Miles Christi Religious Order v. Township of Northville

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0388p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
BERTOLACCI, Father, and FRANCISCO CONTE- -
MILES CHRISTI RELIGIOUS ORDER, CESAR
-
GRAND, Brother, -
Plaintiffs-Appellants, -
No. 09-1618

,
>
-
-
v.
-
-
TOWNSHIP OF NORTHVILLE, CHIP SNIDER, in
-
-
his official capacity as Northville Township

-
Manager, JENNIFER FREY, in her official
-
capacity as Director of Community
-
Development for Northville Township,
JOSEPH BAUER, in his official capacity as -
Ordinance Enforcement Officer for Northville -
-
Defendants-Appellees. -
Township,
-
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 07-14003—Paul D. Borman, District Judge.
Argued: June 10, 2010
Decided and Filed: December 21, 2010
Before: BATCHELDER, Chief Judge; SUTTON and KETHLEDGE, Circuit Judges.

_________________

COUNSEL
ARGUED: Robert Joseph Muise, THOMAS MORE LAW CENTER, Ann Arbor,
Michigan, for Appellants. Timothy S. Wilhelm, JOHNSON, ROSATI, LaBARGE,
ASELTYNE & FIELD, P.C., Farmington Hills, Michigan, for Appellees. ON BRIEF:
Robert Joseph Muise, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for
Appellants. Timothy S. Wilhelm, Marcelyn A. Stepanski, JOHNSON, ROSATI,
LaBARGE, ASELTYNE & FIELD, P.C., Farmington Hills, Michigan, for Appellees.
SUTTON, J., delivered the opinion of the court, in which KETHLEDGE, J.,
joined. BATCHELDER, C.J. (pp. 14–33), delivered a separate dissenting opinion.

1
No. 09-1618 Miles Christi Religious Order, et al. v. Page 2
Township of Northville, et al.

_________________

OPINION
_________________

SUTTON, Circuit Judge. A religious order and two of its members filed this
action under the Religious Land Use and Institutionalized Persons Act and the Federal
and State Constitutions against the Township of Northville and its officials based on a
dispute over the application of several local zoning ordinances to a residence that the
order owns in the township. The district court concluded that the suit was unripe, and
so do we.

I.

Since 2002, Miles Christi, an international religious order, has owned a five-
bedroom house on a one-acre plot of land in a residential neighborhood in Northville,
Michigan. Several fathers and brothers of the order, six in all, live there. The fathers
conduct private daily masses in a small eighteen-person chapel inside the house for
members of the order. Miles Christi also hosts regular Bible studies “for invited friends
and their children” with attendance ranging from five (the most common) to fifteen
individuals. R.1 ¶ 18. Nothing on the exterior of the house suggests that the residents
use it as a church or religious organization.

In March 2003, some Northville citizens wrote letters to township officials about
the Miles Christi house, complaining about increased automobile traffic and the number
of cars parked there and suggesting that the order was not using the house in compliance
with the neighborhood’s residential zoning. Northville’s Town Planner, Maureen
Osiecki, replied to at least one of the letters by saying that “the priests may use this home
as their residence” and that the house was “not a church, nor a parish.” R.31-10.

The complaints did not stop there. Over the next few years, Joseph Bauer,
Northville’s Ordinance Enforcement Officer, continued to receive complaints about the
No. 09-1618 Miles Christi Religious Order, et al. v. Page 3
Township of Northville, et al.

house. On several occasions, he drove by the property and made notes about the zoning
issues implicated by the complaints, but he did not take any action.

In December 2006, a neighbor called Bauer to complain about the amount of
traffic and the number of parked cars at the house. She believed that the property was
being used as an office rather than as a residence. In response to these complaints, Bauer
conducted more frequent surveillance of the house. On at least one occasion, he
recorded the license plate numbers of the cars parked at the house.

Bauer was not the only one conducting surveillance. The fathers and brothers
of Miles Christi took several photographs of an officially marked car driving by their
property and recorded the times—several per day—when the car drove by.

On February 7, 2007, Bauer sent a letter to Father Cesar Bertolacci describing
his surveillance of the property. “Follow-up observations,” he wrote, showed that,
during Sunday mass, “vehicles were parked on grassy areas in violation” of the zoning
ordinance. R.31-12. He asked Miles Christi to “describe[] the measurements of the
[oratory]” and to provide “an operations plan describing activities” so that the township
could “determine if the present amount of parking is sufficient so vehicles do not park
on grassy areas.” Id. Bauer attached a copy of the township’s parking ordinance, which
provides:

When building alterations . . . are to be made, or use or activity is
contemplated that may produce parking demand in excess of available
spaces, the Township shall require a sketch plan and other written
documentation of the change or a parking study to document adequate
parking is provided or will be expanded to meet anticipated needs.

Northville Code of Ordinances § 170-26.1(F). The township’s ordinances generally
require that one- or two-family homes have two parking spaces per dwelling unit. See
id. § 170-26.2. But for “[c]hurches, temples or other places of worship,” there must be
“1 space per 3 seats or 6 feet of pews in the main unit of worship, plus any additional
spaces needed for accessory uses,” and the property owners must submit “[a]n operations
No. 09-1618 Miles Christi Religious Order, et al. v. Page 4
Township of Northville, et al.

plan to describe all of the church-related activities . . . to support the amount of parking
provided.” Id.

Father Bertolacci responded by letter on March 1, 2007, describing the activities
conducted at the home and the eighteen-person oratory. “In order to reduce any parking
on the grass,” he added, Miles Christi was “willing to expand [their] driveway if
needed.” R.31-12. Father Bertolacci “question[ed] the validity of the complaints” but
assured Bauer that Miles Christi wanted to do its best both to serve the community and
to live responsibly within it. Id.

On March 23, 2007, several residents of the Miles Christi house met with
township officials to discuss the parking issue. Joining Bauer on behalf of the township
were Chip Snider, Township Manager, and Jennifer Frey, Director of Community
Development. Jennifer Frey told the order that the Miles Christi house was operating
as “something other than [a] single family residence” and that “they needed to provide
. . . an operations plan to support and justify the amount of parking they [were]
provid[ing].” R.31-26 at 55–56. Ultimately, she said, Miles Christi would need to
provide parking in the rear of its lot sufficient to meet peak demand, estimated at twenty
to twenty-two people. When the residents explained that they could not feasibly locate
additional parking in the rear of the lot, the officials told them that they would have to
(1) request a variance from the zoning board of appeals to allow parking in the front yard
and (2) submit a site plan to the Northville Planning Commission detailing the intended
expansion of parking spaces and sufficient landscaping to block the view of parked cars
from neighboring properties.

By June 5, 2007, Miles Christi had not submitted a site plan, prompting Bauer
to issue a ticket for violating Ordinance § 170-33.3, which governs “[s]ite plan review
procedures.” The ticket directed Miles Christi to appear in state court on June 20, 2007,
which Miles Christi did. See People v. Miles Christi Religious Order, No. 07v324326A
(Wayne Cnty. Dist. Ct. June 20, 2007). The state-court proceedings developed an
No. 09-1618 Miles Christi Religious Order, et al. v. Page 5
Township of Northville, et al.

extensive record, including depositions of members of Miles Christi and township
officials discussing the events leading to the ticket.

On September 21, 2007, Miles Christi, Father Bertolacci and Brother Francisco
Conte-Grand filed this action in federal court. They challenged the legality of
Northville’s zoning ordinances as applied to the Miles Christi house and the conduct of
township officials in enforcing the ordinances, invoking the free-exercise protections of
the First and Fourteenth Amendments, the Religious Land Use and Institutionalized
Persons Act (RLUIPA) and the Michigan Constitution. They sought declaratory and
injunctive relief, money damages and attorney’s fees.

