Roman Catholic Bishop v. City of Springfield

United States Court of Appeals
For the First Circuit

No. 11-1117

ROMAN CATHOLIC BISHOP OF SPRINGFIELD,
a Corporation Sole,

Plaintiff, Appellant,

v.

CITY OF SPRINGFIELD;
DOMENIC J. SARNO, in his official capacity as Mayor of the City
of Springfield; SPRINGFIELD CITY COUNCIL; PATRICK J. MARKEY, in
his official capacity as City Councilor for the City of
Springfield; WILLIAM T. FOLEY, in his official capacity as City
Councilor for the City of Springfield; ROSEMARIE MAZZA-MORIARTY,
in her official capacity as City Councilor for the City of
Springfield; TIMOTHY J. ROOKE, in his official capacity as City
Councilor for the City of Springfield; BRUCE W. STEBBINS, in his
official capacity as City Councilor for the City of Springfield;
JOSE TOSADO, in his official capacity as City Councilor for the
City of Springfield; KATERI WALSH, in her official capacity as
City Councilor for the City of Springfield; BUD L. WILLIAMS, in
his official capacity as City Councilor for the City of
Springfield; JAMES J. FERRERA, III, in his official capacity as
City Councilor for the City of Springfield,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
 John J. Egan, with whom Stephen E. Spelman and Egan, Flanagan
and Cohen, P.C. were on brief, for appellant.
Anthony I. Wilson, Associate City Solicitor, City of
Springfield, with whom Edward M. Pikula, City Solicitor, City of
Springfield, was on brief, for appellee.

July 22, 2013
 LYNCH, Chief Judge. The Roman Catholic Bishop of

Springfield (RCB) challenges the district court's grant of summary

judgment to the City of Springfield (City) and dismissal of RCB's

constitutional and statutory claims against enforcement of a City

ordinance that created a single-parcel historic district

encompassing a church owned by RCB. Under the ordinance, RCB

cannot make any changes that affect the exterior of the church,

including demolition, without the permission of the Springfield

Historical Commission (SHC).

RCB claims that the ordinance gives the SHC veto power

over its religious decisionmaking, and in doing so violates its

First Amendment rights to free speech and free exercise of

religion; its rights under the federal Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq.;

and its rights under the Massachusetts state constitution. The

district court, on cross-motions for summary judgment, found that

some of RCB's claims were not ripe for review and that its

remaining claims failed as a matter of law. See Roman Catholic

Bishop of Springfield v. City of Springfield (RCB), 760 F. Supp. 2d

172 (D. Mass. 2011).

We conclude that only a limited claim is now ripe:

namely, RCB's claim based on the mere enactment of the ordinance.

But those of RCB's claims which depend on the potential

consequences of compliance with the ordinance are not ripe for

-3-
adjudication, because RCB has not yet devised its plans for the

church nor submitted any application to the SHC. We reach this

conclusion for reasons different from the district court's. We

reject the remaining ripe claim. We affirm in part and vacate in

part the district court's grant of summary judgment and dismiss

RCB's unripe claims without prejudice.

I.

The facts in this case are undisputed.

A. Background

RCB is a corporation sole,1 incorporated under the laws

of Massachusetts. It is the legal entity through which the Roman

Catholic Diocese of Springfield ("Diocese") operates. The Diocese

covers four counties in western Massachusetts, including the county

that contains the City of Springfield.

RCB owns a church in Springfield known as Our Lady of

Hope ("Church"), which was built in 1925. It was designed by the

Springfield architect John Donohue in the Italian Renaissance

style. In 2001, the Church was deemed eligible for inclusion on

the National Register of Historic Places, but it was never so

placed. And until the events at issue in this case, it was never

1
A corporation sole consists of only one person at a time,
but the corporation may pass from one person to the next without
any interruption in its legal status. Roman Catholic Bishop of
Springfield v. City of Springfield (RCB), 760 F. Supp. 2d 172, 177
n.1 (D. Mass. 2011).

-4-
included in nor proposed to be included in a local historic

district.

In 2004, RCB began a process known as "pastoral

planning," which was designed to determine how to allocate the

Diocese's financial and human resources in the face of decreasing

numbers of clergy and parishioners. The process was overseen by a

committee of clergy and religious and lay members of the Diocese.

Part of the committee's duty was to seek and incorporate the views

of members of the Diocese outside the committee itself. In August

2009, the committee issued its final report. The report

recommended closing the Church and combining Our Lady of Hope

Parish with another local parish. The Bishop of the Diocese

accepted this recommendation, and services ceased at the Church as

of January 1, 2010.

According to Roman Catholic canon law, when a church goes

out of service for religious worship, the Bishop comes under an

obligation to protect the religious ornamentation in and on the

building so that it is not put to "sordid" use.2 RCB identifies

2
Under canon law, a sordid use is one that is "detrimental to
the good of souls," including any use that involves "[t]he
denunciation of the Catholic Church and the Catholic Faith, the
desecration of Catholic objects of devotion and worship or even any
disrespectful or casual treatment of such objects, and/or the
proselytizing of Catholics." See Roman Catholic Archbishop of
Boston, A Corporation Sole's Policy on the Sale of Church
Buildings, available at http://www.bostoncatholic.org/uploaded
Files/BostonCatholicorg/Parishes_And_People/PolicyonSaleofChurch
Buildings0711.pdf.

-5-
eight types of religious ornamentation on the exterior of the

Church, including stone castings, inscriptions, and stained glass

windows depicting religious scenes and symbols. Some of these

features, such as friezes, are built into the structure and are not

easily removable. All of these features are designed to

communicate religious messages to those who observe them.

RCB has established procedures for dealing with religious

symbols when a church has been closed for worship. In order of

preference, it will try to: (1) relocate the items to other

locations within the Diocese; (2) relocate the items to other

dioceses; or (3) place the items in storage. If none of these

options are possible, the objects can be destroyed.

When a closed church is sold or leased to a third party,

RCB must first convert the church from religious use to "profane"

(non-sacred) use in a process known as deconsecration. As part of

the deconsecration process, RCB will include a clause in the sale

or lease agreement obligating the purchaser or lessee either to

refrain from putting the property to "sordid" use or to allow RCB

to remove all religious symbols. If RCB elects to remove the

religious symbols, it follows the steps outlined above. However,

if the symbols are impossible or impracticable to remove (for

instance, a frieze), RCB will cover them with concrete or other

materials. Symbols that cannot be removed may also be destroyed --

-6-
along with the building itself, if necessary -- if RCB determines

that destruction is necessary to avoid desecration.

B. The Massachusetts Historic Districts Act (MHDA)

The MHDA delegates to cities and towns in Massachusetts

the authority to designate historic districts within their

boundaries. The process of creating historic districts involves

first creating a historical commission or a historic district study

committee, see Mass. Gen. Laws ch. 40C, §§ 3-4; Springfield did the

former when it constituted the SHC in the early 1970s. The SHC

consists of seven members and four alternates, appointed by the

mayor and subject to confirmation by the City Council.

Under the MHDA, a municipality's historical commission

must investigate and report on proposed historic districts before

such districts can be approved by the municipality. Id. § 3. A

proposed district "may consist of one or more parcels or lots of

land, or one or more buildings or structures on one or more parcels

or lots of land." Id. In assessing potential historic districts,

a commission is to consider "the historic and architectural value

and significance of the site, building or structure, the general

design, arrangement, texture, material and color of the features

involved, and the relation of such features to similar features of

buildings and structures in the surrounding area." Id. § 7.

When the commission completes a preliminary report on a

proposed district, it transmits the report to the municipality's

-7-
planning board and to the state historical commission. Id. § 3.

