United States District Court, D. Maryland
CONGREGATION ARIEL RUSSIAN COMMUNITY SYNAGOGUE, INC., et al., Plaintiffs,
BALTIMORE COUNTY, et al., Defendants.
L. RUSSELL, III UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants Baltimore County,
Maryland (the “County”) and the Board of Appeals
of Baltimore County, Maryland's (the
“Board”) Motion to Dismiss or for Summary Judgment
(ECF No. 7) and Motion to Drop the Board of Appeals as a
Defendant Under Counts V, VI, VII, VIII, and IX (the
“Motion to Drop”) (ECF No. 12). This suit arises
out of the Board's denial of Plaintiffs Congregation
ARIEL Russian Community Synagogue, Inc.'s
(“ARIEL”) proposed plan to build a synagogue and
make a home for Plaintiff Rabbi Vevel Belinsky. The Motions
are ripe for disposition, and no hearing is necessary.
See Local Rule 105.6 (D.Md. 2016). For the reasons
outlined below, the Court will grant in part and deny in part
the Motion to Dismiss and deny without prejudice the Motion
wants to provide a synagogue for its congregation and
residence for Rabbi Belinsky on their property in Pikesville,
Maryland. (Compl. ¶¶ 40, 88-89, ECF No. 1). In
2014, ARIEL purchased approximately three acres of property
located at 8420 (Lot 3), 8430 (Lot 3A), and 8432 (Lot 3B)
Stevenson Road, Pikesville (the “Property”) as
the location for its synagogue and home for Rabbi Belinsky.
(Id. ¶ 88). A 2, 000 square foot barn and 2,
381 square foot two-story house are currently located on the
Property. (Id. ¶¶ 92, 109). ARIEL plans to
raze the barn and construct a synagogue in its place.
(Id. ¶¶ 110-13). ARIEL would maintain the
house as a parsonage for Rabbi Belinsky. (Id.
¶¶ 40, 111).
Property is zoned D.R.1 (Density Residential 1) and R.C.5
(Rural Conservation/Rural Residential). (Id.
¶ 90). Both D.R.1 and R.C.5 zoning districts authorize a
place of worship as a permitted use. (Id. ¶
91). The Property is, however, subject to various other
zoning constraints set forth in the Baltimore County Zoning
Regulations (“BCZR”), including Residential
Transition Area use restrictions (“RTA
Regulations”) and Final Development Plan regulations
(“FDP Regulations”). (Id. ¶¶
145, 163, 181). The FDP Regulations provide “another
overlay of zoning regulations on top of the general use
regulations and RTA [R]egulations.” (Id.
¶ 182). The BCZR states that once a Final Development
Plan (“FDP”) has been approved, the lot cannot be
used, nor can any construction take place, that is
inconsistent with the FDP. (Id. ¶ 184). The
BCZR sets forth procedures for amending an FDP. (Id.
Property is governed by an FDP that was approved on February
16, 2006. (Id. ¶¶ 186, 205). The FDP
covered Lot 3, and because ARIEL wanted to consolidate Lots
3, 3A, and 3B, it filed a Petition for a Special Hearing with
the Office of Administrative Hearings for Baltimore County,
Maryland in April 2015. (Id. ¶¶ 205-06,
243). ARIEL's Petition sought: (1) “permission to
locate the synagogue within the D.R.1 zone”; (2)
“a finding that the plan complied with the RTA
[Regulations] for a ‘new church'”; and (3)
“confirmation that the existing home on the Property
could remain as a parsonage.” (Id. ¶
243). On June 3, 2015, Kenneth and Jessamyn Abel, the owners
of 8418 Stevenson Road, which is located next to the
Property, also filed a Petition for a Special Hearing.
(Id. ¶¶ 97, 248). The Abels sought a
decision regarding whether ARIEL's Petition complied with
the requirements for amending an FDP. (Id.) In June
2015, the Administrative Law Judge (“ALJ”)
presiding over ARIEL's and the Abels' Petitions
consolidated the Petitions. (Id. ¶ 249).
