Leasing Not Protected Activity

The Richmond U.S. District Court dismisses an action by a church challenging the denial of its request for a special use permit to lease its space to the for-profit operator of a private day school for children with disabilities; the church lacks standing to assert claims under the Americans with Disabilities Act, Rehabilitation Act and the Religious Land Use and Institutionalized Persons Act, and its First Amendment claims fail for lack of a protected activity.

In 2009, city granted church a special use permit to operate child day care center for 32 children ages six through 12 years.  In 2010, as part of its faith-based social ministry, the church applied for a special use permit to lease church space to a for-profit day school operator serving 12 children with disabilities.  The application stated the day school will have six full time staff operating 8:30 a.m. to 3:00 p.m. on the second floor of the building.  The day care center would operate on the first floor from 6:00 a.m. to 8:15 a.m. and from 3:30 p.m. to 6:00 p.m.  The city planning department and planning commission recommended approval of the permit but an equally divided city council vote denied the permit.

The district court ruled the church lacked standing to prosecute claims under the ADA and RA, citing its earlier opinion denying a preliminary injunction.  Calvary Christian Center v. City of Fredericksburg [VLW 011-3-403].  Church’s allegations of discrimination affecting children with disabilities are insufficient for associational standing under Frielich v. Upper Chesapeake Health, Inc., 313 F.3d 205 (4^th Cir. 2002).   The court dismissed the RLUIPA and First Amendment Free Exercise claims for failure to plead facts showing how a third party’s operation of a day school is a religious exercise. The court rejected church’s First Amendment prior restraint argument for failure to meet the two-pronged test for expressive conduct mandated by IOTA XI Chapter of Sigma Chi Fraternity v. George Mason Univ.,  993 F.2d 386 (4^th Cir. 1993): (1) intent to convey a particularized message; and (2) likely to be understood by an observer.  Church has not articulated any particularized message it intends to convey to the public.  Even if expressive conduct were involved, the city’s ordinance meets established constitutional standards. It is content neutral and narrowly tailored to serve an important governmental interest in centralizing commercial activity.  The ordinance only incidentally burdens speech and is not vague or overbroad.

Calvary Christian Center v. City of Fredericksburg (Gibney) No. 3:11cv342, Nov. 21, 2011; USDC at Richmond, Va. VLW 011-3-639.