Not less than sixty days later, the municipal commission must hold

a public hearing on the report. Id. If the commission approves

the proposal following the public hearing, it transmits a final

report and proposed ordinance to the city council (or equivalent

body). Id. A two-thirds vote of the city council is required to

approve the district. Id.

Once a historic district is approved, "no building or

structure within [the] district shall be constructed or altered in

any way that affects exterior architectural features" unless the

historical commission first issues a certificate of

appropriateness, a certificate of non-applicability, or a

certificate of hardship. Id. § 6. Violation of this provision is

punishable by a fine of between ten dollars and five hundred

dollars per day of violation.3 Id. § 13. The statute defines

"altered" as "includ[ing] the words 'rebuilt', 'reconstructed',

'restored', 'removed' and 'demolished,'" and the word "constructed"

as "includ[ing] the words 'built', 'erected', 'installed',

'enlarged', and 'moved.'" Id. § 5.

In order to obtain a certificate of appropriateness,

hardship, or non-applicability, a property owner must file with the

3
We see no support in the statute for RCB's contention that
this provision creates a criminal penalty. Rather, the statute
specifies that enforcement of the MHDA is committed to a court
sitting in equity. Mass. Gen. Laws ch. 40C, § 13.

-8-
commission an application along with "such plans, elevations,

specifications, material and other information . . . as may be

reasonably deemed necessary by the commission to enable it to make

a determination on the application."4 Id. § 6. The SHC makes an

application for these certificates, along with a list of its other

requirements, available on the City's website. The SHC holds

public hearings on submitted applications, unless all parties

entitled to notice waive the hearing.

C. The Ordinance

The news that the pastoral planning process would result

in the closing of the Church provoked significant adverse reaction

4
The certificate most likely applicable to this case would be
a certificate of hardship, the issuance of which depends on a
commission determining whether, "owing to conditions especially
affecting the building or structure involved, but not affecting the
historic district generally, failure to approve an application will
involve a substantial hardship, financial or otherwise, to the
applicant and whether such application may be approved without
substantial detriment to the public welfare and without substantial
derogation from the intent and purposes of this chapter." Mass.
Gen. Laws ch. 40C, § 10(c). If the commission makes such a
finding, it "shall" issue a certificate of hardship. Id. In
contrast, a commission "shall" issue a certificate of
appropriateness when it determines "that [the proposed]
construction or alteration . . . will be appropriate for or
compatible with the preservation or protection of the historic
district," id. § 10(a), or a certificate of nonapplicability when
it determines that the proposed alteration "does not involve any
exterior architectural feature, or involves an exterior
architectural feature which is not then subject to review by the
commission," id. § 10(b).
For ease, the remainder of this opinion will refer to a
potential certificate of hardship, without intending to exclude the
possibility that RCB might have applied for one of the two other
types of certificates.

-9-
among many Our Lady of Hope parishioners. The parish was one of

the two largest parishes slated for closing in Springfield, and

parishioners were unhappy with the prospect of being merged into

another parish. In the fall of 2009, a number of Our Lady of Hope

parishioners and other local citizens began lobbying the City to

designate the Church as a historic district. A member of the state

House of Representatives from Springfield, Sean Curran, wrote to

the SHC about the matter, stating that "the closing of the church

is a tremendous blow to the [Our Lady of Hope] parish, but just as

alarming is the loss of the church as an architectural jewel." He

urged the SHC to begin the historic district process "swiftly and

without bureaucratic delay" in order to "save this beautiful

building from the wrecking ball." Curran appeared before the SHC

at a public meeting on September 3, 2009, where he made the same

request. At that time, the SHC voted unanimously to undertake a

preliminary report on creating a new historic district that would

include the Church.

The SHC produced its preliminary report on September 17,

2009 -- just two weeks after the initial meeting -- outlining a

proposal for the Our Lady of Hope Historic District ("District").

The proposal explained the historical and architectural reasons for

creating the District. Significantly, it also stated another

reason animating the proposal: the SHC noted that the Church was

"slated to be closed"; that another Roman Catholic church in

-10-
Springfield had recently been closed, sold, and demolished; and

that the District "[wa]s being proposed to avoid the same possible

fate for Our Lady of Hope."

The preliminary report proposed a single-parcel district

covering only the Church and no other property. The report

justified the boundaries by describing the non-historical nature of

the surrounding properties. The proposal would create the first

and, at the time, only5 single-parcel historic district in

Springfield. Other multi-parcel historic districts in the City at

the time contained various houses of worship. The District

ultimately enacted by the City Council retained these proposed

boundaries.

On October 19, 2009, the SHC received a letter from the

Massachusetts Historical Commission in response to its preliminary

report, giving an "advisory recommendation" in favor of the

District. Acting within the statutory sixty-day window, the SHC

held a public meeting to discuss the proposal on December 14, 2009.

RCB's counsel appeared at this meeting to object to the creation of

the District. He argued, inter alia, that creating the District

would infringe RCB's constitutionally protected rights to free

speech and free exercise of religion and that it would violate

5
On May 4, 2010, just over four months after the City passed
the ordinance at issue in this case, it passed another ordinance
creating the City's second single-parcel historic district, which
also covered a church owned by RCB that was slated to be closed.

-11-
RLUIPA. He also argued that the creation of the District was

designed to intrude on the pastoral planning process at the behest

of Our Lady of Hope parishioners who were angry at having their

parish closed. Finally, RCB's counsel asked that the SHC at a

minimum seek a legal opinion as to the constitutional implications

of approving the District. Despite these objections, and without

seeking legal advice, at the close of the meeting the SHC voted

unanimously to send a final report to the City Council.

The City Council initially referred the proposal to a

Council committee for study. On December 21, 2009, RCB wrote to

each Council member, reiterating its arguments against the adoption

of the District and asking the Council to seek a legal opinion on

the constitutionality of the District. RCB pointed out that if the

Church were designated as a historic district, it would inhibit

future sale of the property, the proceeds of which would benefit

the merged parish. Historic district designation would also impose

on the Diocese, and specifically on the merged parish, the

continuing costs of maintenance, insurance, and security for the

Church.

On December 29, 2009, the City Council held a public

meeting on the proposal, even though it had not received a response

from its study committee. RCB's counsel attended the meeting and

again objected to the creation of the District. During the

meeting, one councilor called in the city solicitor and asked

-12-
whether the City's law department had reviewed the proposal. The

solicitor said it had not and offered to discuss the proposal with

the Council in executive session, but the Council declined. Also

during this meeting, another councilor asked RCB's counsel why

parishioners had not had an opportunity to participate in the

decision of whether to close the Church. When RCB's counsel

answered that they had, the councilor exclaimed, "That isn't true!"

In fact, members of the Diocese, which included Our Lady of Hope

parishioners, had been invited to participate in the pastoral

planning process.

At the close of the meeting, the Council passed the

ordinance creating the District ("Ordinance"). RCB sent a written

protest to the City's mayor, but the mayor signed the Ordinance

into law the next day. The Ordinance went into effect on January

20, 2010, approximately three weeks after the last services were

held at the Church.

Since the enactment of the Ordinance, RCB has taken no

action with regard to the deconsecration, sale, or leasing of the

Church, and it has not made any submissions to the SHC seeking

permission to alter the Church's exterior. As we explain, as a

result of RCB's failure to take further actions with regard to the

Church site, certain of its claims lack the requisite concreteness

to warrant resolution of whether hypothetical outcomes transgress

RLUIPA or either the federal or state constitutions.

-13-
 II.

RCB filed its complaint against the City in Massachusetts

Superior Court on January 21, 2010, the day after the Ordinance

went into effect. It asserted federal constitutional claims under

42 U.S.C. § 1983, federal statutory claims under RLUIPA, and state

law claims under the Massachusetts Constitution and the

Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I.6

RCB sought, inter alia, temporary and permanent injunctions

restraining the City from enforcing the Ordinance, a declaration

that the Ordinance was void, and attorneys' fees and costs. The

City removed the case to the U.S. District Court for the District

of Massachusetts on February 5, 2010. RCB moved for summary

judgment on July 9, 2010, and the City cross-moved for summary

judgment on August 13, 2010.

