Ripeness; Challenges to a zoning ordinance; Finality requirement; The Religious Land Use & Institutionalized Persons Act (RLUIPA); Alleged due process violation; Dismissal without prejudice; Whether the ordinance “chilled” First Amendment expression; The Freedom of Access to Clinic Entrances Act (FACE Act); Fourth Amendment search claim; Consent

The court held that plaintiff-Grand’s challenge to defendant-City’s zoning ordinance never “ripened” where he withdrew his special use permit application before the City reached a “final decision” about it. Further, the district court correctly dismissed his Fourth Amendment and FACE Act claims on the merits. Grand applied for the permit to use his home as “a place of religious assembly.” But before the City reached a final decision on the request, he withdrew it. He later sued the City and several officials under the RLUIPA, the FACE Act, and the First, Fourth, and Fourteenth Amendments of the U.S. Constitution. The district court ruled the RLUIPA, First Amendment, and Fourteenth Amendment claims were not ripe. It dismissed the FACE Act and Fourth Amendment claims on the merits. On appeal, the court explained the concepts of ripeness and noted the importance of the “finality” requirement in the land-use context—“a concrete and final decision by the local authorities.” It held that most of Grand’s challenges were unripe. He did “not point to a final decision implementing” the ordinance and he did “not show that delayed adjudication will harm him.” Thus, his RLUIPA, First Amendment, and Fourteenth Amendment claims were “unripe, both because they are not fit for review and because Grand will not be prejudiced by any delay.” It rejected his claims that a cease-and-desist letter he received constituted a final decision, or that further efforts with the Planning Commission would have been futile. Due to his “decision to withdraw his special use application, the zoning board had no application to act on[.]” And the court held that “‘futility’ is not an exception to finality[.] . . . A government’s position is final when it has adopted a settled position or refused to answer a complaint.” The court also found it difficult to see how he could “have a cognizable due process claim when his actions—dropping any effort to obtain relief—brought to an end whatever process was due.” Further, he was not unfairly harmed where his own actions created the ripeness issue. And because a dismissal based on ripeness is without prejudice, he could “file a new action if the City applies the ordinance to him in a way that violates his statutory or constitutional rights.” The court added that, having “chosen not to obtain a final decision, indeed any enforceable decision, about the application of the zoning rules to his home, he is the author of any chilling effect on his First Amendment interests, not the City.” Finally, his Fourth Amendment and FACE Act claims failed on the merits. Grand’s wife gave consent to the home inspection and the City’s actions did “not constitute ‘force,’ ‘threat of force,’ or ‘physical obstruction’ within the meaning of the” FACE Act. Affirmed.