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    Centro Familiar Cristiano Buenas Nuevas; and Jorge Orozco, Pastor, Plaintiffs, vs.City of Yuma, Defendant.

    No. CV-08-996-PHX-NVW


    2009 U.S. Dist. LEXIS 7225

    January 30, 2009, DecidedJanuary 30, 2009, Filed

    COUNSEL: [*1] For Centro Familiar Cristiano BuenasNuevas, Jorge Orozco, Pastor, Plaintiffs: Byron JeffordsBabione, LEAD ATTORNEY, David Robert Sheasby,Alliance Defense Fund, Scottsdale, AZ; Benjamin WBull, Alliance Defense Fund Legal Ctr, Scottsdale, AZ;Deborah Marie Sheasby, The Center for Arizona Policy,Phoenix, AZ.

    For Yuma, City of, Defendant: Aaron Darnell Ford,LEAD ATTORNEY, Snell & Wilmer LLP, Las Vegas,NV; Ronald W Messerly, LEAD ATTORNEY, Kevin JParker, Snell & Wilmer LLP, Phoenix, AZ.

    JUDGES: Neil V. Wake, United States District Judge.

    OPINION BY: Neil V. Wake



    Plaintiff Centro Familiar Cristiano Buenas Nuevas("the Church") purchased a property at 354 S. Main St. indowntown Yuma, Arizona intending to use the facility asa church. The City's Planning and Zoning Commissiondenied the Church a conditional use permit ("CUP"), sothe Church and its pastor, Jorge Orozco, brought this suitfor declaratory judgment and permanent injunction,alleging violations of the Religious Land Use and

    Institutionalized Persons Act of 2000 (RLUIPA), 42U.S.C. 2000cc to 2000cc-5, the First and FourteenthAmendments to the United States Constitution, and theArizona Religious [*2] Freedom Restoration Act, A.R.S. 41-1493 to 41-1493.02. The parties agreed toconsolidate the Church's motion for preliminaryinjunction with trial on the merits under Fed. R. Civ. P.65(a)(2) and have stipulated to many of the facts. Thisorder states findings of fact and conclusions of lawpursuant to Fed. R. Civ. P. 52(a).

    I. Findings of Fact

    A. The City of Yuma

    The City of Yuma lies in the southwestern corner ofthe State of Arizona, near the confluence of the ColoradoRiver and the Gila River. Since the mid-1990s, the Cityhas been redeveloping its historic downtown andriverfront areas. The City began by producing adocument entitled "Historic Downtown Yuma: Imagine a2020 Vision," which envisioned revitalizing Main Streetand the riverfront with activity generating uses andattractions. Throughout the 1990s, significant publicinvestments were made to increase tourism and visitationin those areas, such as creating the Yuma Crossing StateHistoric Park, clearing uses that did not generatevisitation, and restoring historic sites on Main Street,such as the San Carlos Hotel.

    In 2000, the United States Congress created theYuma Crossing National Heritage Area ("YCNHA"), a

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  • twenty-two [*3] square mile area along the ColoradoRiver that includes the City's riverfront, historicdowntown, and surrounding historic neighborhoods. Theexpress purpose of the YCNHA is to promotedevelopment of those areas. The YCNHA is a privatenon-profit corporation whose executive director is paidby the City. Working from the City's 2020 Vision, and inconsultation with the local community, the YCNHAManagement Plan ("the management plan") was createdand approved locally and by the Secretary of the Interiorof the United States in July of 2002. The managementplan includes seven districts, including the DowntownRiverfront and Main Street. The Downtown Riverfrontarea will include a new Arizona Welcome Center, whichis financed with $ 4 million in state investment. It alsoincludes Gateway Park, which was financed with $ 4.4million in public investment, and a $ 30 million dollarhotel conference center.

