Grace Community Church v. Lenox Tonwship ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0370p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellant, -
GRACE COMMUNITY CHURCH,
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No. 07-2509
v.
,
>
LENOX TOWNSHIP, -
Defendant-Appellee. N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-13526—Paul D. Borman, District Judge.
Argued: September 15, 2008
Decided and Filed: October 10, 2008
Before: GUY, RYAN, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Daniel P. Dalton, TOMKIW DALTON, Royal Oak, Michigan, for Appellant. Thomas
J. McGraw, KUPELIAN, ORMOND & MAGY, Southfield, Michigan, for Appellee. ON BRIEF:
Daniel P. Dalton, TOMKIW DALTON, Royal Oak, Michigan, for Appellant. Thomas J. McGraw,
D. Randall Gilmer, KUPELIAN, ORMOND & MAGY, Southfield, Michigan, for Appellee.
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OPINION
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McKEAGUE, Circuit Judge. Grace Community Church applied for and was granted a
special land use permit by the Lenox Township Planning Commission to operate a residential
facility for religious instruction and spiritual counseling. The special use permit included certain
restrictions. A month later, the Planning Commission, faced with evidence that the restrictions had
been violated, revoked the permit. Instead of attempting to rebut or explain the evidence or
appealing the revocation to the Zoning Board of Appeals, Grace Community Church filed suit. The
complaint challenges the revocation as a violation of the Church’s rights under the Religious Land
Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc et seq., and as a denial of
equal protection. The district court awarded summary judgment to the Township, concluding the
action was not ripe, as the Church had failed to exhaust administrative remedies and obtain a final
decision before filing suit.
On appeal, Grace Church contends exhaustion is not prerequisite to enforcement of rights
under the RLUIPA, relying primarily on DiLaura v. Ann Arbor Twp., 30 F. App’x 501 (6th Cir.
1
No. 07-2509 Grace Cmty. Church v. Lenox Twp. Page 2
2002). For the reasons that follow, we find no error and therefore affirm the district court’s
judgment.
I. BACKGROUND
Grace Community Church is located in Lenox Township, Macomb County, approximately
30 miles north of Detroit. The Church is pastored by Reverend William Pacey, an ordained minister
of the Anchor Bay Evangelistic Association. Rev. Pacey established Grace Community Church in
1996 “to provide a place of worship for those who ‘just didn’t fit in’ to a normal church setting.”
Pacey aff. at ¶ 3, JA 317. Grace Community Church views people’s emotional and substance abuse
problems as stemming from a strained personal relationship with God. Id. at ¶¶ 6-7. To assist
people in learning to trust God, the Church began operating residential programs at various sites.
In 2004, the Church purchased property on 30 Mile Road in Lenox Township that had previously
been home to a Catholic monastery and later, a residential nursing care facility. The Church
intended to consolidate its worship and residential counseling ministries under one roof.
The Church applied to the Lenox Township Planning Commission for a special land use
permit in early 2005. In June 2005, the Commission approved the application for operation of the
Church, but withheld action regarding the residential facility pending receipt of further information
from Rev. Pacey and consideration of appropriate conditions. At its August 22, 2005 meeting, the
Commission granted the permit for operation of the residential program, the Christian Discipleship
Center, subject to various conditions. The conditions included requirements, inter alia: that
residents be pre-screened to determine that they are of a “desirable nature” and pose no danger to
the surrounding community; that the facility not be used as a halfway house or to house persons
undergoing alcohol or drug rehabilitation; and that, in the event of a complaint suggesting a violation
of the conditions, a representative of the Church appear before the Commission to show cause why
the permit should not be revoked.
At its very next meeting, on September 26, 2005, the Commission received information to
the effect that, contrary to assurances given by Rev. Pacey, substance abuse counseling was being
provided at the Christian Discipleship Center on 30 Mile Road. The information came in the form
of a report from the Township attorney, Terry Welch, who had been advised of a complaint received
by the Macomb County Sheriff. The Sheriff’s Department had received the complaint from Ronald
Riggi, whose nineteen year-old daughter, Robin, had been released from the Macomb County Jail
and referred by local District Judge Denis R. LeDuc to Grace Community Church for substance
abuse counseling. Riggi and his daughter had met with Rev. Pacey at the 30 Mile Road site. Riggi
had paid the $250 application fee charged by Rev. Pacey with the understanding that his daughter
would receive substance abuse counseling. When Riggi learned that his daughter had not received
any substance abuse counseling during her first week in the program, Riggi confronted Rev. Pacey.
