regardless of intensity, such as day care centers,
educational facilities, resort lodges, reception halls, and community meeting facilities.
(Id. art. 4-102(B)). Churches, in contrast, do not require special review unless the
intensity provisions are exceeded. (Id. art. 4-102(B)(6)(b)). Thus, on its face, the Code
is actually less restrictive for church uses than for similar institutional uses. The Code
fails to contain “any indicia that the zoning regulations” were enacted “with the purpose
of restricting or suppressing the free exercise of any religion or religious group.” Id. at 7.
Because the face of the Code does not indicate that it was enacted to suppress
free exercise, it may only be reviewed under a rational basis analysis by the Court. The
3
The designation (S) next to a use indicates uses permitted by Special Review. (Code, use table legend
at art. 4-501, Exhibit A).
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purpose of the Code is to “protect and promote the health, safety, and general welfare
of the present and future inhabitants of Boulder County and to guide future growth,
development, and distribution of land uses within Boulder County.” (Code, art. 1-300,
Exhibit A). Similarly, the purpose of the Agricultural Zoning District is to establish “[r]ural
areas where conservation of agricultural resources of major value, and where
residential development compatible with agricultural uses is allowed.” (Code, art. 4-
102(A), Exhibit A). The Code’s classification of proposed land uses that have significant
impacts is rationally related to those legitimate goals and therefore passes the “rational
basis” test. Thus, RMCC’s the facial constitutional challenges in RMCC’s seventh and
eighth claims for relief should be dismissed.
IV. RMCC failed to state facial equal protection, free speech, and assembly claims
because the Code substantially advances important governmental interests
unrelated to the suppression of free speech and does not burden substantially
more speech than necessary to further those interests.
Like RMCC’s facial free exercise claims, the church’s facial equal protection, free
speech, and assembly claims fail because the Code is a content neutral zoning
regulation that has only an incidental burden on RMCC’s constitutional rights. Because
the Code contains no classifications based on race, alienage, or national origin, a
rational basis review applies to RMCC’s equal protection claim. See Grace United, 2006
WL 1681321 at *12. Furthermore, since the provision of the Code being challenged by
RMCC is a zoning ordinance with only an incidental effect on speech and assembly
rights, an intermediate level of scrutiny applies to RMCC’s speech and assembly claims.
Id. at *10. Intermediate scrutiny means that the regulation “advances important
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governmental interests unrelated to the suppression of free speech and does not
burden substantially more speech than necessary to further those interests.” Id.
As detailed in Section III above, the provisions of the Code requiring special use
review for high-impact uses is rationally related to the County’s legitimate governmental
interests. The Code “only interferes with the congregation's ability to conduct that
particular operation at a specific location, . . . and the County “has a substantial interest
in regulating the use of its land and . . . its zoning regulations promote that interest.” Id.
at *11. Therefore, the Code passes the intermediate scrutiny test and RMCC’s facial
challenges to the Code should be dismissed.
V. RMCC failed to state an as-applied equal protection claim because it has not
identified a group, property or individual to which it was similarly situated.
To state an as-applied equal protection claim under § 1983, RMCC “must allege
facts sufficient to establish that [it is] similarly situated” to another who was treated
differently. Crider v. Board of County Com’rs of County of Boulder, 246 F.3d 1285,
1288 (10th Cir. 2001). RMCC did not allege any fact that supports its contention that
“the actions of the Board and other County officials” treated RMCC differently than
others “similarly situated.” (See Complaint, ¶ 246). RMCC does not identify by name or
description any particular individual or group that was allegedly treated differently than
RMCC in the Boulder County land use process. (Id.). 4 Thus, RMCC’s has not stated
an “as-applied” equal protection claim under the Fourteenth Amendment or Article II,
4
RMCC notes that Niwot High School is located near the Church Property. (Compl. ¶. 49). However, the
County did not “apply” the Code to Niwot High School because public schools are exempted by statute
from county land use regulation. (See Compl. ¶ 165).
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Section 25 of the Colorado Constitution. See Congregation of Kol Ami v. Abington
Township, 309 F.3d 120, 140-143 (3d Cir. 2002).
