PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-2358

ANDON, LLC; RECONCILING PEOPLE TOGETHER IN FAITH 

MINISTRIES, LLC,

Plaintiffs - Appellants,

v.

THE CITY OF NEWPORT NEWS, VIRGINIA,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Newport News. Robert G. Doumar, Senior 

District Judge. (4:14-cv-00076-RGD-LRL)

Argued: December 9, 2015 Decided: February 9, 2016

Before WILKINSON, KEENAN, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion, 

in which Judge Wilkinson and Judge Harris joined.

ARGUED: Michael Bruce Ware, SCHEMPF & WARE, PLLC, Yorktown, 

Virginia, for Appellants. Darlene P. Bradberry, OFFICE OF THE 

CITY ATTORNEY FOR THE CITY OF NEWPORT NEWS, Newport News, 

Virginia, for Appellee. ON BRIEF: Adrienne Michelle Sakyi, 

SCHEMPF & WARE, PLLC, Yorktown, Virginia, for Appellants. 
2

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider whether the district court 

erred in dismissing with prejudice a complaint filed by two 

entities, Andon, LLC, and Reconciling People Together in Faith 

Ministries, LLC (collectively, the plaintiffs) against the City 

of Newport News, Virginia (the City, or Newport News). The 

plaintiffs’ complaint alleged that the City, acting through its 

Board of Zoning Appeals (BZA), violated the Religious Land Use 

and Institutionalized Persons Act (RLUIPA, or the Act), 42 

U.S.C. § 2000cc et seq., by denying the plaintiffs’ request for 

a variance to permit a certain property to be used as a church 

facility. 

Upon our review, we conclude that the plaintiffs failed to 

state a claim that the BZA’s decision imposed a substantial 

burden on the plaintiffs’ right of religious exercise. We also 

conclude that the district court did not abuse its discretion in 

denying the plaintiffs’ request to amend their complaint, 

because any such amendment would have been futile. We therefore 

affirm the district court’s judgment. 

I. 

In 2012, Walter T. Terry, Jr. formed a congregation for 

religious worship known as Reconciling People Together in Faith 

Ministries, LLC (the congregation) in Newport News, and served 
3

as its pastor. Although the members of the congregation 

initially gathered to worship in a local business owned by 

Terry, they later sought a larger location for their use. 

Terry ultimately found a suitable property, which included 

an office building (the building) and a small parking lot, that 

was offered for “lease or sale” by Andon, LLC (Andon). The 

property is located at 6212 Jefferson Avenue in Newport News 

(the property). 

Andon had purchased the property, a 0.32-acre parcel of 

land, in 2011. Since 1997, the property continuously has been 

classified for commercial use under the City’s zoning ordinance. 

The ordinance provides that properties zoned for commercial use 

may be used for a “community facility,” including a “place of 

worship” or church, only when four conditions are satisfied: 

(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 100 feet of 

any side or rear property line which is zoned singlefamily residential; and, (d) any parking lot or street 

serving such use is located 25 feet or more from a 

side or rear property line zoned single family 

residential. 

Newport News, Va. Municipal Code § 45-519.

Although the property complied with three of these 

conditions, the property did not satisfy the “setback” 

requirement in subsection (c), because the building is located 

fewer than 100 feet from the rear and side property lines that 
4

are adjacent to properties zoned for “single-family residential” 

use.1 Despite knowledge of this problem, the congregation 

entered into a written lease agreement with Andon that was 

contingent on Andon obtaining “City approval” allowing operation 

of a church facility on the property. Seeking to satisfy this 

contingency in the lease agreement, Andon filed with the BZA an 

application requesting a variance from the setback requirement. 

After reviewing Andon’s application, the City Codes and 

Compliance Department (the Compliance Department) filed a report 

with the BZA concerning the variance request. The report stated 

that the BZA, prior to issuing a variance, must first find that: 

(1) “strict application of the ordinance would produce an undue 

hardship” relating to the property “not shared generally by 

other properties”; (2) such a variance “will not be of 

substantial detriment to adjacent property”; and (3) “the 

character of the district will not be changed” by granting the 

variance. See Newport News, Va. Municipal Code § 45-3203(c). 