On January 2, 2011, the district court issued its

Memorandum and Order granting summary judgment to the City. RCB,

760 F. Supp. 2d at 176. The court first found that certain of

RCB's claims were not ripe for adjudication. To make this

determination, the court recharacterized the complaint by dividing

RCB's allegations "into two temporal facets: (1) violations that

6
The complaint also named as defendants the mayor and the
members of the City Council in their official capacities. The
district court dismissed the claims against the individual
defendants on the basis that they were actually claims against the
City. RCB, 760 F. Supp. 2d at 184. RCB does not challenge this
decision on appeal.

-14-
arise from the mere enactment of the single-parcel historic

district, . . . and (2) violations that arise from [RCB]'s

resulting inability to deconsecrate church property." Id. at 181.

The court concluded that claims falling under the first heading

were ripe for review because the Ordinance forced RCB to submit to

a secular authority and subjected it to the "delay, uncertainty and

expense" of the approval process. Id. at 181-82. On the other

hand, it found that claims falling under the second heading were

not ripe because RCB had not actually applied to the SHC to make

any changes to the Church, so it was unknown whether RCB would be

allowed to make the changes it desired. Id. at 182-84.

As to the merits of the remaining federal claims, the

court found, inter alia, that the burden the Ordinance imposed on

RCB was not "substantial" under RLUIPA, id. at 185-88, and that the

Ordinance did not violate the antidiscrimination provisions of

RLUIPA, id. at 188-91. It then erroneously focused on the MHDA

rather than the Ordinance,7 and it found that the MHDA was a

7
The district court interpreted RCB's claims as a challenge
to the MHDA as applied through the Ordinance, rather than as a
challenge to the Ordinance itself. RCB, 760 F. Supp. 2d at 181
n.6, 190, 192-93. This was the wrong focus. The MHDA delegates to
municipalities the authority to create historic districts using
certain types of procedures and general criteria. See Mass. Gen.
Laws ch. 40C, §§ 3-4, 7. When a municipality passes an ordinance
creating a historic district, it is exercising its considerable
discretion under this delegated authority; it is not "codif[ying]
the City's determination that the [MHDA] applies to" the subject
properties. RCB, 760 F. Supp. 2d at 181 n.6. In this opinion we
analyze RCB's claims as challenges to the Ordinance itself, not to
the MHDA.

-15-
neutral law of general applicability; therefore, under Employment

Division, Department of Human Resources of Oregon v. Smith, 494

U.S. 872 (1990), the statute's incidental First Amendment burden on

RCB was constitutionally acceptable, see RCB, 760 F. Supp. 2d at

191-93. The court also found that RCB's claim under the

Massachusetts Constitution failed for the same reasons as did its

claim under the "substantial burden" provision of RLUIPA.8 Id. at

195.

RCB timely appealed on January 28, 2011.9

III.

We review a grant of summary judgment de novo, drawing

all reasonable inferences in favor of the non-moving party.

Kuperman v. Wrenn, 645 F.3d 69, 73 (1st Cir. 2011). On an appeal

from cross-motions for summary judgment, the standard does not

change; we view each motion separately and draw all reasonable

inferences in favor of the respective non-moving party. See

OneBeacon Am. Ins. Co. v. Commercial Union Assurance Co. of Can.,

684 F.3d 237, 241 (1st Cir. 2012). Neither party contends that

8
The district court also briefly discussed, and rejected,
RCB's arguments under the federal Establishment Clause, the
Fourteenth Amendment Due Process Clause, the Fourteenth Amendment
Equal Protection Clause, and the Massachusetts Civil Rights Act.
See RCB, 760 F. Supp. 2d at 193-95. RCB does not press any of
these arguments on appeal, and we do not address them.
9
Appellate briefing was stayed for over a year and a half as
the parties attempted, unsuccessfully, to resolve their disputes in
mediation.

-16-
there are any genuine issues of material fact that would justify

remand for a trial.

We must begin with the City's argument that RCB's claims

are not ripe for review, since the ripeness inquiry involves, as

one component, the question of whether this court has jurisdiction

to hear the case. See Sindicato Puertorriqueño de Trabajadores,

SEIU Local 1996 v. Fortuño, 699 F.3d 1, 8 (1st Cir. 2012) (per

curiam).

"[T]he doctrine of ripeness has roots in both the Article

III case or controversy requirement and in prudential

considerations." Mangual v. Rotger–Sabat, 317 F.3d 45, 59 (1st

Cir. 2003). The "basic rationale" of the ripeness inquiry is "to

prevent the courts, through avoidance of premature adjudication,

from entangling themselves in abstract disagreements." Abbott

Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other

grounds by Califano v. Sanders, 430 U.S. 99 (1977).

There are two factors to consider in determining

ripeness: "the fitness of the issues for judicial decision and the

hardship to the parties of withholding court consideration." Id.

at 149. We generally require both prongs to be satisfied in order

for a claim to be considered ripe. Ernst & Young v. Depositors

Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir. 1995).

The fitness prong of the ripeness test has both

jurisdictional and prudential components. The former, "grounded in

-17-
the prohibition against advisory opinions, is one of timing."

Sindicato Puertorriqueño, 699 F.3d at 8 (quoting Mangual, 317 F.3d

at 59) (internal quotation mark omitted). It concerns whether

there is a sufficiently live case or controversy, at the time of

the proceedings, to create jurisdiction in the federal courts. See

id. The prudential component asks "whether resolution of the

dispute should be postponed in the name of 'judicial restraint from

unnecessary decision of constitutional issues'; if elements of the

case are uncertain, delay may see the dissipation of the legal

dispute without need for decision." Mangual, 317 F.3d at 59

(citation omitted) (quoting Reg'l Rail Reorg. Act Cases, 419 U.S.

102, 138 (1974)); see also Ernst & Young, 45 F.3d at 535 ("This

[fitness] branch of the test typically involves subsidiary queries

concerning finality, definiteness, and the extent to which

resolution of the challenge depends upon facts that may not yet be

sufficiently developed.").

The hardship prong, by contrast, is "wholly prudential."

Mangual, 317 F.3d at 59. It looks at "whether the challenged

action creates a direct and immediate dilemma for the parties."

Sindicato Puertorriqueño, 699 F.3d at 9 (quoting Verizon New Eng.,

Inc. v. Int'l Bhd. of Elec. Workers, Local No. 2322, 651 F.3d 176,

188 (1st Cir. 2011)) (internal quotation marks omitted).

"Generally, a 'mere possibility of future injury, unless it is the

-18-
cause of some present detriment, does not constitute hardship.'"