VI. The County is entitled to immunity from RMCC’s right to petition claims.
In its eleventh and twelfth claims for relief, RMCC claims that the County should
be held liable for damages because the County filed a declaratory judgment action in
federal court. The County’s act of filing suit in federal court constitutes a petition to the
government for a grievance: “[T]he right to petition extends to all departments of the
Government. The right of access to the courts is indeed but one aspect of the right of
petition.” Cardtoons, L.C. v. Major League Baseball Players Ass’n, 208 F.3d 885, 891
(10th Cir. 2000). Because RMCC’s eleventh and twelfth claims for relief are based on
the County’s exercise of its right to petition, the County is entitled to “right to petition”
immunity from those claims. Id. at 889-90; see also Manistee Town Center v. City of
Glendale, 227 F.3d 1090, 1093-95 (9th Cir. 2000) (applying immunity to local
government petitioning activities).
VII. RMCC’s RLUIPA claims should be dismissed because the land use provisions of
RLUIPA are unconstitutional.
Even if the Court determines that RMCC’s claims are ripe, the Court should
determine the constitutionality of RLUIPA before addressing its application. See City of
Boerne v. Flores, 521 U.S. 507 (1997) (addressing the constitutionality of the Religious
Freedom Restoration Act prior to any application of that statute). The only arguable
constitutional bases for RLUIPA’s regulation of land use laws are the Commerce Clause
and Section 5 of the Fourteenth Amendment. No other enumerated power, such as the
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Spending Clause, is implicated by RLUIPA’s land use provisions. 42 U.S.C. §§
2000cc(a)(2)(A); 2000cc-2(b)(1) (2005). Cf. Cutter v. Wilkinson, 423 F.3d 579, 584-91
(6th Cir. 2005). As shown below, Congress did not have authority under the Commerce
Clause or Section 5 to enact RLUIPA. Furthermore, RLUIPA violates numerous other
constitutional provisions, such as doctrine of the separation of powers, the Tenth
Amendment, and the Establishment Clause of the First Amendment.
A. RLUIPA is beyond Congress’s enforcement powers under the
Fourteenth Amendment.
Under Section 5 of the Fourteenth Amendment, Congress may only impose on
the states restrictions that are more onerous than the Constitution’s requirements – as
RLUIPA does – when two criteria are met. First, there must be proof of widespread and
persisting unconstitutional conduct by the states. See Tennessee v. Lane, 541 U.S.
509, 526-29 (2004). Second, the federal legislation must be “congruen[t] and
proportional” to the constitutional evils identified. Id. at 531.
In Tennessee v. Lane, which upheld Title II of the Americans with Disabilities Act,
the Supreme Court identified additional indicia that would indicate that legislation falls
within congressional power. Id. The Court upheld Title II because (1) it was enacted
“against a backdrop of pervasive unequal treatment in the administration of state
services and programs, including systematic deprivations of fundamental rights”; (2)
there were laws that plainly discriminated against the disabled on their face and that
had been the subject of recent legal challenge; (3) prior Supreme Court cases
“identified unconstitutional treatment of disabled persons by state agencies in a variety
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of settings”; and (4) the decisions of lower courts documented “a pattern of unequal
treatment [of the disabled] in the administration of a wide range of public services,
programs, and activities.” Id. at 524-25. RLUIPA cannot be justified under any of these
criteria.
i. No widespread and persistent pattern of constitutional violation exists
that justifies RLUIPA.
The legislative history behind RLUIPA does not—because it cannot—establish
widespread and persisting constitutional violations against religious institutions in local
and state land use processes. Congress failed to establish specific proof of
widespread and persisting constitutional violations by the states and no other indicia
show that such an extensive pattern of violations exists. See Lane, 541 U.S. at 524-25.
District courts have improperly justified RLUIPA’s takeover of local land use law
by seizing upon self-descriptive adjectives in RLUIPA’s legislative record. For example,
the first court to uphold RLUIPA’s constitutionality did not examine the legislative record,
but rather quoted the adjective used in the Joint Statement of Senators Hatch and
Kennedy, which characterized the evidence compiled as “massive.” Freedom Baptist
Church v. Township of Middletown, 204 F. Supp. 2d 857, 862 (E.D. Pa. 2002). Other
district courts upholding RLUIPA rely on the Freedom Baptist court’s summary
acceptance of RLUIPA’s legislative history without analyzing the congressional record.
See, e.g., Murphy v. Zoning Comm’n, 289 F. Supp. 2d 87, 120 (D. Conn. 2003),
vacated by 402 F.3d 342 (2d Cir. 2005); The Church of the Hills of the Township of
Bedminster v. Township of Bedminster, 2006 WL 462674 (D.N.J. Feb, 24, 2006).
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The size of the legislative record is not relevant. See Bd. of Trs. of the Univ. of
Ala. v. Garrett, 531 U.S. 356, 370 (2001); see also United States v. Morrison, 529 U.S.
