PORTLAND, Maine — A federal judge on Monday dismissed a religious discrimination lawsuit against the city of Brewer over its denial of a building permit to the Rock Church, which had sought earlier this year to expand in the North Brewer Shopping Center.

Shopping center owner Dana Cassidy in April sued the city and Code Enforcement Officer Ben Breadmore in U.S. District Court in Bangor.
Cassidy alleged that he has been harmed economically because the city’s land use regulations “treat the church unequally and discriminate against it on the basis of religion.”

The Rock Church, which left the shopping center and is expanding at its Bangor location at the corner of Ohio Street and Finson Road, was not a party to the lawsuit.

U.S. District Judge D. Brock Hornby found that the lawsuit was filed too early for him to decide the case on its merits. Hornby wrote in his four-page decision that the church should have appealed the code enforcement officer’s decision to the city’s zoning board of appeals before Cassidy filed the lawsuit.

“Because Rock Church, the tenant, chose not to pursue its expansion in the plaintiff landlord’s premises, there never was a final decision by the city,” the judge said. “The code enforcement officer is not the city’s final decision-maker.”

Cassidy argued in a hearing held before Hornby last week in Portland that such an appeal “would have been futile.” The judge disagreed.

“I do not know how the board of appeals would have acted on the church’s appeal, whether it would have agreed with the code enforcement officer’s decision that the church was planning an expansion that would lose its previously grandfathered status as a nonconforming use, or whether the board of appeals’ decision and its rationale would have altered the shape of the religious discrimination claim that the plaintiff now wants to present,” Hornby said. “The church’s decision to walk away from its permit request without pursuing an appeal to the city’s final decision-maker makes the plaintiff’s claim of liability unripe for a federal court to adjudicate.”

Cassidy’s attorney, Edmond J. Bearor of Bangor, said his client was “very disappointed” by Hornby’s decision. The attorney also said he did not believe an appeal to Brewer’s zoning board of appeals could be pursued because the deadline has passed.

The church or Cassidy would have had to appeal Breadmore’s decision within 60 days to have exhausted any administrative remedies before suing the city.

“I don’t understand why that course of action would be required since the Brewer [board of appeals] could not have granted any relief in this situation as its powers or authority do not extend to interpretations of federal law and it can’t grant a ‘use variance,’” Bearor said Tuesday in an email.

The Brewer City Council on Sept. 11 amended the zoning ordinance to allow churches in areas zoned for businesses and convenience stores, Brewer City Manager Steve Bost said Tuesday. The change was made more than six months after the Rock Church left its Brewer location.

“We’re very pleased with the decision and not all that surprised,” Bost said.

The Rock Church began renting space in Cassidy’s North Main Street shopping center more than three years ago as a second location in which to hold worship services and other activities. Brewer granted building and occupancy permits for the space, according to the complaint.

The building permit was signed in 2009 by the previous code enforcement officer. Breadmore signed the occupancy permit for the space in June 2011. The delay in issuing the occupancy permit apparently was due to the personnel change in the code enforcement office, according to a previously published report.

In February, church officials signed a new lease with Cassidy that would have more than tripled its space for services and other activities. The church’s building permit application was denied in a letter dated Feb. 17, 2012, and signed by Breadmore.

In the letter, the code enforcement officer called the church’s use of the building legal but nonconforming. Due to that, Breadmore wrote, the church could not expand at its current location.

The Rock Church was to have paid Cassidy $7,000 per month for a 14,000-square-foot space for four years, according to the complaint. The space it previously rented in the plaza was 4,500 square feet.

In his lawsuit, Cassidy asked Hornby to declare that Brewer’s Land Use Code was unlawfully written. The shopping center owner sought compensatory damages, attorney’s fees and litigation costs.

“It’s difficult for Mr. Cassidy to understand how the city can adopt an ordinance that violates federal law and then enforce that ordinance against his tenant, resulting in significant damages and yet he hasn’t any recourse,” Bearor said Tuesday in an email. “We are pleased that at least the city has since amended its ordinance to comply with federal law, even though that doesn’t make Mr. Cassidy whole.”

Bearor said his client is considering appealing Hornby’s decision to the 1st U.S. Circuit Court of Appeals in Boston.