Id. (quoting Simmonds v. INS, 326 F.3d 351, 360 (2d Cir. 2003)).10

The City argues that, because RCB has never submitted an

application for a certificate of hardship, RCB cannot present any

ripe claims based on the fact that the SHC might prevent RCB from

implementing its religious protocols as to symbols on the exterior

of the Church. RCB responds that the issues in this case are

purely legal rather than factual, so no further developments --

including any developments that would result from submitting an

10
Significantly, this court has recognized in the free speech
context that ripeness in First Amendment cases is subject to
particular rules sensitive to the nature of the rights at issue.
See Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v.
Fortuño, 699 F.3d 1, 9 (1st Cir. 2012) (noting "the potential for
'irretrievable loss' often involved in cases where First Amendment
rights are at stake" (quoting Sullivan v. City of Augusta, 511 F.3d
16, 31 (1st Cir. 2007))); see also 13B Wright & Miller, Federal
Practice & Procedure § 3532.1.1 ("First Amendment challenges to
land use regulation are likely to be governed by the general -- and
somewhat relaxed -- ripeness tests that apply to First Amendment
claims in other contexts."). Some courts have declined to apply
this more relaxed standard to cases involving First Amendment (and
RLUIPA) claims arising from local land use disputes. See, e.g.,
Grace Cmty. Church v. Lenox Twp., 544 F.3d 609, 615 (6th Cir.
2008); Murphy v. New Milford Zoning Comm'n, 402 F.3d 342, 347-50
(2d Cir. 2005). These courts have reached that conclusion by
relying on Williamson County Regional Planning Commission v.
Hamilton Bank, 473 U.S. 172 (1985). As we explain in the text, we
do not believe that the situation here requires us to reach the
question of whether Williamson County applies in this context.
Thus, we do not resolve today the question of whether relaxed First
Amendment ripeness standards apply generally to claims predicated
on alleged Free Exercise violations, nor do we resolve the question
of whether (and to what extent) Williamson County may apply to such
claims. Instead we conclude that, under general principles of
prudential ripeness, certain of RCB's claims are not ripe for
review.

-19-
application to the SHC -- would alter the outcome. RCB also argues

that it faces the hardship of having to seek the SHC's permission

for every future change to the Church's exterior and that any

required application for a certificate of hardship would be futile

due to the City's demonstrated hostility to the Diocese's plans for

the Church.

As to the first component of the fitness question, we

conclude that one aspect of RCB's complaint satisfies Article III's

case or controversy requirement: specifically, RCB's claim that the

enactment of the Ordinance itself burdens RCB's religious practices

and undermines its religious freedom. There is no doubt that the

City intends to enforce the Ordinance against RCB and that RCB must

submit several categories of its decisionmaking, otherwise governed

by religious doctrine, to the SHC. RCB has already protested to

the City regarding the practical effects of these facts on its

ownership and potential disposition of Church property, including

financial burdens. Under these circumstances, there is a live

controversy between the parties.

But the prudential component of the fitness prong, as

well as the entirely prudential hardship prong, present much closer

questions as to the aspects of RCB's claim concerning the potential

future results of the application process. We do not agree with

RCB that there are no further factual developments that could be

relevant to the outcome of this case. Indeed, both the district

-20-
court and the City have emphasized a key missing fact: RCB did not

put in the record any specific plan for the sale and/or

deconsecration of the Church. Nor does the record indicate that

RCB made any such proposal to the City (via the Council or the SHC)

before filing the instant lawsuit. Nothing has yet been presented

to the SHC. Instead, RCB filed this lawsuit the very next day

after the Ordinance went into effect. As such, the City has had no

opportunity to demonstrate whether or not it will accommodate some,

all, or none of RCB's requests for changes to the exterior of the

Church. Indeed, RCB has not settled upon any plan for future use

of the property that would necessarily entail changes to the

Church's exterior. Without knowing what RCB can or cannot do with

the Church under the Ordinance, we cannot know to what extent, if

any, RCB will suffer from a burden on its religious practice.

This uncertainty likewise casts doubt on RCB's argument

that any application to the SHC would be futile. The City has made

it clear, both in the proceedings leading to passage of the

Ordinance and throughout this lawsuit, that its purpose in passing

the Ordinance was to prevent demolition of the Church. If RCB had

proffered evidence that it in fact planned to demolish the Church,

in accordance with the requirements of its deconsecration

procedures, then RCB may have been able to make the futility

argument. See Gilbert v. City of Cambridge, 932 F.2d 51, 61 (1st

Cir. 1991) (stating, in zoning context, that futility may be

-21-
sufficient to show ripeness where the plaintiff faces "a sort of

inevitability . . . : the prospect of refusal [of an application]

must be certain (or nearly so)," not merely possible or even

probable). But the City has not represented that it would deny all

applications to alter the exterior of the Church in any way, and

RCB has not offered evidence to suggest that the City would deny

all such applications. Given this uncertainty, we cannot conclude

that RCB's claims premised on its feared inability to deconsecrate

the Church according to its religious principles, as a result of

future SHC decisions, are now fit for adjudication.11

In reaching this conclusion, we rely on traditional

notions of ripeness. We do not rely, as did the district court, on

specialized Takings Clause ripeness doctrine. In regulatory

takings cases, a property owner must follow the procedures for

requesting the applicable zoning relief, and have its request

denied, before bringing a claim in court. Williamson Cnty. Reg'l

Planning Comm'n v. Hamilton Bank, 473 U.S. 172, 190-91 (1985). But

the Supreme Court has stated that this requirement "is compelled by

the very nature of the inquiry required by the Just Compensation

11
Because we conclude that RCB's claims based on its possible
prospective inability to deconsecrate the Church fail the
prudential component of the ripeness test, we need not address
whether those claims would satisfy the constitutional component.
See Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445
(1988) ("A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them.").

-22-
Clause." Id. at 190; see 13B Wright & Miller, Federal Practice &

Procedure § 3532.1.1 (describing takings cases as comprising "[a]

special category of ripeness doctrine"). Specifically, regulatory

takings inquiries focus on the economic impact of a regulation on

the subject property, and that impact is only apparent once there

is a final zoning decision. See Williamson Cnty., 473 U.S. at 191.

The ripeness inquiry in takings cases also involves a question of

the adequacy of alternative procedures to obtain just compensation.

See Horne v. Dep't of Agric., 133 S. Ct. 2053, 2062 (2013).

Here, by contrast, the Ordinance's effect on RCB's free

exercise rights may well become clear at a different point than

that contemplated by takings law. While constitutional challenges

to land use regulations may implicate Williamson County's ripeness

doctrine in some cases, we find no such necessary implication here.

It is significant, in this respect, that the Ordinance is designed

to apply only to the Church, unlike the neutral and generally

applicable zoning or environmental ordinances that are almost

always at issue when a regulatory takings claim is alleged.12

12
Like us, other circuits have found that the Williamson
County analysis is sometimes inapposite for non-Takings
constitutional challenges to land use decisions. See, e.g.,
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d
83, 89-91 (2d Cir. 2002) (First Amendment retaliation claim);
Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d
890, 894 (6th Cir. 1991) (procedural due process claim). But see
Grace Cmty. Church, 544 F.3d at 617-18 (procedural due process
claims are exception to the general application of Williamson
County); Murphy, 402 F.3d at 350-51 (applying Williamson County to
RLUIPA and First Amendment free exercise claims).

-23-
 To the extent that RCB has argued that the mere existence

of the Ordinance creates a ripe controversy, we find that its

claims are ripe. With regard to this attack on the enactment of

the Ordinance, RCB has credibly alleged that the requirement of

submitting to the SHC's authority presently imposes delay,

uncertainty, and expense, which is sufficient to show present

injury. See Opulent Life Church v. City of Holly Springs, 697 F.3d

279, 288 (5th Cir. 2012) (considering inability to use property as

intended as a factor in the ripeness inquiry). Of course, the

extent and significance of this alleged injury is a merits

question. For the purposes of the ripeness inquiry, it is enough

to note that it is self-evidently plausible that they exist.

RCB also argues that the requirement of subjecting its

religious decisions regarding deconsecration to secular

administrators at all creates a present burden on its free exercise

of religion. Cf. Metro. Wash. Airports Auth. v. Citizens for

Abatement of Aircraft Noise, Inc., 501 U.S. 252, 265 n.13 (1991)

(concluding that constitutional separation-of-powers challenge to

"veto power" of administrative board was ripe "even if the veto

power has not been exercised to respondents' detriment," because

"[t]he threat of the veto hangs over the [decisionmakers subject to

the veto power] like the sword over Damocles, creating a

'here-and-now subservience' . . . sufficient to raise

constitutional questions"). Finally, RCB points out that if it

-24-
were to make any changes to the exterior of the Church without the

SHC's permission, it would be subject to a statutory fine for each

day the changes persisted. See Mass. Gen. Laws ch. 40C, § 13.