598, 620 (2000). Adjectives are not enough to justify federal nullification of local law.
See Board of Trustees v. Garrett, 531 U.S. 356, 369-70 (2001); U.S. v. Morrison, 529
U.S. 598, 615 (2000). Therefore, the prior district court cases examining the
constitutionality of RLUIPA were wrongly decided.
The only neutral and scholarly study involving religious landowners and land use
authorities showed that “it is extraordinarily uncommon for congregations to be denied
permission by government authorities to engage in the activities in which they wish to
engage.” Mark Chaves and William Tsitsos, Are Congregations Constrained by
Government? Empirical Results from the National Congregations Study, 42 J. CHURCH
& ST. 335, 342 (2000). Even though asked to include the study in the RLUIPA record,
the members of Congress declined. See Marci A. Hamilton, Federalism and the Public
Good: The True Story Behind the Religious Land Use and Institutionalized Persons Act,
78 IND. L.J. 311, 351-52 (2003).
RLUIPA’s legislative history is predominated by representatives of religious
organizations citing as unacceptable generally applicable, neutral land use laws, which
burden religious landowners just as they burden every other landowner. Id. 349-50.
Such evidence provided no support for the proponents’ theory that there is a pattern of
unconstitutional discrimination in land use decisions against religious landowners. Few
cases in the RLUIPA legislative record involve actual discrimination against religious
landowners. Thus, the record is insufficient to justify such invasive congressional
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interference with local land use processes, which are “one of the bastions of local
control, largely free of federal intervention.” Congregation Kol Ami, 309 F.3d at 135.
In contrast, the legislative record behind Title II of the ADA, which was found
sufficient to justify prophylactic federal legislation, included “hundreds of examples of
unequal treatment of persons with disabilities by States and their political subdivisions.”
Lane, 541 U.S. at 526 (emphasis added). Moreover, Congress cited a government-
generated study that further supported the finding of widespread and persisting
discrimination against the disabled. Id. at 527. Conversely, RLUIPA’s history lacked
Title II’s “sheer volume of evidence demonstrating the nature and extent of
unconstitutional discrimination.” Id. at 528.
The indicia for proving a pattern of discrimination cited in Lane are absent from
RLUIPA’s record. First, RLUIPA was not enacted “against a backdrop of pervasive
unequal treatment.” Id. at 524. Instead, lawmaking has tended to favor religious
entities, as shown first by RFRA and now RLUIPA and numerous other legislative
exemptions. See generally, MARCI A. HAMILTON, GOD VS. THE GAVEL: RELIGION AND THE
RULE OF LAW (2005). “[A] society that believes in the negative protection accorded to
religious belief can be expected to be solicitous of that value in its legislation. . .”
Employment Division v. Smith, 494 U.S. 872, 890 (1990).
Second, no relevant laws demonstrate on their face invidious discrimination
against religious landowners. See Lane, 541 U.S. at 531. Although laws have been
enacted that have incidental effects on religious landowners just as they burden
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nonreligious landowners, such laws do not prove the sort of invidious discrimination that
justified Title II.
Third, unlike the history of Supreme Court cases involving overt discrimination
against the disabled undergirding Title II, id. at 524-25, no Supreme Court case
addresses the issue RLUIPA portends to redress: circumstances involving animus or
hostility against a religious landowner in a land use process. Very few cases in the 125
years of free exercise jurisprudence at the Supreme Court involve animus or hostility
against religious entities in any context. See Church of Lukumi Babalu, 508 U.S. at
532. Thus, Supreme Court case law shows that animus or persecution against religious
entities in the United States is the exception rather than the norm.
Fourth, lower courts decisions do not “document a pattern of unequal treatment”
of religious landowners in the land use process. Lane, 541 U.S. at 525. Very few cases
address discrimination similar to that discussed in Tenafly Eruv Ass’n v. Borough of
Tenafly, 309 F.3d 144, 168-69 (3d Cir. 2002), cert. denied, 539 U.S. 942 (2003).
Moreover, of the many cases filed under RLUIPA since it was passed in 2000, no court
has found animus or hostility against a religious landowner. See Congregation Kol Ami,
309 F.3d at 143; Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1234 n.16
(11th Cir. 2004). Cf. Sts. Constantine & Helen Greek Orthodox Church v. City of New
Berlin, 396 F.3d 895, 900 (7th Cir. 2005).
