                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-22-2004

Second Baptist v. Twp Gilpin
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1434




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"Second Baptist v. Twp Gilpin" (2004). 2004 Decisions. Paper 42.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/42


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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________
                                  No. 04-1434
                                  __________

                   SECOND BAPTIST CHURCH OF LEECHBURG,
                                            Appellant

                                            v.

                       GILPIN TOWNSHIP, PENNSYLVANIA;
                      GILPIN TOWNSHIP SEWER AUTHORITY

                                            v.

                     GILPIN TOWNSHIP SEWER AUTHORITY,

                                                       Third Party Plaintiff
                                            v.

  UNITED STATES OF AMERICA, DEPARTMENT OF AGRICULTURE, RURAL,
                        UTILITY SERVICE,
                                       Third Party Defendant

                                         Second Baptist Church of Leechburg,

                                                       Appellant

                                       __________
                    On Appeal from the United States District Court
                       For the Western District of Pennsylvania
                                   (Civ. No. 03-1454)
                      District Judge: Honorable Arthur J. Schwab
                                        ________
                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                  December 16, 2004
                                      ___________

    Before: NYGAARD and GARTH, Circuit Judges, and POLLAK, District Judge*



      *
          The Honorable Louis H. Pollak, United States District Judge for the Eastern
District of Pennsylvania sitting by designation.
                           (Opinion Filed: December 22, 2004)
                                      __________

                                        OPINION
                                       __________
Garth, Circuit Judge:

       Appellant Second Baptist Church of Leechburg (the “Church”) appeals from the

District Court’s grant of a motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6) for

failure to state a claim, in favor of Appellees Gilpin Township (the “Township”) and

Gilpin Township Sewer Authority (the “Authority”). The Church sued the Township and

the Authority under 42 U.S.C. §§ 1983 and 2000cc et seq., challenging the facial and as

applied legality of the Township’s sewer ordinance (the “Ordinance”) under the First and

Fourteenth Amendments and the Religious Land Use and Institutionalized Person Act

(“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., as well as the corresponding provisions of the

Pennsylvania Constitution. The District Court had jurisdiction pursuant to 28 U.S.C. §

1331. We have jurisdiction pursuant to 28 U.S.C. §1291. W e will affirm.

                                             I.

       Because we write solely for the parties, we recount the facts and procedural history

only as they are relevant to the following discussion.

       The Church believes and practices the Baptist faith. It has conducted religious

worship and religious outreach activities from its church building and property since

1958. Gilpin Township is a municipal corporation formed under the laws of the

Commonwealth of Pennsylvania. Gilpin Township formed the Gilpin Sewer Authority

                                             2
and delegated to it all powers with regard to sewage within the township.

       On May 7, 1984, Gilpin Township Ordinance No. 53 was enacted. The Ordinance

is commonly referred to as a “mandatory tap-in ordinance.” It requires that any principal

building that is located within one hundred fifty feet of any sewer of the sewage system

shall connect to it if so directed. On or about August 3, 2003, the Township notified the

Church that it had completed construction of its 1999 sewage extension project and that

the Church would now be required to “tap-in” to the Township sewage system because it

was located 138 feet from the sewer line and was thus covered by the Ordinance.

       The Church refused to comply with the Ordinance principally because it deemed

the costs associated with the connection to be too onerous. As a result, the Township

brought an enforcement action against the Church in Pennsylvania state court. A district

justice found the Church in violation of the Ordinance but granted it time to “tap in.”

Prior to a compliance meeting before the district justice, the Church filed the present civil

action and sought a preliminary injunction. In response, the Township and the Authority

moved to dismiss the Church’s amended complaint under Fed. R. Civ. P. 12(b).

                                             II.

       The District Court granted the motion to dismiss in favor of the Township and the

Authority finding the Church failed to state a claim upon which relief could be granted.

First, it dismissed the Church’s claims predicated on RLUIPA, 42 U.S.C. §§ 2000cc. It

held that RLUIPA was inapplicable to the Ordinance because the statute applied only to



                                              3
zoning and landmark laws and the Ordinance was neither. Second, the District Court

rejected the Church’s federal constitutional claims because it found that the Ordinance

neither interfered with nor violated the Church’s constitutional rights. The District Court

then declined to exercise supplemental jurisdiction over the Church’s state law claims and

so dismissed those as well.1

       We exercise plenary review over the District Court’s grant of a motion to dismiss

for failure to state a claim. See, e.g., Board of Trustees of Bricklayers and Allied

Craftsmen Local 6 of New Jersey Welfare Fund v. Wettlin Associates, Inc., 237 F.3d 270,

272 (3d Cir. 2001). “We accept the allegations of the complaint as true and draw all

reasonable inferences in the light most favorable to the plaintiff. Only if it appears

certain that a plaintiff could prove no set of facts supporting its claim and entitling it to

relief do we affirm.” Id. (citations omitted). Applying that standard here, we conclude

that the District Court properly granted the Township’s motion to dismiss.

