Calvary Christian Ctr. v. City of Fredericksburg, Va.

832 F.Supp.2d 635

CALVARY CHRISTIAN CENTER, Plaintiff,

v.CITY OF FREDERICKSBURG, VIRGINIA, Defendant.

Civil Action No. 3:11–CV–342–JAG.

United States District Court,

E.D. Virginia,

Richmond Division.

Nov. 21, 2011.

Matthew Devane Fender, McGuire Woods LLP, Richmond, VA, Erik William Stanley, Alliance Defense Fund, for Plaintiff.

Jennifer Lee Parrish, Medford Jennings Brown, IV, Parrish Houck & Snead PLC, Fredericksburg, VA, Rebecca Kim Glenberg, ACLU of Virginia, Richmond, VA, for Defendant.

MEMORANDUM OPINION

JOHN A. GIBNEY, JR., District Judge.

In this case, the plaintiff, Calvary Christian Center (“Calvary”), challenges the denial of a special use permit by the defendant, the City of Fredericksburg (“City”). Calvary seeks the special use permit to lease church space to the operator of a private day school for disabled children. Calvary alleges violations of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), and the Free Exercise and Free Speech Clauses of the First Amendment. The City has moved to dismiss the Complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). The ACLU has filed an amicus brief in opposition to the motion to dismiss.

None of the plaintiff's claims can succeed, and the Court will grant the motion to dismiss. The plaintiff lacks standing to assert either the ADA or RA claims. The plaintiff has not alleged that operating the school amounts to religious activity, and so the church's RLUIPA and Free Exercise claims fail. Finally, the Free Speech claim fails for several reasons: operating the school is not expressive conduct, the City's zoning ordinance is content neutral, and the zoning regulations are neither vague nor overbroad.

Thus, the Court will grant the motion to dismiss.

I. Standard of Review

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; it does not resolve contested factual issues. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992). A court must accept all factual allegations in the complaint as true and must draw all reasonable inferences in favor of the plaintiff. See Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir.1999); Warner v. Buck Creek Nursery, Inc., 149 F.Supp.2d 246, 254–55 (W.D.Va.2001). To survive a motion to dismiss, a complaint must contain sufficient factual matter which, accepted as true, “state[s] a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This plausibility standard requires a plaintiff to demonstrate more than “a sheer possibility that a defendant has acted unlawfully.” Id. It requires the plaintiff to articulate facts that, when accepted as true, “show” that the plaintiff has stated a claim entitling him to relief, that is, the “plausibility of ‘entitlement to relief.’ ” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.2009) (quoting Iqbal, 129 S.Ct. at 1949;Twombly, 550 U.S. at 557, 127 S.Ct. 1955). Thus, the “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 545, 127 S.Ct. 1955, to one that is “plausible on its face,” id. at 570, 127 S.Ct. 1955, rather than merely “conceivable.” Id. Although the Court must accept as true all well-pleaded factual allegations, the same is not true for legal conclusions. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S.Ct. at 1949.

The Court held an evidentiary hearing on the plaintiffs motion for a preliminary injunction, and the parties submitted affidavits and exhibits for the Court to consider in deciding that motion. The Court will not consider this evidence in deciding the instant motion, and will rely only the facts alleged in the Complaint. See Virginia Polytechnic Institute v. Hokie Real Estate, Inc., No. 7:10cv00466, 2011 WL 926862, at *1 n. 1 (W.D.Va. Mar. 15, 2011) (citing CACI Int'l, Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir.2009)); Brown v. Cabell County Bd. of Educ., No. 3:09–0279, 2009 WL 1470471, at *1–2 (S.D.W.Va. May 22, 2009).

II. Statement of Material Facts

The following narrative represents the material facts of this case for the purpose of resolving the City's motion to dismiss.

Calvary believes that the Bible mandates that it have a social ministry, and it therefore reaches out to families in the City of Fredericksburg and the surrounding areas. In particular, Calvary believes that is has been called by God to provide services to children. Thus, in 2009 the church sought permission to operate a before and after school day care called Precious Moments Day Care (“PMDC”). The City granted Calvary a special use permit to operate PMDC. PMDC is licensed by the Commonwealth of Virginia as a religiously exempt child day care center for thirty-two children ages six through twelve years.

As part of Calvary's religious beliefs, it has applied for a special use permit to operate a day school for children with mental and emotional disabilities on its premises. Fairwinds Day School (“Fairwinds”) is a day school for children with emotional and mental disabilities. Fairwinds operates on a for-profit basis. Fairwinds enrolled twelve students in the 2009–2010 academic year.¹ To enroll at the school, a student must have an Individual Education Plan (“IEP”) that determines the child has a qualifying disability and states that the child shall attend a private day school. Students in Fairwinds have been diagnosed with conditions such as PTSD related to child abuse, bi-polar disorder, speech and language impairment, pervasive development disorder, cognitive processing problems, reactive attachment disorder, and depression.

In 2010, Calvary applied for a special use permit to allow Fairwinds to move into its building. Fairwinds would have six full time staff at Calvary, and would operate in the hours between 8:30 a.m. and 3:00 p.m., utilizing two classrooms and office rooms on the second floor of the church building.

The Complaint says that the children at PMDC will have no contact with students at Fairwinds. PMDC would use two rooms on the first floor of the building, from 6:00 a.m. to 8:15 a.m. and from 3:30 p.m. to 6:00 p.m.

In preparing to lease space to Fairwinds, Calvary was required to apply for a special use permit, which the Fredericksburg City Council (“Council”) has the sole authority to grant.² The application was reviewed by the planning department, and Raymond P. Ocel (“Ocel”), the City's Director of Planning and Community Development, recommended approval of the special use permit. After two meetings, the planning commission recommended that the Council approve Calvary's application.

The Council then met three times to consider Calvary's special use permit application. Ocel submitted the planning commission's memorandum supporting approval. 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.

III. Counts in the Complaint

Count One of the Complaint alleges that the City violated the ADA. Calvary wants to operate a day school for children with disabilities. Calvary alleges that the City regarded the children as disabled and discriminated against them because of an actual or perceived physical or mental impairment. Calvary argues that the City's decision to deny Calvary a special use permit was a direct result of animus towards children in Fairwinds and was not based on any legitimate, nondiscriminatory reason.

Count Two of the Complaint alleges that the City violated the Rehabilitation Act for the same reasons as set forth in Count One.

Count Three of the Complaint alleges that the City violated RLUIPA. Calvary maintains that the City's zoning code permits individualized assessments of proposed uses of property and that the City treated Calvary on less than equal terms with other secular assemblies or institutions. Calvary argues that the City discriminated against Calvary on the basis of religion, unreasonably limiting Calvary's use of its property to exercise its religion.

Count Four of the Complaint alleges that the City violated the Free Exercise Clause of the First Amendment. Calvary alleges that the City's denial of Calvary's application substantially burdened Calvary's religious beliefs, was neither neutral nor a law of general applicability, and discriminatorily targeted religion and religious worship.

Count Five of the Complaint alleges the City violated the Free Speech Clause of the First Amendment. Calvary alleges that the City's zoning code is an improper restraint on speech, does not contain precise and objective criteria to govern the Council's discretion, is overly broad, and empowers the Council to discriminate covertly against uses protected by the First Amendment. Calvary maintains that the City denied its application because of the church's religious expression and association in ministering to disabled children. Calvary states that the Council restricted Calvary's speech based on viewpoint and content and did not leave Calvary alternative channels of...