ALJ, acting as Zoning Commissioner, held eight days of
hearings on the Petitions between June 2015 and January 2016.
(Id. ¶ 251). On January 12, 2016, the ALJ
issued his decision. (Id. ¶ 259). The ALJ
concluded that ARIEL's proposed improvements
“largely complied” with the RTA Regulations, but
that they did not comply with the requirements for amending
an FDP. (Id. ¶¶ 260-63, 265). Accordingly,
the ALJ denied the FDP amendment. (See id. ¶
January 14, 2016, ARIEL filed its appeal with the
Board. (Id. ¶ 268). The Board held
ten separate hearings on ARIEL's appeal spanning from May
2016 to January 2017. (Id. ¶¶ 270-71).
During the hearings, ARIEL informed the Board of “its
obligations” to avoid violating the Religious Land Use
and Institutionalized Persons Act (“RLUIPA”) in
deciding ARIEL's Petition. (Id. ¶ 354). On
January 4, 2017, the Board rendered its decision on the
Petitions. (Id. ¶ 281). The Board concluded
that ARIEL's proposed improvements did not comply with
the RTA Regulations or the requirements for amending the FDP.
(Id. ¶¶ 284, 304). The Board also
addressed RLUIPA's nondiscrimination provisions, but
“ignored its substantial burdens provisions.”
(Id. ¶¶ 354, 360-61). The Board's
decision prevents the Plaintiffs from developing and using
the Property as a synagogue. (Id. ¶¶ 284,
Relevant Procedural History
April 4, 2017, Plaintiffs filed their
eight-count Complaint, asserting the following Counts:
(1) Violation of RLUIPA “Substantial Burdens, ”
42 U.S.C. § 2000cc(a) (2018) (Count I); (2) Violation of
RLUIPA “Nondiscrimination, ” 42 U.S.C. §
2000cc(b)(2) (Count II); (3) Violation of RLUIPA “Equal
Terms, ” 42 U.S.C. § 2000cc(b)(1), (Count III);
(4) Violation of the Fair Housing Act (“FHA”), 42
U.S.C. § 3604 (2018) (Count V); (5) Violation of the
Free Exercise Clause of the First Amendment to the United
States Constitution (Count VI); (6) Violation of the Equal
Protection Clause of the Fourteenth Amendment to the United
States Constitution (Count VII); (7) Violation of Due Process
Clause of the Fourteenth Amendment to the United States
Constitution (Count VIII); and (8) Violation of Article 36 of
the Maryland Declaration of Rights (Count IX). (Id.
¶¶ 418-26). All federal constitutional violations
are brought under 42 U.S.C. § 1983 (2018). (Id.
¶¶ 408-23). Plaintiffs seek declaratory and
injunctive relief, as well as compensatory damages and
attorney's fees. (Id. at 51- 52).
3, 2017, Defendants filed a Motion to Dismiss or for Summary
Judgment (ECF No. 7). Plaintiffs filed an Opposition on May
17, 2017. (ECF No. 9). On May 31, 2017, Defendants filed a
Reply. (ECF No. 10).
1, 2017, Defendants filed a Motion to Drop the Board of
Appeals as a Defendant Under Counts V, VI, VII, VIII, and IX.
(ECF No. 12). On June 14, 2017, Plaintiffs filed their
Opposition. (ECF No. 17). To date, the Court has not received
The Board's Final Opinion and Order
March 5, 2018, while the instant Motions were pending, the
Board issued its 132-page written Opinion and Order. (Suppl.,
ECF No. 24). The Opinion and Order largely confirms the
Board's January 4, 2017 decision. In its Opinion and
Order, the Board denied ARIEL's Petition to construct a
synagogue on the Property. (Id. at 120). It
concluded that ARIEL's proposed improvements would
violate RTA Regulations and that the proposed FDP amendment
did not comply with FDP Regulations. (Id. at 71, 80-
81, 93). The Board also determined that if converted to a
parsonage for Rabbi Belinsky, the existing house would
violate RTA Regulations. (Id. at 59-61). Finally,
although the Board acknowledged that neither ARIEL's
Petition nor the Abels' Petition raised RLUIPA, it
nevertheless concluded that its decision did not violate
RLUIPA's substantial burdens provisions. (Id. at
94-114). Finally, the Board concluded that the RTA and FDP
Regulations do not violate the constitution. (Id. at
Motion to Drop
move to drop the Board as a Defendant as to Counts V, VI,
VII, VIII, and IX of the Complaint (the “non-RLUIPA
Counts”) under Federal Rule of Civil Procedure 21.