The state court stayed the enforcement proceeding pending the outcome of the
federal action. The township defendants moved to dismiss the federal case, arguing that
Miles Christi has not received a “final decision” about the application of Northville’s
zoning ordinances to their property, making the religious order’s claims unripe. The
district court agreed and dismissed the complaint without prejudice, reasoning that the
township’s final decision concerning the application of the zoning ordinances is still
“unknown” because Miles Christi has not appealed the demand for a site plan to the
zoning board. Miles Christi appeals.

II.

The ripeness doctrine encompasses “Article III limitations on judicial power” and
“prudential reasons” that lead federal courts to “refus[e] to exercise jurisdiction” in
certain cases. Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808
(2003). The “judicial Power” extends only to “Cases” and “Controversies,” U.S. Const.
art. III, § 2, not to “any legal question, wherever and however presented,” without regard
to its present amenability to judicial resolution. Warshak v. United States, 532 F.3d 521,
525 (6th Cir. 2008) (en banc). And the federal courts will not “entangl[e]” themselves
“in abstract disagreements” ungrounded in the here and now. Abbott Labs. v. Gardner,
387 U.S. 136, 148 (1967); see Warshak, 532 F.3d at 525. Haste makes waste, and the
“premature adjudication” of legal questions compels courts to resolve matters, even
No. 09-1618 Miles Christi Religious Order, et al. v. Page 6
Township of Northville, et al.

constitutional matters, that may with time be satisfactorily resolved at the local level,
Nat’l Park Hospitality Ass’n, 538 U.S. at 807; Grace Cmty. Church v. Lenox Twp., 544
F.3d 609, 617 (6th Cir. 2008), and that “may turn out differently in different settings,”
Warshak, 532 F.3d at 525.

To decide whether a dispute has ripened into an action amenable to and
appropriate for judicial resolution, we ask two questions: (1) is the dispute “fit” for a
court decision in the sense that it arises in “a concrete factual context” and involves “a
dispute that is likely to come to pass”? and (2) what are the risks to the claimant if the
federal courts stay their hand? Warshak, 532 F.3d at 525; see Abbott Labs., 387 U.S. at
149. In the land-use context, the demands of “a concrete factual context” and “a dispute
that is likely to come to pass” converge in an insistence on “finality,” an insistence that
the relevant administrative agency resolve the appropriate application of the zoning
ordinance to the property in dispute. In the related context of takings claims under the
Fifth and Fourteenth Amendments, courts likewise insist that a claimant “obtain[] a final
decision regarding the application of the zoning ordinance[s] . . . to its property,”
Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S.
172, 186 (1985), a requirement rooted in ripeness considerations, see id. at 186–94;
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1012–13 (1992). In addition to takings
claims, we have applied the finality requirement to other constitutional and statutory
challenges to local land-use requirements. See Grace Cmty. Church, 544 F.3d at 615
(RLUIPA); Insomnia Inc. v. City of Memphis, 278 F. App’x 609, 613 (6th Cir. 2008)
(Free Speech Clause); Bannum, Inc. v. City of Louisville, 958 F.2d 1354, 1362 (6th Cir.
1992) (Equal Protection Clause).

Miles Christi has not satisfied either requirement for bringing this claim now.
It has not shown that “the government entity charged with implementing the regulations
has reached a final decision regarding the application of the regulations to the property
at issue.” Williamson Cnty., 473 U.S. at 186; Grace Cmty. Church, 544 F.3d at 615.
And it has not shown that it will suffer any hardship by delaying a federal court decision
until the zoning board acts.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 7
Township of Northville, et al.

No final decision. Miles Christi concedes that it has not gone to the zoning board
to determine whether the ordinances require it to submit a site plan and, if so, which
regulations impose this obligation and why. And it does not deny that the administrative
process permits residents to seek a variance. What the religious order says instead is that
Jennifer Frey’s request that Miles Christi provide a site plan, based on a determination
that the home was being used in a more intensive way than residential zoning permits,
amounts to the kind of final decision necessary to overcome these ripeness concerns.

This position, however, does not square with the relevant regulations. At the
time the complaint was filed, the Northville Code provided that “[t]he Zoning Board of
Appeals shall be responsible for interpretations to the text of [the zoning ordinances]”
and shall be responsible for “interpret[ing] the provisions or meaning of standards of [the
ordinances].” § 170-41.4(D) (2007); R.31-39 at 8. In the context of site plan review,
the Code provided that “[t]he application may be tabled if it is determined . . . [that] an
ordinance interpretation or variance is needed from the zoning board of appeals.” § 170-
33.3(G)(1) (2007); R.31-38 at 7. Today’s regulations are to the same effect, providing
that “prior to initiati[on] of site plan review,” a property owner should appeal to the
zoning board “[i]f an ordinance interpretation or variance is needed.” § 170-33.3(B)(1)
(2010). An administrative appeal to the zoning board thus will resolve at least three
questions, all of which lie within the zoning board’s plenary interpretive jurisdiction,
about Miles Christi’s obligations or indeed whether it has any obligations at all: (1) Has
Miles Christi put its house to a “more intensive use” within the meaning of § 170-33.2
of the Northville Code? (2) Is the Miles Christi house a “church” within the meaning of
§ 170-26.2 of the Code? and (3) Does Miles Christi have an obligation to submit a site
plan in the first instance in view of the meaning of these ordinances and its request for
a variance? Finality requires the input of the zoning board on these unresolved
questions.

No hardship to Miles Christi. An appeal to the zoning board not only will
ground this dispute in a concrete legal setting—by permitting the zoning board to clarify
the township’s application of its land-use laws to this property—but it also may help
No. 09-1618 Miles Christi Religious Order, et al. v. Page 8
Township of Northville, et al.

Miles Christi. The zoning board may grant a variance to the religious order, or it may
provide a different intensive-use determination. Both forms of relief will considerably
narrow the grounds of dispute between the parties if not end the dispute altogether. Far
from imposing a hardship on Miles Christi, an appeal to the zoning board may give the
order the very relief it seeks: the chance to live and serve the Northville community
without further inquiries, or for that matter harassment, from the neighbors and township
officials.

We have been down this road before. In Grace Community Church, a township
issued a special use permit to a church, and one month later the township revoked the
permit after a neighbor complained that the church was not complying with the
conditions of the permit. 544 F.3d at 615–16. The church filed a federal action
challenging the revocation under RLUIPA and the Equal Protection Clause rather than
appealing the revocation to the zoning board. Id. at 611. In dismissing the claims on
ripeness grounds, we noted that the church had made “no effort to resolve the dispute
locally”: It did not attempt “to complete the factual record, to more fully explain its
position to the Commission, to seek reconsideration, or to appeal the revocation
decision” to the zoning board. Id. at 616. What was true there is just as true here.

Unlike Grace Community Church, Miles Christi responds, a voluminous record
makes its and the Township’s positions “well defined.” Miles Christi Br. 44. But the
existence of an extensive record—Miles Christi’s response to the township’s summary
judgment motion, including exhibits, comprises over 750 pages—is not the same as “a
concrete factual context,” which is what matters. Warshak, 532 F.3d at 525. Indeed, in
Warshak, a case also dismissed on ripeness grounds, the record included numerous
exhibits relating to government officials’ past conduct, see Warshak v. United States,
No. 06-cv-00357 (S.D. Ohio June 12, 2006), but nothing that shed light on the material
question of what government officials would do in the future, see Warshak, 532 F.3d at
526–27.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 9
Township of Northville, et al.

