No Final Decision, No Federal Case: Sixth Circuit Clarifies Finality for Land‑Use and RLUIPA Claims; Code‑Enforcement Threats Are Not “Threats of Force” Under the FACE Act

Introduction

In Daniel Grand v. City of University Heights, Ohio, the U.S. Court of Appeals for the Sixth Circuit (Sutton, C.J., joined by Batchelder and Larsen, JJ.) affirmed summary judgment for the City and several officials in a published opinion. The court held that most of the plaintiff’s land-use and religious liberty claims were unripe because he withdrew his application for a special use permit before any local decisionmaker reached a final, reviewable determination. The court also rejected a Fourth Amendment challenge based on third‑party consent and a claim under the Freedom of Access to Clinic Entrances Act (FACE Act), concluding that threatened code citations do not amount to a “threat of force.”

The case arises from an Orthodox Jewish homeowner’s desire to host home prayer gatherings. After a neighbor complained, the City’s law director sent a cease‑and‑desist letter asserting that operating a “house of worship” in a single‑family residential zone required a special use permit. The homeowner applied for the permit, the Planning Commission opened deliberations, and then he withdrew his application just before a second hearing, announcing that he no longer sought to operate a “house of worship” as defined by the ordinance. Eighteen months later, he sued. The district court dismissed most claims as unripe and the remainder on the merits. The Sixth Circuit affirmed.

Summary of the Opinion

• Ripeness and finality: As‑applied challenges under RLUIPA, the First and Fourteenth Amendments, and the Ohio Constitution were unripe. The court emphasized the well‑settled “finality” requirement in land‑use disputes: a plaintiff must obtain a final decision from the local body charged with applying the ordinance before suing in federal court. A cease‑and‑desist letter from a law director or the mayor is not such a final decision.
• Hardship: The plaintiff showed no hardship from deferring review. The letter was not an enforcement action; local avenues remained open; any “chill” was self‑inflicted when he withdrew his application and chose not to pursue clarity from the local bodies.
• Facial challenges: Finality is not required for facial challenges, but the plaintiff (and the United States as amicus) lost anyway. The facial theories were forfeited at summary judgment and would fail under the demanding Salerno standard because zoning for places of worship can be constitutional in many applications.
• Fourth Amendment: The warrantless housing inspection was constitutional because the plaintiff’s wife consented; consent by a co‑occupant with apparent or actual authority is valid.
• FACE Act: Asking neighbors to report possible zoning violations and mentioning potential code citations is not “force,” “threat of force,” or “physical obstruction.” Threatening to ticket for code violations is not a threat to inflict bodily harm.
• Procedural points: Unripe dismissals are without prejudice (as the district court did). The district court properly declined supplemental jurisdiction over remaining state‑law claims after disposing of federal claims.