This confrontation led to the termination of Robin’s participation in the program and to Riggi’s
complaint to the Sheriff’s Department about “possible fraudulent or suspicious activities.” Welch
also reported that when this information was conveyed to Township officials, Planning Commission
member Karen Kurchi undertook an internet search and found several descriptions of Grace House
in New Haven (adjacent to Lenox Township) as a halfway house or ¾-way house assisting people
in overcoming emotional and physical addictions.
In response to this information, Rev. Pacey refused to comment on the incident with Ronald
Riggi and his daughter. He maintained, however, that he had not provided any substance abuse
counseling at the 30 Mile Road site and that the special use permit conditions placed on Grace
Community Church (without mentioning those imposed on the Christian Discipleship Center) had
been met. One of the Commission members thereupon made a motion to revoke the special use
permit for the Christian Discipleship Center, which carried with little discussion.
No. 07-2509 Grace Cmty. Church v. Lenox Twp. Page 3
The Church made no attempt to obtain reconsideration of the revocation decision, did not
apply for reinstatement of the special use permit, and did not appeal the revocation decision to the
Zoning Board of Appeals. Almost one year later, Grace Community Church commenced this action
by filing its complaint in the Eastern District of Michigan on August 7, 2006. The complaint names
Lenox Township as defendant and contains four counts, including claims under RLUIPA and the
Religious Freedom Restoration Act, a claim for denial of equal protection, and a claim for damages
based on unconstitutional taking and tortious interference with economic advantage.
After the claim for relief under the Religious Freedom Restoration Act was voluntarily
dismissed, both parties filed motions for summary judgment. The Township moved for summary
judgment on all three remaining claims contending they should be dismissed for lack of ripeness.
The Church moved for partial summary judgment contending it was entitled to judgment as a matter
of law on its claim under RLUIPA. The district court conducted a hearing on the motions on August
28, 2007 and issued its ruling three days later, granting the Township’s motion and denying the
Church’s. The court reasoned that the Church, by failing to pursue its remedies with the Zoning
Board of Appeals, failed to obtain a final decision on its entitlement to the permit. The court
therefore dismissed the action as unripe, without prejudice.
In conjunction with the summary judgment ruling, the court also denied the Church’s motion
to compel disclosure of attorney-client letters that had been inadvertently and temporarily disclosed
by the Township to the Church in discovery. The court concluded that the Township, despite the
inadvertent disclosure, had not waived the attorney-client privilege. The Church moved for
reconsideration of both adverse rulings, which motion was denied on November 2, 2007. This
timely appeal followed.
II. ANALYSIS
A. Standard of Review
In dismissing the action for lack of ripeness, the district court granted the Township’s motion
for summary judgment. The court of appeals reviews de novo an order granting summary judgment.
Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). Summary judgment “should be rendered if
the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
B. RLUIPA Claim
Grace Community Church does not argue there is a genuine fact dispute that precludes
summary judgment, but rather contends the district court erred as a matter of law in its evaluation
of ripeness. The Church relies heavily on an unpublished decision, DiLaura v. Ann Arbor Charter
Twp., 30 F. App’x 501 (6th Cir. 2002). In DiLaura, an RLUIPA claim brought via 42 U.S.C. § 1983was held to be sufficiently ripe to be justiciable even though the plaintiffs had not exhausted
available administrative remedies and even though the defendant township had not threatened to
enforce its ordinance. Id. at 504-05.
The DiLaura RLUIPA claim grew out of a request to use a large house as a religious retreat
house, for prayer and fellowship. The request was denied by the township zoning officer because
the proposed use was not within the residential uses authorized under the zoning ordinance. The
DiLauras then applied for a variance before the Zoning Board of Appeals, which was denied. They
then filed suit. After the district court dismissed the action for lack of ripeness, the Sixth Circuit
reversed, holding that the Zoning Board of Appeals’ denial was a sufficiently final decision and the
DiLauras were not obliged to also apply for a conditional use permit before seeking redress in court.