Based on these restrictions, the Compliance Department 

recommended that the BZA deny the variance, because the property 

could be used for other purposes without a variance, and because 

 1 The building is located 33 feet, 85 feet, and 80 feet away 

from the rear and side property lines abutting neighboring 

residential properties. 
5

denial of a variance would not cause Andon to suffer a hardship 

unique among other commercial property owners in the vicinity. 

After holding a public hearing, the BZA adopted the 

Compliance Department’s recommendation and voted to deny the 

variance request. Andon appealed from the BZA decision to a 

Virginia state circuit court, which upheld the BZA’s 

determination. 

The plaintiffs filed the present suit in federal district 

court alleging that the BZA’s denial of their variance request 

imposed a substantial burden on the plaintiffs’ religious 

exercise in violation of RLUIPA, 42 U.S.C. § 2000cc(a)(1) (the 

substantial burden claim). The plaintiffs alleged that the 

BZA’s action caused “delay in obtaining a viable worship 

location” and “uncertainty as to whether . . . the 

[c]ongregation will be able to go forward with the lease of the 

[p]roperty.” 

The plaintiffs attached to their complaint an affidavit 

from Terry, who stated that he “could not find a[n alternate 

property] that was the appropriate size, location, and price” to 

serve as a place of worship for the congregation. He also 

stated in the affidavit that “[m]any of the [alternative] 

buildings were too large and too expensive for [the] young 

congregation.” 
6

The City moved to dismiss the complaint with prejudice 

under Federal Rule of Civil Procedure 12(b)(6) for failure to 

state a claim. The district court granted the City’s motion, 

denied the plaintiffs’ request to file an amended complaint, and 

entered judgment in favor of the City.2 The plaintiffs timely 

filed this appeal. 

II.

We review de novo the district court’s dismissal of a 

complaint under Rule 12(b)(6) for failure to state a claim. 

United States ex rel. Nathan v. Takeda Pharms. N. Am., Inc., 707 

F.3d 451, 455 (4th Cir. 2013). To survive a motion to dismiss, 

a complaint must “state a claim to relief that is plausible on 

its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When 

reviewing the district court’s action, we consider the factual 

allegations in the plaintiffs’ complaint as true. Bass v. E.I. 

DuPont de Nemours & Co., 324 F.3d 761, 764 (4th Cir. 2003). 

 2 The City also argued in its motion to dismiss that Andon 

lacked standing to bring the RLUIPA claim. The district court 

disagreed, and the City does not challenge this ruling on 

appeal. Although a litigant’s standing presents a 

jurisdictional question that may be considered sua sponte by 

this Court, see Benham v. City of Charlotte, 635 F.3d 129, 134 

(4th Cir. 2011), we need not address the district court’s ruling 

regarding Andon’s standing, because the congregation 

unquestionably had standing to file suit alleging a violation 

under RLUIPA. 
7

The plaintiffs argue that the district court erred in 

dismissing their complaint of a RLUIPA violation, contending 

that the BZA’s action denying a variance imposed a substantial 

burden on their religious exercise. Citing our decision in 

Bethel World Outreach Ministries v. Montgomery County Council, 

706 F.3d 548 (4th Cir. 2013), the plaintiffs assert that they 

plausibly alleged a claim under RLUIPA, because, as a result of 

the BZA’s action, the congregation has been unable to find a 

suitable location in the City for worship, and the plaintiffs 

have suffered “delay, expense, and uncertainty” in establishing 

a church location and in executing the lease agreement. The 

plaintiffs alternatively contend that the district court abused 

its discretion in refusing their request to amend their 

complaint. We disagree with the plaintiffs’ arguments. 

RLUIPA contains two provisions limiting governmental 

regulation of land use with respect to religious exercise.3 

The first such RLUIPA provision prohibits governmental entities 

from imposing land use restrictions that: (1) treat a religious 

organization “on less than equal terms” with a nonreligious 

 3 Under RLUIPA, “‘religious exercise’ includes any exercise 

of religion, whether or not compelled by, or central to, a 

system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A). And 

“[t]he use, building, or conversion of real property for the 

purpose of religious exercise shall be considered to be 

religious exercise of the person or entity that uses or intends 

to use the property for that purpose.” 42 U.S.C. § 2000cc5(7)(B). 
8

organization; or (2) discriminate against any organization on 

the basis of religion. 42 U.S.C. § 2000cc(b)(1), (2). 

