PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-2185

CANAAN CHRISTIAN CHURCH; BURTONSVILLE CROSSING, LLC; BURTONSVILLE ASSOCIATES; MARION G. SAREM,

Plaintiffs – Appellants,

and

JENNIFER M. SAREM,

Plaintiff,

v.

MONTGOMERY COUNTY, MARYLAND; MONTGOMERY COUNTY COUNCIL; ISIAH LEGGETT, County Executive,

Defendants – Appellees.

-----------------------------

AGUDATH ISRAEL OF AMERICA; JEWISH COALITION FOR RELIGIOUS LIBERTY,

Amici Supporting Appellant.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Theodore D. Chuang, District Judge. (8:16-cv-03698-TDC)

Argued: September 22, 2021 Decided: March 22, 2022 Before KING, THACKER, and RICHARDSON, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge King joined. Judge Richardson wrote an opinion concurring in the judgment.

ARGUED: Roman Paul Storzer, STORZER & ASSOCIATES, P.C., Washington, D.C., for Appellants. Howard Ross Feldman, WHITEFORD, TAYLOR & PRESTON L.L.P., Baltimore, Maryland, for Appellees. ON BRIEF: Blair Lazarus Storzer, STORZER & ASSOCIATES, P.C., Washington, D.C., for Appellant Burtonsville Associates. A. Donald C. Discepolo, DISCEPOLO, LLP, Columbia, Maryland, for Burtonsville Crossing, LLC. Michelle M. Rosenfeld, LAW OFFICE OF MICHELLE ROSENFELD, LLC, Rockville, Maryland, for Appellants. Mark P. Hansen, County Attorney, John P. Markovs, Edward B. Lattner, OFFICE OF THE COUNTY ATTORNEY, Rockville, Maryland; Harry S. Johnson, Erek L. Barron, Aaron L. Casagrande, Cara C. Murray, Patrick D. McKevitt, WHITEFORD, TAYLOR & PRESTON L.L.P., Baltimore, Maryland, for Appellees. Christopher Pagliarella, YALE LAW SCHOOL FREE EXERCISE CLINIC, Washington, D.C.; Gordon D. Todd, Lucas W.E. Croslow, Matthew H. Simpson, SIDLEY AUSTIN LLP, Washington, D.C., for Amici Curiae.

2 THACKER, Circuit Judge:

In this case, we address whether Montgomery County, Maryland (the “County”),

the Montgomery County Council (the “County Council”), and the Montgomery County

Executive (the “County Executive”) (collectively, “Appellees”) complied with the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the Free Exercise

Clause of the First Amendment to the United States Constitution when it denied water and

sewer category change requests (“WSCCRs”) submitted on behalf of Canaan Christian

Church (“Canaan”) when Canaan sought to purchase and develop five neighboring pieces

of land (“the Property”) from the landowners (“the Landowners”) (Canaan and the

Landowners, collectively, “Appellants”). The land in question has been bound by decades

of land use regulations restricting development for both religious and non-religious

purposes. Because Appellants were well aware of the difficulties in development of the

Property when they entered into the contract to purchase the Property, they could not have

a reasonable expectation of religious land use. Further, the land use restrictions are

rationally related to the government’s interest in protecting the region’s watershed.

Therefore, we conclude that Appellees did not violate RLUIPA or the First Amendment,

and we affirm the judgment of the district court.

I.

A.

Background

The Property includes five adjacent parcels of land in Burtonsville, Maryland, that

are restricted from receiving sewer service. Burtonsville Crossing, LLC (“Burtonsville

3 Crossing”) owns one parcel (the “BC Parcel”). Thomas Norris (“Norris”) and his wife,

Elizabeth Norris, are the President and Vice President, respectively, of Burtonsville

Crossing. Burtonsville Associates owns one parcel (the “BA Parcel”). Jonathan Jackson

is the Managing Partner of Burtonsville Associates. Marion G. Sarem owns one parcel,

and Jennifer M. Sarem owns two parcels (collectively, the “Sarem Parcels”).

Over time, the Landowners struggled to economically dispose of their parcels. As

a result, the Landowners “decided it was necessary to join forces,” with one of the more

vocal land developers “spearheading [their] efforts” to develop the Property and engage

with the County in an attempt to gain relief from the restrictions. J.A. 1377. 1 If they could

not prevail in getting the restrictions lifted, the Landowners’ alternative plan was to sell

the Property to a religious organization because the Landowners believed that land use

regulations must submit to “[c]hurch use [which] cannot be denied.” Id. at 2361.

Toward this end, the Landowners ultimately entered into a contract with Canaan.

Canaan sought to purchase the Property in order to build a new church, contingent on the

approval of the extension of a public sewer line to the Property. Such an extension requires

the approval of a WSCCR by the Montgomery County Department of Environmental

Protection (the “DEP”) to amend the 2003 Comprehensive Ten-Year Water Supply and

Sewerage Systems Plan (the “Water & Sewer Plan”). The amendment process is multi-

layered. Per the amendment process, the DEP requests comments on WSCCRs from the

Montgomery County Planning Board (the “Planning Board”), among other agencies. The

1 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

4 comments are then sent to the County Executive, who sends the application and a

recommendation to the County Council. The Planning Board holds a public hearing on

WSCCRs and submits its own recommendation to the County Council. The County

Council itself will also hold a public hearing before taking action on the WSCCR, by either

approving, deferring, or denying the application. The County Council may defer action

pending review by the County Board of Appeals for special exception uses. If a WSCCR

survives this county approval process, the County submits its approval of a proposed

amendment to the state level authority, the Maryland Department of the Environment

(“MDE”). MDE then reviews the proposal and makes the final decision to add approved

amendments to the Water & Sewer Plan.

B.

Land Use Regulations Affecting the Property

The Property is located within the Patuxent River Watershed in what is known as

the Rural Edge Neighborhood (“Rural Edge”). One of the three tributary headwaters for

the Patuxent River originates within the Property. Before 1981, the Property was zoned

“Rural.” A designation of “Rural” means development is limited to “0.2 [dwelling

units/acre],” or one dwelling per five acres of land. J.A. 595. In 1981, the Property was

classified as “Rural Cluster,” meaning a zone with “[l]ow density without public sewer to

protect natural resources.” Id. at 4703. Over the years, the Property has been subject to a

number of land use and water plans. The most relevant plans are the 1997 Fairland Master

Plan, the 2003 Water & Sewer Plan, and the 2012 Burtonsville Crossroads Neighborhood

Plan (the “BCNP”).

5 The 1997 Fairland Master Plan recommended that sewer service not be extended to

the area containing the BC Parcel, although water service would be evaluated on an

individualized basis. This plan also recommended that water and sewer could be extended

to the area containing the BA Parcel on an individual basis for special exception uses, such

as elderly housing, child day care centers, or animal boarding.

The 1997 Fairland Master Plan was supplemented by the 2003 Water & Sewer Plan.

The Water & Sewer Plan was intended to address “the existing and future water supply and

sewerage system needs of Montgomery County.” J.A. 814. The first stated objective of

the Water & Sewer Plan provides that “water supply and sewerage systems proposed in the

plan shall emphasize service to the urbanized areas of the county, [and] shall support the

land-use recommendations adopted . . . in County Council-approved local area master

plans.” Id.

The Water & Sewer Plan also contains a Private Institutional Facilities (“PIF”)

Policy that allows the County Council to consider approving public water and/or sewer

services for “buildings constructed for an organization which qualifies for a federal

exemption” in areas that are outside the scope of water and sewer service areas. J.A. 824.