Id. The court also held that the threat of significant penalties, in the event the DiLauras began
No. 07-2509 Grace Cmty. Church v. Lenox Twp. Page 4
operating the retreat house without permission, represented sufficient hardship to make out a
justiciable case or controversy. Id. at 505.
In the instant case, the district court distinguished DiLaura, noting that, unlike the DiLauras,
Grace Community Church had not even sought relief from the Zoning Board of Appeals. With
reference to the Lenox Township Zoning Ordinance, the court observed that the Zoning Board of
Appeals had express authority to reverse, modify or affirm the Planning Commission’s revocation
of the Church’s special use permit. By failing to appeal the revocation decision, the court
concluded, the Church, in effect, denied itself a ruling on its position that the Planning Commission
had relied on erroneous information, and denied itself a final decision on the propriety of the
revocation.
The district court also noted that the decision cited in DiLaura for the proposition that
exhaustion is not prerequisite to an RLUIPA claim, Murphy v. Zoning Commission of the Town of
New Milford, 148 F. Supp. 2d 173, 185 (D. Conn. 2001) (“Murphy I”), had been reversed, 402 F.3d
342 (2d Cir. 2005) (“Murphy II”). The court distilled the teaching of Murphy II into the following
paragraph:
In Murphy v. New Milford Zoning Commission, 402 F.3d 342 (2d Cir. 2005)
(Murphy II), a Second Circuit case, the plaintiffs hosted prayer meetings in their
single family home and were issued a cease and desist order for violating a single-
family zoning regulation. Id. at 345. The plaintiffs did not appeal the cease and
desist order to the Zoning Board of Appeal to seek a variance. Id. Instead, the
plaintiffs filed suit in federal court, arguing, among other things, a violation of the
RLUIPA. Id. at 346. The district court issued an injunction and the case was
appealed. Id. The Second Circuit found that until the variance and appeals process
was completed, the dispute remained unripe. Id. at 354. Additionally, the court held
that (1)“requiring a claimant to obtain a final decision from a local land use authority
aids in the development of a full record”; (2) “only if a property owner has exhausted
the variance process will a court know precisely how a regulation will be applied to
a particular parcel”; (3) “a variance might provide the relief the property owner seeks
without requiring judicial entanglement in constitutional disputes”; (4) that
“requiring a meaningful variance application as a prerequisite to federal litigation
enforces the long-standing principle that disputes should be decided on non-
constitutional grounds whenever possible”; and (5) that “federal principles also
buttress the finality requirement.” Id. at 348. Just as in DiLaura, the court also
found that “property owner need not pursue such applications when a zoning agency
lacks discretion to grant variances or has dug in its heels and made clear that all such
applications will be denied.” Id. at 349.
Grace Cmty. Church v. Lenox Twp., 2007 WL 2533884 at *6 (E.D. Mich. Aug. 31, 2007). Finding
Murphy II persuasive, the district court went on to conclude that because the Church had not
appealed the revocation decision, “the factual record is not sufficiently developed to produce a fair
adjudication of the merits of the parties’ respective claims.” Id. Further, the court noted there was
no evidence that appeal would be futile because “the zoning agency had dug in its heels and made
it clear that an appeal would be denied.” Id. at *7. On appeal, the Church insists that,
notwithstanding Murphy II, DiLaura remains the controlling law of the Sixth Circuit. The Church
recognizes that DiLaura is unpublished and therefore lacks binding precedential effect, but
maintains that it represents the best Sixth Circuit authority on the question and, in holding that
exhaustion is not prerequisite to assertion of an RLUIPA claim, represents sound law.
Exhaustion and finality are two distinct concerns, although they sometimes overlap. The fact
that a claimant may, under certain circumstances, seek redress in court for infringement of his rights
No. 07-2509 Grace Cmty. Church v. Lenox Twp. Page 5
without having to first exhaust administrative or other available remedies does not mean that his
grievance is necessarily the product of official action bearing sufficient indicia of finality to render
his claim “ripe” or justiciable in federal court. Here, the district court’s opinion includes the word
“exhaustion,” but its rationale for dismissal is clearly and unmistakably couched in terms of finality
and ripeness.
