St. Paul's Found. v. Ives

29 F.4th 32

ST. PAUL'S FOUNDATION; Shrine of St. Nicholas the Wonderworker, Patron of Sailors, Brewers and Repentant Thieves, Plaintiffs, Appellants,

v.Robert IVES, in his official capacity as Interim Building Commissioner for the Town of Marblehead; Town of Marblehead, Defendants, Appellees.

No. 21-1463

United States Court of Appeals, First Circuit.

March 24, 2022

Kevin P. Martin, with whom Michael K. Murray, William E. Evans III, and Goodwin Procter LLP were on brief, for appellants.

Felicia H. Ellsworth, Eric L. Hawkins, Simon B. Kress, and Wilmer Cutler Pickering Hale and Dorr LLP, on brief for the Orthodox Church in America and the Union of Orthodox Jewish Congregations of America, amici curiae.

Gregor A. Pagnini, with whom Leonard H. Kesten, Deidre Brennan Regan, and Brody, Hardoon, Perkins & Kesten, LLP were on brief, for appellees.

Before Lynch, Kayatta, and Barron, Circuit Judges.

BARRON, Circuit Judge.

This case arises from a suit under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). The plaintiffs, St. Paul's Foundation and the Shrine of St. Nicholas the Wonderworker, Patron of Sailors, Brewers and Repentant Thieves (collectively, "St. Paul's"), claim that their religious exercise was substantially burdened in violation of RLUIPA by the defendants, the Town of Marblehead (the "Town") and its Buildings Commissioner. The dispute concerns the defendants' failure to reinstate a building permit that St. Paul's had secured for the redevelopment of the site in the Town on which the Shrine of St. Nicholas is located but that had been suspended prior to the completion of that construction. The District Court granted summary judgment to the defendants. We affirm.

I.

We set forth some relevant legal background as well as some basic facts relating to the underlying claim that are not in dispute between the parties on appeal. See United States v. Union Bank For Savs. & Inv. (Jordan), 487 F.3d 8, 11 (1st Cir. 2007). We also review the travel of the case.

A.

Under Massachusetts law, parties seeking to perform construction work on buildings must apply for and receive two permits before the finished building can be used or occupied. First, before construction begins, a local building commissioner must issue a building permit authorizing specific construction. 780 Mass. Code Regs. 105.1; see also id. 202 (defining "building official" to include a building commissioner); Mass. Gen. Laws ch. 143, § 3 (directing municipalities to appoint building commissioners "to administer and enforce the state building code"). The permit must be based on specific plans that display and explain the proposed work. 780 Mass. Code Regs. 105.3(4), 107.1, 107.2. Under Massachusetts law, no construction work may be done that is not approved in the building permit unless state law otherwise authorizes it. See id. 105.1-105.2, 105.4.

The submitted plans must "[i]ndicate the use and occupancy for which the proposed work is intended." Id. 105.3(3). Massachusetts has adopted the 2015 version of the International Building Code (the "IBC 2015") with some amendments. See id. 101.1. The IBC 2015 requires plans to employ use designation groups. IBC 2015 § 302.1.¹ These groups are indicated by an alphanumeric code, such as A-2 or F-1. Id. Each use designation carries with it "requirements that are applicable to ... the purposes for which the room or space will be occupied." Id.

Once construction is complete, the local building commissioner must issue a second permit, called a certificate of occupancy, before the structure can be used or occupied. 780 Mass. Code Regs. 111.1. The certificate of occupancy sets out, based on the use-designation code and compliance with other regulations, such as the state plumbing code, the maximum allowable occupancy of the space. Id. 111.2(8).

B.

St. Paul's is an Orthodox Christian monastic organization. It established the Shrine of St. Nicholas to practice and evangelize the Orthodox Christian faith.

On August 30, 2017, St. Paul's purchased property on Pleasant Street in Marblehead (the "Property") to serve as its monastic complex. The Property had a preexisting mixed-use structure on it, which St. Paul's planned to redevelop.

St. Paul's retained an architectural firm, Siemasko + Verbridge, to act as the registered design professional for the project. Architects at that firm, including John Harden, a partner at Siemasko + Verbridge who was primarily responsible for the project, drew up the plans that St. Paul's would need to submit in order to secure a building permit from the Town that would permit construction to begin.

