                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-2358


ANDON,   LLC;    RECONCILING     PEOPLE      TOGETHER     IN   FAITH
MINISTRIES, LLC,

                Plaintiffs - Appellants,

           v.

THE CITY OF NEWPORT NEWS, VIRGINIA,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Robert G. Doumar, Senior
District Judge. (4:14-cv-00076-RGD-LRL)


Argued:   December 9, 2015                  Decided:    February 9, 2016


Before WILKINSON, KEENAN, and HARRIS, Circuit Judges.


Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Wilkinson and Judge Harris joined.


ARGUED: Michael Bruce Ware, SCHEMPF & WARE, PLLC, Yorktown,
Virginia, for Appellants.   Darlene P. Bradberry, OFFICE OF THE
CITY ATTORNEY FOR THE CITY OF NEWPORT NEWS, Newport News,
Virginia, for Appellee.     ON BRIEF: Adrienne Michelle Sakyi,
SCHEMPF & WARE, PLLC, Yorktown, Virginia, for Appellants.
BARBARA MILANO KEENAN, Circuit Judge:

      In     this    appeal,    we    consider       whether   the     district    court

erred   in    dismissing       with    prejudice      a   complaint     filed     by   two

entities, Andon, LLC, and Reconciling People Together in Faith

Ministries, LLC (collectively, the plaintiffs) against the City

of Newport News, Virginia (the City, or Newport News).                                 The

plaintiffs’ complaint alleged that the City, acting through its

Board of Zoning Appeals (BZA), violated the Religious Land Use

and   Institutionalized          Persons       Act   (RLUIPA,     or    the    Act),   42

U.S.C. § 2000cc et seq., by denying the plaintiffs’ request for

a variance to permit a certain property to be used as a church

facility.

      Upon our review, we conclude that the plaintiffs failed to

state   a    claim    that     the    BZA’s    decision    imposed      a    substantial

burden on the plaintiffs’ right of religious exercise.                          We also

conclude that the district court did not abuse its discretion in

denying      the    plaintiffs’        request       to   amend   their       complaint,

because any such amendment would have been futile.                          We therefore

affirm the district court’s judgment.



                                              I.

      In 2012, Walter T. Terry, Jr. formed a congregation for

religious worship known as Reconciling People Together in Faith

Ministries, LLC (the congregation) in Newport News, and served

                                              2
as   its   pastor.      Although    the      members       of     the   congregation

initially   gathered     to   worship       in    a    local    business   owned   by

Terry, they later sought a larger location for their use.

     Terry ultimately found a suitable property, which included

an office building (the building) and a small parking lot, that

was offered for “lease or sale” by Andon, LLC (Andon).                             The

property is located at 6212 Jefferson Avenue in Newport News

(the property).

     Andon had purchased the property, a 0.32-acre parcel of

land, in 2011.        Since 1997, the property continuously has been

classified for commercial use under the City’s zoning ordinance.

The ordinance provides that properties zoned for commercial use

may be used for a “community facility,” including a “place of

worship” or church, only when four conditions are satisfied:

     (a) access is provided from a public street directly
     to the property; (b) no use is operated for commercial
     gain; (c) no building or structure, nor accessory
     building or structure is located within 100 feet of
     any side or rear property line which is zoned single-
     family residential; and, (d) any parking lot or street
     serving such use is located 25 feet or more from a
     side or rear property line zoned single family
     residential.

Newport News, Va. Municipal Code § 45-519.

     Although     the    property    complied            with     three    of   these

conditions,     the     property    did          not    satisfy     the    “setback”

requirement in subsection (c), because the building is located

fewer than 100 feet from the rear and side property lines that

                                        3
are adjacent to properties zoned for “single-family residential”

use. 1        Despite     knowledge     of     this    problem,       the   congregation

entered       into    a   written   lease      agreement       with    Andon    that    was

contingent on Andon obtaining “City approval” allowing operation

of a church facility on the property.                       Seeking to satisfy this

contingency in the lease agreement, Andon filed with the BZA an

application requesting a variance from the setback requirement.

         After    reviewing      Andon’s      application,      the    City    Codes    and

Compliance Department (the Compliance Department) filed a report

with the BZA concerning the variance request.                         The report stated

that the BZA, prior to issuing a variance, must first find that:

(1) “strict application of the ordinance would produce an undue

hardship”         relating   to   the    property       “not   shared       generally    by

other        properties”;     (2)      such    a   variance       “will      not   be    of

substantial          detriment    to    adjacent        property”;      and    (3)      “the

character of the district will not be changed” by granting the

variance.          See Newport News, Va. Municipal Code § 45-3203(c).