The DiLauras’ RLUIPA claim was deemed ripe only after they had unsuccessfully appealed
the initial denial of their request to the Zoning Board of Appeals. Grace Church acknowledges that
the DiLaura court noted this fact, but argues it was “not the sole determining factor.” Yet, the
notion that the DiLauras’ claim would have been deemed ripe even if they had not sought relief in
the Zoning Board of Appeals is purely speculative. Here, the Church undisputedly failed to seek
relief from the Zoning Board of Appeals and the district court concluded this failure was critical for
two important reasons: (1) because it left the factual record insufficiently developed to enable fair
adjudication of the claim; and (2) because, considering the ease with which the Church could obtain
relief from the Zoning Board of Appeals, the denial of judicial review would result in little hardship
to the Church. The district court thus identified a material factual distinction that justified its
departure from the outcome reached in DiLaura.
In Insomnia, Inc. v. City of Memphis, Tenn., 2008 WL 2121053 (6th Cir. May 20, 2008), we
find an excellent recapitulation of ripeness considerations in relation to a First Amendment
challenge to local land use regulation. The court noted that ripeness is a matter of justiciability,
implicating “prudential reasons for refusing to exercise jurisdiction.” Id. at *2 (quoting Kentucky
Press Ass’n, Inc. v. Kentucky, 454 F.3d 505, 509 (6th Cir. 2006)). The doctrine is designed to
prevent the courts from, through premature adjudication, “entangling themselves in abstract
disagreements.” Id. (quoting Kentucky Press Ass’n, 454 F.3d at 509)). “In determining whether a
claim is ripe for review, courts consider three factors: ‘(1) the likelihood that the harm alleged by
the plaintiffs will ever come to pass; (2) whether the factual record is sufficiently developed to
produce a fair adjudication of the merits of the parties’ respective claims; and (3) the hardship to the
parties if judicial relief is denied at this stage in the proceedings.’” Id. at *3 (quoting Warshak v.
United States, 490 F.3d 455, 467 (6th Cir. 2007)).
In connection with land use regulation in particular, the Insomnia court identified “the
finality requirement” as critical to the ripeness inquiry. Id. at *3. The finality requirement has been
applied to various constitutional claims arising out of land use disputes and requires that the
“governmental entity charged with implementing the regulations must have reached a final decision
regarding the application of the regulations to the property at issue.” Id. (quoting Williamson
County Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985)). To
explain the policy considerations underlying this finality requirement, Insomnia quotes at length
from Murphy II, 402 F.3d at 348, the very same language quoted by the district court below in
dismissing Grace Community Church’s complaint for lack of ripeness:
First . . . requiring a claimant to obtain a final decision from a local land use
authority aids in the development of a full record. . . . Second, and relatedly, only
if a property owner has exhausted the variance process will a court know precisely
how a regulation will be applied to a particular parcel. . . . Third, a variance might
provide the relief the property owner seeks without requiring judicial entanglement
in constitutional disputes. Thus, requiring a meaningful variance application as a
prerequisite to federal litigation enforces the long-standing principle that disputes
should be decided on non-constitutional grounds whenever possible. . . . Finally,
since Williamson County, courts have recognized that federalism principles also
buttress the finality requirement. Requiring a property owner to obtain a final,
definitive position from zoning authorities evinces the judiciary’s appreciation that
No. 07-2509 Grace Cmty. Church v. Lenox Twp. Page 6
land use disputes are uniquely matters of local concern more aptly suited for local
resolution.
Id. at *3. The Insomnia court went on to affirm the lower court’s order of dismissal for lack of
finality based on three of the above considerations, i.e., need for development of a full record,
preference for avoiding unnecessary judicial entanglement in constitutional issues, and preference
for allowing local resolution of local land use disputes. Id. at *6. Indeed, all three considerations
apply with equal force in this case.