Nor do the parties’ summary judgment attachments, including photographs,
letters, deposition transcripts and other documents, make up for the same omission that
doomed an early federal resolution of the dispute in Grace Community Church: a
definitive statement from the zoning board, the entity charged with interpreting
Northville’s zoning ordinances, about which ordinances apply to Miles Christi and about
whether Miles Christi must submit a site plan under the ordinances. As things now
stand, “we have no idea,” Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 163 (1967),
whether the township’s position, as determined by the zoning board, see § 170-41.4(D)
(2007); § 170-33.3(G)(1) (2007); § 170-33.3(B)(1) (2010), is (1) that Miles Christi must
submit a site plan because there has been a “change in the use of land . . . to a more
intensive use, in terms of parking,” § 170-33.2, (2) that Miles Christi must submit a site
plan because its property is a “[c]hurch[], temple[] or other place[] of worship,” § 170-
26.2, or (3) that the property is a “single-family home on an individual lot” and therefore
“exempt from site plan review,” § 170-33.2(A). We might have a sense of what a few
township officials think but, by filing this lawsuit when it did, Miles Christi pretermitted
the opportunity to submit this issue to the body given decision-making authority over it.
How can we know whether the township “has gone too far,” as Miles Christi claims,
until we “know[] how far the regulation goes,” MacDonald, Sommer & Frates v. Yolo
Cnty., 477 U.S. 340, 348 (1986), and indeed which regulations apply?

Even aside from these concerns, we cannot say as Miles Christi does that the
Township’s position is “well defined.” During the state court proceedings, Frey testified
that she did not know under which ordinance Bauer was going to issue a ticket, only that
it would be a ticket for “[v]iolations of the zoning ordinance.” R.31-26 at 62. She also
testified that she had not classified the Miles Christi house as a church but had simply
determined that it was “something other than a single family residential” home. Id. at
54–55. Yet, according to the complaint, which we must take as true at this stage of the
case, Frey previously told Miles Christi that it was a “small church” under the zoning
ordinances and as a result would have to provide additional parking. R.1 ¶ 41. The
Township’s back-and-forth positions may well bolster Miles Christi’s efforts to establish
No. 09-1618 Miles Christi Religious Order, et al. v. Page 10
Township of Northville, et al.

the bona fides of its claims on the merits, but they undermine any notion that the
Township’s position is sufficiently “well defined” to ripen this dispute into a matter
appropriate for judicial resolution.

Miles Christi protests that, as a matter of hardship, the township put it to a
“Hobson’s choice” of incurring “the costs and burdens associated with submitting” a site
plan on the one hand or continuing constitutionally protected activities on the other.
Miles Christi Br. 31–32, 51. But that is a false dichotomy. There is a third
option—going to the zoning board—which may put this entire dispute to rest and which
at a minimum makes Miles Christi’s choice anything but Hobsonian. The zoning board
may determine, as a matter of interpretation, that the Northville Code does not require
it to submit a site plan. Or it may determine, as a matter of discretion, administrative
grace if you will, that Miles Christi should get a variance. Either way, Miles Christi will
be able to continue its current use of the house without incurring additional costs or
burdens.

Miles Christi adds that the township’s actions have had a “chilling effect” on its
constitutionally and statutorily protected activities: Threatening to ticket vehicles parked
on the lawn, conducting surveillance of the religious order, recording license plates and
issuing a ticket for a zoning violation all have “limit[ed]” the order’s “religious
activities.” Miles Christi Br. 51–52. It is true that the existence of a constitutional
claim, particularly a First Amendment claim, affects the hardship component of the
ripeness inquiry. See Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002). And it may
be true that Northville thus far appears to have an undeveloped sense for the concept of
religious liberty, as illustrated by this statement at oral argument: “[F]ootball parties and
tailgate parties” do not change “the residential nature of the use; whereas, what they’re
doing here, they’re doing religious education and they’re worshipping.” Not just the
Framers of the Constitution but Congress itself has distinguished between the protections
afforded these distinct activities: While the United States Code contains a Religious
Freedom and Restoration Act and a Religious Land Use and Institutionalized Persons
No. 09-1618 Miles Christi Religious Order, et al. v. Page 11
Township of Northville, et al.

Act, one will search in vain for a Freedom to Watch Football on a Sunday Afternoon
Act.

But a claim does not become ripe at the first whiff of governmental insensitivity
or whenever a government official takes an adverse legal position against someone, even
if one potential response is to curtail protected activities. One justification for the
ripeness doctrine is that it avoids the premature resolution of constitutional questions,
including First Amendment questions. Warshak, 532 F.3d at 525; Grace Cmty. Church,
544 F.3d at 615. And “the existence of a ‘chilling effect,’ even in the area of First
Amendment rights, has never been considered a sufficient basis, in and of itself, for
prohibiting state action.” Younger v. Harris, 401 U.S. 37, 51 (1971). The answer
instead is to look at each case to determine the consequences of staying our hand. That
does not pose a problem here, as Miles Christi may potentially resolve the issue (at less
expense) by appealing to the zoning board, see Northville Ordinance § 170-41.4(D)
(2007); § 170-33.3(G)(1) (2007); § 170-33.3(B)(1) (2010), a route that does not require
Miles Christi to cancel any Bible studies, masses or other religious activities and a route
that does not require it to pay for an engineering study in the event the township rejects
its interpretation of the ordinances or fails to give it a variance.

But Williamson County, Miles Christi protests, says that claimants need not “seek
review of an adverse decision and obtain a remedy” in a state forum or otherwise
“exhaust” its claims in the state courts, 473 U.S. at 193, and that effectively is what the
district court made it do. Yet the Northville Code provides that, when “an ordinance
interpretation or variance is needed,” a property owner should go to the zoning board
during or before the site plan review process, not after. § 170-33.3(G)(1) (2007); § 170-
33.3(B)(1) (2010). Rather than merely “review[ing]” the “initial decision[]” of township
officials made during the site plan review procedures, the zoning board is “empowered
. . . to participate in the . . . decisionmaking” process from the outset, and it is only
through that process that the township can provide what Williamson County demands:
“a definitive position on the issue.” 473 U.S. at 193. Because Miles Christi’s claims
No. 09-1618 Miles Christi Religious Order, et al. v. Page 12
Township of Northville, et al.

turn on the meaning of the ordinances, they will not ripen until the zoning board weighs
in, a precondition that goes to finality, not to exhaustion of other remedies.

The finality rule, we acknowledge, is a “prudential requirement[],” and we need
not follow it when its application “would not accord with sound process.” Lucas, 505
U.S. at 1012. But for the reasons given, we fail to see why this prudential requirement
should be ignored here. Both parties, to say nothing of the federal courts, may benefit
from the zoning board’s input, and the claimant, Miles Christi, faces no jeopardy in the
interim, in view of the suspension of the state-law ticketing proceeding.

Murphy v. New Milford Zoning Commission, 402 F.3d 342 (2d Cir. 2005), does
not alter this conclusion but indeed bolsters it. The Murphy claimants hosted weekly
prayer meetings in their home. Id. at 345. After several complaints from neighbors, the
town informed the Murphys that the zoning laws barred them “from hosting regularly
scheduled meetings exceeding twenty-five non-family members.” Id. at 344. The town
eventually issued a cease and desist order, and the Murphys filed a lawsuit in federal
court rather than appealing to the zoning board. Id. at 345. The Second Circuit
concluded that the Murphys’ claims, even those under the First Amendment and
RLUIPA, were unripe. Id. at 354. In reaching this conclusion, the court noted, as we
have noted, that “the ripeness doctrine is somewhat relaxed” in First Amendment cases.
Id. at 351. The court distilled from its prior (Second Circuit) cases a two-part
“preliminary inquiry”: First, have the plaintiffs “experienced an immediate injury” as
a result of the town’s actions? And second, would compliance with the finality
requirement serve to “further define their alleged injuries?” Id. After considering these
questions, Murphy concluded that there was no reason to set aside the finality
requirement. Just as the cease and desist order in Murphy did not give rise to an
immediate injury worthy of immediate judicial intervention, see id., so also here.