Based        on    these     restrictions,            the   Compliance         Department

recommended that the BZA deny the variance, because the property

could be used for other purposes without a variance, and because




         1
       The building is located 33 feet, 85 feet, and 80 feet away
from the rear and side property lines abutting neighboring
residential properties.


                                              4
denial of a variance would not cause Andon to suffer a hardship

unique among other commercial property owners in the vicinity.

     After       holding        a    public    hearing,           the       BZA       adopted          the

Compliance      Department’s          recommendation             and    voted         to       deny    the

variance request.             Andon appealed from the BZA decision to a

Virginia        state     circuit        court,           which        upheld          the           BZA’s

determination.

     The plaintiffs filed the present suit in federal district

court alleging that the BZA’s denial of their variance request

imposed     a    substantial          burden        on     the    plaintiffs’                  religious

exercise in violation of RLUIPA, 42 U.S.C. § 2000cc(a)(1) (the

substantial      burden       claim).         The        plaintiffs      alleged               that    the

BZA’s     action       caused       “delay     in        obtaining      a     viable            worship

location”       and      “uncertainty          as         to     whether          .        .     .     the

[c]ongregation will be able to go forward with the lease of the

[p]roperty.”

     The    plaintiffs          attached      to     their       complaint            an       affidavit

from Terry, who stated that he “could not find a[n alternate

property] that was the appropriate size, location, and price” to

serve as a place of worship for the congregation.                                               He also

stated     in    the    affidavit       that        “[m]any       of     the      [alternative]

buildings       were    too     large   and     too        expensive        for       [the]          young

congregation.”



                                               5
     The    City    moved   to   dismiss     the   complaint   with    prejudice

under Federal Rule of Civil Procedure 12(b)(6) for failure to

state a claim.        The district court granted the City’s motion,

denied the plaintiffs’ request to file an amended complaint, and

entered judgment in favor of the City. 2              The plaintiffs timely

filed this appeal.



                                       II.

     We    review    de   novo   the   district     court’s    dismissal    of   a

complaint    under   Rule   12(b)(6)    for     failure   to   state   a   claim.

United States ex rel. Nathan v. Takeda Pharms. N. Am., Inc., 707

F.3d 451, 455 (4th Cir. 2013).              To survive a motion to dismiss,

a complaint must “state a claim to relief that is plausible on

its face.”     Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).                 When

reviewing the district court’s action, we consider the factual

allegations in the plaintiffs’ complaint as true.                 Bass v. E.I.

DuPont de Nemours & Co., 324 F.3d 761, 764 (4th Cir. 2003).




     2 The City also argued in its motion to dismiss that Andon
lacked standing to bring the RLUIPA claim.    The district court
disagreed, and the City does not challenge this ruling on
appeal.       Although  a   litigant’s   standing   presents   a
jurisdictional question that may be considered sua sponte by
this Court, see Benham v. City of Charlotte, 635 F.3d 129, 134
(4th Cir. 2011), we need not address the district court’s ruling
regarding    Andon’s   standing,   because    the   congregation
unquestionably had standing to file suit alleging a violation
under RLUIPA.


                                        6
          The   plaintiffs     argue    that     the   district      court    erred    in

dismissing      their    complaint      of   a   RLUIPA      violation,      contending

that the BZA’s action denying a variance imposed a substantial

burden     on   their    religious      exercise.       Citing       our   decision   in

Bethel World Outreach Ministries v. Montgomery County Council,

706 F.3d 548 (4th Cir. 2013), the plaintiffs assert that they

plausibly alleged a claim under RLUIPA, because, as a result of

the BZA’s action, the congregation has been unable to find a

suitable location in the City for worship, and the plaintiffs

have suffered “delay, expense, and uncertainty” in establishing

a church location and in executing the lease agreement.                               The

plaintiffs alternatively contend that the district court abused

its   discretion         in   refusing       their     request    to       amend   their

complaint.       We disagree with the plaintiffs’ arguments.

      RLUIPA      contains       two     provisions       limiting         governmental

regulation       of   land    use   with     respect    to    religious      exercise. 3

The first such RLUIPA provision prohibits governmental entities

from imposing land use restrictions that: (1) treat a religious

organization       “on    less   than    equal    terms”      with    a    nonreligious

      3Under RLUIPA, “‘religious exercise’ includes any exercise
of religion, whether or not compelled by, or central to, a
system of religious belief.”   42 U.S.C. § 2000cc-5(7)(A).   And
“[t]he use, building, or conversion of real property for the
purpose of religious exercise shall be considered to be
religious exercise of the person or entity that uses or intends
to use the property for that purpose.”      42 U.S.C. § 2000cc-
5(7)(B).