It is “easier for Congress to show a pattern of state constitutional violations” with
respect to classifications that are subject to heightened scrutiny than it is for “legislation
that target[s] classifications subject to rational-basis review.” Lane, 541 U.S. at 529.
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However, as discussed in Section III above, rational basis review applies in the absence
of religious animus or hostility. See Grace United Methodist Church, 2006 WL
1681321 at *3. Therefore, RLUIPA’s scant legislative record involving actual hostility to
religious land use applicants and the very small number of cases actually finding
animus in the land use context cannot justify RLUIPA’s extraordinary intervention in
state and local land use regulation.
ii. RLUIPA is not congruent and proportional to any constitutional
violations by the states against religious landowners in the land use
context.
RLUIPA requires the court to apply a strict scrutiny analysis when a “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.” 42 U.S.C. § 2000cc
(a)(2)(C). This strict scrutiny standard does not reflect a constitutional standard, but
rather a dramatic ratcheting up of free exercise rights. RLUIPA’s reach not congruent or
proportional, but rather is “a piece of legislation [that] attempts substantively to redefine
a constitutional guarantee.” Lane, 541 U.S. at 531 n.1. RLUIPA is, therefore, beyond
Congress’s power.
The Supreme Court in Lane upheld Title II of the Americans with Disabilities Act,
which requires governments to “take reasonable measures” to accommodate the
disabled. Lane, 541 U.S. at 531. This reasonableness requirement was found
congruent and proportional to the vast record of discrimination against the disabled.
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Accordingly, Title II was narrowly tailored to redress known discrimination. In contrast,
RLUIPA subjects cases involving no animus or hostility to strict scrutiny, and it does so
against a very thin record. It is not a reasonable accommodation statute, but rather an
unreasonable imposition on state and local law disproportional to the few documented
instances of discrimination against religious landowners.
Although land use decisions such as special use permit applications are made on
a case-by-case basis, not all individualized assessments constitute constitutionally
suspect government action. See Grace United, 2006 WL 1681321 at *9. A court must
have some reason to assume the government is acting unconstitutionally to justify the
leap to strict scrutiny. Id. at *5; Grutter v. Bollinger, 539 U.S. 306, 326 (2003). See also
Locke v. Davey, 540 U.S. 712, 725 (2004).
As shown in Section III above, the County’s land Code, like the vast majority of
local land use laws, applies neutral standards in all proceedings. “Municipal zoning has
been a common and accepted exercise of the police power to protect city residents from
the effects of urbanization, overcrowding, and encroachment of commercial business for
over three-quarters of a century.” Grace United, 2006 WL 1681321 at *13 (quotations
omitted). Even if the law gives some discretion to the government to provide
exemptions, the discretion is guided by settled state law standards. See, e.g. City of
Colorado Springs v. Securcare Self Storage, Inc., 10 P.3d 1244 (Colo. 2000). Thus,
RLUIPA’s imposition of strict scrutiny in these circumstance does not mirror free
exercise protections, and instead imposes a new standard on land use law.
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In sum, RLUIPA does not satisfy either of the requirements that are necessary to
justify Congress’s micromanagement of local land use law under Sec. 5 of the
Fourteenth Amendment. There is no widespread and persisting pattern of
unconstitutional conduct by the states and no congruence and proportionality between
RLUIPA and whatever state action was identified. Unlike Title II of the ADA, the right to
expand land use beyond reasonable state and local regulation is not highly protected,
the legislative record is scant, and the remedy is not tailored to state and local concerns
or priorities. See Lane, 541 U.S. 509.
B. RLUIPA exceeds Congress’ power under the Commerce Clause
The Commerce Clause provides Congress with the authority to enact legislation
to “regulate Commerce with foreign Nations, and among the several States, and with
the Indian Tribes[.]” U.S. Const. art. I, § 8, cl. 3. Congress may regulate three broad
categories of activity under the Commerce Clause. See U.S. v. Lopez, 514 U.S. 549,
558 (1995). The first two do not fit RLUIPA. See Id. The third includes the power to
regulate intrastate activities where the activity has a substantial effect on interstate
commerce. Id. at 559. This category includes only those activities that are economic in
nature. Morrison, 529 U.S. at 619. See also Gonzales v. Raich, 545 U.S. 1, 125 S. Ct.
2195, 2206 (2005). RLUIPA lacks any “nexus with interstate commerce.” Lopez, 514
U.S. at 562.