There is, to be sure, one difference between the Murphys’ case and today’s case:
Northville issued a ticket to Miles Christi, while the town did not do the same to the
Murphys. Yet it is not clear which way the existence of this state court enforcement
No. 09-1618 Miles Christi Religious Order, et al. v. Page 13
Township of Northville, et al.

action cuts. In the criminal context, a pending state court action concerning the same
issues implicated by a federal civil action requires the federal courts to abstain from
resolving the civil action until the state courts have acted. Younger, 401 U.S. at 40–41.
And the Younger abstention doctrine applies to at least some types of state court
administrative enforcement actions. Huffman v. Pursue, Ltd., 420 U.S. 592, 594 (1975);
cf. Executive Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783, 791 (6th Cir.
2004). But we need not resolve this point today because this feature of Murphy makes
no difference for a separate reason: Northville’s ordinances expressly provide that “[a]n
appeal [to the zoning board] shall stay all proceedings in furtherance of the action
appealed . . . .” § 170-41.2(B)(3). Under the local law, any potentially coercive effect
caused by a ticket can be stopped in its tracks by the modest step of appealing to the
zoning board. The same was true in Murphy. At the same time that the court
acknowledged that town officials did not have “any arresting or fining power,” it noted
that an appeal to the zoning board would stay any enforcement proceedings. 402 F.3d
at 351. Northville’s issuance of a ticket, subsequently stayed by operation of law, does
not require the federal courts to resolve Miles Christi’s action now.

III.

For these reasons, we affirm.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 14
Township of Northville, et al.

________________

DISSENT
________________

ALICE M. BATCHELDER, Chief Judge, dissenting. Because I believe that the
majority opinion does not adequately account for the First Amendment implications of
this case and conflates the exhaustion of administrative remedies with the obtaining of
a final decision, I respectfully dissent.

This case revolves around Jennifer Frey’s intensity determination, not, as
Northville frames it, the possible end result of the larger zoning process. The two are
in fact distinct, and Miles Christi’s claims arise from Frey’s decision. Miles Christi was
thrust into the current controversy, not because of any actions it initiated, but solely
because of actions initiated by state officials. Frey, acting pursuant to her authority as
Director of Community Development, determined that Miles Christi had intensified the
use of its property; yet Miles Christi was merely using its property exactly as it always
had. Frey’s decision immediately harmed Miles Christi’s First Amendment rights, and
that harm cannot be undone by any retrospective relief that Miles Christi might obtain
from the Zoning Board of Appeals (“ZBA”).

Because Miles Christi suffered a First Amendment harm, this case is not a run-
of-the-mill takings clause case. Takings clause cases, though applicable, cannot fully
address the issues presented here because the First Amendment triggers concerns
unaccounted for by the traditional takings clause analysis.

Further, any relief that the ZBA may ultimately provide does not impact the
finality of Frey’s intensity determination. The line between exhausting administrative
remedies and obtaining a final decision is often obscure, but the two concepts are
distinct. Everything that happened to Miles Christi is a result of Frey’s decision. That
decision was final and had an immediate, harmful effect. Any relief that the ZBA may
provide is merely an administrative remedy, and its availability has no bearing on the
finality of Frey’s intensity determination.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 15
Township of Northville, et al.

I.

A review of the record below clearly demonstrates that it was Frey’s decision
that placed Miles Christi in its current position. Miles Christi is an international Catholic
religious order. Since 2002, this particular community has resided in a single-family
home in Northville. Also since 2002, Miles Christi has continuously used its home for
private daily masses and Bible studies. From 2002 until the events in 2007 giving rise
to this litigation, Miles Christi’s use of its property remained unchanged.

As the majority opinion indicates, Fr. Bertolacci met with various township
officials in March 2007 to discuss the parking problem. At the meeting, Frey stated that
she had determined that Miles Christi’s use of the property had become more
intensive—that the use had changed from that of a single family residence to a more
intensive non-residential use. She explained that the use now resembled a small church
or place of worship. Accordingly, she insisted that Miles Christi would have to go
through the town’s site review process, beginning by submitting a site plan, to ensure
there were sufficient parking and landscaping buffers, along with other requirements.
See Northville Code of Ordinances §§ 170-26.2, 170-26.3. Fr. Bertolacci protested this
decision.

Miles Christi hired an engineering firm to estimate the cost of compliance with
the ordinances. That review cost about $5,000. The firm estimated the compliance cost
at around $80,000, along with the cost of completing and submitting the site plan itself,
which could cost an additional $30,000.

Miles Christi did not submit the site plan on the required date, and Bauer issued
a civil infraction ticket to the Order on June 5, 2007. Issuance of the ticket commenced
legal proceedings in state court to enforce Northville’s requirement that Miles Christi
submit a site plan. The ticket required Miles Christi to appear in state district court on
June 20, 2007, and carried the potential penalty of a sizable fine.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 16
Township of Northville, et al.

Miles Christi did not pursue any administrative appeals with the Zoning Board
of Appeals (“ZBA”) or seek a variance, but instead challenged the ticket in the state
court proceeding that Northville had initiated. The Michigan district court dismissed the
case, ruling that the regulation was overly vague and subjective because it contained no
standard by which to judge what constituted a “more intensive use” of the property.
Northville appealed, and the state circuit court reversed and remanded. On remand, the
parties agreed to hold the case in abeyance pending the results of this federal litigation.

Miles Christi claims that as a result of the ticket and the threat of future
enforcement—including a threat to ticket attendant vehicles if there were too many or
if any were parked on the grass—it has refrained from asking friends to join it for
religious or other social activities. The Order has continued to celebrate Mass in the
oratory and does have on its website a notice for continuing Bible studies and religious
activities.

Plaintiffs filed this suit on September 21, 2007, in federal district court raising
claims under 42 U.S.C. § 1983 for violation of their First Amendment free exercise, free
speech, and association rights, as well as their Fourteenth Amendment rights to due
process and equal protection. Plaintiffs also claimed violations of RLUIPA and the
Michigan Constitution. Northville filed a motion to dismiss the suit for lack of subject
matter jurisdiction under Federal Rules of Civil Procedure rule 12(b)(1), which the
district court granted without prejudice on April 30, 2008. The district court held that
the claims were unripe because Miles Christi had not obtained a final decision from the
local land-use authority. Miles Christi brought this timely appeal, focusing on Frey’s
intensity determination.

II.

We review an order to dismiss for lack of subject matter jurisdiction de novo.
Wagenknecht v. United States, 533 F.3d 412, 415 (6th Cir. 2008).
No. 09-1618 Miles Christi Religious Order, et al. v. Page 17
Township of Northville, et al.

A. Ripeness Requirements

Ripeness is a justiciability doctrine arising from both Article III limitations on
federal judicial authority and prudential concerns. Nat’l Park Hospitality Ass’n v. Dep’t
of the Interior, 538 U.S. 803, 808 (2003). Its purpose is “‘to prevent the courts, through
avoidance of premature adjudication, from entangling themselves in abstract
disagreements.’” Id. at 807 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–49
(1967)).

Courts generally consider three factors to determine if a claim is ripe: (1) “the
likelihood that the harm alleged by [the] plaintiffs will ever come to pass”; (2) “whether
the factual record is sufficiently developed to produce a fair adjudication of the merits
of the parties’ respective claims”; and (3) “the hardship to the parties if judicial relief is
denied at this stage in the proceedings.” Adult Video Ass’n v. U.S. Dep’t of Justice, 71
F.3d 563, 568 (6th Cir. 1995) (internal alterations, quotation marks and citations
omitted). The test has also been articulated as “two basic questions: (1) is the claim fit
for judicial decision in the sense that it arises in a concrete factual context and concerns
a dispute that is likely to come to pass? and (2) what is the hardship to the parties of
withholding court consideration?” Warshak v. United States, 532 F.3d 521, 525 (6th Cir.
2008) (en banc) (internal alterations, quotation marks, and citation omitted).