    The City's Main Street terminates near GatewayPark. The management plan seeks to integrate the MainStreet area with Gateway Park by attracting "privateinvestment in new residential housing, officedevelopment, entertainment, and in-fill development."(Trial Ex. 28 at 12.) To this end, [*4] the City assisted inthe creation of Main Street Cinemas with a $ 250,000loan, invested $ 6 million in the renovation of the ArtCenter and Theater, and sold land at a discounted price topromote a mixed-use commercial and residentialdevelopment called "Shopkeepers." Additionally, MainStreet had been closed to vehicular traffic for many years.Closure of the street enabled the City to hold largefestivals in the area but decreased visitation to adjacentbusinesses. The management plan proposed to reopenMain Street as a "convertible street," accessible tovehicular traffic at most times, but able to be closed forfestivals and other large events. That proposal came tofruition in early 2007, just before the Church submittedits CUP application, when Main Street was reopened with$ 3.8 million in public investment. Such public andprivate investments, along with the planningdocumentation, demonstrate that the City has a bona fide,unique, and long-term redevelopment plan for MainStreet.

    Main Street encompasses three city blocks from 1stStreet to Giss Parkway in downtown Yuma. It is part ofthe Old Town District, which is defined by Yuma CityCode 154-185. As explained in the [*5] code:

    The Old Town (OT) District is intendedto be a retail, business, and governmentcenter with a special emphasis on tourismand historic preservation, due to theunique qualities present in the Old Town(OT) District that set it apart from all otherdistricts in the city. In this district,commercial establishments are intended toserve the residents of the city, as well asvisitors to the area. The priority of thisdistrict is to establish and support amixture of commercial, cultural,governmental, and residential uses thatwill help to ensure a livelypedestrian-oriented district.

    The code permits a variety of uses as a matter of rightwithin the Old Town District, including "Membershiporganizations (except religious organizations (SIC 86))."Yuma City Code 154-187. The abbreviation "SIC"refers to the Standard Industrial Classification Manual, apublication of the United States Office of Managementand Budget that is used to classify establishments forstatistical purposes. The code also permits certain usesupon the granting of a CUP, including drive-throughfacilities, gasoline service stations, educational services,job training and vocational rehabilitation services,religious [*6] organizations, outdoor sales, and utilityinstallations. Yuma City Code 154-188. Religiousorganizations are allowed as a matter of right inTransitional Districts, Limited Commercial Districts,General Commercial Districts, and Planned ShoppingCenter Districts, which comprise 3.7 square miles of theCity.

    Within the Old Town District, but not on MainStreet, are a Masonic Temple, a Fraternal Order ofEagles, and a Christian Science Church and ReadingRoom. The Masonic Temple and the Eagles' existence indowntown predated the creation of the Old TownDistrict. Some of the uses currently on Main Street areMain Street Cinemas, the Yuma Art Center and HistoricYuma Theatre, Golden Roadrunners Dance Hall,Americana Personalized Fitness Center, Dawn's DanceSchool, and the Yuma Community Theater Company.The City has not approved a CUP for any church,educational service, or job training or vocationalrehabilitation service to locate on or near Main Street.

    B. The Church's Search for Property to Purchase

    Page 22009 U.S. Dist. LEXIS 7225, *2

  • Pastor Jorge Orozco directed Martin Lara, theChurch's administrator, to locate a property for theChurch for the first time in 1999. However, because theChurch did not have sufficient [*7] funds, Mr. Lara didnot actually start identifying potential properties until2003. Mr. Lara identified two potential buildings inSeptember of 2003 and March of 2004. He attendedpre-development meetings for both buildings with theCity's Department of Community Development. Neitherbuilding was in downtown Yuma. Although one of thebuildings was 6,000 square feet in area, Mr. Lara andPastor Orozco ultimately decided not to buy eitherbuilding because they were too small and the necessaryimprovements were too burdensome.

    Sometime in 2004 the Church began leasing itscurrent location, which is half of a 19,000 square-footformer movie theater at 3142 Arizona Avenue in Yuma.The building is not located in downtown Yuma. Anotherchurch occupies the other half of the building. Becausethe other church began renting its half of the buildingfirst, it imposes some restrictions on the time and mannerof the Church's use of its half of the building. The Churchbelieves that its half of the building is too small and lacksthe installations necessary to carry out activities essentialto its faith, such as corporate worship, public baptism,religious instruction classes including Sunday school[*8] and Bible study, and general education instruction.In addition, the owner of the building will not allow theChurch to modify it to suit its needs. The owner has putthe property up for sale and the Church is able to rent itonly on a month-to-month basis.

