Tuesday, November 29, 2011

E.D. Va. Issues Bad Zoning Decision

Last week, Judge John Gibney of the U.S. District Court for the Eastern District of Virginia issued a ruling granting the defendants' motion to dismiss in Calvary Christian Center v. City of Fredericksburg, 2011 WL 5843641 (E.D.Va., Nov. 21, 2011).  The plaintiff, a religious organization that, among other things, operates a day care center, sought, as part of its "social mission," to "operate a day school [called Fairwinds] for children with mental and emotional disabilities on its premises."  The organization applied for a special use permit, and both the city planning department and the city's director of planning and community development recommended granting the application.  Then the city council held three public meetings to consider the application.  The district court's opinion recounts what the plaintiff alleged happened at those meetings:
At the public hearings, members of the Council raised questions and concerns about allowing Calvary to house the day school. The council members' comments reflected numerous concerns: the number of group homes and group facilities already functioning in the Fredericksburg area; the propriety of Fredericksburg providing services to special-needs students from outside the area; the nature of the disabilities of the Fairwinds students; the operation of Fairwinds; and the safety of the day care students. 
At the third meeting, the Council voted three to three, with one member abstaining, on whether to issue the special use permit. Because a motion fails on a tie vote, Calvary's application for a special use permit was rejected.
The organization sued the city under the ADA, the Rehabilitation Act, the Religious Land Use and Institutionalized Persons Act, and the First Amendment.  The city filed a motion to dismiss, and the district court granted the motion.

As to the ADA and Rehabilitation Act claims, the court concluded that the plaintiff did not have standing, because it was not itself suffer any alleged discrimination: "Calvary has alleged discrimination that the students suffered in its ADA and RA claims; it has not claimed any unlawful discriminatory effect that Calvary itself suffered as a result of its association with the students." And the organization "failed to demonstrate a hindrance to the students' ability to bringing suit on their own behalf to protect their own interests, as required to establish third-party standing under the ADA or RA."

This seems to me wrong, for two reasons.  First of all, the ADA and Rehabilitation Act prohibit discrimination against "an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association."  28 C.F.R. 35.130(g).  What the plaintiff alleged here is clearly discrimination against the organization itself (the denial of its request for a special use permit) because of the organization's "relationship or association" with the kids with disabilities who would attend the day school program.  Properly considered, this isn't a case of third-party standing at all; it's a case of the organization enforcing its own rights.

Second, even if the case was one of third-party standing, the court's interpretation of the hindrance prong seems unduly crabbed.  The kids who would attend the program at Fairwinds (and whomever is authorized to speak for them by law) would likely have little incentive to sue about a particular siting decision.  In similar circumstances, a number of courts have found the hindrance prong satisfied.

Not disability law related, but I also think the court likely got it wrong on the RLUIPA claim. The court appeared to say that the plaintiff hadn't pled sufficient facts to show that the denial of the permit imposed a substantial burden on its exercise of religion, but the case appears to have been brought under RLUIPA's equal-terms provision, 42 U.S.C. 2000cc(b)(1), rather than its substantial-burden provision, 42 U.S.C. 2000cc(a). The equal-terms provision provides that "[n]o 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." It does not, by its plain terms, require a substantial burden.

None of which is to say that I'm a fan of separate day programs for kids with disabilities.  But the court here seems to have gotten the law wrong.

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