The United States Supreme Court has articulated an additional “finality”
requirement for ripeness in the land-use context. See Williamson Cnty. Reg’l Planning
Comm’n v. Hamilton Bank, 473 U.S. 172, 186 (1985). In Williamson County, a Fifth
Amendment takings case, the Court held that a regulatory takings claim “is not ripe until
the government entity charged with implementing the regulations has reached a final
decision regarding the application of the regulations to the property at issue.” Id.; see
also MacDonald, Sommer & Frates v. Cnty. of Yolo, 477 U.S. 340, 348 (1986) (holding
that an “essential prerequisite” to the assertion of a takings claim “is a final and
authoritative determination of the type and intensity of development legally permitted
on the subject property”). Whether the decision of the appropriate governmental entity
No. 09-1618 Miles Christi Religious Order, et al. v. Page 18
Township of Northville, et al.

is “final” for these purposes is not dependent upon the takings claimant’s having
exhausted futile or remedial appeals; what matters is that the governmental entity has
been given the opportunity to apply the local regulations to the particular piece of land
in question, including resolving any available variances. Id. at 190, 193; Suitum v.
Tahoe Reg’l Planning Agency, 520 U.S. 725, 736–37, 739 (1997) (noting that “Hodel
thus held that where the regulatory regime offers the possibility of a variance from its
facial requirements, a landowner must go beyond submitting a plan for development and
actually seek such a variance to ripen his claim,” but not requiring such requests where
no discretion was permitted by regulations (citing Hodel v. Va. Surface Mining &
Reclamation Ass’n, Inc., 452 U.S. 264, 297 (1981))); MacDonald, 477 U.S. at 348 (“A
court cannot determine whether a regulation has gone ‘too far’ unless it knows how far
the regulation goes.”). This requirement conforms with the high degree of flexibility and
discretion possessed by most land-use boards and the singular nature of each particular
parcel of land to which a regulation may be applied. Suitum, 520 U.S. at 738–39.

The finality requirement is a prudential rule, and may be set aside if, under the
circumstances, it does “not accord with sound process” or it would be imprudent to apply
it. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1012 (1992); Guggenheim v. City of
Goleta, 582 F.3d 996, 1008 (9th Cir. 2009) (“[T]he Court has explicitly held that the
Williamson requirements are prudential requirements.”).

We have previously cited with approval to a threshold test used by the Second
Circuit when determining whether to apply Williamson County’s prudential finality
requirement to First Amendment claims in the land-use context. Insomnia Inc. v. City
of Memphis, 278 F. App’x 609, 614 (6th Cir. 2008) (unpublished) (citing Murphy v. New
Milford Zoning Comm’n, 402 F.3d 342, 350 (2d Cir. 2005) and Doughtery v. Town of
N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 90 (2d Cir. 2002)). The Second
Circuit held in Murphy that Williamson County’s finality requirement should be
employed with caution in resolving First Amendment claims, and therefore undertook
“a preliminary analysis” to determine whether it applied. Murphy, 402 F.3d at 350–51;
see Doughtery, 282 F.3d at 90 (2d Cir. 2002) (“[I]n the First Amendment context, the
No. 09-1618 Miles Christi Religious Order, et al. v. Page 19
Township of Northville, et al.

ripeness doctrine is somewhat relaxed.”). Whether it applies in a specific case is a fact-
specific threshold question. Murphy, 402 F.3d at 350. To that end, the court asked
“(1) whether the [plaintiffs] experienced an immediate injury as a result of [the
defendant’s] actions, and (2) whether requiring the [plaintiffs] to pursue additional
administrative remedies would further define their alleged injuries.” Id. at 351. This
relaxed approach is consistent with Lucas, as well as our approach in other First
Amendment cases. See Lac Vieux Desert Band of Lake Superior Chippewa Indians v.
Mich. Gaming Control Bd., 172 F.3d 397, 406 (6th Cir. 1999) (“In the First Amendment
arena . . . especially when there is a possibility that, rather than risk punishment for his
conduct in challenging the statute, [an individual] will refrain from engaging further in
the protected activity, courts have been willing to relax prudential standing limitations
. . . .” (alterations in original)).

In Insomnia, we noted that the Second Circuit had “declined to apply the finality
requirement in a limited set of First Amendment challenges to land use disputes,” and
we purported to rely on Murphy’s threshold test, finding its factors to be satisfied.
Insomnia, 278 F. App’x at 614, 615–16. We did not, however, go on to apply
Williamson County’s analysis to determine if there was a final decision. Instead, we
seemed to rely on the threshold analysis to answer that question. See id. at 616 (“Taken
together, [Murphy’s] two prongs indicate that the district court acted properly in
dismissing Plaintiff’s claim as premature.”). Insomnia is an unpublished decision, and
is not binding precedent. In order to clarify the analysis, I would hold that Murphy’s
threshold test applies to First Amendment claims in the land use context, and that the
threshold question is distinct from the finality determination.

I therefore would consider on review whether Williamson County’s prudential
finality requirement applies to Miles Christi’s specific First Amendment claims. If it
does, we must decide whether Miles Christi has a final decision for purposes of all its
claims. If the finality requirement does not apply to the First Amendment claims, then
we must consider the finality requirement to determine the ripeness of the remaining
claims. If the finality requirement is satisfied, we must still ensure that Miles Christi’s
No. 09-1618 Miles Christi Religious Order, et al. v. Page 20
Township of Northville, et al.

claims satisfy Article III ripeness. See Lucas, 505 U.S. at 1013; Suitum, 520 U.S. at
742–44 (addressing general ripeness concerns after holding that a final decision had been
made for purposes of Williamson County). I address the immediate-harm prong of the
threshold test first.

B. Murphy’s Threshold Test—Immediate Harm

The district court found that Miles Christi did not suffer an immediate harm from
Northville’s decision.1 It found that Miles Christi’s decision to cancel the Bible study
and limit visitors was voluntary because Northville did not issue a cease-and-desist
order. “Defendants did not require, or even suggest[,] that Plaintiffs limit the number
of guests to the property.” R.50 at 11. It found further support from the fact that Miles
Christi’s decision to limit visitors could not cure the reason for the infraction ticket,
which was a failure to submit a site plan, and from the fact that the religious activities
are currently on-going on the property. It did not specifically consider any other harms.

Miles Christi argues that it did suffer immediate harms from Northville’s
decision, including: suppression of speech in the cancellation of a Bible study due to
police surveillance; the “chilling” of speech and religious activities due to the threat of
vehicle tickets or zoning citations; having to pay $5000 for an unnecessary engineering
study; being put to the choice of either paying for an expensive site plan or curtailing or
eliminating the Order’s religious activities because of Frey’s intensity decision; and
being ticketed, haled into state court, and potentially subjected to a substantial civil fine.
Miles Christi stresses the First Amendment injuries, arguing that “even a momentary loss
of First Amendment rights constitutes irreparable harm.” Appellant Br. at 50 (citing
Elrod v. Burns, 427 U.S. 347, 373 (1976)). The Order contends that Northville’s
expressed reasons are pretextual, and that the town’s actions have been motivated by
discriminatory animus towards their religious activities, or a desire to placate the Order’s

1
I note that the district court, following Insomnia, did not structure the analysis in the form of a
threshold question. Rather, it first decided that there was no final determination, and then analyzed the
two-part test from Insomnia and Murphy. See R.50 at 11. My proposed clarification of the test would
prevent this improper approach in the future.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 21
Township of Northville, et al.

unhappy neighbors by forcing the Order to reduce its activities, or both. Miles Christi
also claims the harms are accentuated by vague regulations’ being arbitrarily and
subjectively applied to chill its protected activities. Miles Christi strongly disagrees with
the district court’s finding that Northville did not require it to limit its guests or religious
activities, arguing that limiting visitors was necessary to cure the “more intensive use”
finding by Northville in order to prevent further claims of infraction.