The threshold question under the Commerce Clause is whether that which is
being regulated by RLUIPA is economic in nature. Like the Gun-Free School Zones Act
at issue in Lopez and the Violence Against Women Act in Morrison, RLUIPA,
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by its terms has nothing to do with ‘commerce’ or any sort of
economic enterprise, however broadly one might define
those terms. [It] is not an essential part of a larger regulation
of economic activity, in which the regulatory scheme could
be undercut unless the intrastate activity were regulated. It
cannot, therefore, be sustained. . . .
Lopez, 514 U.S. at 561 (footnote omitted). The Gun-Free School Zones Act regulated
whether a person could hold a gun near a school, an act the Supreme Court found to be
noneconomic in nature. Lopez, 514 U.S. at 561. Likewise, the civil remedy found
invalid in the Violence Against Women Act regulated the relationship between a woman
and her attacker and was noneconomic in nature. Morrison, 529 U.S. at 617-18.
RLUIPA regulates the land use law of the state and local governments. Law is, by its
nature, noneconomic. Id. at 610.
Furthermore, unlike the Controlled Substances Act upheld in Raich, 125 S. Ct. at
2203, RLUIPA is not part of a comprehensive federal regulatory scheme. RLUIPA is not
part of a First Amendment power to “regulate” religious conduct because the First
Amendment is a limitation on Congress’s power to regulate religious belief, not an
enumerated power. Cutter v. Wilkinson, 544 U.S. 709, 125 S. Ct. 2113, 2126 (2005)
(Thomas, J., concurring). For the Court to find an economic element in RLUIPA, it can
only “pile inference upon inference in a manner that would . . . convert congressional
authority under the Commerce Clause to a general police power of the sort retained by
the States.” Lopez, 514 U.S. at 567. Therefore, RLUIPA’s land use provisions cannot
be sustained under the Commerce Clause.
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C. RLUIPA violates the doctrine of separation of powers
With RLUIPA, Congress decided that neutral, generally applicable land use laws
should be subject strict scrutiny instead of rational relationship review. See Smith, 494
U.S. at 878. As a result, Congress altered free exercise rights and stepped into the
judiciary’s domain. “The design of the Fourteenth Amendment has proved significant . . .
in maintaining the traditional separation of powers between Congress and the
Judiciary. . . . The power to interpret the Constitution in a case or controversy remains in
the Judiciary.” Boerne, 521 U.S. at 523-24. “If Congress could define its own powers by
altering the Fourteenth Amendment’s meaning. . . Shifting legislative majorities could
change the Constitution and effectively circumvent the difficult and detailed amendment
process contained in Article V.” Id. at 529
RLUIPA violates the doctrine of separation of powers because Congress does
not have the power to interpret the Constitution in a manner that creates new
constitutional rights. RLUIPA vests religious individuals with a right of religious exercise
previously unknown—the right to special treatment under generally applicable state
laws. “Legislation which alters the meaning of the Free Exercise Clause cannot be said
to be enforcing the [Fourteenth Amendment].” Boerne, 521 U.S. at 519. “The Framers
were well acquainted with the danger of subjecting the determination of the rights of one
person to the ‘tyranny of shifting majorities,’” choosing instead to vest power in three
separate branches.” INS v. Chadha, 462 U.S. 919, 962 (1983) (Powell, J. concurring).
RLUIPA also violates the separation of powers doctrine because Congress
usurped the judicial role in assigning burdens of persuasion. See 42 U.S.C. § 2000cc-2
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(2003). Congress’ enactment of a statute that dictates burdens of persuasion and proof
usurps power properly in the hands of the judiciary. Gregory S. Watson, Federalism
and Federal Spending: Why the Religious Land Use and Institutionalized Persons Act of
2000 is Unconstitutional, 23 HAWAII L. REV. 479, 486-87 (2001). Congress’ action in
violation of the constitutional separation of powers cannot stand. See Boerne, 521 U.S.
at 536; see also Chadha, 462 U.S. at 957-58.
By creating new constitutional rights, Congress flouted the Supreme Court’s
decisions in Smith, Boerne, and Chadha, and infringed on the powers of the judiciary to
determine the burden of proof under the First Amendment. See Watson, 23 HAWAII L.
REV. at 487. Like RFRA, RLUIPA is “designed to control cases and controversies” and
is beyond congressional authority. Boerne, 521 U.S. at 536.
D. RLUIPA Violates the Tenth Amendment to the United States
Constitution
RLUIPA is contrary to the Tenth Amendment because it interferes with the laws
of the states in an area where states have traditional and primary power. RLUIPA is a
new kind of federal legislation: it imposes a judicial standard of review on the laws of the
states. The only other law that employed the same formulation is RLUIPA’s
predecessor, RFRA, which the Supreme Court invalidated on federalism principles.