Defendants argue that the Board is not an independent legal
entity subject to suit under the non-RLUIPA Counts. The Court
provides, in pertinent part: “On motion or on its own,
the court may at any time, on just terms, add or drop a
party.” The decision to grant or deny a Rule 21 motion
“lies in the discretion of the judge.” Hunt
Valley Baptist Church, Inc. v. Balt. Cty.
(HVBC), No. ELH-17-804, 2017 WL 4801542, at *12
(D.Md. Oct. 24, 2017) (quoting C. Wright & A. Miller,
Federal Practice & Procedure (3d ed.) §
1688, at 505)).
HVBC, a case decided while Defendants' Motion
was pending, the same defendants-the County and the
Board-moved to drop the Board as a party to the federal
constitutional counts, a state constitutional count, and
judicial review count, but not the plaintiff's RLUIPA
counts. Id. at *12, 1. There, the County
and the Board argued that the Board is not an independent
legal entity subject to suit. Id. at *12. In support
of their argument, they pointed to the language of § 103
of the Baltimore County Charter, which requires all lawsuits
to be brought against the County. Id.
HVBC, Judge Hollander discussed Prince
George's Cty. v. Skillman, 2017 WL 2981871
(Md.Ct.Spec.App. July 13, 2017) (unpublished), in which the
Court of Special Appeals of Maryland concluded that the
Prince George's County Department of Planning,
Inspection, and Enforcement (“DPIE”), was not an
independent entity subject to suit based on the Prince
George's Charter's language the creating the agency.
HVBC, 2017 WL 4801542, at *13 (citing
Skillman, 2017 WL 2981871, *3-4). The Court
acknowledged that the language in the Prince George's
County Charter contains similar language to § 103 of the
Baltimore County Charter. Id. The Court then
noted, however, that “the Board and its counterparts in
other jurisdictions have been sued.” Id.
(collecting cases). Finally, the Court cited the
plaintiff's acknowledgement at oral arguments that
“whether the Board remains a named defendant is
seemingly of no significant consequence.” Id.
at *13. Ultimately, the Court denied the motion without
prejudice because a Maryland statute, § 10-305 of the
Local Government Article, expressly authorizes the creation
of the Board. Id. at *13.
case, Defendants move to drop the Board as to all non-RLUIPA
Counts. Like HVBC, the non-RLUIPA Counts include
alleged violations of the First Amendment's Free Exercise
Clause, the Equal Protection Clause, the Due Process Clause,
and Article 36 of the Maryland Declaration of
Rights. Compare id. at *1, 12,
with (Compl. ¶¶ 418-26). Defendants here
advance the exact same argument and cite to Baltimore County
Charter § 103, as in HVBC. Compare
HVBC, 2017 WL 4801542 at *12, with (Mem. Supp.
Defs.' Mot. Drop at 1-3, ECF No. 12-1). The Court has not
held oral arguments in the present case, but Plaintiffs note
in their Opposition that the absence of the Board as a party
would not prevent them from obtaining the relief sought.
(Pls.' Mem. Opp'n Defs.' Mot. Drop at 5 n.2, ECF
No. 17). Because this case is factually and legally analogous
to HVBC and the Court agrees with HVBC's
well-reasoned decision, the Court will deny Defendants'
Motion to Drop without prejudice.