The plans that Siemasko + Verbridge prepared for St. Paul's proposed converting the first floor of the existing structure on the site in question into three separate areas. One area would serve as a place in which monks could brew beer in accord with Orthodox Christian tradition. A second area would be converted into a chapel for liturgical services. The last area was to be converted into a "fellowship hall" that would host Bible studies, prayer groups, religious education, communal religious meals, and overflow from the chapel. St. Paul's also intended to use the fellowship hall to serve the beer that the monks would brew.

The use designation codes set forth in the plans indicated that the use for the area designated to be the fellowship hall was an A-2 use. A-2 uses "include[ ] assembly uses intended for food and/or drink consumption including, but not limited to: Banquet Halls[,] Casinos (gaming areas)[,] Nightclubs[,] Restaurants, cafeterias and similar dining facilities (including associated commercial kitchens)[, and] Taverns and bars." IBC 2015 § 303.3.

The plans indicated that the use for the area designated to serve as the site of the chapel was an A-3 use. The IBC defines an A-3 use to include "assembly uses intended for worship, recreation or amusement and other assembly uses not classified elsewhere in Group A." Id. § 303.4. The IBC lists several examples of A-3 uses, including community halls, funeral parlors, lecture halls, museums, pool and billiard parlors, and places of religious worship. Id.

The plans indicated that the area designated to be the brewery was an F-2 use. The IBC defines use group F-2 as "[l]owhazard factory industrial," meaning "uses that involve the fabrication or manufacturing of noncombustible materials that during finishing, packing or processing do not involve a significant fire hazard." Id. § 306.3.

To secure a building permit for the site, Andrew Bushell, who was the "protos" of St. Paul's and whom the parties refer to as "Father Andrew", submitted the plans sometime in June or July 2018 to Richard Baldacci, who was at the time the Marblehead Building Commissioner. Baldacci approved the plans, which included the use designations described above, and issued a building permit for the project on July 3, 2018.

The building permit listed Harden as the builder. Father Andrew signed the permit as the owner/agent, although the printed name was Harden's. The permit stated that the "proposed work" included a "change [in] the use of the first floor from a retail to an assembly, A-2," and the addition of "two bathrooms and [an] A-2 hour fire rated ceiling, a bar area with taps and a dishwasher, commercial kitchen and walk-in cooler and concrete slab."

In the Fall of 2018, Baldacci sent three letters -- one each in September, October, and November -- that notified Father Andrew that St. Paul's was "serving beer" on the premises of the Shrine even though no certificate of occupancy had been issued for the building. The second of these letters directed that the plaintiffs cease and desist using the fellowship hall "as a Group A-2 Assembly" until an A-2 certificate of occupancy issued. The third one notified Father Andrew that Baldacci had "issued a noncriminal Building Code Violation" and a fine.

St. Paul's appealed the violation to the state Building Code Appeals Board (the "BCAB"). The BCAB affirmed the violation.

In November 2018, Baldacci received an unsigned letter that bore the architectural license and stamp of a principal at Siemasko + Verbridge and that claimed that the Shrine was in compliance with the state plumbing code. Baldacci requested that Harden provide "a Construction Control Affidavit, following an [i]nspection of the facility, or a code review addressing" various requirements that had to be met prior to full occupancy.

Harden replied to Baldacci's email. Harden stated in his reply that "there is some confusion regarding the change of occupancy, the proposed project as drawn, and the request for a certificate of occupancy." He added that he would review the requests and give thought to the work required. He noted in conclusion that "we are working hard with Father Andrew to address your concerns" and "[w]e believe that everyone is trying to operate here in good faith."

Harden left Siemasko + Verbridge in December 2018. Thaddeus Siemasko, a principal at the firm, took over the project. That month, Siemasko met with Baldacci and other town officials to discuss topics related to the construction project at the Shrine. According to a summary of the meeting that Siemasko prepared, the meeting participants agreed that the new use of the fellowship hall would be an "A" use.

At this meeting, Baldacci restated his position that all work authorized by the permit had to be completed before any beer was served on site. Following the meeting, according to an email Siemasko sent Baldacci the next day, Siemasko sent notes describing the discussion to Father Andrew. Siemasko reported to Baldacci that Father Andrew had called Siemasko to express his frustration that Baldacci had not advocated for a higher occupancy of the first floor based on a more generous interpretation of the state plumbing code.

C.

On January 7, 2019, Siemasko + Verbridge informed Baldacci that it had withdrawn from the project. That left the project without "a Registered Design Professional to provide...