ROMAN CATHOLIC BISHOP OF SPRINGFIELD, a Corporation Sole, Plaintiff, Appellant,
CITY OF SPRINGFIELD; DOMENIC J. SARNO, in his official capacity as Mayor of the City of Springfield; SPRINGFIELD CITY COUNCIL; PATRICK J. MARKEY, in his official capacity as City Councilor for the City of Springfield; WILLIAM T. FOLEY, in his official capacity as City Councilor for the City of Springfield; ROSEMARIE MAZZA-MORIARTY, in her official capacity as City Councilor for the City of Springfield; TIMOTHY J. ROOKE, in his official capacity as City Councilor for the City of Springfield; BRUCE W. STEBBINS, in his official capacity as City Councilor for the City of Springfield; JOSE TOSADO, in his official capacity as City Councilor for the City of Springfield; KATERI WALSH, in her official capacity as City Councilor for the City of Springfield; BUD L. WILLIAMS, in his official capacity as City Councilor for the City of Springfield; JAMES J. FERRERA, III, in his official capacity as City Councilor for the City of Springfield, \ Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Michael A. Ponsor, U.S. District Judge]
John J. Egan, with whom Stephen E. Spelman and Egan, Flanagan and Cohen, P.C. were on brief, for appellant.
Anthony I. Wilson, Associate City Solicitor, City of Springfield, with whom Edward M. Pikula, City Solicitor, City of Springfield, was on brief, for appellee.
Before Lynch, Chief Judge, Selya and Howard, Circuit Judges.
LYNCH, Chief Judge.
The Roman Catholic Bishop of Springfield (RCB) challenges the district court's grant of summary judgment to the City of Springfield (City) and dismissal of RCB's constitutional and statutory claims against enforcement of a City ordinance that created a single-parcel historic district encompassing a church owned by RCB. Under the ordinance, RCB cannot make any changes that affect the exterior of the church, including demolition, without the permission of the Springfield Historical Commission (SHC).
RCB claims that the ordinance gives the SHC veto power over its religious decisionmaking, and in doing so violates its First Amendment rights to free speech and free exercise of religion; its rights under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq.; and its rights under the Massachusetts state constitution. The district court, on cross-motions for summary judgment, found that some of RCB's claims were not ripe for review and that its remaining claims failed as a matter of law. See Roman Catholic Bishop of Springfield v. City of Springfield (RCB), 760 F.Supp.2d 172 (D. Mass. 2011).
We conclude that only a limited claim is now ripe: namely, RCB's claim based on the mere enactment of the ordinance. But those of RCB's claims which depend on the potential consequences of compliance with the ordinance are not ripe for adjudication, because RCB has not yet devised its plans for the church nor submitted any application to the SHC. We reach this conclusion for reasons different from the district court's. We reject the remaining ripe claim. We affirm in part and vacate in part the district court's grant of summary judgment and dismiss RCB's unripe claims without prejudice.
I. The facts in this case are undisputed.
RCB is a corporation sole,  incorporated under the laws of Massachusetts. It is the legal entity through which the Roman Catholic Diocese of Springfield ("Diocese") operates. The Diocese covers four counties in western Massachusetts, including the county that contains the City of Springfield.
RCB owns a church in Springfield known as Our Lady of Hope ("Church"), which was built in 1925. It was designed by the Springfield architect John Donohue in the Italian Renaissance style. In 2001, the Church was deemed eligible for inclusion on the National Register of Historic Places, but it was never so placed. And until the events at issue in this case, it was never included in nor proposed to be included in a local historic district.
In 2004, RCB began a process known as "pastoral planning, " which was designed to determine how to allocate the Diocese's financial and human resources in the face of decreasing numbers of clergy and parishioners. The process was overseen by a committee of clergy and religious and lay members of the Diocese. Part of the committee's duty was to seek and incorporate the views of members of the Diocese outside the committee itself. In August 2009, the committee issued its final report. The report recommended closing the Church and combining Our Lady of Hope Parish with another local parish. The Bishop of the Diocese accepted this recommendation, and services ceased at the Church as of January 1, 2010.
According to Roman Catholic canon law, when a church goes out of service for religious worship, the Bishop comes under an obligation to protect the religious ornamentation in and on the building so that it is not put to "sordid" use. RCB identifies eight types of religious ornamentation on the exterior of the Church, including stone castings, inscriptions, and stained glass windows depicting religious scenes and symbols. Some of these features, such as friezes, are built into the structure and are not easily removable. All of these features are designed to communicate religious messages to those who observe them.