However, the Water & Sewer Plan expressed concern about “speculative interest in sites

because of their potential ability to satisfy the PIF policy requirements, not because a

specific private institution has a need for that site.” Id. at 826. Therefore, the Water &

Sewer Plan advised that “[t]he County will likely need to address these institutional uses

in the context of its master plans, zoning and subdivision ordinances, and water quality

regulations.” Id. at 827.

6 Under the Water & Sewer Plan, the Property is classified as water and sewer

categories W-6 and S-6, respectively, defined as “[a]reas where there is no planned

community service either within the ten-year scope of this plan or beyond that time period.”

J.A. 818. Therefore, in order to be able to build on the Property, Appellants applied for

water and sewer category changes to W-3 and S-3, defined as “[a]reas where improvements

to or construction of new community systems will be given immediate priority and service

will generally be provided within two years or as development and requests for community

service are planned and scheduled.” Id.

While the Water & Sewer Plan remained in effect, the 1997 Fairland Master Plan

was then amended and replaced entirely by the BCNP in 2012. The BCNP contained

stricter provisions than the 1997 Fairland Master Plan for the properties within the Rural

Edge and the specific subzone of the Rural Edge encompassing the Property. The BCNP

stated, “no public sewer service should be permitted for any use.” J.A. 695.

C.

History of the Property

Unfortunately for a prospective buyer, the Property has a history of land use

restrictions and of WSCCRs being denied or deferred but never approved, for both secular

and religious developments. Over the years, the WSCCR failures have been an impediment

to both the development and the sale of the parcels.

7 1.

BC Parcel

In 2002, the previous owner of the BC Parcel filed a WSCCR for the development

of residential housing and a dog kennel. In 2003, the County Council deferred the request

pending a decision by the County Board of Appeals on a special exception request. That

request was never ruled upon. And in June 2005, Burtonsville Crossing purchased the BC

Parcel. On July 27, 2009, Burtonsville Crossing filed a WSCCR for the development of a

senior housing project on the BC Parcel. On July 19, 2011, the County Council denied this

WSCCR.

2.

BA Parcel

In March 1969, Burtonsville Associates purchased the BA Parcel. A Burtonsville

Associates representative described the purchase as one meant “to turn a quick profit.” J.A.

1376. It did not work out that way, however. For approximately 30 years, Burtonsville

Associates failed to “profitably market the land.” Id.

a.

1997 – 2007

Between 1997 and 2007, Burtonsville Associates filed four WSCCRs. In 1997,

Burtonsville Associates filed a WSCCR (“WSCCR BA 1”) for an elderly housing

development project. The County Council deferred action on WSCCR BA 1 pending

approval by the County Board of Appeals for a special exception request. This request was

denied in 2000.

8 In 2003, Burtonsville Associates contracted to sell a portion of its parcel to

ElderHome, Inc., and filed another WSCCR (“WSCCR BA 2”) for a senior housing

development project. At the same time, Burtonsville Associates filed a WSCCR

(“WSCCR BA 3”) “for allowance to build a church or other special exception use.” J.A.

167. In October 2004, WSSCRs BA 2 and BA 3 were deferred, and the County Council

determined that WSCCR BA 3 needed a “more definitive proposal.” Id. at 1664. In

November 2005, these requests were again both deferred pending approval of a special

exception, and both were ultimately denied.

In 2007, ElderHome, Inc., assigned its rights to purchase the BA Parcel to Patuxent

Ridge, LLC (“Patuxent Ridge”), and Burtonsville Associates filed yet another WSCCR

(“WSCCR BA 4”) for an elderly housing development project. Because WSCCR BA 2,

which was filed for the earlier elderly housing development proposal, was still pending at

the time, WSCCR BA 4 was denied as “premature.” J.A. 1704.

b.

New Hope Contracts

In January 2009, New Hope Korean Church (“New Hope”) entered into the first of

three contracts with Patuxent Ridge to purchase the BA Parcel. The sale was contingent

on obtaining water and sewer service for the parcel. However, New Hope was “unaware

that the category sewer change was needed,” and “just thought that the water and sewer

line needed to be extended.” J.A. 1104.

On July 27, 2009, Burtonsville Associates filed another WSCCR (“WSCCR BA 5”)

in an effort to develop the BA Parcel for New Hope. New Hope subsequently terminated

9 the initial contract to purchase the BA Parcel because it was not willing to risk paying a

nonrefundable deposit required by the contract as it was “unable to get the assurances [it]

needed that [it] could actually build the church that [it] wanted on this property.” J.A.

1126. Then, on November 6, 2009, New Hope entered into a second contract with Patuxent

Ridge to purchase the BA Parcel. The second contract contained a “Water and Sewer

Category Change Contingency” provision that conditioned the sale on the approval of an

extension of public water and sewer to the Property. The contract could be terminated if

WSCCR BA 5 was not approved by June 30, 2010.

But, for reasons not apparent in the record, New Hope also terminated the second

contract, and on April 15, 2010, entered into a third contract with Patuxent Ridge to

purchase the BA Parcel. Up to this point, Patuxent Ridge had retained the right to purchase

the BA Parcel from Burtonsville Associates. But in May 2010, Patuxent Ridge assigned

the right to purchase the BA Parcel to Burtonsville Crossing. Patuxent Ridge also assigned

to Burtonsville Crossing its rights under the third contract to sell the BA Parcel to New

Hope.

On July 19, 2011, the County Council deferred the New Hope WSCCR BA 5. But

New Hope did not pursue the WSCCR BA 5 and instead terminated the third contract in

November 2011. Ultimately, in February 2012, New Hope’s attorney contacted the DEP

and requested that WSCCR BA 5 filed by Burtonsville Associates be withdrawn.

10 3.

Sarem Parcels

The three Sarem Parcels were initially purchased by Parviz and Iradi Sarem in 1977.

These parcels were subject to inter-family transfers, and Marion and Jennifer Sarem

ultimately became the sole owners of the parcels. Jennifer Sarem 2 has been aware of the

restrictions against public water and sewer service on her parcels since purchasing them:

Q: And that home [on Jennifer Sarem’s parcels] utilizes an on-site septic system and well; is that correct?

A: Yes.

Q: And is that because the property is not designated to receive public water and sewer service?

A: Yes.

Q: And has that been the case as long as you’ve owned the properties?

A: Yes . . . .

Q: And I believe you said that as long as you’ve owned the properties that they’ve been outside of the areas that the County has designated for public water and sewer service; is that correct?

A: Yes . . . .

J.A. 1037–41.

2 In a stipulation filed in the district court, the parties agreed to proceed without the testimony of Marion Sarem as she lived in Germany and spoke limited English. Her nephew, Scott Sarem, served as her proxy and representative for the disposition of her property.

11 D.

Canaan’s Contracts and WSCCRs

Canaan is an evangelical Christian church that was established in 1996 in Wheaton,

Maryland. Since that time, Canaan’s membership has expanded significantly from roughly

20 to 2,000. The original church facility was built with a capacity of 250 seats, and the

growth of the church ultimately led to overcrowding, a division of worship services into

multiple sessions, a restricted amount of programs that could be offered, and a restricted

amount of participants those programs could accommodate. Consequently, Canaan sought

to obtain a larger facility to accommodate its religious needs. Canaan considered the

Property as a possibility to fulfill its needs.

