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Zoning – Denial of church permit was religious discrimination

By: S.C. Lawyers Weekly staff//March 1, 2019

Zoning – Denial of church permit was religious discrimination

By: S.C. Lawyers Weekly staff//March 1, 2019

Where a church’s petition to operate on property made substantial efforts to comply with the applicable zoning laws and was not opposed by the relevant authorities, the denial of the petition after objections from the surrounding community constituted religious discrimination.


Jesus Christ is the Answer Ministries Inc. is a non-denominational Christian church founded in Baltimore in 1997 by Reverend Lucy Ware, an immigrant from Kenya. In 2012, Ware purchased a 1.2-acre parcel of land to operate the church on. Before purchasing the land, she received assurances from her realtor that she would be permitted to operate a church on the property.

The zoning laws for the property permit churches provided that parking lots and structures are set back 75 feet from tract boundaries and are separated from adjacent lots by a 50-foot buffer. These laws do not apply to new churches whose plans have been approved after a public hearing finding that compliance with these conditions will be maintained to the extent possible and that the plan can otherwise be expected to be compatible with the character and general welfare of the surrounding premises.

Ware filed a petition to have the property approved for use as a church and sought complete relief from the zoning requirements, proposing a setback and buffer of zero feet. The County Director of the Department of Planning did not oppose the petition, but at a hearing before an administrative law judge, neighbors objected to the proposal and made disparaging comments about the church and its members.

The petition was denied by the Board of Appeals, which followed the recommendation of the administrative law judge. The board’s decision was affirmed by Circuit Court for Baltimore County and Court of Special Appeals of Maryland.

While the appeals on the first petition were pending, Ware filed a second petition that proposed a setback of 55-72.5 feet and a buffer of 50 feet. The people’s counsel withdrew his opposition to the second petition after determining that the two petitions contained substantial differences. The neighbors, however, continued to pursue dismissal of the second petition. The board granted dismissal of the petition finding that it was barred by the doctrines of res judicata and collateral estoppel.

Ware then filed a complaint in federal district court alleging that the board’s dismissal violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) and the First and 14th Amendments. The district court dismissed the complaint for failure to state a claim and Ware appeals that decision now.


The RLUIPA prohibits land use regulations that impose a substantial burden on religious practice unless they are the least restrictive means of furthering a compelling government interest. In this case there is little dispute that barring the church from operating on the property is a substantial burden. However, the RLUIPA is not violated if the burden is primarily the fault of the religious organization’s own actions.

Ware’s reliance on her realtor’s assurance that she would be able to use the property as a church was reasonable and she was justified in thinking that she would be able to satisfy the conditions imposed by the zoning laws. Although the first petition made no effort to comply with the zoning laws, that fact is irrelevant to the question of whether the religious organization is primarily responsible for the burden imposed by the dismissal of the second petition, which did take significant steps to comply with the zoning laws. Given the substantial efforts made by Ware to address the deficiencies of the first petition, it cannot be said that the dismissal of the second petition was self-imposed.

The RLUIPA also prohibits land use regulations that discriminate on the basis of religion or religious denomination. Contrary to the district court’s conclusion, the RLUIPA’s nondiscrimination provision does not require comparison to similarly situated entities. Rather, a government’s decision violates the RLUIPA if it was influenced by community members’ religious bias. This impermissible influence may be inferred where expressions of community bias are followed by irregularities in government decision-making.

In this case, the comments made by neighbors at the hearing before the administrative law judge were clear expressions of community bias. This was followed by two irregularities in the decision-making process—the board’s decision to deny Ware’s first petition even though it was not opposed by the County Director and the board’s decision to dismiss the second petition even though it was not opposed by the People’s Counsel.

With respect to plaintiffs’ First and 14th Amendment claims, the board’s dismissal of the second petition was not narrowly tailored to the compelling state interest in finality and economy ordinarily served by the doctrines of collateral estoppel and res judicata because the second petition did not seek to revisit the board’s decision on the first petition.

Vacated and remanded.

Jesus Christ is the Answer Ministries Inc. v. Baltimore County (Lawyers Weekly No. 001-037-19, 19 pp.) (Albert Diaz, J.) Case No. 18-1450. Feb. 7, 2019. From D.Md. (Richard Bennett, J.). Roman P. Storzer for Appellants; James Joseph Nolan Jr. and Paul M. Mayhew for Appellee.

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