Missed Opportunity or Dodged Bullet? The Tenth Circuit’s Non-decision in Rocky Mountain Christian Church v. Board of County Commissioners

I. INTRODUCTION In Rocky Mountain Christian Church v. Board of County Commissioners,1 the United States Court of Appeals for the Tenth Circuit considered whether Boulder County officials violated the Religious Land Use and Institutionalized Persons Act2 ("RLUIPA") when it denied the Rocky Mountain Christian Church's ("Rocky Mountain" or "RMCC") special use application, which would have allowed RMCC to expand its Boulder County facilities.3 In a relatively straightforward application of RLUIPA's statutory language, the court concluded that Boulder County had violated RLUIPA's requirement that Rocky Mountain's permit be considered on "equal terms" with secular institutions in the application process and that, as a religious institution, Rocky Mountain should be free from exclusion or unreasonable limitations on its assemblies or structures within the county.4 This Note argues that although the Tenth Circuit correctly decided Rocky Mountain, the case will have limited precedential value for two reasons. First, the case's procedural posture and the county's failure to raise key issues and arguments on appeal severely limited the court's ability to review the district court's decision. Second, while the court touched on two important issues that have caused circuit splits over the correct interpretation of RLUIPA's equal terms provision, the court ultimately, albeit prudently, failed to weigh in decisively on these issues. II. FACTS AND PROCEDURAL HISTORY In 1978, Boulder County took affirmative steps to "curb[] urban sprawl, maintain[] open space to preserve the county's rural character, and sustain[] agriculture" by enacting its comprehensive plan ("Comprehensive Plan").5 Pursuant to the Comprehensive Plan, the County Land Use Code designated certain areas as "Agricultural Districts."6 Within the Agricultural Districts, "offices, warehouses, and retail stores are prohibited," and all facilities with "occupancy loads exceeding 100 people [must] apply for a special use permit."7 The county used numerous criteria when deciding whether to grant a special use application, including whether the proposed use was in "accordance with the comprehensive plan, and not an over-intensive use of land or excessive depletion of natural resources."8 Although located in an agricultural district, RMCCs fifty-five acre campus shares proximity with a number of structures and facilities. These include several subdivisions, "a wastewater treatment facility, a high school, and the 500,000 square foot Boulder Technology Center."9 RMCCs facilities consist of a 106,000 square foot main building, a maintenance building, and numerous temporary modular units.10 The size of RMCCs current facilities are the result of gradual expansion since its founding in 1984 and two successful applications for special use permits, which allowed Rocky Mountain to increase the size of its buildings to their present dimensions.11 RMCC submitted the special use application at issue in Rocky Mountain in 2004 and "met opposition at each level of review."12 Despite RMCCs efforts to scale back its proposed expansion after initial opposition, the county partially denied RMCCs modified application, allowing RMCC to expand only its main worship building and replace their temporary modular units with a small permanent building.13 Shortly thereafter, RMCC sued Boulder County under RLUIPA in district court. At the close of RMCCs evidence, the county moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a).14 The court denied the motion on all issues but the county's affirmative defenses, which the court deferred.15 Ultimately, "[ajfter a twelve-day trial, the jury found for RMCC" under RLUIPA's equal terms, unreasonable limitations, and substantial burden provisions.16 Although the jury awarded RMCC no damages, the court "entered a permanent injunction requiring the County to approve RMCCs special use application" and "denied the County's renewed motion for judgment as a matter of law. …