Under these circumstances, we conclude that RCB's

challenges to the enactment of the Ordinance satisfy the prudential

fitness and hardship requirements of the ripeness test. Because

these challenges rest solely on the existence of the Ordinance, no

further factual development is necessary, and the Ordinance's

existence does confront RCB with a "direct and immediate dilemma."

Sindicato Puertorriqueño, 699 F.3d at 9 (quoting Verizon New Eng.,

651 F.3d at 188).

IV.

We turn to the merits of the ripe claim, beginning with

RCB's RLUIPA arguments.

A. RLUIPA "Substantial Burden"

RCB first argues that the Ordinance violates RLUIPA's

"substantial burden" provision, 42 U.S.C. § 2000cc(a), which

states:

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.

-25-
42 U.S.C. § 2000cc(a)(1). The parties do not dispute that the

Ordinance is a "land use regulation" within the meaning of the

statute. RCB, 760 F. Supp. 2d at 186.

RLUIPA defines "religious exercise" as "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 it specifically

provides that "[t]he use, building, or conversion of real property

for the purpose of religious exercise shall be considered to be

religious exercise," id. § 2000cc-5(7)(B). The district court

correctly determined that deconsecration constitutes religious

exercise under the statute. RCB, 760 F. Supp. 2d at 186. The City

concedes that point for purposes of this appeal.

1. Standard of Review

The Supreme Court has not decided whether a district

court's ultimate conclusion as to the existence of a substantial

burden under RLUIPA is an issue of fact or law, nor the appellate

standard of review for this issue. Nor have the circuit courts

answered the question. See, e.g., World Outreach Conference Ctr.

v. City of Chicago, 591 F.3d 531, 539 (7th Cir. 2009). Of course,

if a district court had made subsidiary findings resolving disputed

issues of fact, those findings would be subject to clear error

review. But because this case was resolved on summary judgment,

that situation is not before us.

-26-
 Rather, in the circumstances presented here -- where

there are no contested findings of fact, and where neither party

argues that there are material issues of fact for trial -- we view

the question of whether a "substantial burden" exists as a question

of law subject to de novo review. Among the reasons for our

approach are two considerations.

First, the corollary question of whether the government's

interest is compelling is generally treated as a question of law.

See, e.g., McRae v. Johnson, 261 F. App'x 554, 557 (4th Cir. 2008)

(per curiam); United States v. Hardman, 297 F.3d 1116, 1127 (10th

Cir. 2002) (interpreting analogous RFRA provision).

Second, in cases raising challenges under the Free Speech

Clause of the First Amendment, we have stated that an appellate

court "must conduct an 'independent review of the evidence on the

dispositive constitutional issue' . . . in order to safeguard

precious First Amendment liberties." Veilleux v. Nat'l Broad. Co.,

206 F.3d 92, 106 (1st Cir. 2000) (quoting Bose Corp. v. Consumers

Union of U.S., Inc., 466 U.S. 485, 508 (1984)); see AIDS Action

Comm. of Mass., Inc. v. Mass. Bay Transp. Auth., 42 F.3d 1, 7 (1st

Cir. 1994) ("[W]here the trial court is called upon to resolve a

number of mixed fact/law matters which implicate core First

Amendment concerns, our review, at least on these matters, is

plenary . . . ."). We see no reason why this should not be true of

-27-
RLUIPA claims, which are corollaries of First Amendment Free

Exercise claims.

2. Content of "Substantial Burden"

RCB bears the burden of demonstrating that the enactment

of the Ordinance imposes a "substantial burden" on its religious

exercise. RLUIPA does not define "substantial burden," although

the background of the statute's enactment provides some indication

of Congress's intended meaning.

The pertinent background begins with Employment Division

v. Smith, 494 U.S. 872, in which the Supreme Court held that the

Free Exercise Clause does not relieve individuals of the obligation

to comply with neutral laws of general applicability that burden

their religious exercise.13 See id. at 879. Congress responded to

Smith by passing the Religious Freedom Restoration Act of 1993

(RFRA), Pub. L. No. 103-141, 107 Stat. 1488. This statute

purported to overturn Smith and reinstate the free exercise

standard announced in Sherbert v. Verner, 374 U.S. 398 (1963), and

Wisconsin v. Yoder, 406 U.S. 205 (1972), which had required the

government to demonstrate a compelling interest in order to justify

a substantial burden on religious practices. See RFRA, Pub. L. No.

103-141, § 2(a)(4)-(5), (b)(1); Sherbert, 374 U.S. at 406-07. The

Court then struck down the RFRA as applied to the states and their

13
The City has not argued that a finding that the Ordinance
violates RLUIPA would run afoul of the Establishment Clause. See
Cutter v. Wilkinson, 544 U.S. 709, 713-14 (2005).

-28-
subdivisions, holding it outside the scope of Congress's

enforcement powers under Section 5 of the Fourteenth Amendment.

City of Boerne v. Flores, 521 U.S. 507, 519, 532 (1997).

Congress responded again by passing RLUIPA, this time

relying on the Spending and Commerce Clauses and targeting only two

areas of state regulation: land use and institutionalized persons.

See Cutter v. Wilkinson, 544 U.S. 709, 715 (2005). RLUIPA

established the same rule for these two limited areas that Congress

had attempted to apply more broadly in the RFRA: it prohibited

state and local governments from placing a substantial burden on

religious exercise unless the government could show that it had a

compelling interest and that it had used the least restrictive

means to achieve that interest. Compare RFRA, Pub. L. No. 103-141,

§ 3(b), with 42 U.S.C. § 2000cc(a)(1). The congressional record

accompanying the passage of RLUIPA in the Senate indicates that the

sponsors of the law intended the phrase "substantial burden" to be

"interpreted by reference to Supreme Court jurisprudence." 146

Cong. Rec. S7776 (daily ed. July 27, 2000) (joint statement of

Sens. Hatch and Kennedy).

The Supreme Court, however, has never provided a working

definition of "substantial burden" in this context. As the Second

Circuit has noted, Sherbert -- one of the cases on which Congress

relied in formulating its statutory test -- approached the

"substantial burden" question in terms of a choice between

-29-
following one's religion and obtaining government benefits (there,

unemployment benefits), see 374 U.S. at 399-400, a type of choice

that does not accurately describe the situation in religious land

use disputes. See Westchester Day Sch. v. Village of Mamaroneck,

504 F.3d 338, 348-49 (2d Cir. 2007).

The First Circuit has not offered its own interpretation

of "substantial burden" for RLUIPA land use purposes. The parties

offer various abstract formulations to us. A number of other

circuits have announced tests in terms of such abstract

formulations, but the standards they have announced have not been

consistent. See, e.g., Bethel World Outreach Ministries v.

Montgomery Cnty. Council, 706 F.3d 548, 556 (4th Cir. 2013) ("[A]

plaintiff can succeed on a [RLUIPA] substantial burden claim by

establishing that a government regulation puts substantial pressure

on it to modify its behavior."); Westchester Day Sch., 504 F.3d at

349 (formulating the question as whether "government action . . .

directly coerces the religious institution to change its behavior"

(emphasis omitted)); Living Water Church of God v. Charter Twp. of

Meridian, 258 F. App'x 729, 737 (6th Cir. 2007) (asking whether,

"though the government action may make religious exercise more

expensive or difficult, does the government action place

substantial pressure on a religious institution to violate its

religious beliefs or effectively bar a religious institution from

using its property in the exercise of its religion?"); Midrash

-30-
Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir.