Analysis

Precedents Cited and Their Role in the Decision

• Ripeness framework:
  • Lujan v. Defenders of Wildlife: Identifies Article III limits (standing, ripeness, mootness).
  • Warshak v. United States (6th Cir. en banc): Describes “filed too early/too late” taxonomy and cautions against “litigation by hypothetical.”
  • Abbott Laboratories v. Gardner; Trump v. New York (per curiam): Two‑part ripeness test—fitness for review and hardship of withholding review.
  • Ohio Forestry Ass’n v. Sierra Club: Pre‑enforcement review not warranted when the policy does not force immediate behavioral change under threat of sanction.
• Finality in land‑use disputes:
  • Williamson County Regional Planning Commission v. Hamilton Bank; Suitum v. Tahoe Regional Planning Agency; MacDonald, Sommer & Frates v. Yolo County; Knick v. Township of Scott: Establish and preserve the “final decision” requirement, which remains intact post‑Knick for non‑takings claims as a ripeness matter.
  • Pakdel v. City & County of San Francisco (per curiam): Only “de facto finality” is necessary, but some final, settled position remains required.
  • Miles Christi Religious Order v. Township of Northville; Bannum, Inc. v. City of Louisville; Insomnia Inc. v. City of Memphis: Apply finality across RLUIPA, Equal Protection, and speech claims tied to land use.
  • Grace Community Church v. Lenox Township: No ripeness where a church bypassed the local process; unappealed, inconclusive actions do not ripen claims.
• Futility and due process:
  • Palazzolo v. Rhode Island; Murphy v. New Milford Zoning Commission (2d Cir.): Futility is simply another way to express finality—when the government “digs in its heels,” further process is unnecessary.
  • Alvin v. Suzuki (3d Cir.); Dusanek v. Hannon (7th Cir.): A due process claim fails when the plaintiff abandons available procedures.
• First Amendment “chill”:
  • Laird v. Tatum; Susan B. Anthony List v. Driehaus; Mahmoud v. Taylor: Subjective chill is insufficient; objective harm and credible threat matter.
• Facial challenges:
  • United States v. Salerno; Yee v. City of Escondido; Keystone Bituminous Coal Ass’n v. DeBenedictis; Opulent Life Church v. City of Holly Springs (5th Cir.): Facial attacks are immediately ripe but demand proof that “no set of circumstances” is constitutional—a steep burden.
  • Bucklew v. Precythe: Reinforces the difficulty of facial challenges across contexts.
  • Mount Elliott Cemetery Ass’n v. City of Troy (6th Cir.); Grace United Methodist Church v. City of Cheyenne (10th Cir.): Zoning houses of worship is permissible when reasonably tailored; no absolute right to build where one pleases.
• Fourth Amendment:
  • Camara v. Municipal Court: Administrative housing inspections are “searches.”
  • Lange v. California: Warrantless home searches are presumptively unreasonable absent exception.
  • Schneckloth v. Bustamonte; United States v. Ayoub; United States v. Sheckles: Consent exception; consent from a co‑occupant with actual or apparent authority is valid.
• FACE Act:
  • 18 U.S.C. § 248(a)(2): Prohibits force, threats of force, or physical obstruction interfering with religious worship.
  • United States v. Doggart; Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists (9th Cir. en banc): “Threat of force” entails a serious expression of intent to inflict bodily harm; legal process threats do not qualify.
• Appellate procedure:
  • Bennett v. Hurley Medical Center; Sanborn v. Parker: Arguments not developed at summary judgment or raised first in reply are forfeited.
  • Peters v. Fair: Unripe claims are dismissed without prejudice.
  • Moon v. Harrison Piping Supply; 28 U.S.C. § 1367(c)(3); Landefeld v. Marion General Hospital: Discretion to decline supplemental jurisdiction once all federal claims are resolved.

Legal Reasoning

1. Fitness and finality: The court underscored that land‑use disputes are unfit for federal review until “the government body charged with implementing the regulations” renders a final decision applying them to the property. Here, three independent facts defeated fitness:
   • No body with decisional authority—the Planning Commission, City Council on appeal, or the Board of Zoning Appeals—ever decided whether the home prayer meetings constituted a “house of worship” or whether a permit would be granted.
   • The plaintiff withdrew his application on the eve of the second hearing, halting the process before the City could take and finalize a position.
   • A cease‑and‑desist letter from the city law director (a non‑adjudicatory official) is not a final, binding application of the zoning code and thus cannot substitute for finality.
2. Futility rejected: Although “futility” can show de facto finality, the record showed ongoing, open‑minded deliberation: commissioners exchanged emails questioning whether small prayer meetings fit the “house of worship” provision and scheduled a second hearing. There was no evidence the City had “dug in its heels.”
3. Hardship: Withholding review imposed no cognizable hardship because:
   • The cease‑and‑desist letter was not an enforcement action and could not be “enforced” against him during local proceedings.
   • Local avenues remained open to secure clarity or approval (re‑apply, complete the record, seek an interpretation from the Board of Zoning Appeals, appeal to City Council).
   • Any speech or religious “chill” was not objectively compelled by governmental action; the plaintiff conceded he convened a Sabbath minyan after the meetings, and he chose not to obtain a final determination.
4. Due process: The claim could not ripen because the plaintiff voluntarily abandoned the very procedures that could have afforded process and relief. One cannot manufacture a due‑process deprivation by walking away from available process.
5. Facial challenges: While finality does not apply to facial claims, those claims failed for two reasons:
   • Forfeiture at summary judgment by lack of developed argumentation.
   • Substantively, the ordinance is not unconstitutional in all applications (e.g., banning a 3,000‑seat worship hall in a residential zone is permissible), so the Salerno standard cannot be met.
6. Fourth Amendment: The housing inspection fell within the consent exception because the plaintiff’s wife gave permission and appeared to have authority over the premises. That defeats the Fourth Amendment claim.
7. FACE Act: The “threat of force” element requires an intent to inflict bodily harm. Asking neighbors to report suspected violations and referencing potential court remedies or code citations does not meet that threshold. Even if timely raised, the argument would fail.
8. Disposition: The court confirmed that unripe claims were dismissed without prejudice and upheld the district court’s decision to decline supplemental jurisdiction over the remaining state‑law claim.

Impact

This decision has immediate and practical consequences for religious land‑use litigants, municipalities, and lower courts across the Sixth Circuit.