Here, Grace Community Church had been granted a special use permit to operate the
Christian Discipleship Center on August 22, 2005. Then, just one month later, the Church was
afforded the opportunity, in accordance with the terms of the permit, to show cause why, in the face
of evidence that the terms of its permit had been violated, the permit should not be revoked. The
evidence consisted of a citizen complaint and internet information suggesting that the Church had
held the Christian Discipleship Center out to the public as a resource for substance abuse counseling.
If such counseling had occurred at the Christian Discipleship Center, it would have been in direct
contradiction of assurances given to the Planning Commission by Rev. Pacey during the permit
application process, and in violation of the conditions attached to the special use permit.
In response to the information presented at the September 26, 2005 meeting, however, Rev.
Pacey had no comment—except to say that he had not conducted substance abuse counseling at the
Christian Discipleship Center and that the permit conditions imposed on the Church had been
complied with. He explained that he had not seen the materials indicating that the Christian
Discipleship Center had held itself out as a resource for substance abuse counseling. Unsatisfied
with this explanation, the Commission approved a motion to revoke the permit for the Christian
Discipleship Center. As though to underscore the Commission’s frustration with Rev. Pacey’s lack
of response, one Commission member expressly asked the record to reflect that Rev. Pacey said,
“No comment on the incident.”
Inasmuch as Rev. Pacey had not previously seen the documentation referred to in the
meeting, it is understandable that he was ill-prepared to refute or explain away the impression that
Church members had engaged, or intended to engage, in expressly prohibited activities at the
Christian Discipleship Center. It is equally understandable that Commission members were
unimpressed by Rev. Pacey’s renewed assurances in the face of evidence that similar assurances
given just three months earlier had been disregarded. In any event, it is abundantly clear that at the
end of the meeting on September 26, 2005, the record was incomplete and the matter of the special
use permit anything but finally resolved. Acting on the strength of a prima facie showing of a
violation—i.e., an inconclusive but essentially unrebutted showing—the Commission decided to
revoke the permit.
Yet, the record is devoid of any efforts by the Church to complete the factual record, to more
fully explain its position to the Commission, to seek reconsideration, or to appeal the revocation
decision to the Zoning Board of Appeals. Instead, it is undisputed that the Church made no effort
to resolve the dispute locally before filing this action in federal court some ten months later. Under
these circumstances, it is clear that all three of the lack-of-finality reasons cited in Insomnia are
equally present in this case.
The Church characterizes the district court’s ruling as having erroneously required
exhaustion, not finality, and then takes pains to distinguish exhaustion from finality, insisting that
the revocation decision was final. In support of this argument, the Church quotes the following
language from Bigelow v. Michigan Dep’t of Natural Resources, 970 F.2d 154 (6th Cir. 1992):
No. 07-2509 Grace Cmty. Church v. Lenox Twp. Page 7
What is needed before litigation can proceed in a case such as this is that proceedings
have reached some sort of an impasse and the position of the parties has been
defined. We do not want to encourage litigation that is likely to be solved by further
administrative action and we do not want to put barriers to litigation in front of
litigants when it is obvious that the process down the administrative road would be
a waste of time and money. We believe that finality, not the requirement of
exhaustion of remedies, is the appropriate determinant of when litigation may begin.
By finality we mean that the actions of the city were such that further administrative
action by Bannum would not be productive.
Id. at 158 (emphasis in original) (citing Bannum v. City of Louisville, 958 F.2d 1354, 1362-63 (6th
Cir. 1992)). The Church thus maintains that at the September 26, 2005 meeting, the positions of the
parties had been defined and it had become obvious that further administrative action would not be
productive.
We find Bigelow to be entirely consistent with Insomnia. Finality is prerequisite to litigation.
The Church’s contention, however, that finality had been achieved on September 26, 2005—i.e., that
the parties’ positions had been defined and an impasse reached—is belied by the record. The permit
was revoked because the Church’s position was undefined. In response to evidence of ongoing
permit violations, Rev. Pacey stood mute. The Church’s position now is that the Commission made
its decision based on erroneous information, but the Church made no attempt in September 2005 to
show that it had not held the Christian Discipleship Center out as a resource for substance abuse
counseling. When the Church’s position was finally better defined and the record more fully
developed, in the Fall of 2007, the relief it sought was almost immediately forthcoming.
