The Real Deal - Summer 2010

Date: June 23, 2010

Trinity Assembly of God v. People's Counsel for Baltimore County
Maryland's Highest Court Weighs in on Religious Land Use Statute
by Peter W. Sheehan Jr.

In 1802, Thomas Jefferson wrote in a letter to the Danbury Baptists that the American people have "declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State." It is doubtful that Jefferson had in mind the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C.A. ยงยง 2000cc et seq., when he wrote those famous words, but the irony of his use of a construction metaphor should not be lost on anyone familiar with the statute and the growing body of court decisions interpreting it. In essence, the statute, RLUIPA for short, prohibits local authorities from implementing land use regulations in a manner that imposes a substantial burden on a person's or group's religious exercise, unless doing so is the least restrictive means of advancing a compelling government interest.

For churches, synagogues, mosques, and other religious affiliations, and the communities in which they are located, RLUIPA presents difficult and controversial questions about where to draw the line between the prohibition against government hindrance of religious liberty on one end of the spectrum, and against government favoritism of certain religious groups on the other end. In Trinity Assembly of God v. People's Counsel for Baltimore County, 407 Md. 53, 962 A2d 404 (2008), the Maryland Court of Appeals weighed in on the matter, providing some guidance for local zoning authorities grappling with those issues.

Some background on RLUIPA is helpful. Congress enacted the statute in 2000 as a response to Supreme Court rulings interpreting the First Amendment, which some members of Congress believed permitted state and local governments to unfairly erode religious liberties. Congress feared that neutral laws, which were not designed to inhibit a particular group's religious exercise, nevertheless could have that effect when applied. Congress found that two areas of the law were particularly vulnerable to intentional and unintentional erosions of religious liberties by state and local governments: land use and the treatment of incarcerated persons. Congress therefore limited RLUIPA's reach to those two areas, hence its name. While RLUIPA's implications for institutionalized persons also present a host of interesting, complex issues, they are beyond the scope of this article.

In the land use context, RLUIPA is triggered when a state or local government limits a person's or group's ability to use or develop land for religious purposes in any one of three situations: 1) when the state or local government is administering a program that receives Federal funding, 2) when the limit imposed affects inter-state commerce, or 3) as is most often the case, when an agency, such as a zoning board, makes an "individualized assessment" about the person's or group's use or development of the property, for instance when considering a petition for a variance. If any of these circumstances exist, RLUIPA prohibits the state or local government from intentionally or unintentionally imposing a substantial burden on the person's or group's use or development of the property for religious purposes, unless doing so is the least restrictive means of advancing a compelling government interest. Zoning authorities and courts applying RLUIPA, however, must resolve whether a given land use limitation constitutes a "substantial burden" and, if necessary, what constitutes a "compelling government interest" and the least restrictive means of advancing that interest.

In Trinity the Maryland Court of Appeals, addressing RLUIPA for the first time, articulated a test for what constitutes a "substantial burden" under the statute, providing some guidance for zoning boards, religious groups, and others affected by the statute. In that case, a Baltimore County church sought a variance from the county's Zoning Code, which limited the size of identification signs to twenty-five square feet. The church wished to erect a two-hundred and fifty square-foot sign facing the Baltimore Beltway, and have a large part of the sign's face appear as electronic changeable type. The County Board of Appeals denied the variance on the basis that the church failed to demonstrate, as required by the generally-applicable law of variances, that the property itself was unique and that compliance with the county's sign size law would work a "practical difficulty" on the use of the property. The church responded that the denial of the variance violated RLUIPA. Specifically, the church complained that the denial of the variance imposed a substantial burden on the church's use of its property for religious purposes, because its congregation believed strongly in evangelizing and the requested sign would allow the church to spread scripture verses and uplifting messages and identify itself to would-be parishioners travelling the Beltway. The Board of Appeals rejected the church's RLUIPA argument, finding that its denial of the variance did not impose a substantial burden on the church. The church then appealed to the Circuit Court for Baltimore County, which affirmed the Board. Ultimately, the state's highest court agreed to hear the church's case.

The Court of Appeals looked to other federal and state courts around the country to aid it in fashioning a workable judicial standard for determining what constitutes a "substantial burden" on the use or development of land for religious purposes. The Court then explained that, in order to constitute a substantial burden in a RLUIPA analysis, the land use regulation at issue, or the zoning authority's interpretation of it, must have the effect of leaving "the aggrieved religious institution without a reasonable means to observe a particular religious precept." The Court elaborated that, "if [ ] the religious institution may adhere to that precept through some viable alternative mode, the land use regulation . . . is not a substantial burden on religious exercise, even though it may make that exercise more difficult or expensive." Applying this standard, the Court affirmed the decision of the County Board of Appeals. The Court credited the Board's conclusion that the church had at its disposal numerous means of evangelizing, advertising, and reaching out to the public. In addition, the church already had on its property two identification signs that complied with the applicable size limitation. The Court noted that one such sign could have electronic changeable type, allowing the church to evangelize to some extent with the sign (albeit to an audience smaller than the one it could reach if it had its desired sign overlooking the Beltway).