On behalf of the Landowners, Norris began discussing the sale of the Property with

Canaan’s real estate agent, Nurit Coombe (“Coombe”), in February 2013. Norris assured

Coombe that Canaan would have no issues getting sewer access for the Property. He

opined, “the County cannot delay or hinder development in any way, as the Reaching

Hearts[3] case proves,” and committed that the Landowners were “prepared to take [the

County] to court” if necessary. J.A. 2369–2370. However, Ms. Coombe’s independent

research, including discussions with representatives of the County, review of the BCNP --

the relevant land and water use regulation -- and the history of the WSCCRs for the

3 Norris is referring to Reaching Hearts International, Inc. v. Prince George’s County,

(D. Md. 2008), aff’d,

(4th Cir. 2010) (per curiam). In Reaching Hearts, discussed infra, the district court held that the adjacent Prince George’s County had violated RLUIPA when it denied a church’s water and sewer category change application.

12 Property, raised doubts about the accuracy of Norris’s assurances as to the feasibility of

the development. She conveyed these doubts to Canaan, stating, “[Norris] keeps insisting

that we will have no regulations issues getting water and sewer. I so far have gotten

different information from the county.”

at 2394B. Yet, when Coombe raised these

concerns with Norris, he continued to insist that the BCNP’s restrictions “do NOT apply

for a church. They are exempt as a matter of law.” Id. at 2396 (emphasis in original).

Despite the concerns, Canaan proceeded with the contracts on the Property between

June and July 2013. In order to get public water and sewer to the Property, the sale was

contingent on the approval of WSCCRs. On June 26, 2013, the Landowners submitted

four WSCCRs on behalf of Canaan.

However, on July 30, 2013, Canaan notified the Landowners that it would be

terminating the contract. Coombe told the Landowners, “the buyers after thorough

discussions with attorneys and the county decided that this project has a low probability to

go thru [sic].” J.A. 2513. Canaan officially terminated the contract on August 27, 2013.

On May 16, 2014, Canaan entered into a second contract with the Landowners. This

contract contained another contingency clause regarding the approval of a WSCCR for the

Property. The key difference between this contract and the first contract was that the

second contract cited RLUIPA and provided that the Landowners would “at once, in the

name of the Church, file actions in the United States District Court for the Southern District

of Maryland [sic] or the Circuit Court for Montgomery County” if the category change

request was denied. J.A. 2518.

13 During this time, the Canaan WSCCRs remained pending. On May 12, 2015, the

County Executive formally submitted a recommendation that the Canaan WSCCRs be

denied, citing the BCNP and stating, “The use of the Water and Sewer Plan’s [PIF] policy

in this instance would be in direct conflict with the [County] Council’s recent and specific

land use decisions for this part of Burtonsville.” J.A. 2551. The County Executive’s staff

report attached to the recommendation further explained, “Public sewer service for a

project located outside the planned envelope, such as the church’s development proposal,

can often be considered under the Water and Sewer Plan’s [PIF] policy. However, the

recent amendment to the 1997 Fairland Master Plan, the 2012 [BCNP], makes sewer

recommendations for this area . . . . The 2012 [BCNP] specifically recommends against

the provision of public sewer service for any use” for the Property. Id. at 2577 (emphasis

in original).

The report also speculated that public water service could potentially be considered

for the Property but noted that “neither the applicants nor the church have indicated that

water service alone would accomplish the planned site improvements.” J.A. 2577. Indeed,

Appellants did not subsequently pursue approval for septic and public water alone, and

feasibility studies for this alternative were not conducted while the County was reviewing

the submitted WSCCRs. Since the denial of the WSCCRs, the County has determined an

800 seat facility using septic could be feasible.

In June 2015, the Planning Board held a meeting and unanimously voted to

recommend denial of the WSCCRs, based on the BCNP. Additionally, the Transportation

and Environment Committee -- one of the agencies that submits comments on WSCCRs to

14 the County Executive -- recommended denial of the WSCCRs “given the specific

restrictive language included in the 2012 [BCNP]” that “no public sewer service should be

permitted for any use” for the Property. J.A. 695, 2609. The County Council held a public

hearing on the matter on June 23, 2015, and on July 21, 2015, the County Council denied

the Canaan WSCCRs.

On September 26, 2016, Canaan and the Landowners modified their 2014 contract

to extend the time to file a lawsuit contesting the denials of the WSCCRs.

E.

Procedural History

On November 14, 2016, Appellants brought this action against Appellees, asserting

five causes of action: (1) a RLUIPA substantial burden claim; (2) a RLUIPA unreasonable

limits claim; (3) a RLIUPA equal terms claim; (4) a First Amendment free exercise claim;

and (5) a Fourteenth Amendment equal protection claim.

The parties filed cross motions for summary judgment on all claims. The district

court held a hearing on these motions on September 23, 2020. On September 30, 2020, the

district court denied Appellants’ motion for summary judgment and granted summary

judgment to Appellees. On October 29, 2020, Canaan and most 4 of the Landowners

appealed three claims: 1) the RLUIPA substantial burden claim; 2) the RLUIPA equal

terms claim; and 3) the First Amendment free exercise claim.

4 Jennifer Sarem does not join the other Landowners in the appeal.

15 II.

We review a grant of summary judgment de novo. Calloway v. Lokey,

(4th Cir. 2020). A district court may grant summary judgment only if “the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). The facts are viewed in the light most

favorable to the non-moving party, but “it is ultimately the nonmovant’s burden to persuade

us that there is indeed a dispute of material fact. It must provide more than a scintilla of

evidence -- and not merely conclusory allegations or speculation -- upon which a jury could

properly find in its favor.” CoreTel Va., LLC v. Verizon Va., LLC,

(4th

Cir. 2014) (internal citation omitted).

III.

A.

RLUIPA Substantial Burden Claim

1.

Pursuant to the substantial burden provision of RLUIPA:

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 governmental interest; and

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

16 42 U.S.C. § 2000cc(a)(1).

Unlike in an institutionalized persons RLUIPA substantial burden case, where a

plaintiff must show that the defendant pressured him to violate his beliefs, in the land use

context, “a plaintiff can succeed on a substantial burden claim by establishing that a

government regulation puts substantial pressure on it to modify its behavior” as opposed

to its beliefs. Bethel World Outreach Ministries v. Montgomery Cnty. Council,

(4th Cir. 2013); see Lovelace v. Lee,

(4th Cir. 2006). This

“protects against non-discriminatory, as well as discriminatory, conduct that imposes a

substantial burden on religion.” Bethel,

. If a plaintiff demonstrates that

the land use regulation imposes a substantial burden, the defendant must then satisfy strict

scrutiny by demonstrating that the land use regulation is in furtherance of a compelling

governmental interest and is the least restrictive means of furthering that compelling

governmental interest. See 42 U.S.C. § 2000cc(a)(1); Bethel

; Redeemed

Christian Church of God (Victory Temple) Bowie v. Prince George’s Cnty,

(4th Cir. 2021).

2.

We utilize a two step analysis to determine whether or not a substantial burden is

imposed: we ask (1) whether the impediment to the organization’s religious practice is

substantial and (2) whether the government or the religious organization is responsible for

the impediment. Jesus Christ Is the Answer Ministries, Inc. v. Baltimore Cnty.,

(4th Cir. 2019) (“JCAM”).

17 a.

In the land use context, the impediment is substantial if “the property would serve

an unmet religious need, the restriction on religious use is absolute rather than conditional,

and the organization must acquire a different property as a result.” JCAM,

(citing Bethel, 706 F.3d at 557–58).

For instance, the religious facilities in Bethel “inadequately serve[d] [the church’s]

needs,” as the facilities were “overcrowded, requiring ushers to turn people away from

services and limiting Bethel’s ability to offer various programs,” causing the church “to

hold four services every Sunday, and to shorten services, interfering with [religious

practices],” and “creat[ing] a sense of disunity because the congregation [was] divided into

so many separate services.”