                                             7
organization; or (2) discriminate against any organization on

the basis of religion.          42 U.S.C. § 2000cc(b)(1), (2).

      The    second        RLUIPA     provision         addressing       governmental

regulation    of    land    use,     on    which   the    plaintiffs      base    their

claim, does not require a showing of discriminatory governmental

conduct.     42 U.S.C. § 2000cc(a)(1); see Bethel, 706 F.3d at 557.

Instead,    this    provision       prohibits      a    governmental     entity    from

imposing or implementing a

      land use regulation . . . 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 governmental interest;
      and (B) is the least restrictive means of furthering
      that compelling governmental interest.

42 U.S.C. § 2000cc(a)(1).

      To    state    a   substantial        burden       claim   under    RLUIPA,     a

plaintiff therefore must show that a government’s imposition of

a   regulation      regarding       land   use,    or    application      of   such   a

regulation, caused a hardship that substantially affected the

plaintiff’s right of religious exercise.                    See Bethel, 706 F.3d

at 556; Guru Nanak Sikh Soc’y of Yuba City v. Cty. of Sutter,

456 F.3d 978, 988-89 (9th Cir. 2006); Civil Liberties for Urban

Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003).

We addressed the scope of substantial burden claims under RLUIPA

in our decision in Bethel.



                                            8
      The plaintiff in Bethel asserted a substantial burden claim

against a county that had adopted two land use regulations after

the   plaintiff       had   purchased         property        for    the     then-permitted

purpose of constructing a large church.                             706 F.3d at 553-55.

The   first     regulation      at       issue       in   Bethel    banned      extension    of

public water and sewer services to certain classifications of

property, including the plaintiff’s property.                             Id. at 553.        In

response to the county’s implementation of this regulation, the

plaintiff modified its construction plans and proposed to build

a smaller church that operated on a private septic system.                                  Id.

at 554.       Before those plans were approved, however, the county

adopted     a   second      regulation           applicable         to    the    plaintiff’s

property,       which       prohibited           the       construction         of    private

institutional facilities including churches.                         Id.

      Although the county regulations we considered in Bethel did

not   target     religious       exercise        and      applied     generally       to   both

secular   and     religious      uses,       we       concluded      that    the     plaintiff

nevertheless         presented       a    triable         RLUIPA    claim,      because     the

regulations substantially pressured the plaintiff to modify and

ultimately      to    abandon     its       pre-existing           plan    to   construct    a

church.     Id. at 556-59.               And, we explained, although other real

property may have been available for the plaintiff to purchase,

the “delay, uncertainty, and expense” of selling the plaintiff’s

property and finding an alternate location increased the burden

                                                 9
imposed on the plaintiff’s religious exercise.                            Id. at 557-58.

In   reaching       this    conclusion,         we    emphasized        that    a     critical

function      of     RLUIPA’s       substantial        burden        restriction          is     to

protect      a     plaintiff’s       reasonable         expectation        to       use        real

property      for     religious      purposes.          Id.     at    556-57;       see    Petra

Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851

(7th   Cir.       2007)     (explaining     that       when     an    organization             buys

property “reasonably expecting to obtain a permit, the denial of

the permit may inflict hardship” on the organization).

       The    circumstances          of   the        present     case    are       materially

different from those presented in Bethel.                            The plaintiffs here

never had a reasonable expectation that the property could be

used    as    a     church.        When    the       plaintiffs       entered       into        the

prospective lease agreement, the property was not a permitted

site for a community facility such as a church, and had not met

applicable        setback     requirements       for     that    type    of     use       for    at

least 14 years.             Before Andon filed the application seeking a

variance, the Zoning Administrator had informed Andon that the

application         would    not    be    approved      for     failure       to    meet        the

setback requirement.               Thus, the plaintiffs assumed the risk of

an unfavorable decision, and chose to mitigate the impact of

such a       result    by    including     the       contingency       provision          in    the

lease.       Accordingly, unlike the governmental action at issue in

Bethel, the BZA’s denial of the variance in the present case did

                                            10
not alter any pre-existing expectation that the plaintiffs would

be able to use the property for a church facility, or cause them

to suffer delay and uncertainty in locating a place of worship.