    Faced with these circumstances, the Church decidedto continue its search for a property to purchase. In 2005,the Church made a down payment on land outside of theCity limits and made plans to build a 6,000 square-footchurch with a seating capacity for 250 to 300 people. Atthat time, the Church believed that a building of that sizewould adequately meet its present needs. (Trial Tr. at135.) However, the Church did not ultimately completethat transaction because the builder raised the price abovewhat the Church was able to pay. Much later, in January2007, Mr. Lara identified a 4,500 square-foot property at2879 S. Ave. 4E and attended a pre-development meetingwith the City. Again, the property was not located indowntown Yuma. The City informed the Church that itwould need to obtain a special permit from a nearbymilitary installation because the building fell within asound contour. The parking area also required

    improvements. [*9] The Church decided not to purchasethe property.

    The Church next contacted a realtor, John Abarca, tohelp them locate a suitable property. Mr. Lara spoke withMr. Abarca about the type of property the Churchdesired. Specifically, he requested Mr. Abarca to locate afacility that could eventually accommodate a 400-personcongregation. The Church currently has 250 members, ofwhich 200 regularly attend its services. To accommodatefuture growth and special events, including holidayservices, the Church wished to find a larger facility. Mr.Abarca used the 2003 International Building Code tocalculate that the new facility would need a minimum of2,800 to 3,000 square feet for the seating area, plusadditional space for ancillary uses. Mr. Abarca used hispersonal experience at his own church to decide that a10,000 to 12,000 square-foot building would be ideal. Heused the City's regulations to determine that the Churchwould need 100 parking spaces.

    Mr. Abarca conducted a countywide search forproperties that had a large open area that could be used asa sanctuary. Although there are over 9,000 acres ofundeveloped land within the City, he did not search forundeveloped land upon which [*10] the Church couldbuild a new building. He also did not conduct anexhaustive search for buildings that would meet the needsof the Church's current congregation. (Trial Tr. at 63.) A200-member congregation would need only 50 parkingspaces and a minimum of 1,400 to 1,500 square feet forseating, plus additional space for ancillary uses.

    Mr. Abarca identified nine properties for sale thatmight fit the Church's needs. The properties he foundranged in size from 4,000 to 17,000 square feet.However, Mr. Abarca did not present all nine of thoseoptions to Mr. Lara. Mr. Lara had told Mr. Abarca thatthe Church's total budget, including remodeling, wasapproximately $ 1 million. Some of the properties thatMr. Abarca found were outside of the Church's budget.For example, one of the nine properties that Mr. Abarcaidentified is the Church's currently rented location at3142 Arizona Avenue. However, the cost of that propertywas $ 2.4 million and the Church would have had tomake additional renovations, so Mr. Abarca did notpresent it as an option to Mr. Lara.

    Additionally, Mr. Lara had asked Mr. Abarca toconcentrate on properties on Main Street in downtownYuma because the City's parking [*11] requirements do

    Page 32009 U.S. Dist. LEXIS 7225, *6

  • not apply to buildings there. Although the Churchbelieves that ministering to the downtown area is part ofits religious mission, from 1999 until 2007 it had neverlooked for property in downtown or on Main Street. Thereason that the Church began looking at properties onMain Street was because it had learned that the City'susual parking requirements do not apply there. (Trial 54, 107). There was no particular religious reason thatthe Church needed to locate in the downtown area.Ultimately, Mr. Abarca presented only three buildings toMr. Lara. All three were on or adjacent to Main Street.(Trial Tr. at 55, 108.) One of the properties that Mr.Abarca did not present to Mr. Lara was located at 660 E.18th Place. It is a 12,000 square-foot building that hasplenty of classroom space, a 3,000 square-foot area thatcould be used as a sanctuary, and 40 to 50 parkingspaces. That property would have met the needs of theChurch's current congregation, but was not big enough toaccommodate future growth to a 400-personcongregation. (Trial Tr. at 36, 56-57, 61-62.)