The Church finally requested reinstatement of the special use permit in September 2007,
right after the district court had dismissed the Church’s complaint. Though two years had passed
since revocation, the Commission acted expeditiously on the request. The Commission conducted
a meeting on September 24, 2007, at which the Church’s attorney and Rev. Pacey addressed the still
unresolved concerns of Commission members about the mission of the Christian Discipleship Center
and the character of its residents. On October 22, 2007, a public hearing was conducted, in which
township residents’ concerns were aired and addressed. Then, just one month later, at the
Commission’s next meeting on November 26, 2007, the special use permit requested by the
Christian Discipleship Center was re-approved.
Not only does this record of administrative proceedings demonstrate the importance of
adequate factual development in achieving finality, it also refutes the Church’s argument that pursuit
of administrative relief would have been futile, and illustrates how unnecessary entanglement of the
judiciary in litigation over constitutional issues can and should be avoided in favor of local and
efficient resolution of land use disputes. The record further demonstrates that, far from visiting
hardship on the Church, the withholding of judicial consideration actually facilitated resolution of
the dispute.
In other words, the post-dismissal relations of the parties serve only to validate the district
court’s prudential judgment that the Church’s resort to litigation was premature. Yet, after
emphasizing that ripeness requires finality, not necessarily exhaustion, the Church alternatively
argues that even finality is not required in this context. The Church observes that the finality
requirement imposed in Murphy II (and adopted in Insomnia) is an expansion of the ripeness
analysis applied to an unconstitutional “taking” of property claim in Williamson County. The Sixth
Circuit, unlike the Second Circuit, the Church contends, has construed Williamson County finality
as applying only to taking claims, not to other kinds of land use disputes. See Nasierowski Bros. Inv.
Co. v. City of Sterling Heights, 949 F.2d 890, 893-94 (6th Cir. 1991).
No. 07-2509 Grace Cmty. Church v. Lenox Twp. Page 8
This argument was conclusively rejected in Insomnia, 2008 WL 2121053 at *4-5, where the
court explained that Nasierowski, a land use dispute involving a procedural due process claim,
represents a limited exception. The court explained that a procedural due process claim is “the only
type of case in which we have not imposed the finality requirement on constitutional claims arising
out of land use disputes.” Id. at *4. This case does not present a procedural due process claim. It
is thus clear that the finality requirement is an important element of the ripeness inquiry in this case.
It is also clear that, when the Lenox Township Planning Commission decided to revoke the
special use permit for the Christian Discipleship Center on September 26, 2005, because of the
inadequacy of Rev. Pacey’s response to evidence of violations, the parties’ positions remained ill-
defined and finality had hardly been achieved. The analysis employed in the Sixth Circuit’s recent
decision in Insomnia, which we here adopt, confirms the propriety of the district court’s ruling that
this litigation was premature and subject to dismissal for lack of ripeness. We therefore affirm
dismissal of the Church’s RLUIPA claim.
C. Equal Protection Claim
The Church complains that the district court failed to separately explain why its equal
protection claim was also dismissed. While it is true that the district court did not, in its evaluation
of ripeness, distinguish between the the RLUIPA and equal protection claims, there was no need to.
For the same reasons that ripeness was lacking in relation to litigation of the Church’s RLUIPA
claim, it was also lacking in relation to litigation of the equal protection claim. See Insomnia, 2008
WL 2121053 at *3 (citing Bigelow and recognizing that the finality requirement also applies to equal
protection challenges to land use regulation). It follows that dismissal of the equal protection claim
was also proper.1
III. CONCLUSION
Accordingly, the district court’s judgment, dismissing the Church’s action as nonjusticiable
for lack of ripeness, is AFFIRMED.2
1
The complaint also asserts a claim for damages based on unconstitutional taking and tortious interference with
economic advantage. The Church has not, in its appellate briefing, objected to the district court’s dismissal of this claim.
Any such objection is therefore deemed abandoned and not reviewable on appeal. See Renkel v. United States, 456 F.3d
640, 642 n.1 (6th Cir. 2006).
2
This disposition renders moot the Church’s appeal from the denial of its motion to compel discovery.