Time will tell how local zoning authorities and courts in Maryland administer the Court of Appeals's definition of "substantial burden" under RLUIPA; however, because what constitutes a substantial burden is generally a case-specific inquiry, there is fertile ground for dispute when a religious organization seeks to develop or use its property in a way that is unpopular with the surrounding community. Furthermore, because the Court of Appeals in Trinity affirmed the Board's conclusion that denial of the church's requested variance did not rise to the level of a "substantial burden," the Court declined to consider whether the Board's denial of the variance was the least restrictive means of advancing a compelling government interest and, therefore, did not provide any guidance in that regard. Thus, it appears for now that RLUIPA's effect on land use and development in Maryland is still in a nascent stage.

Landlord's Remedies for a Tenant's Failure to Pay Rent Under Maryland Law
by Erin O'Brien Millar and Christopher B. Lord

The most common default under a lease necessitating legal action is a tenant's failure to pay rent. Other common defaults include tenants abandoning premises before the end of the lease term, tenants "holding over" by refusing to vacate at the end of the lease term, non-tenants occupying the premises, and tenants breaching material, non-economic lease provisions. When a tenant fails to pay rent, the tenant is liable for breach of contract. One of the landlord's most important remedies when a tenant fails to pay rent or commits another serious default is to evict the tenant. Maryland law has special statutory provisions that allow for expedited eviction proceedings and, in some instances, the expedited entry of a money judgment. (While the actual time period will vary based on the facts of the case and the jurisdiction in which the premises are located, normally an eviction can occur within 4-8 weeks of the landlord's initial filing of a "rent court" complaint.) This article discusses these procedures and a landlord's other litigation options upon a breach of the lease for failure to pay rent.

Filing a "Rent Court Action"
If the tenant remains in the leased premises and has failed to pay the rent and the landlord wants to evict the tenant, the landlord can institute a "rent court" action. The landlord need only file a form "Failure to Pay Rent" complaint, setting forth basic information, such as the location of the premises, monthly rental amount, and the amount of rent and late fees that are outstanding. The complaint must be filed in the jurisdiction in which the premises are located. Upon filing, the sheriff will post the complaint and summons on the premises. At trial, the court will determine the amount of rent which is owed and award possession of the premises to the landlord (assuming the tenant does not have a defense to the obligation to pay rent). (Note, if the tenant has vacated the leased premises and the landlord has already regained possession, the Rent Court no longer has jurisdiction and the landlord can only file a collection action to collect the unpaid rent, as described below.)

After trial, the losing party has four days to note an appeal. If neither party appeals, the landlord may request the sheriff to evict the tenant by filing a Petition for Warrant of Restitution within 60 days of obtaining the judgment. In most jurisdictions, the actual eviction will generally occur around 2-4 weeks after trial. (In some jurisdictions, however, the eviction can take up to three months following trial.) After the court processes the warrant and sends it to the sheriff's office, the procedures vary by jurisdiction, but normally the sheriff's office will contact the landlord's agent to pick an eviction date (although in practice the landlord often needs to contact the sheriff's office directly). On the actual eviction date, the landlord is ordinarily obligated to have movers on hand to remove all of the tenant's possessions to the street, and then to dispose of them if the tenant does not retrieve them from the street.

The Right to Redemption
At any time prior to execution of the eviction order, the tenant may redeem the premises by tendering payment, in cash or certified funds, of the amount found to be due by the court. This right to redeem can be revoked if the landlord has obtained three judgments (four in Baltimore City) against the tenant in the previous year.

Money Judgments
Eviction is not the only remedy available to the landlord when a tenant defaults. The landlord may want to get a money judgment against the tenant and/or any guarantor of the lease, either as part of a Rent Court Action or in a separate collection proceeding.

The landlord may be able to obtain a money judgment for unpaid rent currently due, late fees and, if the lease allows, attorneys' fees, against a commercial tenant in a Rent Court Action. There are virtually no other judicial proceedings that allow a plaintiff to obtain a final money judgment in as little as two weeks after filing a complaint. In order to obtain a money judgment, the landlord must follow certain procedural rules. Most importantly, in order to obtain in a money judgment, the landlord must obtain valid service of process before the trial date. Given the swiftness of Rent Court Actions, service must be accomplished quickly. While Maryland law allows the court to award a money judgment if proper service is obtained, such award is not mandatory. Some judges are hesitant to enter a money judgment for a substantial amount of money, especially when the tenant has only had a few days' notice of the litigation or if the tenant raises defenses.