2004) (substantial burden is one that "place[s] more than an

inconvenience on religious exercise" and is "akin to significant

pressure which directly coerces the religious adherent to conform

his or her behavior accordingly"); San Jose Christian Coll. v. City

of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004) ("[F]or a land

use regulation to impose a 'substantial burden,' it must be

'oppressive' to a 'significantly great' extent."); Civil Liberties

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

2003) ("[I]n the context of RLUIPA's broad definition of religious

exercise, a land-use regulation that imposes a substantial burden

on religious exercise is one that necessarily bears direct,

primary, and fundamental responsibility for rendering religious

exercise . . . effectively impracticable.").

In the absence of Supreme Court guidance, we do not adopt

any abstract test, but rather identify some relevant factors and

use a functional approach to the facts of a particular case. We

recognize different types of burdens and that such burdens may

cumulate to become substantial. At least one circuit has moved in

this direction, see World Outreach Conference Ctr., 591 F.3d at 539

("[W]hether a given burden is substantial depends on its magnitude

in relation to the needs and resources of the religious

organization in question."), and academic commentary has suggested

the same, see R. Bernstein, Note, Abandoning the Use of Abstract

-31-
Formulations in Interpreting RLUIPA's Substantial Burden Provision

in Religious Land Use Cases, 36 Colum. J.L. & Arts 283, 305-10

(2013) (explaining common factors that courts have considered in

assessing "substantial burden" under RLUIPA, regardless of how the

standard has been formulated).

This approach involves consideration of the common-usage

understandings of the term "substantial burden," a term used in

many areas of law without particular abstract formulations. A

"burden" is "[s]omething that hinders or oppresses," Black's Law

Dictionary 223 (9th ed. 2009), or "something oppressive or

worrisome," Merriam-Webster's Collegiate Dictionary 152 (10th ed.

1993); see also "Burden/burthen, n.," Oxford English Dictionary,

available at http://www.oed.com/viewdictionaryentry/Entry/24885

("An obligatory expense, whether due on private account or as a

contribution to national funds; often with the additional notion of

pressing heavily upon industry and restraining freedom of

action."). Next, something is "substantial" when it is "important"

or "significantly great," Merriam-Webster's Collegiate Dictionary

1174 (10th ed. 1993); see also "Substantial, adj., n., and adv.,"

Oxford English Dictionary, available at http://www.oed.com/

viewdictionaryentry/Entry/193050 (as to an action or measure,

"having weight, force, or effect; effective, thorough"). A burden

does not need to be disabling to be substantial. We do not agree

with those courts that have suggested that nothing short of

-32-
coercion to change or abandon one's religious beliefs can meet the

substantial burden test.

On the other hand, we agree with the Second Circuit's

observation that RLUIPA does not mean that any land use restriction

on a religious organization imposes a substantial burden -- such a

conclusion would stretch First Amendment jurisprudence too far, see

Westchester Day Sch., 504 F.3d at 349-50, and moreover would be

contrary to congressional intent, see 146 Cong. Rec. S7776 (daily

ed. July 27, 2000) ("This Act does not provide religious

institutions with immunity from land use regulation . . . .")

(joint statement of Sens. Hatch and Kennedy).

We do identify some factors that courts have considered

relevant when determining whether a particular land use restriction

imposes a substantial burden on a particular religious

organization, but we do not suggest that this is an exhaustive

list. One factor is whether the regulation at issue appears to

target a religion, religious practice, or members of a religious

organization because of hostility to that religion itself. See

Saints Constantine & Helen Greek Orthodox Church, Inc. v. City of

New Berlin, 396 F.3d 895, 898 (7th Cir. 2005) (noting that city had

allowed rezoning of parcel owned by Protestant church but imposed

additional processes on, and ultimately denied, Greek Orthodox

church's rezoning application for adjacent parcel); id. at 900

(warning of the "vulnerability of religious institutions --

-33-
especially those that are not affiliated with the mainstream

[Christian] sects . . . to subtle forms of discrimination"); cf.

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 532-33 (1993).

Another is whether local regulators have subjected the

religious organization to a process that may appear neutral on its

face but in practice is designed to reach a predetermined outcome

contrary to the group's requests. See, e.g., World Outreach

Conference Ctr., 591 F.3d at 537-38 (finding that religious

organization stated a RLUIPA substantial burden claim where city

insisted that organization seek a permit it did not need, then used

other processes to "pull[] the rug out from under" organization's

application, id. at 537); Guru Nanak Sikh Soc'y of Yuba City v.

County of Sutter, 456 F.3d 978, 989 (9th Cir. 2006) (finding

substantial burden where the religious organization "readily agreed

to every mitigation measure suggested by [regulators], but the

County, without explanation, found such cooperation insufficient,"

and the "broad reasons" given for the county's denials "could

easily apply to all future applications" by the organization).

Courts have also looked to whether the land use

restriction was "imposed on the religious institution arbitrarily,

capriciously, or unlawfully." Westchester Day Sch., 504 F.3d at

350. This may occur where, for instance, local regulators

disregard objective criteria and instead act adversely to a

-34-
religious organization based on the objections of a "small but

influential" group in the community. Id. at 346 (noting that

"[m]any of the[] grounds" for zoning board's denial of religious

institution's building permit application "were conceived after the

[board] closed its hearing process, giving the school no

opportunity to respond," and that "the stated reasons for denying

the application were not supported by evidence," leading the

district court to "surmise[] that the application was in fact

denied because the [board] gave undue deference to the public

opposition of the small but influential group of neighbors who were

against the school's expansion plans"). It may also occur where

local regulators base their decisions on misunderstandings of legal

principles. See Saints Constantine, 396 F.3d at 899-900

(describing "repeated legal errors" by the city, suggesting that

errors were indicative of city either being "deeply confused about

the law" or "playing a delaying game," and warning of risks to

religion where, as in zoning processes, "a state delegates

essentially standardless discretion to nonprofessionals operating

without procedural safeguards").

Taken together, these factors reveal that the substantial

burden analysis often "backstops the explicit prohibition of

religious discrimination in" RLUIPA's subsection (b) much in the

same way as "the disparate-impact theory of employment

discrimination backstops the prohibition of intentional

-35-
discrimination." Id. at 900. Under the substantial burden

framework, a court may block application of a land use regulation

under RLUIPA's subsection (a) where the context raises an

"inference" of hostility to a religious organization, even when the

evidence does not necessarily show the explicit discrimination "on

the basis of religion" contemplated by subsection (b). Id.

Several courts have been sensitive to these concerns. See, e.g.,

Westchester Day Sch., 504 F.3d at 350-51; World Outreach Conference

Ctr., 591 F.3d at 535-38 (reversing dismissal of religious

organization's RLUIPA substantial burden claim, while affirming

dismissal of organization's RLUIPA discrimination claim).

3. De Novo Review of Substantial Burden Analysis

We start with two bedrock observations: first, that a

religious organization is protected from government burdens which

are imposed based on the organization's religious beliefs; and

second, that the Ordinance at issue in this case cannot be viewed

as a neutral law of general applicability in the Smith sense.

As to the first issue, a government may not single out

for special benefit or burden a religious group or institution

solely because of its religious beliefs. See id. at 532. Here,

nothing in the language nor the background of the Ordinance

indicates that hostility to Catholicism or Catholics motivated the

City's decisionmaking process. The language of the Ordinance does

not target deconsecration as such.

-36-
 By its terms, the Ordinance does not forbid the SHC from

inquiring into the religious criteria that RCB uses to determine

how it will apply its religious protocols, nor from second-guessing

the religious conclusions reached by RCB as to what is sacred. In

this respect, the Ordinance stands in contrast with at least some

other historic zoning ordinances which expressly prohibit local

historical commissions from interfering in liturgical decisions.