RCB has established procedures for dealing with religious symbols when a church has been closed for worship. In order of preference, it will try to: (1) relocate the items to other locations within the Diocese; (2) relocate the items to other dioceses; or (3) place the items in storage. If none of these options are possible, the objects can be destroyed.
When a closed church is sold or leased to a third party, RCB must first convert the church from religious use to "profane" (non-sacred) use in a process known as deconsecration. As part of the deconsecration process, RCB will include a clause in the sale or lease agreement obligating the purchaser or lessee either to refrain from putting the property to "sordid" use or to allow RCB to remove all religious symbols. If RCB elects to remove the religious symbols, it follows the steps outlined above. However, if the symbols are impossible or impracticable to remove (for instance, a frieze), RCB will cover them with concrete or other materials. Symbols that cannot be removed may also be destroyed -- along with the building itself, if necessary -- if RCB determines that destruction is necessary to avoid desecration.
B. The Massachusetts Historic Districts Act (MHDA)
The MHDA delegates to cities and towns in Massachusetts the authority to designate historic districts within their boundaries. The process of creating historic districts involves first creating a historical commission or a historic district study committee, see Mass. Gen. Laws ch. 40C, §§ 3-4; Springfield did the former when it constituted the SHC in the early 1970s. The SHC consists of seven members and four alternates, appointed by the mayor and subject to confirmation by the City Council.
Under the MHDA, a municipality's historical commission must investigate and report on proposed historic districts before such districts can be approved by the municipality. Id. § 3. A proposed district "may consist of one or more parcels or lots of land, or one or more buildings or structures on one or more parcels or lots of land." Id. In assessing potential historic districts, a commission is to consider "the historic and architectural value and significance of the site, building or structure, the general design, arrangement, texture, material and color of the features involved, and the relation of such features to similar features of buildings and structures in the surrounding area." Id. § 7.
When the commission completes a preliminary report on a proposed district, it transmits the report to the municipality's planning board and to the state historical commission. Id. § 3. Not less than sixty days later, the municipal commission must hold a public hearing on the report. Id. If the commission approves the proposal following the public hearing, it transmits a final report and proposed ordinance to the city council (or equivalent body). Id. A two-thirds vote of the city council is required to approve the district. Id.
Once a historic district is approved, "no building or structure within [the] district shall be constructed or altered in any way that affects exterior architectural features" unless the historical commission first issues a certificate of appropriateness, a certificate of non-applicability, or a certificate of hardship. Id. § 6. Violation of this provision is punishable by a fine of between ten dollars and five hundred dollars per day of violation. Id. § 13. The statute defines "altered" as "includ[ing] the words 'rebuilt', 'reconstructed', 'restored', 'removed' and 'demolished, '" and the word "constructed" as "includ[ing] the words 'built', 'erected', 'installed', 'enlarged', and 'moved.'" Id. § 5.
In order to obtain a certificate of appropriateness, hardship, or non-applicability, a property owner must file with the commission an application along with "such plans, elevations, specifications, material and other information . . . as may be reasonably deemed necessary by the commission to enable it to make a determination on the application." Id. § 6. The SHC makes an application for these certificates, along with a list of its other requirements, available on the City's website. The SHC holds public hearings on submitted applications, unless all parties entitled to notice waive the hearing.
C. The Ordinance
The news that the pastoral planning process would result in the closing of the Church provoked significant adverse reaction among many Our Lady of Hope parishioners. The parish was one of the two largest parishes slated for closing in Springfield, and parishioners were unhappy with the prospect of being merged into another parish. In the fall of 2009, a number of Our Lady of Hope parishioners and other local citizens began lobbying the City to designate the Church as a historic district. A member of the state House of Representatives from Springfield, Sean Curran, wrote to the SHC about the matter, stating that "the closing of the church is a tremendous blow to the [Our Lady of Hope] parish, but just as alarming is the loss of the church as an architectural jewel." He urged the SHC to begin the historic district process "swiftly and without bureaucratic delay" in order to "save this beautiful building from the wrecking ball." Curran appeared before the SHC at a public meeting on September 3, 2009, where he made the same request. At that time, the SHC voted unanimously to undertake a preliminary report on creating a new historic district that would include the Church.
The SHC produced its preliminary report on September 17, 2009 -- just two weeks after the initial meeting -- outlining a proposal for the Our Lady of Hope Historic District ("District"). The proposal explained the historical and architectural reasons for creating the District. Significantly, it also stated another reason animating the proposal: the SHC noted that the Church was "slated to be closed"; that another Roman Catholic church in Springfield had recently been closed, sold, and demolished; and that the District "[wa]s being proposed to avoid the same possible fate for Our Lady of Hope."