The ability to obtain a money judgment in a Rent Court Action is limited, however. First, the Rent Court will only award a money judgment for the rent due through the date of trial; a landlord cannot obtain "future rent" or liquidated damages for rent coming due past the trial date. If the landlord wants to collect "future rent," it will have to file a separate collection action. Second, guarantors cannot be sued in Rent Court; thus, if the landlord wishes to pursue collection against a guarantor, the landlord will need to file a separate collection action in either District Court or Circuit Court, depending on the amount of rent sought by the landlord (such an action is normally joined with an action against the tenant for "future rent"). A landlord may also choose to file a collection action if the landlord does not wish to evict the tenant for business reasons but rather simply wants to get a judgment for the amount of rent that is owed. Unlike Rent Court Actions, collection actions are not subject to the expedited trial schedule available for eviction actions, so it takes substantially longer to obtain a judgment (typically 3-6 months in the District Court and a year or more in the Circuit Court).

This article addresses the basics of filing a Rent Court Action in Maryland. Each landlord/tenant dispute often involves complications, and readers are encouraged to seek advice of counsel for complicated matters.

The Growth Goals of Baltimore County's Master Plan 2020 - Are PUDs the Answer?
by Jennifer R. Busse

Baltimore County is once again in the throes of amending its Master Plan, as an update is mandated every ten years by the county's charter. The county's current Master Plan 2010 was adopted in February of 2000. The Office of Planning's goal for the adoption of Master Plan 2020 is October 1, 2010, with a draft expected to be released this month, Planning Board review this summer, and Council review this fall.

The role of the county's Master Plan is to guide the county's future development. More than in any prior plan, Master Plan 2020 will focus on sustainable development. The twelve visions of Master Plan 2020 clearly demonstrate this focus. Referring to sustainable development as "development which meets the needs of the present without compromising the ability of future generations to meet their own needs," the Office of Planning notes that contrary to the development patterns of the county since 1945, which include sprawling, low-density growth, the focus needs to be redevelopment opportunities that will permit a decrease in Vehicle Miles Traveled (VMT).

Pointing to transportation corridors and areas already improved by or planned for public infrastructure as potential locations for redevelopment opportunities, the Office of Planning proposes the promotion of higher-density, mixed-use types of development. Not only can mixed-use developments drastically reduce VMT, but, citing an EPA Study of the correlation between density and stormwater runoff, the Office of Planning notes that an almost 74% decrease in runoff is potentially feasible if, instead of 10,000 houses located on 10,000 acres, 10,000 houses are concentrated on 1,250 acres. A key component proposed is high connectivity development - something that historically has been opposed by existing residents.

The State of Maryland anticipates a growth of nearly 1 million people over the next 20 years. Baltimore County projects a growth of only approximately 45,000 new residents in that same time frame. These projections seem to be inconsistent, and time will tell which one is correct. But in either scenario, clearly the intent is that new growth be managed in a more responsible and sustainable way than before. The Master Plan 2020 will call for the development of walkable communities - how will these be realized? Could the county's Planned Unit Development (PUD) process be the answer?

The PUD process is a tool which can be utilized to permit development which otherwise would be prohibited via the existing zoning regulations. In Baltimore County, there is no mixed-use zoning classification. Therefore, a PUD is the required process for a mixed-use development.

The PUD Process has gotten a bad rap in Baltimore County lately. Community groups have viewed the PUD as a vehicle by which developers got away with not having to meet the regulations. Political pressure to do something was strong - so much so that recently the Baltimore County Council amended the process so as to remove the Planning Board's role completely.

A reading of Bill 5-10, passed by the Council in February of this year, quickly reveals how the PUD law has been restricted, and how opportunities to utilize the PUD process have been eliminated. The first page of the bill removes both the senior housing PUD and the ability to locate PUDs in previously permitted zones.

Yet again, history repeats itself. In the 1970s, the Planning Board was authorized to approve PUDs. Similar to the political pressure placed on the Council as a result of various PUD projects, that process was amended in the 1970s to remove the Planning Board's role. Frankly, members of the current Planning Board are likely relieved, as were the members in 1970, to have this burden lifted.

Only time will tell if Baltimore County's Master Plan 2020 Visions and goal of mixed-use, walkable and sustainable development will be attained, but one thing is certain - growth is inevitable. The PUD is logically a viable method to assist in reaching the county's goals and it should not only be promoted but supported. In today's challenging economy, developers may finally be appreciated for what they are - job promoters. They can use all the incentives they can get.