    Of the three properties that Mr. Abarca did present,Mr. Lara rejected two because they were too expensive.[*12] The remaining property is located at 354 S. MainSt. It is a 17,466 square-foot building that used to be aJ.C. Penny department store from 1952 to 1976. From1977 to 1993, the building was used by garmentmanufacturers as a warehouse and factory. Since 1993, ithas been vacant except for limited use for temporarystorefront displays and as a temporary facility forCalifornia Bakery in 1998. The City declined to supportthe Yuma Reading Council, United Way, ParentsAnonymous, and Big Brothers Big Sisters when thoseorganizations offered to purchase and renovate 354 S.Main St. for use in their community work. (Trial Ex. 3 at58.) The Church believes that the building has sufficientspace for it to carry out the activities essential to its faithand practices.

    C. The Church's Purchase of the 354 S. Main St.

    The Church contracted to purchase 354 S. Main St.on February 13, 2007. The property was in foreclosureand available at a bargain price, so the Church feltpressure to move on the deal quickly. Only aftercontracting to purchase the property, on February 20,2007, did the Church attend a pre-development meetingwith the City. Due to their concern about the rushedtimetable of the [*13] purchase, the Church wasparticularly careful at the meeting to ask whether there

    were any potential problems with operating a church atthe property. City staff informed the Church that aconditional use permit was required for religiousassemblies to operate in the Old Town District, of whichMain Street is a part. The Church understood at that timethat the power to grant or deny a CUP lies exclusivelywith the City Planning and Zoning Commission ("theCommission") and the Yuma City Council. They alsounderstood that they would have to attend a hearingbefore the Commission. City staff informed the Churchthat a neighborhood meeting for public comments had totake place before the hearing. It is common practice for aprospective buyer of real property either to obtain anecessary CUP before closing the purchase or to providein the contract that obtaining such a CUP is a condition ofthe buyer's obligation to close the purchase. Because theproperty was in foreclosure and the owner was notwilling to wait any longer, on March 5, 2007, the Churchconsciously chose to close on the purchase beforeapplying for the necessary CUP . (Trial Tr. at 65-72, 127;Trial Ex. 4 at 15-16.)

    D. The [*14] CUP Application

    Shortly after Main Street was reopened as aconvertible street, on March 30, 2007, the Churchsubmitted its CUP application. In the application, theChurch represented that it is a 200-member congregationwith services or activities on a daily basis. The proposedactivities included church services, music and dancelessons, counseling, summer Bible camps, GED classes,English classes, and computer classes. The majority ofthe activities the Church proposed were to take placeafter 4:00 p.m. The Church also stated its desire toparticipate in community events on Main Street.

    The neighborhood meeting was held on May 30,2007. Many neighbors expressed concerns about theChurch, including that the Church would detract from theretail focus of Main Street and would not have to paytaxes for the upkeep of public areas, such as parkingareas, along Main Street, and that the State of Arizonawould prohibit future liquor licenses for properties within300 feet of the Church. In response, the Church offered tomake a payment in lieu of taxes for upkeep of thecommon areas on Main Street and offered to run a coffeeshop out of the front of its building.

    The City's Community Planning [*15] staff prepareda Staff Report for the Commission recommending denialof the CUP. As grounds for the recommendation, the

    Page 42009 U.S. Dist. LEXIS 7225, *11

  • report stated that the Church's proposed use "does notimplement the purpose statement (Section 154-185) ofthe Zoning Ordinance . . . nor does it conform to theHistoric Yuma Downtown Plan 2020 (which is the basisfor the entire Riverfront and Heritage AreaRedevelopment effort) . . . and is in conflict with theCity's long-term goal of Main Street as a cultural, retail,recreation, and entertainment hub for the north end of theCity."

    The staff observed that granting the CUP would havesome positive effect, including "the possibility ofinvestment and rehabilitation of a deteriorated andlong-vacant building in the Old Town District, morepeople coming to the downtown area during off-hours,[and] the aesthetic improvement to Main Street resultingfrom the restoration of the building." However, accordingto the staff, granting the CUP for the Church would havebeen inconsistent with prior City Council actions, whichhad sought to redevelop and revitalize Main Street with acomplementary mix of retail, restaurant, andentertainment uses. The staff referred to the YCNHA[*16] Management Plan, which established the goal of"revitalization of the Downtown and Riverfront into a24/7 downtown neighborhood involving retail,residential, office and entertainment . . . to featureDowntown and the Riverfront as a tourist destination."The report included a list of the many public investmentsthat had been made in the Main Street and riverfrontareas to that end.