Northville argues that requiring the site plan does not inflict a harm, but is merely
a necessary procedural step towards obtaining a final decision; and that the civil
infraction ticket is not a harm, because the proceedings have been stayed. Northville
claims that the ticket can still be appealed to the ZBA, although at oral argument it
contended that even that step would not result in a final decision because the local
authority would still have to determine exactly what Miles Christi would have to do to
conform its property to local ordinances. The town points out that Miles Christi has not
yet been subjected to any fines or criminal sanctions, and claims that Miles Christi
would not need to eliminate its religious activities, but merely needs to resolve the
parking problem associated with the activities. Finally, Northville disagrees that its
activities chilled Miles Christi’s speech.

I note, as a preliminary matter, that the Supreme Court has declined to apply the
finality requirement where further administrative avenues are available, if pursuit of
those avenues could not result in a remedy for past deprivation. Lucas, 505 U.S. at 1012.
In Lucas, a landowner sued the state for an unconstitutional taking when a new law made
development of his coastal property illegal. When the landowner filed his case, no
administrative avenues were available, but the state legislature changed the law while
his case was before the South Carolina Supreme Court, providing an avenue whereby
a state administrative body could issue special permits for construction in the otherwise
off-limits zone. Id. at 1011–12. Despite the state’s argument that, given the new
administrative avenues for relief, the landowner had not received a final decision, the
South Carolina Supreme Court decided the case on the merits. Id. at 1011. On appeal
to the United States Supreme Court, the state argued that the landowner’s claim was
No. 09-1618 Miles Christi Religious Order, et al. v. Page 22
Township of Northville, et al.

unripe under Williamson County because he had not applied for the special permit. The
Court disagreed, holding that the finality requirement did not apply to the plaintiff’s
claims because the special permits were available to allow future use of the landowner’s
property and, even if granted, an application for special permits could do nothing to alter
the fact that he had already suffered an undeniable deprivation of the use of his property.
Id.

In Murphy, the Second Circuit applied the finality requirement, holding that a
cease-and-desist letter, alone, was not sufficient to constitute an injury. The plaintiffs
held large Christian prayer meetings in their home, hosting between 10 and 60 persons
weekly. Murphy, 402 F.3d at 345. After the neighbors complained about the traffic,
number of cars, and noise from these gatherings, the town investigated and then sent an
informal letter to the plaintiffs, advising them that the large prayer meetings were not a
“customary accessory use in a single-family residential area.” Id. Two days later the
plaintiffs sued in federal district court. The town later sent a formal cease-and-desist
letter, which the plaintiffs incorporated into their amended complaint. The plaintiffs did
not appeal the cease-and-desist order or request a variance. The district court found for
the plaintiffs and issued an injunction against enforcement of the regulations. The
Second Circuit reversed. First, it held that the cease-and-desist order did not subject the
plaintiffs to an immediate injury. The town did not have the power to enforce the letter
by arrests or fines without taking the additional step of bringing an action in state court,
so there was no threat of immediate harm. Id. at 351. Also, an appeal of the order to the
zoning board would have yielded an automatic stay of enforcement.2 Next, the court
held that the record was insufficiently developed, and that further administrative actions
below would help to define it. Id. at 351–52. The court relied heavily on the zoning
board’s power under Connecticut law to find facts and apply zoning regulations to those
facts, and to review the town’s decision de novo. Id. at 352. Accordingly, the court

2
Whether this should have been considered against the plaintiffs is questionable. While
Williamson County’s holding was dependent on the local laws and the relative powers of local entities, it
was clear that a land-owner does not have to seek an appeal of an initial determinative decision. The
specific authority of the body that is “appealed to” is critical, as Williamson County explained by
differentiating between finality and exhaustion. See infra Part II.C.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 23
Township of Northville, et al.

applied the finality requirement, and because the plaintiffs did not request a variance or
appeal the cease-and-desist order to the zoning board, the court held that no final
decision had been rendered. Id.

In Insomnia, we held that the requirement to file a new plan is not an immediate
injury in the context of an administrative process voluntarily instigated by the plaintiff.
Insomnia, 278 F. App’x at 615-16. The plaintiff corporation alleged that the Land Use
Control Board (“LUCB”) denied its application to subdivide two parcels of land into
three out of hostility to the “adult entertainment” industry. The LUCB instructed
Insomnia Inc. to resubmit its application as a planned development instead of a
subdivision, which would allow closer regulation of the property. Id. at 611. Insomnia
Inc. appealed the denial to the Memphis City Council, was denied, and then sued in
federal district court claiming First and Fourteenth Amendment violations. Applying the
reasoning from Murphy, we held that (1) Insomnia did not suffer an immediate injury
because it could file a new plan per the LUCB’s instructions, and (2) that the possible
rejection of the new application would further refine the contours of Insomnia’s claims
and aid future judicial consideration. Id. at 615–16. We applied the finality requirement
to Insomnia’s claims, held that there was no final decision, and affirmed the district
court’s dismissal.

I believe that, taken in context of the record as a whole, Northville’s actions went
further than the actions of the municipal actors in either Murphy or Insomnia. Context
is vital in these cases because First Amendment rights are subject to close protection.
“The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976)
(Brennan, J., plurality opinion); Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009)
(same). One reason First Amendment rights are stringently protected is “‘the intangible
nature o[f] the benefits flowing from the exercise of those rights; and the fear that, if
those rights are not jealously safeguarded, persons will be deterred, even if
imperceptibly, from exercising those rights in the future.’” Newsome v. Norris, 888 F.2d
371, 378 (6th Cir. 1989) (quoting Cate v. Oldham, 707 F.2d 1176, 1188–89 (11th Cir.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 24
Township of Northville, et al.

1983)). “[C]onstitutional violations may [also] arise from the deterrent, or ‘chilling,’
effect of governmental regulations that fall short of a direct prohibition against the
exercise of First Amendment rights.” Laird v. Tatum, 408 U.S. 1, 11 (1972).

Miles Christi has alleged sufficient “immediate harms” that it would be
imprudent to apply the finality requirement to its claims. First, Miles Christi claims that
it cancelled a Bible study on account of the pretextual police surveillance. This alleged
harm occurred at a specific time in the past, and like the landowner’s takings claim in
Lucas, cannot be cured by a later administrative ruling. Second, it claims that
Northville’s threats to ticket cars parked on the grass and the potential for further civil
infraction tickets “chilled” the Order’s religious activities. This is likewise an immediate
harm to protected First Amendment activities.3

Third, Miles Christi paid $5000 for an engineering estimate. Although in
Insomnia we did not conclude that requiring the plaintiff to file a new development plan
was a harm, that case is distinguishable because there it was the plaintiff who sought a
change in use and voluntarily initiated the administrative process that then had to be
followed until a final decision was rendered. Here, Miles Christi desires only to use its
property as it always has and is allegedly being subjected to the review process on
pretextual grounds; it is Frey’s decision that necessitated this cost, and Miles Christi
therefore suffers an immediate harm if its theory of the case is borne out.

Finally, Frey’s decision put Miles Christi to the choice of submitting an
expensive site plan or drastically curtailing or ceasing its protected activities. When it
refused, it was ticketed, haled into state court, and now faces the potential of a civil fine.
As noted, this case is not like Insomnia, or most other land-use cases, because Plaintiffs
did not seek a change in use on their own and in fact claim that their use has not

3
These first two harms cannot be redressed by any relief that the ZBA may potentially provide.
The majority dismisses these harms as ones that can be cured by an appeal to the ZBA, which may resolve
the issue such that Miles Christi would not have to cancel any religious activities. Notwithstanding the
majority’s assertion, the ZBA’s hypothetical relief would do nothing to cure the past harms that Miles
Christi has already suffered. Thus, “the consequences of staying our hand” would be that Miles Christi’s
harms would never be redressed.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 25
Township of Northville, et al.

changed. It is also unlike Murphy, where the town had not yet taken the step of bringing
the plaintiffs to court in order to subject them to a civil penalty. Here, Northville has
tried to force Miles Christi into an expensive—and, Miles Christi claims,
unwarranted—site review process and haled it into state court when it refused. Miles
Christi has suffered immediate harm.