“The stringent test RFRA demands of state laws. . .is a considerable congressional
intrusion into the States' traditional prerogatives and general authority to regulate for the
health and welfare of their citizens.” Boerne, 521 U.S. at 533-34. If upheld, RLUIPA is
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a formula for federal lawmaking that dramatically expands federal power over the
states.
This new formula is in tension with the Constitution’s limits on federalism. The
formula is problematic because it is applied in an arena that naturally and traditionally
has belonged to local control--land use. “[T]he States [have] traditional and primary
power over land and water use.” Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30,
44 (1994) (holding that regulation of land use is a function traditionally performed by
local governments). As shown in section VII(A) of this motion, Congress has been
unable to show widespread discrimination against religion by land use authorities.
Thus, RLUIPA does not redress discrimination, but rather provides a benefit to a class
of landowners based on their religious status to the detriment of local and state land use
law and the communities that enact those laws. RLUIPA regulates states in their
sovereign capacity by nullifying the application of otherwise authorized land use law to
religious uses. RLUIPA’s impact on local and state law is amplified by its attorneys
fees provision, 42 U.S.C.S. § 1988(b), which Congress provided to religious entities to
pressure state and local governments into acquiescing with their demands to avoid the
laws that govern everyone else. Congress’ attempt to micromanage local land use law
by subsidizing religious entities’ litigation should be invalidated.
E. RLUIPA violates the Establishment Clause of the First Amendment to
the United States Constitution.
i. RLUIPA violates the principles set forth in Lemon v. Kurtzman
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For a statute to be constitutional under the Establishment Clause, is must pass
the three-pronged test established in Lemon v. Kurtzman, 403 U.S. 602 (1971). “First,
the statute must have a secular legislative purpose; second, its principal or primary
effect must be one that neither advances nor inhibits religion, finally, the statute must
not foster an excessive government entanglement with religion.” Id. at 612-13 (internal
quotations and citations omitted). RLUIPA fails all three prongs of the test.
First, RLUIPA serves no secular purpose. It does not simply protect the free
exercise of religion, as its defenders claim, but rather gives religious landowners the
benefit of strict scrutiny in circumstances where the Free Exercise Clause does not. See
Davey, 540 U.S. at 720-21. RLUIPA achieves a religious mission by treating religious
landowners better than their secular neighbors. See generally, Bd. of Educ. v. Grumet,
512 U.S. 687 (1994).
Second, RLUIPA causes the special privilege of avoiding land use laws to flow
directly to religious landowners solely because of their religious character. One
provision of RLUIPA states that: “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.” 42 U.S.C. § 2000cc(b)(1). This brings
to mind Orwell’s famous phrase: “All animals are equal but some animals are more
equal than others.” GEORGE ORWELL, ANIMAL FARM (1945). RLUIPA’s mandate, given
the significant liability concerns which impose themselves on decision-makers in this
process due to RLUIPA, is to favor religious uses. Like RFRA, RLUIPA “provide[s] the
Church with a legal weapon that no atheist or agnostic can obtain. This governmental
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preference for religion, as opposed to irreligion, is forbidden by the First Amendment.”
Boerne, 521 U.S. at 536-37 (Stevens, J. concurring).
RLUIPA also provides a direct and tangible, economic incentive to religious
entities to pursue federal litigation by providing attorneys fees. 42 U.S.C.S. § 1988(b).
Congress has directed local governments to subsidize the litigation of religious
landowners who seek to avoid the government’s neutral, generally applicable land use
laws. This sort of direct financial benefit, which is directed solely to religious entities,
violates the Establishment Clause. Mitchell v. Helms, 530 U.S. 793, 837 (2000)
(O’Connor, J., concurring); Agostini v. Felton, 521 U.S. 203, 225-27 (1997). See also
Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002) (upholding indirect, voucher
payments for private religious schools).
In addition to subsidized litigation, RLUIPA provides a government-created
discount to the cost of religious building projects. Religious landowners and developers
can insist on intense uses in districts where land is less expensive because applicable
zoning regulations do not permit intense uses. Alternatively, such landowners can insist
on expanding uses on land already owned, and, therefore, avoid having to purchase
additional land, even though any other landowner intent on the same intensity of use
would have to do so. 5
5
This is a direct transfer of wealth to religious entities’ coffers, in violation of the Establishment Clause.
Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 774 (1973). It is the opposite of what
was permitted in Mitchell v. Helms, 530 U.S. 793, 867 (2000) (O’Connor, J., concurring); and Zelman v.
Simmons-Harris, 536 U.S. 639, 649 (2002). Unlike RLUIPA, the program upheld in Zelman conferred
“assistance directly to a broad class of individuals defined without reference to religion.” Zelman, 536
U.S. at 653.
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When RLUIPA’s cost-saving aspect is combined with the attorneys fees provision
for religious landowners, and added to religious entities’ pre-existing property tax
exemption (see Colo. Const. art. X, § 5 and § 39-3-106, Colo. Rev. Stat. (2005)),
RLUIPA institutes a financial windfall for a class of landowners, simply because they are
religious. The federal government may not grant religious entities this full package of
financial assistance to religious entities and religious entities alone. See, e.g., Ams.
United for Separation of Church and State v. Prison Fellowship Ministries, ___ F. Supp.
2d __, 2006 WL 1523092 *55 (S.D. Iowa, June 2, 2006) (holding prison rehabilitation
program violates Establishment Clause because it had “the effect of advancing religion
by creating a financial incentive to undertake religious indoctrination” (quotation
omitted)).
Finally, RLUIPA fails the entanglement prong because entanglement, including
likely litigation, occurs every time a state or local government seeks to apply a content-
neutral, generally applicable land use law to a religious landowner. It forces a local
government to consider the bona fides of a purported religious use to determine if
RLUIPA applies at all. Then, faced with an application from an allegedly religious use
which does not comply with land use criteria, a local government must determine what
would be a substantial burden upon the religious exercise of the users of that property.
Solely because RLUIPA singles out religious landowners, cities and towns must
give special legal consideration whenever a religious landowner makes any land use
application. This mandated preferential treatment in effect lifts the religious landowner’s
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application above the general class of all others governed by land use law. See Larkin
v. Grendel’s Den, 459 U.S. 116, 126-27 (1982).
ii. Cutter v. Wilkinson does not affect the constitutionality of the land
use provisions in RLUIPA.
The Supreme Court recently upheld the prison (i.e. “institutionalized persons”)
provisions of RLUIPA against an Establishment Clause challenge, holding that the
portion of the statute related to prison administration “does not, on its face, exceed the
limits of permissible government accommodation of religious practices.” Cutter v.
Wilkinson, 125 S. Ct. at 2117. The constitutionality of the land use provisions of
RLUIPA were expressly reserved and not ruled upon by the Court. Id. at 2119 n.3.
Moreover, the Court read the prison provision’s invocation of strict scrutiny in light of the
relevant legislative history, which watered down the level of scrutiny. Id. at 2124. There
is no such amelioration of the strict scrutiny standard in the land use provisions’
legislative history.
In addition, a correctional facility regulates all aspects of an inmate’s religious
exercise, including his or her right to worship at all. Thus, in the prison context, RLUIPA
is “compatible with the Establishment Clause because it alleviates exceptional
government-created burdens on private religious exercise.” Id. at 2121. In contrast,
land use laws regulate the location and size of buildings, not whether worship will occur.
The County’s decision to deny aspects of RMCC’s special use permit does not deny its
members’ right to worship, but rather placed generally applicable limits on the size of
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their house of worship. The Court’s reasoning upholding the prison provisions provides
no support for the land use provisions.
For the reasons stated above, the land use provisions of RLUIPA violate the
Establishment Clause and should be held unconstitutional by this Court.
VIII. RMCC failed to state an inverse condemnation claim because the allegations in
the Complaint demonstrate that the church facility is economically viable.
To prove an inverse condemnation claim, a landowner must demonstrate that its
property suffered a very high level of governmental interference with the value of the
property contrary to the landowner’s reasonable investment-backed expectations.
Animas Valley Sand and Gravel Inc. v. Board of County Comm’rs of La Plata, 38 P.3d
59, 65-67 (Colo. 2001). “[I]n determining the economic ramifications of a regulatory act,
a court must look at the contiguous parcel of land owned by the petitioner, not merely
the portion most drastically affected by the regulation.” Id. at 69. RMCC does not meet
the requirements of Animus Sand and Gravel because the inverse condemnation claim
is based on a conservation easement that covers only a portion of RMCC’s property. 6
RMCC claims that, as a result of the 1998 Conservation Easement, the County
has “prohibited any other use than agricultural uses on the remainder of the Second
Parcel.” (Compl. ¶ 263.) It further alleges that the limitations in the Conservation
Easement “amount to an inverse condemnation of the Church’s interest in the portion of
the property subject to the conservation easement.” (Id. ¶ 264) (emphasis added). The
6
If RMCC’s claim were based on the limitations resulting from the County’s decision on the Application
rather than the 1998 Conservation Easement, then RMCC’s claim would not be ripe. See Quaker Court,
LLC v. Board of County Comm’rs of the County of Jefferson, 109 P.3d 1027, 1034 (Colo. App. 2004) and
MacDonald, 477 U.S. 340.