A.     Religious Land Use and Institutionalized Persons Act

       RLUIPA provides in pertinent part as follows:

       No government shall impose or implement a land use regulation in a
       manner that imposes a substantial burden on the religious exercise of a
       person, including a religious assembly or institution, unless the government
       demonstrates that imposition of the burden on that person, assembly, or
       institution –

       (A) is in furtherance of a compelling interest; and



       1
           The Church does not appeal that portion of the District Court’s decision.

                                               4
       (B) is the least restrictive means of furthering that compelling governmental
       interest.

42 U.S.C. § 2000cc(a)(1)(A), (B). RLUIPA defines a “land use regulation” as

“a zoning or landmarking law . . . that limits or restricts a claimant’s use or development

of land (including a structure affixed to land), if the claimant has a . . . property interest in

the regulated land . . .” Id. at § 2000cc-5(5). Thus, “a government agency implements a

‘land use regulation’ only when it acts pursuant to a ‘zoning or landmarking law’ that

limits the manner in which a claimant may develop or use property in which the claimant

has an interest.” Prater v. City of Burnside, 289 F.3d 417, 434 (6 th Cir. 2002).

       Applying the foregoing to the present case, the District Court correctly held that

the Ordinance does not fall within the RLUIPA definition of a “land use regulation”

because the mandatory sewer tap was not enacted pursuant to a zoning or landmarking

law.

       On appeal, the Church argues that although the Ordinance does not directly

involve a zoning or landmarking law, such laws could have been indirectly involved in

the passage of the Ordinance. The Church cites no authority of precedential value to

support this novel position and we see no reason to construe RLUIPA in such broad

terms. Because the Ordinance is outside the scope of RLUIPA, the Church’s claims

under that statute must fail.

B.     First and Fourteenth Amendments

       In the District Court below, the Church alleged that enforcement of the Ordinance

                                                5
would violate its rights to free exercise, free speech, free assembly, equal protection and

due process. The District Court did not address each of the Church’s constitutional

claims individually. Rather, it found that by enforcing the Ordinance, the Township and

the Authority would not restrict the time of day or length of time the Church could

worship, or the manner or content of the Church’s religious services. Furthermore, it

found that the Ordinance did not directly or indirectly inhibit the Church’s access to its

property. Thus, it concluded that the Church “simply cannot show that the neutral

township ordinance at issue . . . interferes with or violates its free exercise of religion, its

freedom of speech, its freedom of assembly, its right to the equal protection of the laws,

and its right to due process of law.” Dist. Ct. Op. at 5.

       On appeal, the Church contends that the District Court failed to engage in a proper

analysis of its First Amendment and equal protection claims. As an initial matter, the

Church does not substantively address its free speech, freedom of assembly or due

process claims in its brief on appeal. Therefore, it has waived those issues before this

Court. See Laborers' Int'l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d Cir.1994)

(“An issue is waived unless a party raises it in its opening brief, and for those purposes a

passing reference to an issue . . . will not suffice to bring that issue before this court.”)

(citations and internal quotation marks omitted).

       With respect to its free exercise and equal protection claims, while we agree that

the District Court could have provided a more substantial analysis of the Church’s claims,



                                                6
we are satisfied that it reached the correct result in granting the Township’s and the

Authority’s motion to dismiss.

       “If a law is ‘neutral’ and ‘generally applicable,’ and burdens religious conduct only

incidentally, the Free Exercise Clause offers no protection.” Tenafly Eruv Assoc., Inc. v.

Tenafly, 309 F.3d 144, 165 (3d Cir. 2002) (citing Employment Div. v. Smith, 494 U.S.

872, 879 (1990)). In the present case, the Church concedes that the Ordinance is neutral.

Reading the amended complaint in the light most favorable to the Church, we find no

facts that would support a claim either that the Ordinance is not generally applicable or

that it directly burdens the Church’s religious conduct. Pursuant to Smith, therefore, the

Church’s Free Exercise claim was properly dismissed.

       Finally, as to its Equal Protection claim, the Church failed to plead any facts to

establish under Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), that it was

treated differently from similarly situated assemblies. 473 U.S. at 439 (“all persons

similarly situated should be treated alike”). The present dispute is before this Court on a

Fed. R. Civ. P. 12(b)(6) motion to dismiss and the Church’s arguments about what it

would prove through discovery are thus irrelevant. Its complaint fails to state a claim for

relief under the Fourteenth Amendment and therefore we will deny that portion of the

Church’s appeal as well.

                                             III.

       Accordingly, we will AFFIRM the judgment of the District Court.