. We concluded that the restrictions on the

church were absolute because “the County ha[d] completely prevented Bethel from

building any church on its property, rather than simply imposing limitations on a new

building,” which would have required the church to acquire different property to

accommodate its religious needs.

. However, “[t]he absence of affordable and

available properties within a geographic area will not by itself support a substantial burden

claim under RLUIPA.” Andon, LLC v. City of Newport News,

(4th Cir.

2016).

In this case, there is undisputed evidence of an unmet religious need. The burdens

described by Appellants are similar to those described in Bethel: an overcrowded facility,

the need for multiple services to accommodate the number of members, and a lack of space

for programs. Compare Appellants’ Opening Br. at 3–5, with Bethel,

. And

18 it is uncontested that if Canaan wishes to build a church of this size with public sewer

access, it would need to find a different property.

However, Appellants have not presented evidence that the restriction on religious

use is absolute. 5 See JCAM,

(holding that there is “usually” a substantial

burden where a property that would serve an unmet religious need is faced with “absolute,

rather than conditional,” restrictions, which would force the religious organization to

acquire another property instead) (citing Bethel, 706 F.3d at 557–58). To the contrary, the

County indicated during and after its review of the Canaan WSCCRs that alternatives might

have been more successful. For instance, the evidence demonstrates the County’s

consideration of approving religious land use for smaller buildings and for septic with

public water service only. During the initial review of the WSCCRs, the County suggested

an application for water service only might have different results, but it did not pursue this

analysis at the time as it believed Appellants were only interested in developments allowing

public sewer service. After the review process, the County also independently conducted

a feasibility study and concluded an 800 seat church could probably be operated on the

Property using septic. This distinguishes this case from Bethel, where the religious

5 The concurrence’s discussion of “absolute” versus “complete” prohibitions is a distinction without a difference. Post at 33. Not only is the phrase “absolute” consistent with our precedent, common sense indicates that any regulation that “completely prevent[s] [a religious organization] from building any church on its property, rather than simply imposing limitations on a new building,” is an absolute restriction on religious land use. Bethel at 558. And, while there are other facts we must consider when analyzing a substantial burden claim, see JCAM at 261, whether a restriction is absolute or conditional is certainly telling as to the nature of the burden on the religious organization. To prevail on this type of claim, that burden must be substantial.

19 organization attempted to adapt to the county government’s land use restrictions, but the

government passed further restrictions making religious use impossible. See

.

Nonetheless, Appellants argue the restriction on religious use in this case is absolute

despite the fact that the County considered and approved a smaller facility serviced by

septic on the Property. Appellants assert that an 800 seat church is well below the 2,000

seat facility Canaan needs and would be “inadequate.” Appellants’ Reply Br. at 4–5.

However, this argument is inconsistent with Bethel, inasmuch as Appellants presented no

evidence that the County “has completely prevented [Canaan] from building any church

on its property, rather than simply imposing limits on a new building.” Bethel,

. The fact that there are practical and legal restrictions preventing a larger development

on the Property does not amount to a RLUIPA substantial burden violation. Therefore,

Appellants do not demonstrate that they satisfy the first step in the analysis -- that is, that

the impediment on a religious practice is substantial.

b.

As to the second step of the analysis, we consider whether the religious organization

had a reasonable expectation of religious land use and whether the burden is self-imposed.

Andon,

(citing Bethel, 706 F.3d at 557–58). Here, even if the impediment

in this case was substantial, Appellants cannot demonstrate they had a reasonable

expectation of religious land use.

A burden is self-imposed, for example, where a religious organization “knowingly

entered into a contingent lease [or purchase] agreement for a non-conforming property.”

20 Andon,

. “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.”

Consequently, we affirmed the dismissal of the substantial

burden claim in Andon without applying strict scrutiny to the government’s actions.

In contrast, burdens on a religious organization may not be self-imposed where the

organization acquires land with a reasonable expectation of land use but the government

subsequently makes development and use practically impossible. For instance, the church

in Reaching Hearts International, Inc. v. Prince George’s County submitted WSCCR

applications and modified its development plans in response to land use restrictions that

changed between its application attempts. See

(D. Md. 2008),

aff’d,

(4th Cir. 2010) (per curiam). Although there were no objections

to these applications at public hearings or otherwise during the process, the applications

were denied. See

at 774–75, 779. Meanwhile, secular applicants, including a property

in the same area, were approved. See id. at 775. In Reaching Hearts, the county relied on

environmental reasons as its justification for denying the church’s application, citing

concerns about development next to a reservoir and the impact on water quality. However,

it “did not adduce any evidence at trial that demonstrated that an approval of any of [the

church’s] applications would have any impact—much less a negative impact—on [the

reservoir]. [The county] did not produce any data, studies, or reports on this issue,” nor did

the county demonstrate why the church’s use of the land would impact the reservoir

differently than other surrounding properties. Id. at 788 (emphasis in original). The district

21 court in Reaching Hearts found the county’s reasons for denying the church’s applications

were pretextual. See id. The district court further determined the passage of a land use

restriction that only affected the church’s property between its applications was not the

least restrictive means of the government achieving a compelling interest, if there had been

one. See id at 783, 788. As such, the county’s actions in Reaching Hearts failed strict

scrutiny.

Appellants suggest this case is akin to Reaching Hearts or Bethel, where “a religious

organization buys property reasonably expecting to build a church, [but] governmental

action imped[es] the building of that church.” Bethel,

. But this case more

closely resembles Andon. While Reaching Hearts and Bethel dealt with land use

regulations being changed after the purchase of property by a religious organization, Andon

describes a situation where parties “knowingly entered into a contingent lease agreement

for a non-conforming property.” Andon,

. The latter is the case here.

Appellants’ burdens were “self-imposed hardships.”

As a result, Appellants could not

have a reasonable expectation that the Property could be used as a church.

Appellants assert that they had a reasonable expectation of approval of the WSCCR

based on the Water & Sewer Plan’s PIF Policy, which allowed for qualifying institutions

to be considered for approval of public water and sewer. While it is undisputed that Canaan

qualifies as a PIF, the Water & Sewer Plan’s PIF Policy is not the controlling regulation.

Rather, the controlling regulation is the master plan, the BCNP. The Water & Sewer Plan

states “water and sewer service decisions should follow and implement the land use and

development guidance established in the County’s General Plan and local area master

22 plans.” J.A. 820. The Water & Sewer Plan further emphasizes that PIF uses must be

considered “in the context of [the County’s] master plans.” Id. at 827. And the relevant

master plan here, the BCNP, clearly expresses that sewer is not to be extended to this

Property “for any use.” Id. at 695.

The undisputed facts surrounding the negotiations for the purchase of the Property,

as well as the terms of the contracts themselves, clearly demonstrate that Appellants were

well aware of the regulations restricting the Property. Because Appellants knowingly

entered into a contingent sale agreement for property that was expressly excluded from

receiving public sewer access under the master plan, they could not have had a reasonable

expectation of the County approving their WSCCRs for public sewer access.

Appellants also rely on Reaching Hearts in an attempt to support their claim that

their expectation of religious land use with public sewer access was reasonable under the

existing “state of the law and the track record of the agencies that would be reviewing its

application.” Appellants’ Opening Br. 43 (emphasis in original). However, Reaching

Hearts is not helpful to Appellants in this regard either for a number of reasons.