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area of the conservation easement is only 14 acres of RMCC’s 55-acre property. (Id. ¶¶
58, 62 and 259). Thus, the relevant parcel to consider for purposes of RMCC’s inverse
condemnation claim is the entire 55-acre parcel, where RMCC continues to operate its
approximately 106,000 square foot facility. The allegations in the Complaint
demonstrate that the church facility is economically viable. (See, eg., Compl. ¶¶ 55-57.)
RMCC’s attempt to characterize the conservation easement as a “public
dedication” does not change the fact that RMCC must allege a very high level of
governmental interference with the value of the whole parcel to state an inverse
condemnation claim. Animus Sand and Gravel, 38 P.3d at 65-67. A conservation
easement is not a public dedication requiring the application of the “rough
proportionality” and “essential nexus” tests. Smith v. Town of Mendon, 822 N.E.2d
1214, 1219 (N.Y. 2004) and Wisconsin Builders Ass’n v. Wisconsin Dept. of Transp.,
702 N.W.2d 433, 436 (Wis. App. 2005). Thus, the standards set forth in Animus Sand
and Gravel apply and RMCC’s inverse condemnation claim should be dismissed.
IX. RMCC’s inverse condemnation claim is barred by the applicable statute of
limitations.
Even assuming RMCC can meet elements of an inverse condemnation claim set
forth in Las Animus Sand and Gravel, RMCC’s inverse condemnation claim is barred by
the statute of limitations. The allegations in the Complaint demonstrate that RMCC
commenced this action approximately eight years after its claim arose. “A statute of
limitations defense may be considered on a motion to dismiss where the bare
allegations of the complaint reveal that the action was not brought within the required
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statutory period.” SMLL, LLC v. Peak Nat. Bank, 111 P.3d 563, 564 (Colo. App. 2005).
The applicable statute of limitations for an inverse condemnation claim in Colorado is
two years from the date of the injury. Bad Boys of Cripple Creek v. City of Cripple
Creek, 996 P.2d 792, 795 (Colo. App. 2000). RMCC’s alleged injury is the conservation
easement contained in the County’s 1998 approval of RMCC’s expansion application.
(Complaint, ¶ 259). Because RMCC was aware of the allegedly illegal condition
approximately eight years ago, its claim inverse condemnation claim is barred.
Conclusion
For the reasons stated above, all of RMCC’s claims should be dismissed with the
exception of RMCC’s first three claims for relief under state law. The Court should
decline to exercise pendent jurisdiction over the remaining state law claims and remand
those claims to state court.
BOULDER COUNTY ATTORNEY
By: s/ David Hughes_____________
David Hughes
Deputy County Attorney
P.O. Box 471
Boulder, CO 80306
(303) 441-3190
MARCI A. HAMILTON, ESQ.
36 Timber Knoll Drive
Washington Crossing, PA 18977
(215) 353-8984
(215) 493-1094 (fax)
35
Case 1:06-cv-00554-REB-BNB Document 34-1 Filed 06/30/2006 Page 36 of 36
CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of June, 2006, I electronically filed the
foregoing Motion to Dismiss Amended Complaint via the U.S. District Court electronic
filing service, who will either serve the same via e-mail or United States mail to the
following:
Thomas J. Ragonetti, Esq.
Darrell G. Waas, Esq.
J. Thomas Macdonald, Esq.
Amy L. Nafziger, Esq.
OTTEN, JOHNSON, ROBINSON, NEFF & RAGONETTI, P.C.
950 - 17th St., Suite 1600
Denver, CO 80202
tjr@ottenjohnson.com
waas@ottenjohnson.com
mac@ottenjohnson.com
amy@ottenjohnson.com
Peter M. Bryce
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W., Room 6138
P.O. Box 883
Washington DC 20044
peter.bryce@usdoj.gov
s/Kathy G. Nelson___________
Kathy G. Nelson
36
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