The preliminary report proposed a single-parcel district covering only the Church and no other property. The report justified the boundaries by describing the non-historical nature of the surrounding properties. The proposal would create the first and, at the time, only single-parcel historic district in Springfield. Other multi-parcel historic districts in the City at the time contained various houses of worship. The District ultimately enacted by the City Council retained these proposed boundaries.
On October 19, 2009, the SHC received a letter from the Massachusetts Historical Commission in response to its preliminary report, giving an "advisory recommendation" in favor of the District. Acting within the statutory sixty-day window, the SHC held a public meeting to discuss the proposal on December 14, 2009. RCB's counsel appeared at this meeting to object to the creation of the District. He argued, inter alia, that creating the District would infringe RCB's constitutionally protected rights to free speech and free exercise of religion and that it would violate RLUIPA. He also argued that the creation of the District was designed to intrude on the pastoral planning process at the behest of Our Lady of Hope parishioners who were angry at having their parish closed. Finally, RCB's counsel asked that the SHC at a minimum seek a legal opinion as to the constitutional implications of approving the District. Despite these objections, and without seeking legal advice, at the close of the meeting the SHC voted unanimously to send a final report to the City Council.
The City Council initially referred the proposal to a Council committee for study. On December 21, 2009, RCB wrote to each Council member, reiterating its arguments against the adoption of the District and asking the Council to seek a legal opinion on the constitutionality of the District. RCB pointed out that if the Church were designated as a historic district, it would inhibit future sale of the property, the proceeds of which would benefit the merged parish. Historic district designation would also impose on the Diocese, and specifically on the merged parish, the continuing costs of maintenance, insurance, and security for the Church.
On December 29, 2009, the City Council held a public meeting on the proposal, even though it had not received a response from its study committee. RCB's counsel attended the meeting and again objected to the creation of the District. During the meeting, one councilor called in the city solicitor and asked whether the City's law department had reviewed the proposal. The solicitor said it had not and offered to discuss the proposal with the Council in executive session, but the Council declined. Also during this meeting, another councilor asked RCB's counsel why parishioners had not had an opportunity to participate in the decision of whether to close the Church. When RCB's counsel answered that they had, the councilor exclaimed, "That isn't true!" In fact, members of the Diocese, which included Our Lady of Hope parishioners, had been invited to participate in the pastoral planning process.
At the close of the meeting, the Council passed the ordinance creating the District ("Ordinance"). RCB sent a written protest to the City's mayor, but the mayor signed the Ordinance into law the next day. The Ordinance went into effect on January 20, 2010, approximately three weeks after the last services were held at the Church.
Since the enactment of the Ordinance, RCB has taken no action with regard to the deconsecration, sale, or leasing of the Church, and it has not made any submissions to the SHC seeking permission to alter the Church's exterior. As we explain, as a result of RCB's failure to take further actions with regard to the Church site, certain of its claims lack the requisite concreteness to warrant resolution of whether hypothetical outcomes transgress RLUIPA or either the federal or state constitutions.
RCB filed its complaint against the City in Massachusetts Superior Court on January 21, 2010, the day after the Ordinance went into effect. It asserted federal constitutional claims under 42 U.S.C. § 1983, federal statutory claims under RLUIPA, and state law claims under the Massachusetts Constitution and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I.RCB sought, inter alia, temporary and permanent injunctions restraining the City from enforcing the Ordinance, a declaration that the Ordinance was void, and attorneys' fees and costs. The City removed the case to the U.S. District Court for the District of Massachusetts on February 5, 2010. RCB moved for summary judgment on July 9, 2010, and the City cross-moved for summary judgment on August 13, 2010.
On January 2, 2011, the district court issued its Memorandum and Order granting summary judgment to the City. RCB, 760 F.Supp.2d at 176. The court first found that certain of RCB's claims were not ripe for adjudication. To make this determination, the court recharacterized the complaint by dividing RCB's allegations "into two temporal facets: (1) violations that arise from the mere enactment of the single-parcel historic district, . . . and (2) violations that arise from [RCB]'s resulting inability to deconsecrate church property." Id. at 181. The court concluded that claims falling under the first heading were ripe for review because the Ordinance forced RCB to submit to a secular authority and subjected it to the "delay, uncertainty and expense" of the approval process. Id. at 181-82. On the other hand, it found that claims falling under the second ...