First, unlike in Reaching Hearts, here the County did not pass any land use

restrictions affecting the Property after Canaan entered into contracts with the Landowners.

Next, although the County cites environmental reasons for its denial of the WSCCRs,

unlike in Reaching Hearts, here the County also provided evidence supporting these

concerns. Finally, the “track record of the agencies that would be reviewing” the WSCCRs

in this case demonstrates that applications involving the Property, both religious and

secular, were not likely to be approved and Appellants knew it. Thus, Reaching Hearts

23 does not support Appellants’ claim that they had a reasonable expectation of public sewer

access for their land use.

Where a plaintiff successfully demonstrates a substantial burden was imposed as a

result of the government’s actions, RLUIPA requires the government to withstand strict

scrutiny by demonstrating how the land use regulation is the least restrictive means of

furthering a compelling governmental interest. 42 U.S.C. § 2000cc(a)(1). But because we

hold that Appellants had no reasonable expectation of success on the WSCCRs, it is

unnecessary to apply strict scrutiny in this case.

B.

RLUIPA Equal Terms Claim

1.

RLUIPA also prohibits discrimination against religious land use:

No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.

42 U.S.C. § 2000cc(b)(1).

We have not yet addressed this provision of RLUIPA. But the Eleventh Circuit has,

and it lists the four elements of an equal terms violation as (1) the plaintiff must be a

religious assembly or institution, (2) subject to a land use regulation, that (3) treats the

religious assembly on less than equal terms, with (4) a nonreligious assembly or institution.

See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty.,

(11th Cir. 2006). The Eleventh Circuit has “also held that a violation of the Equal

24 Terms provision is not necessarily fatal to the land use regulation . . . but ‘a violation of

[the] equal treatment provision . . . must undergo strict scrutiny.’”

. Primera

further held:

A plaintiff bringing an as-applied Equal Terms challenge must present evidence that a similarly situated nonreligious comparator received differential treatment under the challenged regulation. If a plaintiff offers no similarly situated comparator, then there can be no cognizable evidence of less than equal treatment, and the plaintiff has failed to meet its initial burden of proof.

(emphasis in original).

This “similarly situated nonreligious comparator” analysis has been favored by

several other of our sister circuits, “with most holding that a comparator for an equal terms

claim must be similarly situated with regard to the regulation at issue.” Tree of Life

Christian Sch. v. City of Upper Arlington,

(6th Cir. 2018) (emphasis in

original) (citing Centro Familiar Cristiano Buenas Nuevas v. City of Yuma,

(9th Cir. 2011); Elijah Grp., Inc. v. City of Leon Valley,

(5th Cir.

2011); River of Life Kingdom Ministries v. Vill. of Hazel Crest,

(7th Cir.

2010)); see also Signs for Jesus v. Town of Pembroke,

, 109–10 (1st Cir. 2020)

(“[S]everal circuits . . . generally require that the comparators be similarly situated with

respect to the purpose of the underlying regulation . . . . Absent the existence of such a

25 similarly-situated comparator, the Church’s equal terms claim fails.”). We find this

reasoning persuasive. 6

2.

For a comparator here, Appellants primarily rely on the example of the Glenstone

Museum (“Glenstone”), a secular organization which applied for and received a WSCCR

from the County in 2012. Critically, Glenstone is in a different part of the County and was

subject to the Potomac Subregion Master Plan (“Potomac Plan”), not the BCNP. While

the BCNP had a specific prohibition for the Property against public sewer “for any use,”

the Potomac Plan only “generally” excluded public sewer service for the area where

Glenstone was located. J.A. 323, 695. Appellants argue that the particular differences

between the two master plans are not meaningful. Appellants further contend that the PIF

Policy and what they refer to as a “newly formulated . . . ‘Specific Restrictive Language’

policy” are the appropriate land use and decision-making criteria. Appellants’ Opening

Br. at 2, 52. Appellants contend that under these considerations, Glenstone was treated

more favorably than Canaan. We disagree.

6 To the extent that the concurrence relies on the dissenting opinion from River of Life to suggest that a comparator is required for an as-applied challenge but not for a facial challenge, post at 34, we do not find this to be persuasive. First, we are not bound by a dissenting opinion -- much less one from another circuit. Next, the dissent in River of Life advocated rejecting the use of a similarly situated analysis, but not the use of a comparator in general. See River of Life, 611 F.3d at 386–387 (Sykes, J., dissenting). This makes sense, as the complete rejection of a comparator would be difficult to reconcile with the statute, which explicitly provides that an equal terms claim must involve, or compare, a “religious assembly or institution” that has been regulated on “less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. § 2000cc(b)(1).

26 a.

The “‘Specific Restrictive Language’ policy” is not actually a policy articulated by

the County. Rather, Appellants simply attempt to convert the County’s process for

interpreting and applying master plans to WSCCRs into a “policy” to serve Appellants’

purposes. In attempt to do so, Appellants emphasize the County’s distinction between

“specific” prohibitions, such as the BCNP’s prohibition against public sewer for the

Property “for any use,” and “general” restrictions, such as the Potomac Plan’s

recommendation that the County follow the Water & Sewer Plan, which would “generally

exclude” the property Glenstone owned from sewer service with “limited” approvals of

service to properties adjacent to existing lines. J.A. 323, 695, 4142. Appellants suggest

this distinction between general and specific restrictions in the master plans was a formal

policy crafted by the County through the process of reviewing the Canaan WSCCRs. But

as noted above, that is not accurate. The County was not using a formal policy to grant or

deny WSCCRs based on how general or specific the relevant master plan’s language was.

Rather, the County was simply interpreting each master plan to determine whether a

WSSCR for property falling under that plan could be granted.

b.

Appellants note that Glenstone also qualified as a PIF, and they argue the approval

of Glenstone’s WSCCR is evidence of disparate treatment by the County. Again,

Appellants’ continued focus on the PIF Policy misses the mark. Appellants misconstrue

the relationship between the PIF Policy and master plans by referencing the PIF Policy in

isolation or treating it as controlling over master plans. As previously described, the

27 County’s Water & Sewer Plan specifically cautions against reading it or its PIF Policy

without consulting the appropriate master plan. In this case, the master plan affecting

Glenstone -- that is, the Potomac Plan -- afforded the County more discretion to approve

Glenstone’s WSCCR than the BCNP, as the Potomac Plan provides that it will only

“generally exclude areas zoned for low density development,” as Glenstone was, from the

extension of public sewer service. J.A. 323. In contrast, the BCNP more broadly prohibits

public sewer access to the Property on which Canaan wishes to build by specifically

providing that “no public sewer service should be permitted for any use.” Id. at 695.

Therefore, Glenstone and the Property in question in this case are not similarly situated.

c.

Likewise, Appellants fail to identify a comparator subject to the BCNP that was

treated more favorably than Canaan. The history of denied or deferred WSCCRs for both

religious and secular developments on the Property demonstrate the County’s consistency

in applying the master plan when reviewing applications for water and sewer extensions.

Appellants point out, correctly, that those previous development attempts fall under earlier

master plans, with most of the described attempts occurring under the 1997 Fairland Master

Plan. It is notable, though, that even under the more lenient 1997 Fairland Master Plan,

the County did not approve any of the secular WSCCRs submitted for the Property. Thus,

Appellants cannot show the County discriminated against religious land use development

for the Property, and their RIULPA equal terms claim fails.

28 C.

First Amendment Free Exercise Claim

Appellants’ final claim is that the County violated the Free Exercise Clause of the

First Amendment. The Free Exercise Clause provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S.