The second RLUIPA provision addressing governmental 

regulation of land use, on which the plaintiffs base their 

claim, does not require a showing of discriminatory governmental 

conduct. 42 U.S.C. § 2000cc(a)(1); see Bethel, 706 F.3d at 557. 

Instead, this provision prohibits a governmental entity from 

imposing or implementing a 

land use regulation . . . that imposes a substantial 

burden on the religious exercise of a person, 

including a religious assembly or institution, unless 

the government demonstrates that imposition of the 

burden on that person, assembly, or institution (A) is 

in furtherance of a compelling governmental interest; 

and (B) is the least restrictive means of furthering 

that compelling governmental interest. 

42 U.S.C. § 2000cc(a)(1). 

To state a substantial burden claim under RLUIPA, a 

plaintiff therefore must show that a government’s imposition of 

a regulation regarding land use, or application of such a 

regulation, caused a hardship that substantially affected the 

plaintiff’s right of religious exercise. See Bethel, 706 F.3d 

at 556; Guru Nanak Sikh Soc’y of Yuba City v. Cty. of Sutter, 

456 F.3d 978, 988-89 (9th Cir. 2006); Civil Liberties for Urban 

Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003). 

We addressed the scope of substantial burden claims under RLUIPA 

in our decision in Bethel.
9

The plaintiff in Bethel asserted a substantial burden claim 

against a county that had adopted two land use regulations after 

the plaintiff had purchased property for the then-permitted 

purpose of constructing a large church. 706 F.3d at 553-55. 

The first regulation at issue in Bethel banned extension of 

public water and sewer services to certain classifications of 

property, including the plaintiff’s property. Id. at 553. In 

response to the county’s implementation of this regulation, the 

plaintiff modified its construction plans and proposed to build 

a smaller church that operated on a private septic system. Id.

at 554. Before those plans were approved, however, the county 

adopted a second regulation applicable to the plaintiff’s 

property, which prohibited the construction of private 

institutional facilities including churches. Id. 

Although the county regulations we considered in Bethel did 

not target religious exercise and applied generally to both 

secular and religious uses, we concluded that the plaintiff 

nevertheless presented a triable RLUIPA claim, because the 

regulations substantially pressured the plaintiff to modify and 

ultimately to abandon its pre-existing plan to construct a 

church. Id. at 556-59. And, we explained, although other real 

property may have been available for the plaintiff to purchase, 

the “delay, uncertainty, and expense” of selling the plaintiff’s 

property and finding an alternate location increased the burden 
10

imposed on the plaintiff’s religious exercise. Id. at 557-58. 

In reaching this conclusion, we emphasized that a critical 

function of RLUIPA’s substantial burden restriction is to 

protect a plaintiff’s reasonable expectation to use real 

property for religious purposes. Id. at 556-57; see Petra 

Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 

(7th Cir. 2007) (explaining that when an organization buys 

property “reasonably expecting to obtain a permit, the denial of 

the permit may inflict hardship” on the organization). 

The circumstances of the present case are materially 

different from those presented in Bethel. The plaintiffs here 

never had a reasonable expectation that the property could be 

used as a church. When the plaintiffs entered into the 

prospective lease agreement, the property was not a permitted 

site for a community facility such as a church, and had not met 

applicable setback requirements for that type of use for at 

least 14 years. Before Andon filed the application seeking a 

variance, the Zoning Administrator had informed Andon that the 

application would not be approved for failure to meet the 

setback requirement. Thus, the plaintiffs assumed the risk of 

an unfavorable decision, and chose to mitigate the impact of 

such a result by including the contingency provision in the 

lease. Accordingly, unlike the governmental action at issue in 

Bethel, the BZA’s denial of the variance in the present case did 
11

not alter any pre-existing expectation that the plaintiffs would 

be able to use the property for a church facility, or cause them 

to suffer delay and uncertainty in locating a place of worship.