Miles Christi’s claim that Northville’s reasons are pretextual is supported by
Northville’s statement at oral argument that “football parties and tailgate parties” do not
change “the residential nature of the use; whereas, what they’re doing here, they’re
doing religious education and they’re worshipping.” When challenged by this Court
counsel retreated from that statement, and I do not rest my conclusions on it; neither,
however, can I simply ignore its troubling implications.

Because I would hold that Miles Christi has alleged sufficient immediate injuries,
I need not address whether requiring Miles Christi to pursue additional administrative
remedies would further define its allegations, and I would hold that the finality
requirement does not apply to its First Amendment claims.

C. Frey’s decision was “final”

In order to determine if Miles Christi’s remaining claims under equal protection,
due process, and RLUIPA are ripe, we must determine if Miles Christi has received a
final decision. I would hold that it has.4

As I have already noted, “the finality requirement is concerned with whether the
initial decisionmaker has arrived at a definite position on the issue that inflicts an actual,
concrete injury.” Williamson County, 473 U.S. at 192. The developer in Williamson
County sued the local land planning committee in a § 1983 action for an unjust taking
of its property by the application of various land-use regulations. Id. at 175. After the

4
I would further note that my conclusion on the First Amendment claims is supported by this
determination. See Lucas, 505 U.S. at 1012 n.3 (explaining that the plaintiff had received a final decision
after holding that the requirement did not apply to his claims); Guggenheim, 582 F.3d at 1011–12 (holding
that the prudential finality requirement did not apply, but noting that the conclusion was supported by the
fact that the plaintiffs “substantially satisfied the Williamson requirements”).
No. 09-1618 Miles Christi Religious Order, et al. v. Page 26
Township of Northville, et al.

developer received approval for a preliminary plat and spent considerable resources on
initial construction, the planning commission changed several applicable zoning
ordinances and applied those changes to the developer’s final plat applications. Id. at
177–79. These new regulations arguably rendered the project economically unfeasible.
The planning commission then rejected the revised plat on a number of grounds.
Although the Board of Zoning Appeals ruled in favor of the developer on appeal, the
planning commission declined to follow the Board’s ruling and rejected the final plat
application. Id. at 181–82. The owner then filed suit under § 1983. A jury found for the
developer, and the case was appealed all the way to the Supreme Court. The Court
reversed, holding the matter unripe. Id. at 186. While the Court based its decision on
two grounds, only the first, the finality requirement, is relevant here.5

Relying heavily on the specific local procedures, the Court held that the
developer had not obtained a “final decision” because it did not apply for available
variances from the Board or the commission. Id. at 188–89. Between the commission
and the Board, the developer could have pursued up to five variances, any or all of which
would have significantly ameliorated the commission’s eight objections to the plat. This
was critical because unless the developer applied for variances before submitting the plat
for approval, the commission could reject the plat on any grounds, including those that
could well be covered by variances. Id. at 190. Also, without knowing which
regulations would or would not ultimately apply, a court could not determine whether
the local rules would allow the developer to build his subdivision in an economically
feasible way, and therefore neither a court nor a jury could value the taking.

The Court was careful to distinguish “finality,” which was required, from
“exhaustion,” which was not. “[T]he finality requirement is concerned with whether the
initial decisionmaker has arrived at a definite position on the issue that inflicts an actual,
concrete injury . . . .” Id. at 193. Exhaustion, however, “generally refers to
administrative and judicial procedures by which an injured party may seek review of an

5
The second ground required the owners to “utilize the procedures Tennessee provides for
obtaining just compensation,” a requirement not applicable to this non-takings suit. Id. at 186.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 27
Township of Northville, et al.

adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise
inappropriate.” Id. To illustrate the difference, the Court provided several examples.
The developer would not have had to seek a declaratory judgment in state court to
challenge the zoning actions because such an action would “clearly [be] remedial.” Id.
at 193. “Similarly, [the developer] would not be required to appeal the Commission’s
rejection of the preliminary plat to the Board of Zoning Appeals, because the Board was
empowered, at most, to review that rejection, not to participate in the Commission’s
decisionmaking.” Id. These procedures “would result in a judgment whether the
Commission’s actions violated any of [the owner’s] rights. In contrast, resort to the
procedure for obtaining variances would result in a conclusive determination by the
Commission whether it would allow [the owner] to develop the subdivision in the
manner [the owner] proposed.” Id.

The Second Circuit has outlined four policy considerations that underlie the
finality requirement in land-use cases:

First, . . . requiring a claimant to obtain a final decision from the local
land use authority aids in the development of a full record. Second, . . .
only if a property owner has exhausted the variance process will a court
know precisely how a regulation will be applied to a particular parcel.
Third, a variance might provide the relief the property owner seeks
without requiring judicial entanglement in constitutional disputes . . . .
Finally, . . . federalism principles also buttress the finality requirement.
Requiring a property owner to obtain a final, definitive position from
zoning authorities evinces the judiciary’s appreciation that land use
disputes are uniquely matters of local concern more aptly suited for local
resolution.

Id. at 348 (internal citations omitted); see Insomnia, 278 F. App’x at 613 (citing Murphy
factors).6

6
Notwithstanding the unfortunate phrasing of the second policy consideration, that the owner
should “exhaust[] the variance process,” Murphy recognized Williamson County’s distinction between
finality and exhaustion. See Murphy, 402 F.3d at 349 (recognizing that Williamson County does not
require futile or remedial “exhaustion”).
No. 09-1618 Miles Christi Religious Order, et al. v. Page 28
Township of Northville, et al.

We have held plaintiff’s RLUIPA and equal protection claims unripe where the
plaintiff’s position before the local land use authority was undefined. Grace Cmty.
Church v. Lenox Twp., 544 F.3d 609, 618 (6th Cir. 2008) (hereinafter “Grace Church”).
In Grace Church, a local Christian church applied for a special use permit to operate a
residential facility. 544 F.3d at 611. The town granted the permit, but with several
restrictions. Id. When the commission investigated an alleged violation, the pastor
appeared before the commission but had no comment. Id. Faced with the one-sided
evidence, the commission revoked the permit, and the church did not seek
reconsideration, apply for a new permit, or appeal. Instead, it filed suit a year later in
federal district court claiming violations of RLUIPA and equal protection. The district
court dismissed for lack of ripeness, and we affirmed. Relying on Murphy’s policy
considerations, we found that the record was insufficiently developed because the church
was essentially silent during the local proceedings. Id. at 616. Furthermore, the church
had not availed itself of any of the available avenues for local relief, denying the town
the opportunity to render a final decision. Id. Therefore, we dismissed the suit as
unripe.

The district court held that because Miles Christi did not appeal Northville’s
decision to the ZBA or otherwise avail itself of the zoning process, it did not obtain a
final decision. Miles Christi responds that the district court confused exhaustion with
finality, that Frey was the initial decisionmaker as empowered by local regulations, and
that her testimony for Northville is determinative of Northville’s final position on the
matter under Fed. R. Civ. P. 30(b)(6). Northville argues that the ripeness doctrine
requires that Miles Christi obtain a decision from either the Planning Commission or the
ZBA. It further argues that Frey did not make a final decision, asserting instead that
Miles Christi’s actions triggered the events and Frey merely determined the next
procedural step under the regulations. Finally, Northville argues that the ZBA has
authority to modify, reverse, or affirm actions on appeal, and an appeal would not be
futile.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 29
Township of Northville, et al.