    The staff found the CUP application particularlyproblematic because the Church desired to locate onMain Street. The report noted the following differencesbetween the Old Town District in general and MainStreet in specific:

    The Old Town District encompassesmore than Main Street. There are presentlychurches in the Old Town District, butthey are not on the commercial strip ofMain Street.

    There are unique aspects of MainStreet not seen elsewhere in the Old TownDistrict. These aspects include: no on-siteparking required of any business; historiccommercial uses and buildings between1st Street and Giss Parkway; aconcentration of entertainment venues;

    significant financial investment by theCity of Yuma in the streets andrevitalization of buildings; a pedestrianfriendly environment; and numerous street[*17] fair events throughout the year.

    The staff would not have looked with the same disfavoron an application for the Church to locate elsewhere inthe Old Town District.

    Additionally, the staff members observed thatallowing the Church to locate on Main Street would limitadditional liquor licensing along the street. The staffreferenced A.R.S. 4-207, which restricts most liquorlicensing within 300 feet of schools and churches.Granting the Church the CUP would have foreclosed newliquor licenses for bars, breweries, wine bars, clubs,liquor stores, and all other retail purveyors of alcohol,other than restaurants and hotels, for slightly more thanone-third of Main Street's total area (one block out ofthree blocks). The staff members were concerned thatgranting the CUP could harm property values in that areaand would lead to the loss of a retail and entertainmentdirection for Main Street. The report therefore concludedthat granting the CUP would be "detrimental, orinjurious, to the value of property in the vicinity, or thegeneral welfare of the city" and recommended denial ofthe CUP. Alternatively, if the Commission voted to grantthe CUP, the staff recommended that they accept [*18]the Church's offer to pay a fee in lieu of taxes formaintenance of common facilities on Main Street.

    The hearing before the Commission took place onJuly 9, 2007. The staff elaborated on the points outlinedabove and representatives of the Church spoke in favor ofgranting the CUP. After all public comments had beentaken, the commissioners unanimously voted to deny theCUP application. One of the commissioners commentedthat he is a member of a church that has had problemswith property purchases in the past, but he neverthelessvoted to deny the CUP. On December 5, 2007, the YumaCity Council declined to revisit the Commission'sdecision.


    The Church argues that the City's denial of the CUPviolates two subsections of RLUIPA: (1) the substantialburden provision of 42 U.S.C. 2000cc(a), and (2) theequal terms provision of 2000cc(b)(1).

    Page 52009 U.S. Dist. LEXIS 7225, *15

  • A. Substantial Burden Provision

    RLUIPA provides:

    No [*19] government shall impose orimplement a land use regulation in amanner that imposes a substantial burdenon the religious exercise of a person,including a religious assembly orinstitution, unless the governmentdemonstrates that imposition of the burdenon that person, assembly, or institution-

    (A) is in furtherance of a compellinginterest; and

    (B) is the least restrictive means offurthering that compelling governmentalinterest.

    2000cc(a)(1). RLUIPA does not define the term"substantial burden," but the Supreme Court's freeexercise jurisprudence "demonstrate[s] that a 'substantialburden' must place more than an inconvenience onreligious exercise." Guru Nanak Sikh Soc'y v. County ofSutter, 456 F.3d 978, 988 (9th Cir. 2006) (quotingMidrash Sephardi, Inc. v. Town of Surfside, 366 F.3d1214, 1227 (11th Cir. 2004)). "[F]or a land use regulationto impose a 'substantial burden,' it must be 'oppressive' toa 'significantly great' extent. That is, a 'substantial burden'on 'religious exercise' must impose a significantly greatrestriction or onus upon such exercise." Id. at 988-89(quoting San Jose Christian Coll. v. City of Morgan Hill,360 F.3d 1024, 1034 (9th Cir. 2004)). 1