• Reinforced gatekeeping by local authorities: Plaintiffs bringing RLUIPA or constitutional challenges intertwined with land use must create a record and obtain finality from the decisionmaker charged with applying the ordinance. Skipping the local process—or withdrawing midstream—will almost always prove fatal to federal jurisdiction on ripeness grounds.
• Cease‑and‑desist letters are not enough: Unless the letter is itself an enforceable action by the body empowered to adjudicate the matter or accompanied by an immediate sanction, it will not ripen an as‑applied challenge. Municipalities can continue to communicate compliance expectations without unwittingly creating federal jurisdiction.
• Narrowed “chill” arguments: Plaintiffs must demonstrate objective harm or a credible threat of enforcement. If local processes are available to resolve uncertainty, courts may view self‑imposed restraint as “self‑authored” chill rather than hardship.
• Futility is a high bar: Off‑the‑record skepticism or one official’s comments will not establish futility. Evidence of a settled position or a refusal to decide is needed to show de facto finality without completing the process.
• Facial challenges remain available but difficult: The Sixth Circuit recognizes that facial attacks are ripe upon enactment, yet it reminds litigants that Salerno’s “no set of circumstances” test is formidable—particularly in land‑use, where reasonable, context‑dependent applications abound.
• Fourth Amendment consent clarified: Home inspections based on consent from a co‑occupant with apparent or actual authority will be upheld. Municipal inspectors and prosecutors should still document consent carefully, but this opinion confirms the vitality of the third‑party consent doctrine in the administrative‑inspection context.
• FACE Act limits for municipal enforcement: Standard code‑enforcement warnings and requests for community reporting do not constitute “threats of force.” This cabin’s FACE’s reach and provides guidance to officials policing zoning laws in religious settings without risking FACE liability.

Complex Concepts Simplified

• Ripeness: A rule that courts decide only disputes that are ready for review. Two questions:
  • Fitness: Is there a concrete, final agency decision applying the law to the facts?
  • Hardship: Will waiting cause the plaintiff a real, immediate harm?
• Finality (in land use): Before suing, a landowner must get a final decision from the local body charged with applying the zoning regulation (e.g., planning commission or zoning board). Informal letters from non‑adjudicatory officials do not count.
• De facto finality: If the government’s position is fixed and further process would be pointless (e.g., the government “digs in its heels”), a plaintiff need not continue. But the record must show that settled stance.
• Futility: Not an independent exception; it is another way to show finality. If the government refuses to decide or stands firmly on a conclusive position, further steps are futile.
• As‑applied vs. facial challenges:
  • As‑applied: Contends the law is unlawful in the plaintiff’s specific circumstances—requires finality.
  • Facial: Contends the law is invalid in all its applications—does not require finality, but is very hard to win under Salerno’s “no set of circumstances” test.
• Subjective “chill” vs. objective harm: Feeling deterred is not enough; there must be a credible, objective threat of enforcement or other concrete harm to justify pre‑enforcement review.
• FACE Act “threat of force”: Means a serious expression of intent to inflict bodily harm. References to legal remedies, citations, or court action are not threats of force.
• Third‑party consent (Fourth Amendment): A co‑occupant with apparent or actual authority over the premises can validly consent to a search; that consent makes a warrantless search reasonable.
• Dismissal without prejudice: When claims are unripe, the court dismisses them without prejudice so the plaintiff may refile after obtaining a final decision that creates a ripe dispute.

Conclusion

The Sixth Circuit’s opinion in Grand cements a practical and doctrinal throughline: in land‑use disputes, “no final decision, no federal case.” The court synthesizes Supreme Court and circuit precedent to demand a concrete, final local decision before adjudicating as‑applied claims under RLUIPA and the federal Constitution. It rejects attempts to convert a law director’s cease‑and‑desist letter into a final, enforceable action and clarifies that hardship is absent where the plaintiff can seek clarity through local processes. At the same time, the court preserves the availability of facial challenges while underscoring Salerno’s stringent standard.

On the merits, the court provides clear guidance in two recurring enforcement contexts. First, third‑party consent by a co‑occupant validates administrative housing inspections under the Fourth Amendment. Second, ordinary code‑enforcement communications are not “threats of force” under the FACE Act, which targets threats of bodily harm, not warnings of citations.

For homeowners, religious congregants, and municipalities alike, the takeaways are straightforward. Plaintiffs should complete local processes and secure a definitive ruling before heading to federal court; municipalities should channel disputes into accountable local decisionmaking and keep enforcement communications within non‑coercive, non‑violent bounds. The opinion thus advances both federalism and clarity: local boards decide first, federal courts review later, and only once there is something final to review.