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Andon, LLC v. City of Newport News

United States District Court, E.D. Virginia, Newport News Division

November 20, 2014


Page 631

For Andon, LLC, Reconciling People Together In Faith Ministries, LLC, Plaintiffs: Michael Bruce Ware, LEAD ATTORNEY, Adrienne Michelle Sakyi, Schempf & Ware, PLLC, Yorktown, VA.

For The City of Newport News, Virginia, Defendant: Darlene Paige Bradberry, LEAD ATTORNEY, City of Newport News, City Attorney's Office, Newport News, VA.

Page 632


Robert G. Doumar, Senior United States District Judge.

Plaintiffs, Andon, LLC (or " Andon" ) and Reconciling People Together in Faith Ministries, LLC (" the Congregation" ) (collectively, " Plaintiffs" ), filed this suit against the City of Newport News (" Newport News" or " the City" ) alleging a violation of the Religious Land Use and Institutionalized Persons Act (" RLUIPA" ). This claim arose after the City denied Plaintiffs' application for a zoning variance to operate a church at a property located in Newport News. In response, the City filed a Motion to Dismiss for lack of standing and failure to state a claim. On November 12, 2014, the parties appeared before the Court and argued their respective positions. At that hearing, the Court took the matter under advisement. For the reasons set forth below, the Court hereby GRANTS the City's Motion to Dismiss with prejudice.


The following summary is taken from factual allegations contained in Plaintiffs' Complaint, which, for purposes of ruling on the instant Motion to Dismiss, the Court accepts as true.[1]

Formed in June 2012, the Congregation is a small, local religious organization native to Newport News. Initially, the Congregation held its meetings at a local business owned by its pastor. However, the Congregation soon decided that this location did not have the " appropriate size or amenities" to continue to use the site as a meeting place. Compl. ¶ 23; Compl. Ex. D. ¶ 5.[2] After looking at " other locations" for a worship space, the Congregation became interested in 6212 Jefferson Ave, Newport News, Virginia 23605 (the " Property" ). Compl. Ex. D. ¶ 7.

Owned by Andon, LLC, the Property is a 12,503 square foot lot with a small parking lot and single brick building. It is bordered by South Avenue on the north side, a residential lot on the east side, a large government drainage ditch on the south side, and Jefferson Avenue on the west side. The Property has a zoning designation of C1.[3] This zoning district

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only supports the use of a church or similar place of worship if the property meets certain conditions. Under the Code of Ordinances for the City of Newport News (" Newport News Code" ), which governs the applicable procedures for zoning in the City, using a C1 property as a place of worship is a permitted use only if:

(a) access is provided from a public street directly to the property;
(b) no use is operated for commercial gain;
(c) no building or structure, nor accessory building or structure is located within one hundred (100) feet of any side or rear property line which is zoned single-family residential; and,
(d) any parking lot or street serving such use is located twenty-five (25) feet or more from a side or rear property line zoned single-family residential.[4]

Newport News Code § 45-519. Although the physical contours of the Property satisfy conditions (a), (b), and (d), the Property violates subsection (c). The Property's building is located within one hundred (100) feet from the side and rear property line of three neighboring properties that are zoned single-family residential. Specifically, the Property's building is thirty-three (33) feet from side the property line of 706 South Avenue, eighty (80) feet from the side property line of 708 South Avenue, and eight-five (85) feet from the rear property line of 703 Wilcox Avenue. Nonetheless, the Congregation remained interested and, on November 28, 2012, entered into an agreement with Andon to lease the Property contingent on receiving the " requisite City approval" to operate a church on the Property. Compl. ¶ 24.

After signing the lease, initial conversations with the City's Zoning Administrator revealed that the City would reject an application for a zoning variance to use the Property as a church. Nevertheless, on March 4, 2013, Andon filed a variance application with Newport News Board of Zoning Appeals (the " Board" ) to operate a church on the Property. On April 9, 2013, staff from the Newport News Department of Codes Compliance (" the Department" ) filed a Staff Report with the Board recommending the denial of Andon's application. The Department referenced the Newport News Code, which stated that the Board " shall not authorize a variance" unless it finds:

a. That the strict application of this ordinance would produce undue hardship relating to the property.
b. That such hardship is not shared generally by other properties in the same zoning district and in the same vicinity.
c. That the authorization of such variance will not be of substantial detriment to adjacent property and that the character of the zoning district will not be changed by the granting of such variance.

Newport News Code § 45-3203(c)(2) (emphasis added). After reviewing the facts, the Department found that Andon failed to meet the standards for a variance because it failed to establish " undue hardship" existed

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when " the property may be used without the variance approval." [5] Compl. Ex. E at 4. After a public hearing on April 16, 2013, the Board adopted the Department's recommendation and voted 3-1 to deny the variance " due to the applicant not demonstrating an undue hardship." [6] Compl. Ex. F.

Subsequently, Andon appealed the Board's decision. On October 11, 2013, the Newport News Circuit Court (the " Circuit Court" ) heard Andon's appeal. On November 1, 2013, the Circuit Court affirmed the Board's decision. In a written opinion, the Circuit Court relied on three grounds for its decision. First, the court found that there were a " multitude of by-right uses available to the owner of the property that do not require a one-hundred (100) foot building set-back from single family residential zoned property." Compl. Ex. G ¶ 3. Second, the court pointed out that any hardship was " shared generally by other properties" as " [t]here exist other properties along the Jefferson Avenue corridor and connecting side streets, that are zoned C1-Retail Commercial and are bordered by R4-Single Family Residential property." Id. ¶ 4. Finally, the court concluded that " because of the characteristics and effects of a [ sic ] church use and the likelihood that such characteristics and effects are incompatible with a close proximity . . . to single family residential uses of property" the " variance application would be substantially detrimental to adjacent single family residential property." Id. ¶ 5.

From these facts, Plaintiffs brought suit against the City claiming that the City's denial of the variance violated RLUIPA. The City ...

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