Because the plaintiffs knowingly entered into a contingent 

lease agreement for a non-conforming property, the alleged 

burdens they sustained were not imposed by the BZA’s action 

denying the variance, but were self-imposed hardships. See

Petra Presbyterian Church, 489 F.3d at 851 (because the 

plaintiff purchased property with knowledge that the permit to 

use the property for a church would be denied, the plaintiff 

“assumed the risk of having to sell the property and find an 

alternative site for its church”). A self-imposed hardship 

generally will not support a substantial burden claim under 

RLUIPA, because the hardship was not imposed by governmental 

action altering a legitimate, pre-existing expectation that a 

property could be obtained for a particular land use. See

Bethel, 706 F.3d at 556-58; Petra Presbyterian Church, 489 F.3d 

at 851. Therefore, we hold that under these circumstances, the 

plaintiffs have not satisfied the “substantial burden” 

requirement of governmental action under RLUIPA.4 See Bethel, 

 4 We do not reach the merits of the plaintiffs’ separate, 

speculative contention that if the congregation had purchased 

the property, instead of entering into a contingent lease 

agreement, the financial loss sustained would have been 

(Continued)
12

706 F.3d at 556; Guru Nanak Sikh Soc’y of Yuba City, 456 F.3d at 

988-89; Civil Liberties for Urban Believers, 342 F.3d at 761. 

Our conclusion is not altered by the plaintiffs’ further 

contention that they have been unable to find another property 

that meets the congregation’s desired location, size, and 

budgetary limitations. The absence of affordable and available 

properties within a geographic area will not by itself support a 

substantial burden claim under RLUIPA. See Civil Liberties for 

Urban Believers, 342 F.3d at 762 (concluding that the “scarcity 

of affordable land available” and costs “incidental to any highdensity urban land use” represent “ordinary difficulties 

associated with location” and do not support a substantial 

burden claim under RLUIPA).

We further observe that if we agreed with the plaintiffs 

that the BZA’s denial of a variance imposed a substantial burden 

on their religious exercise, we effectively would be granting an 

automatic exemption to religious organizations from generally 

applicable land use regulations. Such a holding would usurp the

role of local governments in zoning matters when a religious 

group is seeking a variance, and impermissibly would favor 

religious uses over secular uses. See Petra Presbyterian 

 

sufficient to state a substantial burden claim. We decline to 

pass judgment on facts not before us. 
13

Church, 489 F.3d at 851 (reasoning that the substantial burden 

requirement must be taken seriously, or religious organizations 

would be free “from zoning restrictions of any kind”); Civil 

Liberties for Urban Believers, 342 F.3d at 762 (explaining that 

no “free pass for religious land uses masquerades among the 

legitimate protections RLUIPA affords to religious exercise”). 

The plain language of RLUIPA, however, prevents such a 

result. By requiring that any substantial burden be imposed by 

governmental action and by carefully balancing individual rights 

and compelling governmental interests, the language of RLUIPA 

demonstrates that Congress did not intend for RLUIPA to 

undermine the legitimate role of local governments in enacting 

and implementing land use regulations. See Petra Presbyterian 

Church, 489 F.3d at 851; Civil Liberties for Urban Believers, 

342 F.3d at 762. 

Finally, we conclude that the district court did not abuse 

its discretion in denying the plaintiffs’ request to amend their 

complaint. See HealthSouth Rehab. Hosp. v. Am. Nat'l Red Cross, 

101 F.3d 1005, 1010 (4th Cir. 1996) (stating the applicable 

standard of review). Because the plaintiffs did not have a 

reasonable expectation to use the property as a church and any 

burden on their religious exercise was self-imposed, the 

plaintiffs cannot articulate any set of facts demonstrating that 

an amendment would survive the City’s motion to dismiss. Thus, 
14

we agree with the district court that any amendment to the 

complaint would have been futile. See Scott v. Family Dollar 

Stores, Inc., 733 F.3d 105, 121 (4th Cir. 2013) (“Denying leave 

to amend is appropriate when . . . the amendment would have been 

futile.”). 

III.

For these reasons, we affirm the district court’s judgment 

dismissing with prejudice the plaintiffs’ complaint against the 

City. 

AFFIRMED