Motion to Dismiss or for Summary Judgment
Conversion of Defendants' Motion
brief, the Court concludes that it will not covert
Defendants' Motion into one for summary judgment.
style their Motion as a motion to dismiss under Rule 12(b)(6)
or, in the alternative, for summary judgment under Rule 56. A
motion styled in this manner implicates the Court's
discretion under Rule 12(d). See Kensington Volunteer
Fire Dep't., Inc. v. Montgomery Cty., 788 F.Supp.2d
431, 436-37 (D.Md. 2011), aff'd, 684 F.3d 462
(4th Cir. 2012). This Rule provides that when “matters
outside the pleadings are presented to and not excluded by
the court, the [Rule 12(b)(6)] motion must be treated as one
for summary judgment under Rule 56.” Fed.R.Civ.P.
12(d). The Court “has ‘complete discretion to
determine whether or not to accept the submission of any
material beyond the pleadings that is offered in conjunction
with a Rule 12(b)(6) motion and rely on it, thereby
converting the motion, or to reject it or simply not consider
it.'” Wells-Bey v. Kopp, No. ELH-12-2319,
2013 WL 1700927, at *5 (D.Md. Apr. 16, 2013) (quoting 5C
Wright & Miller, supra, § 1366, at 159).
United States Court of Appeals for the Fourth Circuit has
articulated two requirements for proper conversion of a Rule
12(b)(6) motion to a Rule 56 motion: notice and a reasonable
opportunity for discovery. See Greater Balt. Ctr. for
Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d
264, 281 (4th Cir. 2013). When the movant expressly captions
its motion “in the alternative” as one for
summary judgment and submits matters outside the pleadings
for the court's consideration, the parties are deemed to
be on notice that conversion under Rule 12(d) may occur.
See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md.
2005). The Court “does not have an obligation to notify
parties of the obvious.” Laughlin v. Metro. Wash.
Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).
summary judgment is inappropriate when “the parties
have not had an opportunity for reasonable discovery.”
E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 448 (4th Cir. 2011). Yet, “the
party opposing summary judgment ‘cannot complain that
summary judgment was granted without discovery unless that
party had made an attempt to oppose the motion on the grounds
that more time was needed for discovery.'”
Harrods Ltd. v. Sixty Internet Domain Names, 302
F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir.
1996)). To raise sufficiently the issue that more discovery
is needed, the non-movant must typically file an affidavit or
declaration under Rule 56(d), explaining the “specified
reasons” why “it cannot present facts essential
to justify its opposition.” Fed.R.Civ.P. 56(d). A Rule
56(d) affidavit is inadequate if it simply demands
“discovery for the sake of discovery.”
Hamilton v. Mayor of Balt., 807 F.Supp.2d 331, 342
(D.Md. 2011) (citation omitted). A Rule 56(d) request for
discovery is properly denied when “the additional
evidence sought for discovery would not have by itself
created a genuine issue of material fact sufficient to defeat
summary judgment.” Ingle ex rel. Estate of Ingle v.
Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (quoting
Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d
943, 954 (4th Cir. 1995)).
Plaintiffs oppose conversion of Defendants' Motion to one
for summary judgment because the parties have yet to engage
in discovery. To support their position, Plaintiffs submitted
a Rule 56(d) affidavit from Attorney Blair Lazarus Storzer
(the “Storzer Declaration”). (Storzer Decl., ECF
No. 23). Defendants argue that the Storzer
Declaration fails to comply with Rule 56(d)'s requirement
that an affidavit set forth “specified reasons”
as to why more discovery is needed. The Court disagrees with
Declaration lists multiple items for which Plaintiffs seek
additional discovery with the sufficient specificity. For
example, Storzer avers that Plaintiffs need discovery
regarding, among other things: “The existence and
regulation of religious land uses within Baltimore
County's jurisdiction”; and “Plaintiffs'
property in Baltimore County and the history of the use and
development of the same.” (Storzer Decl. ¶ 5). To
be sure, some of the items listed in the Storzer Declaration
may not be material to Plaintiffs' claims, but Plaintiffs
are entitled to any discovery relevant to their claims.
See Adams Hous., LLC v. City of Salisbury, 672