Const. amend. I. Similar to a RLUIPA claim, a free exercise claim in the land use context

addresses whether the government’s application of a land use regulation unconstitutionally

burdens or discriminates against religious exercise.

For the purpose of a free exercise claim in the land use context, a facially neutral

and generally applicable regulation is subject only to rational basis review, “even where it

has the incidental effect of burdening religious exercise.” Emp’t Div., Dep’t of Human

Res. v. Smith,

(1990); see Fulton v. City of Philadelphia,

, 1876–77 (2021) (declining to overrule Smith). But, a government restriction that is

not neutral but is meant “to infringe upon or restrict practices because of their religious

motivation” is subject to strict scrutiny. JCAM,

(citing Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah,

(1993)). For instance,

where a religious organization alleges that a government decision restricted use of their

property in response to community opposition to the religious organization, “[t]his

allegedly discriminatory motive triggers strict scrutiny.”

Individualized assessments

29 by the government with a mechanism for granting exceptions also triggers strict scrutiny.

As emphasized in the recent Supreme Court case Fulton v. City of Philadelphia:

The creation of a formal mechanism for granting exceptions renders a policy not generally applicable, regardless whether any exceptions have been given, because it “invite[s]” the government to decide which reasons for not complying with the policy are worthy of solicitude, Smith,

, 110 S.Ct. 1595—here, at the Commissioner’s “sole discretion.”

141 S. Ct. at 1879.

Here, Appellants again assert that the appropriate land use regulations are the PIF

Policy and an “improvised policy shift,” which Appellants have elsewhere referred to as a

“specific restrictive language policy.” Appellants’ Opening Br. at 50. In the context of

their free exercise claim, Appellants argue that these policies are not neutral and generally

applicable. Rather, Appellants claim the WSCCR denials were the result of “an

individualized determination.” Id.

Appellants rely on Fulton as support for their claim that the WSCCRs were

reviewed under a discretionary system that could have accorded them an exception.

However, as detailed above, the evidence does not demonstrate that the decision to deny

the WSCCRs was based on a discretionary policy. Rather, the decision was based on the

BCNP, which expressly prohibited the extension of sewer service to the Property “for any

use” without exception. J.A. 695. Consequently, Fulton is inapplicable.

The concurrence points to the “public health problem exception” language in the

BCNP to suggest the master plan’s restrictions against public sewer service for the Property

contains an exception. Post at 38–39. But this is a misreading of the BCNP. The BCNP

30 describes four subzones within the Rural Edge, including the subzone encompassing the

Property here. J.A. 692–697. The BCNP details specific restrictions for each subzone, in

addition to general regulations for the Rural Edge properties as a whole. The public health

problem exception is one such general regulation that affects all of the Rural Edge

properties. But just as the general regulations applicable to the W&S Plan could not

supersede the BCNP’s specific restrictions for the Property, neither can the BCNP’s

general regulations for the subzones supersede the more specific and restrictive regulations

listed for the Property.

The BCNP is facially neutral and generally applicable, and Appellants fail to offer

evidence that the County had a discriminatory motive that would trigger strict scrutiny.

Therefore, rational basis is the appropriate level of review here. Rational basis review

“requires merely that the law at issue be ‘rationally related to a legitimate governmental

interest.’” Bethel,

(citing Grace United Methodist Church v. City of

Cheyenne,

(10th Cir. 2006); Brown v. City of Pittsburgh,

(3d Cir. 2009); Littlefield v. Forney Indep. Sch. Dist.,

(5th Cir.

2001)).

Appellants have not shown that BCNP is not rationally related to a legitimate

governmental interest. To the contrary, as the district court concluded, the County’s plan

to protect the “sensitive” “tributary headwaters, which originate in the [Property]” is a

legitimate interest and the BCNP furthers that interest by restricting development to

prevent damage to the watershed. J.A. 702, 4901. Thus, the County’s actions withstand

rational basis review.

31 IV.

Accordingly, for the reasons set forth herein, we affirm.

AFFIRMED

32 RICHARDSON, Circuit Judge, concurring in the judgment:

I agree with most of Judge Thacker’s fine majority opinion and fully agree with its

judgment. 1 I write separately for two reasons. First, to point out a few minor concerns

with the majority’s reading of the Equal Terms provision of the Religious Land Use and

Institutionalized Persons Act. Second, to expand on Judge Thacker’s Free Exercise

analysis because I believe there is a complication that makes this a closer question than it

may at first seem. Neither difference changes my view of the outcome, and I agree that all

of Canaan’s claims were properly dismissed.

I. Equal Terms

I agree with the majority that there are four elements to a prima facie claim under

RLUIPA’s Equal Terms provision: “(1) the plaintiff must be a religious assembly or

institution, (2) subject to a land use regulation, that (3) treats the religious assembly on less

than equal terms, with (4) a nonreligious assembly or institution.” Maj. Op. at 24. This

1 I agree with much of the majority’s reasoning on the Substantial Burden claim. Because it is clear that Canaan did not have any reasonable expectation that the County would approve their request for sewer requests and therefore self-imposed the burden, Maj. Op. at 22, I would not decide the more complex question of whether the burden was substantial. Cf. Westchester Day Sch. v. Village of Mamaroneck,

(2d Cir. 2007) (discussing the absolute/conditional distinction in terms of whether a different plan might be accepted that would “meet the same needs”). But whatever “absolute rather than conditional” means, Jesus Christ is the Answer Ministries, Inc. v. Baltimore Cnty.,

(4th Cir. 2019), it cannot require a complete prohibition on all religious uses of land as the majority suggests today, Maj. Op. at 19–20. The absolute/conditional distinction is a tool courts have used to interpret the phrase “substantial burden,” and the category of “burdens” must cover more than bans. There must be some restrictions on religious use that fall short of outright prohibition that still impose a religious burden. See Jesus Christ is the Answer, 915 F.3d at 260–61 (“land use regulations can substantially burden religious exercise where an organization acquires property expecting to use it for a religious purpose but is prevented from doing so by the application of a zoning ordinance”). 33 interpretation is true to the text of the Equal Terms provision, § 2000cc(b)(1), which

demands that “[n]o government shall impose or implement a land use regulation in a

manner that treats a religious assembly or institution on less than equal terms with a

nonreligious assembly or institution.” There are, however, a few points of divergence

worth discussing briefly.

First, there are at least two ways to bring an Equal Terms claim under RLUIPA,

through a facial challenge or through an as-applied challenge, and this case deals only with

an as-applied challenge. See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.

Broward Cnty.,

, 1308–09 (11th Cir. 2006). If a locality wrote a zoning law

that explicitly gave worse terms to religious assemblies than other assemblies—museums

get sewers by the river, but churches don’t—that would violate the Equal Terms provision

facially. See, e.g., Digrugilliers v. Consol. City of Indianapolis,

, 614–15 (7th

Cir. 2007). If a locality treated religious assemblies worse than nonreligious assemblies in

the “processing, determining, and deciding” of otherwise religiously neutral zoning rules—

the rule says no institutions can get a sewer by the river, but the museums get an exception

in practice that churches don’t—that would be an as-applied violation. See, e.g., Rocky

Mountain Christian Church v. Bd. Of Cnty. Comm’rs,

, 1236–38 (10th Cir.

2010).

In my view, only the as-applied challenge requires the plaintiff to bring forward a

comparator of any kind. See River of Life Kingdom Ministries v. Village of Hazel Crest,

(7th Cir. 2010) (Sykes, J., dissenting). If the face of a zoning rule gives

better terms to the museum than to the church, a plaintiff need not bring forward any

34 comparator because the face of the statute violates the Equal Terms provision of RLUIPA.