See, e.g., First Covenant Church of Seattle v. City of Seattle, 840

P.2d 174, 178 (Wash. 1992); cf. Sherbert, 374 U.S. at 402 ("The

door of the Free Exercise Clause stands tightly closed against any

governmental regulation of religious beliefs as such."). But RCB

has not alleged that the SHC will engage in these forbidden

practices, nor has it argued that the SHC has historically done so

with regard to any other religious buildings. The Ordinance merely

requires RCB to undertake an administrative process common to all

historic districts. We will not assume that the SHC will use its

authority to transgress these forbidden lines of challenging

liturgical criteria or conclusions, without evidence that it has

done so.

As to the second issue, we do not view the Ordinance as

a "neutral law of general applicability" in the sense that the

Supreme Court used the term in Smith. See 494 U.S. at 879 (quoting

United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J.,

concurring in the judgment)); id. at 879-82. Rather, the City,

-37-
through the SHC and City Council, is vested with discretion to

decide when to create a historic district. The strictures imposed

as a result of historic district status do not apply automatically

by statute to the general population, but apply once certain

officials of the City decide that they will apply. Historic

district or landmark ordinances are different from other types of

zoning rules in that their entire purpose is to prevent only

particular property owners in limited areas from changing the

appearance of particular properties.14 In this sense, it can be

said that the Ordinance is not "generally applicable."

One of the dangers of a discretionary system such as this

one is the prospect that the government's discretion will be

misused. In this case, there were some troubling circumstances

surrounding the City's enactment of the Ordinance. For instance,

the Ordinance was proposed after the news was released that RCB

planned to close the Church, and it was supported by parishioners

opposed to the (otherwise unreviewable) closing decision and those

sympathetic to their cause. The record does not indicate any

interest in including the Church in a historic district before that

14
We note that, given the nature of historic district
designations, the mere fact that the Ordinance is concerned with
only one building, and that that one building is a church, does not
in itself resolve the burden question. See Rector, Wardens, &
Members of the Vestry of Saint Bartholomew's Church v. City of New
York, 914 F.2d 348, 354 (2d Cir. 1990). It is the nature of the
burden -- not the character of the law -- that controls our
analysis.

-38-
decision in the late summer of 2009.15 See Lukumi, 508 U.S. at 540-

41 (noting significance of fact that ordinances regarding animal

sacrifice were enacted in direct response to news that a Santería

church would open in town). The SHC report acknowledges that part

of the City's intent in creating the District was to prevent RCB

from following the same path it had taken with another local

church, which had been closed, deconsecrated, and sold to a

developer who demolished it. It was arguably because RCB might

conclude that demolition of the Church was required that the City

chose to intervene.

The SHC, City Council, and mayor pressed the Ordinance

through the approval process quickly, in a matter of weeks,

coinciding with the timeline of the Church's closing (the Ordinance

became law on December 30, 2009, and went into effect on January

20, 2010; the last services at the Church were held on January 1,

2010). The City's officials took these actions without considering

the Ordinance's potential constitutional implications, despite

repeated requests by RCB for a legal consultation and an offer by

the City's solicitor to provide legal advice. Cf. Saints

Constantine, 396 F.3d at 899 ("The repeated legal errors by the

City's officials casts doubt on their good faith."). The City

Council did not even wait for the report of its own study committee

15
The SHC's report mentions that the Church was surveyed for
possible inclusion in the National Register of Historic Places in
2001, but apparently no action was taken between 2001 and 2009.

-39-
before approving the District. At the City Council hearing, one

councilor accused RCB's counsel of lying about RCB's decisionmaking

process in closing the Church, suggesting dissatisfaction with that

religiously motivated decision. Cf. Rector, Wardens, & Members of

the Vestry of Saint Bartholomew's Church v. City of New York, 914

F.2d 348, 355 (2d Cir. 1990) (holding that landmarking laws can

permissibly single out individual parcels, "absent proof of the

discriminatory exercise of discretion" in identifying such parcels

(emphasis added)).

In the end, however, these troubling facts surrounding

the enactment of the Ordinance are not outcome determinative,

because this exercise of discretion (that is, designating the

Church as a single-parcel historic district) does not establish a

process, apparently neutral, that in fact will result in the denial

of any request that RCB may make to the SHC. See, e.g., World

Outreach Conference Ctr., 591 F.3d at 537-38; Guru Nanak Sikh

Soc'y, 456 F.3d at 989. The Ordinance requires only that RCB

submit any plans to alter the exterior of the Church to the SHC.

Should the SHC in fact prevent RCB, when it does have specific

plans for the site, from undertaking any portion of its religious

practice of deconsecration, the significance of the Ordinance's

background can be evaluated anew in the context of any later

challenge.

-40-
 In addition to the two concerns outlined above, we

evaluate the actual, tangible burdens that existence of the

Ordinance imposes on RCB. RCB represented to the City Council that

it must bear a financial burden of maintaining the Church, which

falls on the newly merged parish and constrains RCB's decisions

about how to allocate the Diocese's resources. But the mere

existence of some expenses does not put "substantial pressure on

[RCB] to modify its behavior." Bethel World Outreach, 706 F.3d at

556. There are many scenarios under which RCB would be paying to

maintain the Church, only some of which are fairly traceable to the

Ordinance. Further, RCB did not submit evidence of the degree of

these expenses, nor of the Church's property value before or after

passage of the Ordinance. See, e.g., First Covenant Church of

Seattle, 840 P.2d at 183 (noting, in constitutional substantial

burden analysis, evidence that landmark ordinance "reduce[d] the

value of the Church's property by almost half").

RCB does face statutory penalties if it makes any changes

to the Church without the SHC's permission, see Mass. Gen. Laws ch.

40C, § 13, but this possibility does not mean that the process of

application to the SHC is itself burdensome. The Ordinance asks

RCB only to delay the decisions it makes pursuant to its

deconsecration plans while the SHC evaluates its application, a

-41-
process that, according to the SHC's own rules, should take no more

than sixty days.16

In this case, all of the factors we have identified

combine to show that RCB cannot, solely on its challenge to the

enactment of the Ordinance, prove that it suffers a substantial

burden on its religious exercise.

Because we decide that RCB has not shown a substantial

burden, we need not address the question of whether the Ordinance

is "in furtherance of a compelling governmental interest" and is

"the least restrictive means of furthering" that interest. 42

U.S.C. § 2000cc(a)(1)(A)-(B).

B. RLUIPA "Equal Terms"

RCB also argues before this court that the Ordinance

violates another provision of RLUIPA, the "equal terms" provision,17

which states: "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). RCB argues that the

16
If the SHC does not act on an application within sixty days,
it "shall" issue the requested certificate of hardship.
17
In the district court, RCB also argued that the Ordinance
violated RLUIPA's "nondiscrimination" and "unreasonable
limitations" provisions. 42 U.S.C. § 2000cc(b)(2)-(3); see RCB,
760 F. Supp. 2d at 191. RCB did not address those two provisions
in its opening brief to this court, and the City argues that any
claims based on those provisions are waived. We agree with the
City.

-42-
City violated this provision because the District was, at the time

of its enactment, the only single-parcel historic district in

Springfield.

The circuits disagree as to the applicable comparator in

a RLUIPA "equal terms" analysis. Compare Midrash Sephardi, 366

F.3d at 1230-31 ("natural perimeter" of inquiry is the universe of

entities which qualify as "assembl[ies] or institution[s]"), with

Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510

F.3d 253, 264 (3d Cir. 2007) (religious institution must show that

a secular comparator is similarly situated in relevant respects).

RCB does not point to any particular secular institution or class

of institutions that was treated differently than was RCB. Rather,

RCB compares itself to every secular institution in the City of

Springfield, none of which are included in a single-parcel historic

district. Under any reasonable interpretation of the equal terms

provision, this argument fails.