    1 Our [*20] circuit recently decided NavajoNation v. United States Forest Service, 535 F.3d1058 (9th Cir. 2008) (en banc). There, the courtheld that "[u]nder RFRA [the Religious FreedomRestoration Act, 42 U.S.C. 2000bb to2000bb-4], a 'substantial burden' is imposed onlywhen individuals are forced to choose betweenfollowing the tenets of their religion and receivinga governmental benefit (Sherbert) or coerced toact contrary to their religious beliefs by the threatof civil or criminal sanctions (Yoder)." Id. at1069-70. The City argues that this definitionshould also apply under RLUIPA because, likeRFRA, it merely adopted the meaning ofsubstantial burden used by the Supreme Court.The substantial burden analysis in Guru Nanak is

    consistent with Navajo Nation, and Guru Nanakis on point because it addresses a land userestriction on a religious organization underRLUIPA, rather than RFRA.

    By denying the Church's CUP application, the Cityprevented the Church from using its newly acquired MainStreet property for religious practices. Our circuitconfronted a similar situation in Guru Nanak Sikh Societyv. County of Sutter. The religious organization in thatcase sought a new location [*21] for a Sikh temple andwas twice denied a CUP by the county. The courtexplicitly declined to hold that "failing to provide areligious institution with a land use entitlement for a newfacility for worship necessarily constitutes a substantialburden pursuant to RLUIPA." Id. at 989 (emphasisadded). Instead, it found that "the history behind GuruNanak's two CUP application processes, and the reasonsgiven for ultimately denying these applications, to asignificantly great extent lessened the possibility thatfuture CUP applications would be successful." Id.Specifically, the county's broad and inconsistent reasonsfor denying Guru Nanak's two separate CUP applicationsshowed that it would likely deny further applications foralmost any location. Id. at 989-92. It therefore held thatthe county imposed a substantial burden on the religiousorganization "[b]ecause the County's actions have to asignificantly great extent lessened the prospect of GuruNanak being able to construct a temple in the future." 992.

    Additionally, the court noted that "the availability ofother suitable property weighs against a finding of asubstantial burden." Id. at 992 n.20 (citing San JoseChristian Coll., 360 F.3d at 1035). [*22] As the Court ofAppeals for the Second Circuit put it: "when aninstitution has a ready alternative -- be it an entirelydifferent plan to meet the same needs or the opportunityto try again in line with a zoning board'srecommendations -- its religious exercise has not beensubstantially burdened. The plaintiff has the burden ofpersuasion with respect to both factors." Westchester DaySch. v. Vill. of Mamaroneck, 504 F.3d 338, 352 (2d Cir.2007) (citing 42 U.S.C. 2000cc-2). However, this doesnot mean that to prove a substantial burden underRLUIPA a religious group needs to "show that there wasno other parcel of land on which it could build itschurch." Guru Nanak, 456 F.3d at 989 (quoting SaintsConstantine & Helen Greek Orthodox Church, Inc. v.City of New Berlin, 396 F.3d 895, 899-900 (7th Cir.

    Page 62009 U.S. Dist. LEXIS 7225, *18

  • 2005)). In Guru Nanak, alternative sites were technicallyavailable, but the county's decision-making wasdemonstrably arbitrary, since it denied the two CUPapplications using broad and contradictory reasons. Thecourt held that "RLUIPA does not contemplate that localgovernments can use broad and discretionary land userationales as leverage to select the precise parcel of landwhere [*23] a religious group can worship." Id. at 992n.20 (citing Saint Constantine, 396 F.3d at 900); see alsoWestchester, 504 F.3d at 350-51 ("[A] substantial burdenclaim [may be successful] where land use restrictions areimposed on the religious institution arbitrarily,capriciously, or unlawfully."); Grace Church v. City ofSan Diego, 555 F. Supp. 2d 1126, 1136 (S.D. Cal. 2008)("At various levels of Defendants' mandatory CUPprocess, Grace Church experienced outright hostility toits application [and] decision-making that is seeminglyarbitrary or pretextual . . . .").