And any discussion of whether the religious building was similarly situated to a museum

would be irrelevant, considering the plain command of the Equal Terms provision.

Here the majority endorses the requirement that a plaintiff bring forward a

“similarly situated nonreligious comparator” as many other circuits have. Maj. Op. at 25

(citing Primera Iglesia,

). But given that our case no doubt falls in the as-

applied bucket, this holding should not be read to extend beyond this case to potential facial

challenges. A zoning rule that said “museums get sewers near the river but churches don’t”

should not be saved by arguing that churches are somehow not similarly situated to

museums in light of the purpose of the regulation.

Second, even in the as-applied context, I do not agree that the nonreligious

comparator need be “similarly situated.” See Douglas Laycock and Luke W. Goodrich,

RLUIPA: Necessary, Modest, and Under-Enforced,

, 1061

(2012). The text of the statute requires that a plaintiff like Canaan prove that they were

treated “on less than equal terms with a nonreligious assembly or institution.” 42 U.S.C. §

2000cc(b)(1). As I’ve said, in a facial challenge, it will be plain whether equal terms have

been offered. But the question is more complicated in the as-applied context, where the

charge is that the locality has used an otherwise neutral rule to impose unequal terms. And

it is here that requiring some comparison might make some sense. See, e.g., River of Life,

(Sykes, J., dissenting).

After all, in an as-applied challenge, the specific facts of the properties, the proposed

uses, and the zoning processes will all matter. But requiring a comparator to be “similarly

35 situated” suggests that some similarity is required beyond what the plain text

contemplates—that the other building was an assembly or institution, that it was governed

by the same zoning law or rule, and that the rule gave the comparator better terms.

“Similarly situated” appears to add more, perhaps requiring district courts to consider

similarity with respect to the “purpose” of the regulation. See Maj. Op. at 25 (citing Signs

for Jesus v. Town of Pembroke,

, 109–10 (1st Cir. 2020) (looking “to the

purpose of the underlying regulation.”)). The better analysis would simply look at whether

the same restrictions are placed on religious and nonreligious assemblies. Congress has

instructed us to look to the equality of terms, so we should not look beyond that

prescription, especially given that it is easier to determine the equality of terms than the

equality of effects or use or purpose. See Laycock & Goodrich, supra, at 1063.

This analysis won’t always mean the religious assembly will get the same outcome

as the non-religious assembly: As long as book clubs and churches are both subject to a

rule saying, “no buildings with more than 100 seats,” it would be acceptable to okay the

85-seat book club and turn down the 15,000-seat megachurch. See id. If a locality applies

a rule like that equally, it has not violated the equal terms provision, and any further search

for similarity between those buildings can only add confusion.

In my view, the language of “similarly situated” will encourage lower courts to look

to any difference between properties or uses that could have justified different treatment

based on some speculated purpose. See River of Life,

(“‘Purpose’ is

subjective and manipulable.”). Thus, while it would not change the result here and maybe

36 not in most cases, we should instead focus on what the provision requires us to look at:

whether equal terms were actually applied.

Third, the majority suggests that there is a strict-scrutiny defense to an Equal Terms

claim, but I disagree. See Maj. Op. at 24. The statutory language can’t be read to justify

such a defense, especially where the previous subsection regarding substantial burdens

explicitly lays out a strict-scrutiny defense and the Equal Terms subsection does not.

Compare 42 U.S.C. § 2000cc(a)(1) with § 2000cc(b)(1). Some courts have suggested that

the Equal Terms provision might be unconstitutional without it, going beyond Congress’s

power under Section Five of the Fourteenth Amendment. See River of Life,

. That issue is not before us, and more to the point, the canon of constitutional

avoidance operates in ambiguity; it doesn’t let us rewrite clear statutory language. United

States v. Locke,

(1985) (quoting George Moore Ice Cream Co. v. Rose,

(1933)).

Whether there is a strict-scrutiny defense is yet another divergence that may not

matter in practice. Strict scrutiny is often deadly. And it is hard to imagine a compelling

governmental interest that requires treating churches, mosques, and temples differently

from the Elks Lodge, the library, and the museum. And further yet, many compelling

interests that would pass muster under any strict-scrutiny defense are likely to be

represented already in the neutral and equally applicable zoning laws of many towns and

cities. Still, we should not add this atextual hurdle.

While these minor differences are worth mentioning, they would not change the

outcome here. I agree with the majority that Montgomery County should prevail because

37 the two institutions, Canaan and Glenstone Museum, were governed by separate master

plans on account of their different geographic locations. That alone means that they were

not given less than equal terms by the same law or regulation. As the majority rightly

points out, the Glenstone Museum was subject to the Potomac Plan, a master plan covering

three towns near Rockville, Maryland and which allowed some leeway for sewer

extensions, while Canaan was subject to the Burtonsville Plan, a master plan covering a

smaller area about 15 miles east of Rockville and which did not allow a sewer extension

for any use. Because Canaan and Glenstone were subject to the rules of two different

master plans—the real source of binding rules about where sewer extensions could go—

they weren’t treated differently by the same land use regulation. Thus, Canaan cannot

point to any nonreligious institution or assembly that received better terms under the same

regulation, so I agree with the majority that Canaan’s claim must be dismissed.

II. Free Exercise

Here I write to expand on the Free Exercise holding because I believe there is one

more thread that needs tying off. The majority opinion finds that the Burtonsville Plan

created a categorical ban on sewers without exception, which is therefore subject only to

rational-basis review. Maj. Op. at 29 (citing Fulton v. City of Philadelphia,

, 1876 (2021)). But I read the policy as an almost total ban on sewers on the

Properties—almost but not quite. The Burtonsville Plan lays out specific rules for the

Properties here—the Northern Properties within the Rural Edge—and those rules say, “no

public sewer service should be permitted for any use.” J.A. 695. So no sewer for a museum

or a church or a swimming pool. But a few pages later, the Burtonsville Plan contemplates

38 an exception to that rule: “This Plan recommends against providing public sewer service

for Rural Edge properties under any circumstances, other than for relief of documented

public health problems.” J.A. 709 (emphasis added). Taking both of those together, I read

the full rule to be that sewers will not be granted for any use except in one certain

circumstance—a public-health problem. That may seem like a small difference, but I

believe it changes the Free Exercise analysis, if only slightly.

As the majority says, the Free Exercise clause subjects neutral and generally

applicable regulations only to rational-basis review. Maj. Op. at 28 (citing Emp. Division

v. Smith,

(1990)). The Supreme Court has clarified in recent years what

it means for a law to be generally applicable under the Free Exercise Clause. Two notable

classes of exceptions make an otherwise generally applicable law subject to heightened

scrutiny: (1) where officials may use broad discretion to grant individualized exceptions—

call that the unconstrained-discretion rule; and (2) where secular exceptions undermine the

government’s asserted rationale for the generally applicable law—call that the

contradictory-secular-exception rule. I discuss each in turn.

A. The Unconstrained-Discretion Rule

The first exception to rational-basis review under the Free Exercise Clause is for

those laws and regulations that may otherwise be general and neutral, but which provide

for “individualized exemptions.” In Fulton, the Supreme Court explained that “the creation

of a formal mechanism for granting exceptions renders a policy not generally applicable”

where it “invites the government to decide which reasons for not complying with the policy

are worthy of solicitude.” 141 S. Ct. at 1879 (cleaned up). In that case, a process for

39 granting exceptions was committed to a commissioner’s “sole discretion,” triggering strict

scrutiny. Id. The Fulton court also pointed to Sherbert v. Verner,

(1963), as

an example of a mechanism for “individualized exemptions.” In Sherbert, South Carolina

denied unemployment benefits to the plaintiff under a law with a “good cause” exception.