The MHDA empowers municipalities to choose how many

parcels to include in any given historic district. The City has

enacted a number of historic districts over the years, of varying

sizes, and often including both secular and religious buildings.

The City complied with the MHDA's process for designating the

District, as it presumably did in all other instances when it

created historic districts.

-43-
 By analogy, the Supreme Court has recognized in a

different context that landmark laws -- which operate similarly to

single-parcel historic districts -- are not necessarily operating

in a discriminatory manner when they single out particular parcels

for special treatment:

[L]andmark laws are not like discriminatory,
or "reverse spot," zoning: that is, a land-use
decision which arbitrarily singles out a
particular parcel for different, less
favorable treatment than the neighboring ones.
In contrast to discriminatory zoning, which is
the antithesis of land-use control as part of
some comprehensive plan, the [landmark] law
embodies a comprehensive plan to preserve
structures of historic or aesthetic interest
wherever they might be found in the city[.]

Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 132

(1978) (citation omitted). Likewise, the mere fact that a landmark

designation or a single-parcel historic district applies only to a

house of worship does not in itself constitute a targeting of

religion that offends the First Amendment. See Saint

Bartholomew's, 914 F.2d at 354.

The mere fact of the Ordinance's existence does not

demonstrate that RCB was treated on less than equal terms with

nonreligious institutions, particularly where RCB does not point to

any relevant comparators.

C. First Amendment Claims

1. Free Exercise of Religion

-44-
 RLUIPA's congressional record indicates that the sponsors

of the law in the Senate intended the phrase "substantial burden"

to be interpreted consonantly with the Supreme Court's usage of the

phrase in the First Amendment context. See 146 Cong. Rec. S7776

(daily ed. July 27, 2000) (joint statement of Sens. Hatch and

Kennedy). Our analysis of RCB's ripe First Amendment free exercise

claim is thus similar to our analysis of the ripe "substantial

burden" question under RLUIPA.

Because we do not view the Ordinance as a neutral law of

general applicability, we will assume, favorably to RCB, that it is

subject to strict scrutiny.18 See Lukumi, 508 U.S. at 546; Jimmy

Swaggart Ministries v. Bd. of Equalization of Cal., 493 U.S. 378,

384-85 (1990) ("Our cases have established that '[t]he free

exercise inquiry asks whether government has placed a substantial

burden on the observation of a central religious belief or practice

and, if so, whether a compelling governmental interest justifies

the burden.'" (alteration in original) (quoting Hernandez v.

Comm'r, 490 U.S. 680, 699 (1989))). For the same reasons we have

already explored, RCB has not shown that the mere existence of the

Ordinance constitutes a substantial burden on its First Amendment

right to the free exercise of religion.

18
We need not address the parties' arguments as to what
standard of scrutiny applies to a "hybrid" claim -- that is, one
that combines an alleged violation of the free exercise right with
another alleged constitutional violation. Cf. Smith, 494 U.S. at
881-82.

-45-
 Given the limited nature of the only ripe claim before

us, the Supreme Court's decision in Lukumi is not to the contrary.

There, a municipality passed ordinances relating to animal

sacrifice that were clearly designed to prevent adherents of

Santería from taking part in a specific religious practice, for the

stated purpose of prohibiting a religious exercise that a number of

citizens considered to be "inconsistent with public morals, peace

or safety." 508 U.S. at 535. The evidence as a whole revealed

that "suppression of the central element of the Santeria worship

service was the object of the ordinances," id. at 534, which

constituted "an impermissible attempt to target petitioners and

their religious practices," id. at 535.

Here, by contrast, there is no evidence that suppression

of Catholic religious practices was the object of the Ordinance.

The text of the Ordinance requires only that RCB file an

application with the SHC before making any changes to the exterior

of the Church. The language of the Ordinance does not require RCB

to perform or forego any particular practice, and it does not

prohibit deconsecration or even closing of the Church outright.

While the circumstances of the Ordinance's enactment reveal that

the Ordinance was motivated at least in part by a desire to prevent

demolition of the Church -- a possible outcome of RCB's religious

decisionmaking process -- there is no evidence that this goal was

-46-
rooted in "animosity to religion or distrust of its practices."

Id. at 547.

This is not to say, of course, that a government's benign

motives will always defeat a claim of substantial burden; a law

passed without any evidence of animosity may still, by its

objective terms, impose such a burden. But that is not this

Ordinance. Again, the question of whether any future outcome of

RCB's submission of an application to the SHC might constitute a

substantial burden is not properly before this court. We hold

simply that the existence of the Ordinance itself is not an

unconstitutional burden on RCB's free exercise of religion.

2. Freedom of Speech

RCB's complaint alleged that the Ordinance violated its

rights under the First Amendment's Free Speech Clause. RCB alludes

to that claim in its briefing before this court, but it does not

develop the argument, instead using the free speech claim solely to

bolster its argument that the free exercise claim should be subject

to strict scrutiny as a "hybrid" claim. RCB has thus waived this

issue on this appeal. See United States v. Zannino, 895 F.2d 1, 17

(1st Cir. 1990).

We note, however, that the district court found that the

free speech claim was unripe, because the question of whether the

Ordinance interferes with RCB's right to express itself through

religious symbols on the Church would not be cognizable until the

-47-
SHC acted on an application to remove any of those symbols. See

RCB, 760 F. Supp. 2d at 184. Since neither party asks us to

disturb that ruling, we will not do so.

D. Massachusetts State Constitutional Claims

Finally, RCB argues that the enactment of the Ordinance

violates its free exercise right under Article 46, Section 1 of the

Amendments to the Massachusetts Constitution, which provides that

"[n]o law shall be passed prohibiting the free exercise of

religion." In interpreting this provision, Massachusetts has

rejected the Supreme Court's Smith rule and retained the strict

scrutiny standard even for laws that are neutral and generally

applicable. Attorney General v. Desilets, 636 N.E.2d 233, 236 &

n.4 (Mass. 1994). Because we have rejected RCB's federal

constitutional challenge as to that part of its claim which is

ripe, RCB's ripe state constitutional claim also fails, for the

same reasons articulated above.19

V.

RCB has presented a serious set of challenges. As the

Supreme Court has stressed, the question of religious burdens is

necessarily individualized and context-sensitive. See Gonzales v.

19
Because we conclude that RCB has not demonstrated a
substantial burden on its religious exercise, we need not address
the unsettled state law question of whether there can be a
compelling state interest in the historic preservation of the
exterior of a house of worship. See Soc'y of Jesus of New Eng. v.
Bos. Landmarks Comm'n, 564 N.E.2d 571, 572 n.2 (Mass. 1990).

-48-
O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 436

(2006). Accordingly, we have written narrowly today. Our analysis

is grounded in the present facts of this case.

VI.

It appears from the district court's decision that the

court granted summary judgment to the City on all of RCB's claims.

See RCB, 760 F. Supp. 2d at 195. This was, in part, erroneous.

The claims that the district court found were unripe should have

been dismissed without prejudice, not resolved on summary judgment.

We will remand for the proper disposition of those claims.

VII.

The judgment of the district court is affirmed in part

and vacated in part. The district court's grant of summary

judgment to the City on Counts 5, 6, 7, 10, 11, and 12 of RCB's

complaint is affirmed. We vacate the grant of summary judgment to

the City on Counts 3 and 4 of the complaint and remand with

instructions to dismiss those counts without prejudice. We vacate

and remand with instructions to dismiss without prejudice Counts 1,

2, 8, and 9 of the complaint, to the extent these counts allege a

challenge to the potential future effects of the application

process under the Ordinance. To the extent that Counts 1, 2, 8,

and 9 allege a challenge to the mere enactment of the Ordinance,

the grant of summary judgment to the City is affirmed. Each party

shall bear its own costs.

-49-