I again note that Northville and the majority improperly conflate Frey’s intensity
determination with the possible end result of the zoning process. Because the two issues
are distinct, and because Miles Christi focuses its complaint on the former, we must
focus on Frey’s decision and its effects. See also Suitum, 520 U.S. at 739 (distinguishing
the determination that the petitioner’s land fell within a protected zone from petitioner’s
possible option to apply for the right to transfer her building rights and focusing only on
the former). After analyzing the decision and its effects, we must then examine Miles
Christi’s available administrative options and determine whether each is part of
Northville’s process for arriving at “final decisions,” which would preclude a finding of
finality, or whether they are purely “remedial,” which would not. Just as Williamson
County was guided by the contours of the local rules, so is my analysis here.

At the meeting with Fr. Bertolacci, Frey informed him that she had determined
that Miles Christi’s use of its property had intensified to the point where it had become
a non-residential use. That determination was within her authority as Director of
Community Development. As a result, Northville demanded a site plan and issued a
civil infraction ticket when Miles Christi did not comply. As explained above, that ticket
had the effect of haling Plaintiffs into state court.

Following Frey’s determination and the issuance of the ticket, Miles Christi had
a number of administrative options available to it. First, the Order could have appealed
Frey’s decision requiring a site plan to the ZBA under Northville Code § 170-41.4(A).
This section allows for an “appeal” to the ZBA “by any person . . .affected by a decision
of the . . . Director of Community Development.” The ZBA would conduct a hearing,
and could reverse or modify the decision “only if it finds that the action or decision
appealed meets at least one of the following criteria: (a) [w]as arbitrary or capricious;
(b) [w]as based on an erroneous finding of fact; (c) [c]onstituted an abuse of discretion;
or (d) [w]as based on [an] erroneous interpretation of this chapter.” Id. at §170-
41.4(A)(3) (emphasis added). This option is remedial.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 30
Township of Northville, et al.

While the majority opinion attempts to paint this option as something else—an
“ordinance interpretation”—it is purely an “appeal,” similar to the appeal available to
the plaintiff in Williamson County, which the Supreme Court held the plaintiff did not
need to exhaust to have a final decision. Here, the ZBA was not involved in making the
initial decision and would be merely reviewing Frey’s decision.7 Although the ZBA’s
standard of review is not a dispositive factor, I would note that the review here would
likely not be de novo, as in Murphy, but would be done with some level of deference.
Miles Christi did not have to exhaust this option.

Second, Miles Christi could file with the Planning Commission a request for a
waiver from, or modification of, the parking and landscaping requirements under
Northville Code §§ 170-24.13 and 170-26.1(K), or seek a variance from the ZBA under
§§ 170.41.4(A)(5) and (6). It is unclear whether Miles Christi could request such relief
before filing a site plan, but given the review requirements that appears unlikely. It is
clear that these options have not been explored, and that a final decision on how the
parking and landscaping regulations would apply has not been reached. However, none
of these options can serve to modify Frey’s intensity determination. Instead, they are
remedial measures, designed to address only the consequences of Frey’s determination.
Miles Christi’s claim all along, however, has been that the intensity determination, itself,
was incorrect. These options, therefore, do not impact the finality of Frey’s intensity
determination, and Miles Christi did not have to exhaust them.

Finally, Miles Christi could file for permission from the Planning Commission
or the ZBA to file a less-demanding site plan. Article 33 covers site plans, and exempts
single family homes from having to submit one. Id. at § 33.2(A). The article, however,
requires a “full site plan,” not one of three less demanding options, when there is “[a]ny
change in the use of the land or a building to a more intensive use, in terms of parking
needs, noise, traffic volumes and similar impacts.” Id. at § 33.2 (table). This article

7
The majority opinion concludes, with minimal discussion of the local ordinances, that the ZBA
is “empowered to participate in the decisionmaking process from the outset.” A plain reading of the local
ordinances and the facts of this case show that conclusion to be clearly wrong.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 31
Township of Northville, et al.

does not appear to contain a provision for less extensive review. Regardless, this option
suffers from the same infirmity as the last, because Miles Christi would still be subject
to Frey’s decision that a more intensive use occurred, and even if the site plan
requirement were less rigorous, the Order would still have to participate in a process it
did not initiate or face the consequences for continuing its activities.

One thing Miles Christi could not do was file a request for a variance to be free
from the site plan requirement. After a thorough review of the regulations, I find no
variance listed in §170-41.4(B)8 that applies to this circumstance, nor is there any
“catch-all” clause. Even if a use variance could provide relief, in order to qualify for
such a variance Miles Christi would have to show that “the site cannot reasonably be
used for any of the uses allowed under current zoning,” something it clearly could not
do. Id. at § 170-41.4(B)(6)(b). Applying for such a variance would be futile, as the
ZBA does not have the authority to alter any of the terms of the ordinance. Id. at § 170-
41.6.

Given these available options, I would hold that, while Miles Christi has not
exhausted its opportunities for administrative relief, it has obtained a final decision
sufficient to ripen its claims. Frey, the initial decisionmaker, was empowered as the
Director of Community Development to make the decision she did for Northville. That
decision is subject to local appeal, but exhausting appeals is not required under
Williamson County. Other available actions would not change Frey’s decision that Miles
Christi’s use of the property had become more intensive. Therefore, “the initial
decisionmaker has arrived at a definite position on the issue that inflicts an actual,
concrete injury,” and Miles Christi has obtained a final decision.

This result is supported by Murphy’s policy considerations, because (1) the
record on the narrow question is sufficient, (2) the regulation is being applied to this
parcel to require a site plan, and (3) the available variances do not provide the requested

8
The majority opinion repeatedly refers to the obligation of Miles Christi to seek “an ordinance
interpretation or variance” yet, tellingly, never identifies a single ordinance interpretation or variance
available to Miles Christi. The reason for this omission is simple—none exists.
No. 09-1618 Miles Christi Religious Order, et al. v. Page 32
Township of Northville, et al.

relief. The fourth factor, the respect for federalism, which is particularly strong in local
land-use situations, does not support this conclusion, but no single factor is dispositive.

Frey’s allegedly unwarranted decision also distinguishes this case from Grace
Church. Unlike in that case, where the Church had sought the special permit and then
refused to cooperate in developing a full record, Frey’s decision thrust the site review
requirement upon Miles Christi. The fact that Miles Christi did not participate in the
process is irrelevant here because the very question before us is whether it can be forced
to. Also, the parties developed a full record of the events leading up to Frey’s decision
in state court. The parties’ positions are well defined and ready for adjudication.

Because Miles Christi suffered an immediate injury, the finality requirement does
not apply. Even if it did, Miles Christi has obtained a final decision from the initial
decisionmaker. I turn, finally, to the general ripeness standards to ensure that they are
also satisfied.

D. Miles Christi’s claim satisfies general ripeness requirements

As stated above, the general test for ripeness has been articulated as “two basic
questions: 1) is the claim fit for judicial decision in the sense that it arises in a concrete
factual context and concerns a dispute that is likely to come to pass? and (2) what is the
hardship to the parties of withholding court consideration?” Warshak v. United States,
532 F.3d 521, 526 (6th Cir. 2008) (en banc) (internal alterations, quotation marks, and
citation omitted).

Given the foregoing discussion and the substantial overlap in the inquiries, I
conclude that these factors are satisfied. The concrete factual context is Northville’s
conduct, Frey’s intensity determination, and the resulting harms alleged by Miles Christi.
Because the majority withholds judicial consideration, Miles Christi will have no
recourse but to engage in the zoning process it did not initiate and argues was unlawfully
required, and which cannot provide a complete remedy, or to cease or scale back its
religious activities in the hope of avoiding future problems. Even the latter approach,
No. 09-1618 Miles Christi Religious Order, et al. v. Page 33
Township of Northville, et al.

however, will not prevent Miles Christi from being fined in the already progressing state
court suit. Accordingly, I would hold that Miles Christi’s claims are ripe, and that the
district court erred in dismissing them.

III.

I would reverse the district court’s dismissal for lack of subject matter
jurisdiction and remand for further proceedings. Accordingly, I respectfully dissent.