. These examples show that “individualized exemptions” are those that look to

the particular justifications of an individual and weigh them under overly flexible and

discretionary standards like “good cause” or “necessity” or “reasonableness,” and without

objective standards. See also Church of the Lukumi Babalu Aye v. City of Hialeah,

, 537–38 (1993) (using a standard that looked to whether certain killings of

animals were “necessary”). What we’re looking for is unconstrained discretion to make

essentially ad-hoc decisions about what circumstances warrant an exception. By allowing

room for discretionary exceptions, we no longer have a rule of general application, and the

First Amendment bristles. Cf. Forsyth Cnty. v. Nationalist Movement,

(1992) (“The First Amendment prohibits the vesting of such unbridled discretion in a

government official.”).

The regulations governing Canaan’s sewer application do not, in fact, violate this

unfettered-discretion rule because the Burtonsville Plan is binding over the Water & Sewer

Plan. 2 Under the Burtonsville Plan, “no public sewer service should be permitted” on

2 It may well be that the unfettered discretion to not enforce the Plan could come from outside the zoning regulations themselves—consider something like prosecutorial discretion that permits nonenforcement of generally applicable criminal laws, see Saikrishna Prakash, The Chief Prosecutor, 73 GEO. WASH. L. REV. 521, 532, 536–63 (2005). But see Smith, 494 U.S. at 884–85 (finding a criminal law generally applicable (Continued) 40 properties in Canaan’s area. J.A. 695. There is only one exception to the Burtonsville

Plan’s rule against sewer in the Northern Properties, but that exception is for “relief of

documented public health problems.” J.A. 709. This is not a procedure that grants some

official unfettered discretion to make ad-hoc decisions about which reasons deserve

exceptions. It doesn’t use some amorphous, open-ended standard like “feasible” or

“appropriate.” Zoning officials can only perform the ministerial task of checking for a

documented public-health problem. They must look to an objective fact about the land: Is

there a documented public-health problem? If there is, you may get a sewer. If not, you

don’t. So while there is an exemption to the general no-sewer rule for Canaan’s property,

it is not discretionary in the way that would trigger strict scrutiny under Fulton.

B. The Contradictory-Secular-Exception Rule

There is another class of exceptions that has gotten more play in recent years.

Heightened scrutiny is also triggered when religious exercise is treated worse than any

comparable secular activity. As the court in Fulton puts it: “A law also lacks general

applicability if it prohibits religious conduct while permitting secular conduct that

undermines the government’s asserted interests in a similar way.” 141 S. Ct. at 1877.

The Supreme Court has sometimes referred to this as an exception that ensures that

churches receive equal treatment to “comparable secular activity.” Tandon v. Newsom,

(2021) (per curiam) (citing Roman Cath. Diocese of Brooklyn v.

without discussing prosecutorial discretion). As Canaan does not suggest that background principles provide the zoning authority with broad discretion to not enforce the Burtonsville Plan, we need not resolve this possibility. 41 Cuomo,

, 67–68 (2020)). But the phrase “comparable” is not self-defining

and may even be misleading. Compare Tandon, 141 S. Ct. at 1297 (comparing at-home

religious gatherings to movie theaters and restaurants), with id. at 1298 (Kagan, J.,

dissenting) (comparing instead at-home religious gatherings to at-home secular

gatherings). “Comparable” suggests an all-things-considered test, which involves a

potentially infinite set of inputs. That is not what is meant here. Much like my discussion

of the Equal Terms provision above, where “comparable” and “similarly situated” suggest

a wide view, our view here should be more focused. In Fulton, the Court makes clear that

we look to the “asserted interests” of a rule and consider whether exempted secular conduct

undermines those asserted interests in a similar way to religious conduct. 141 S. Ct. at

1877; see also Tandon,

; Doe v. San Diego Unified Sch. Dist.,

, 1185–86 (9th Cir. 2021)(Ikuta, J., dissenting) (“[T]he majority errs at the first step

in the framework by focusing on the School District’s reasons for offering an exemption,

rather than the interest that the School District actually asserts to justify the mandate.”). If

the government regulates religious activities while excepting secular activities for which

its stated interest equally applies, then it unjustifiably belittles the religious practices.

The Fulton court uses Church of Lukumi as its example of what counts as a

“comparable activity.” 141 S. Ct. at 1877. The City’s ban on “unnecessary” killings of

animals was essentially gerrymandered to capture the religious animal sacrifice of the

Santeria religion but made exceptions for secular practices like butchering, hunting, and

extermination. Church of Lukumi, 508 U.S. at 527–28. The Court began by considering

the asserted purposes of the regulation—public health and safety and protection of

42 animals—and then considered whether the secular exceptions cut against those purposes.

Id. at 543–46. Many did, and that was enough to prove that the law was not generally

applicable. Exterminating pests is inflicting harm on animals, allowing hunters to bring

carcasses to their homes is a potential threat to public safety, and allowing fisherman to eat

their catches without food inspection poses risks to public health. See id. Any one of those

would have been enough to pull that law out of rational-basis review. Once you have even

a single exception that cuts against the justification of a regulation, religious exercise must

get that same treatment. Tandon,

; see also Fulton, 141 S. Ct. at 1877;

Fraternal Ord. of Police Newark Lodge No. 12 v. City of Newark,

(3d

Cir. 1999) (Alito, J.) (holding that a medical exception to a no-beard policy triggered this

exception because it cut against Newark’s purpose of making police easily identifiable

while an undercover-officer exception did not because it did not cut against the purpose).

So instead of “comparable,” it may be more accurate to think of this as the “contradictory-

secular-exception” rule. 3

This case does not trigger the contradictory-secular-exception rule because a public-

health exception does not cut against the asserted public-health interest in keeping sewers

out of the watershed. The purpose of the ban on sewers in the watershed is to protect the

3 Some have referred to this as a “most-favored nation” rule. See Calvary Chapel Dayton Valley v. Sisolak,

, 2612–13 (2020) (Kavanaugh, J., dissenting from denial of application for injunctive relief) (citing Douglas Laycock, The Remnants of Free Exercise, 1990 S. Ct. Rev. 1, 49–50). You might think of things that way—once you identify the category of things that cut against the asserted public interest, the religious use must get the best treatment within that category. But because so much work is being done by constructing the category, this doesn’t strike me as the most useful framing. 43 “declining water quality in the Patuxent River Watershed,” and thereby, to protect public

health and safety, considering that the Watershed provides drinking water to two of

Maryland’s most populous counties. J.A. 694, 792. Here no exception contradicts that

purpose. The only exception is for “relief of documented public health problems.” J.A.

709. To get a sewer, a landowner would need to prove an existing public-health

emergency, and such an exception would be approved only when the sewer would improve

public health and safety rather than threaten it. So there’s no secular exception that

contradicts the public-health and water-quality purposes of the sewer ban. 4

Because there is no unconstrained discretion here and because there is no

contradictory secular exception, the Free Exercise Clause is not offended, and this claim

was rightly dismissed.

4 A counterexample may be helpful. Imagine an exception for public schools. The school exception would cut against the purported interest in public health and safety because a school sewer in the watershed—just like most other sewers in the watershed— would threaten water quality. It would do so for an important public purpose, the education of children, but would still trigger this contradictory-secular-exception rule despite its otherwise noble goal. 44