     Because the plaintiffs knowingly entered into a contingent

lease    agreement       for     a    non-conforming                 property,       the   alleged

burdens    they    sustained         were    not      imposed          by    the   BZA’s     action

denying    the    variance,          but    were      self-imposed            hardships.       See

Petra     Presbyterian         Church,       489          F.3d       at     851    (because    the

plaintiff purchased property with knowledge that the permit to

use the property for a church would be denied, the plaintiff

“assumed the risk of having to sell the property and find an

alternative       site    for    its       church”).             A    self-imposed         hardship

generally    will    not       support       a    substantial             burden     claim    under

RLUIPA, because the hardship was not imposed by governmental

action altering a legitimate, pre-existing expectation that a

property    could    be    obtained         for       a    particular         land    use.     See

Bethel, 706 F.3d at 556-58; Petra Presbyterian Church, 489 F.3d

at 851.     Therefore, we hold that under these circumstances, the

plaintiffs        have     not        satisfied            the        “substantial         burden”

requirement of governmental action under RLUIPA. 4                                   See Bethel,




     4 We do not reach the                 merits of the plaintiffs’ separate,
speculative contention that                 if the congregation had purchased
the property, instead of                   entering into a contingent lease
agreement, the financial                    loss sustained would have been
(Continued)
                                                 11
706 F.3d at 556; Guru Nanak Sikh Soc’y of Yuba City, 456 F.3d at

988-89; Civil Liberties for Urban Believers, 342 F.3d at 761.

       Our conclusion is not altered by the plaintiffs’ further

contention that they have been unable to find another property

that    meets    the    congregation’s            desired       location,        size,     and

budgetary limitations.              The absence of affordable and available

properties within a geographic area will not by itself support a

substantial burden claim under RLUIPA.                        See Civil Liberties for

Urban Believers, 342 F.3d at 762 (concluding that the “scarcity

of affordable land available” and costs “incidental to any high-

density      urban     land        use”    represent          “ordinary         difficulties

associated      with    location”         and    do     not    support      a   substantial

burden claim under RLUIPA).

       We further observe that if we agreed with the plaintiffs

that the BZA’s denial of a variance imposed a substantial burden

on their religious exercise, we effectively would be granting an

automatic     exemption       to    religious         organizations      from     generally

applicable land use regulations.                  Such a holding would usurp the

role of local governments in zoning matters when a religious

group   is    seeking    a     variance,         and    impermissibly           would    favor

religious     uses     over    secular          uses.         See   Petra       Presbyterian




sufficient to state a substantial burden claim.                             We decline to
pass judgment on facts not before us.


                                            12
Church, 489 F.3d at 851 (reasoning that the substantial burden

requirement must be taken seriously, or religious organizations

would be free “from zoning restrictions of any kind”); Civil

Liberties for Urban Believers, 342 F.3d at 762 (explaining that

no    “free       pass    for   religious     land    uses    masquerades    among    the

legitimate protections RLUIPA affords to religious exercise”).

       The    plain       language    of    RLUIPA,    however,       prevents   such   a

result.       By requiring that any substantial burden be imposed by

governmental action and by carefully balancing individual rights

and compelling governmental interests, the language of RLUIPA

demonstrates         that       Congress     did     not     intend    for   RLUIPA     to

undermine the legitimate role of local governments in enacting

and implementing land use regulations.                       See Petra Presbyterian

Church, 489 F.3d at 851; Civil Liberties for Urban Believers,

342 F.3d at 762.

       Finally, we conclude that the district court did not abuse

its discretion in denying the plaintiffs’ request to amend their

complaint.         See HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross,

101    F.3d       1005,    1010   (4th     Cir.    1996)   (stating    the   applicable

standard of review).                Because the plaintiffs did not have a

reasonable expectation to use the property as a church and any

burden       on     their       religious    exercise        was   self-imposed,      the

plaintiffs cannot articulate any set of facts demonstrating that

an amendment would survive the City’s motion to dismiss.                           Thus,

                                              13
we   agree   with   the   district   court   that   any   amendment    to   the

complaint would have been futile.            See Scott v. Family Dollar

Stores, Inc., 733 F.3d 105, 121 (4th Cir. 2013) (“Denying leave

to amend is appropriate when . . . the amendment would have been

futile.”).



                                     III.

      For these reasons, we affirm the district court’s judgment

dismissing with prejudice the plaintiffs’ complaint against the

City.

                                                                      AFFIRMED




                                      14