    Accordingly, to demonstrate that the Citysignificantly lessened the prospect of the Church locatinga suitable property, the Church could show that thebreadth or arbitrariness of the City's reasoning indicatesthat it will likely deny a CUP for almost any location. Itcould also show a severe shortage of acceptablealternative properties. The Church has not met its burdenin either respect.

    The City denied the Church's CUP applicationprimarily because it was inconsistent with the City's pastefforts and future plan to develop Main Street into atourism, entertainment, and retail corridor. 2 The Citypredicted that the [*24] Church would impede furtherredevelopment of Main Street in accordance with theplan, in part because one full block of Main Street wouldbecome subject to restrictions on liquor licensing. Thosereasons for denying the CUP do not significantly lessenthe prospect of the Church being able to locate a suitableproperty in which to worship. They are peculiar to MainStreet and could not "easily apply to all future locationsproposed" by the Church. Guru Nanak, 456 F.3d at 989.The Staff Report notes that "[t]here are unique aspects ofMain Street not seen elsewhere in the Old TownDistrict." With planning materials and public and privateinvestments made throughout more than a decade, theCity has demonstrated a bona fide, unique, and long-termredevelopment plan for Main Street. Nothing suggeststhat the City would have denied the Church a CUP tolocate elsewhere in the Old Town District, or for thatmatter, elsewhere in the City of Yuma. The City's

    reasoning does not effectively "shrink the large amountof land theoretically available . . . to several scatteredparcels that the [City] may or may not ultimatelyapprove." Id. at 992. It eliminates only the possibility oflocating on [*25] Main Street.

    2 Contrary to the Church's assertion, the City didnot rely on the tax-exempt status of the Church todeny the CUP. Rather, it recommended that if theCity council voted to approve the CUP it shouldaccept the Church's offer to pay a maintenance feein lieu of taxes.

    The Church also has not shown that suitableproperties do not exist outside of Main Street. TheChurch provides no reason why it cannot fulfill its callingto minister to downtown Yuma from a propertyelsewhere in the City. The Church has repeatedly andseriously considered building or buying property outsideof the downtown area. Such actions show that it canfulfill its religious mission from property outside of thedowntown area. Indeed, from 1999 until early 2007, theChurch did not consider even a single property anywherein the downtown area. It only began looking at propertiesin downtown after it learned that the City's usual parkingrequirements do not apply to properties on Main Street.There is no reason to question the Church's professedbelief that it must minister to the downtown area. But tobe clear, as a matter of fact, there is no particularreligious reason that the Church must locate along [*26]Main Street in general or specifically at 354 W. Main St.It can fulfill its mission from property located elsewhere.

    The Church believes that it needs 354 W. Main St.because its current location is inadequate. But justbecause the Church needs a new facility does not meanthat the facility must be 354 W. Main St. The Churchbought that property before submitting its CUPapplication and knew that its application might be denied.See Petra Presbyterian Church v. Vill. of Northbrook,489 F.3d 846, 851 (7th Cir. 2007) ("Having decided to goahead and purchase the property outright after it knewthat the permit would be denied, Petra assumed the riskof having to sell the property and find an alternative sitefor its church should the denial be upheld . . . ."). Relyingon Cottonwood Christian Center v. CypressRedevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal.2002), and Eslinore Christian Center v. City of LakeElsinore, 291 F. Supp. 2d 1083 (C.D. Cal. 2003), theChurch argues that denial of a CUP imposes a substantial

    Page 72009 U.S. Dist. LEXIS 7225, *22

  • burden any time a religious organization has purchased anew facility to replace its current, inadequate facility.Such a rule would provide a growing religiousorganization [*27] with a de facto exemption from thezoning laws, allowing it to locate anywhere it pleases solong as it has purchased an adequate facility. That wasnot Congress's purpose in enacting RLUIPA. 146 Cong.Rec. S7774, S7776 (2000) (Joint Statement of SenatorHatch and Senator Kennedy) ("This Act does not providereligious institutions with immunity from land useregulation, nor does it relieve religious institutions fromapplying for variances, special permits or exceptions,hardship approval, or other relief . . . ."). A religiousorganization must show more than inadequacy of itscurrent facility and adequacy of the proposed facility tooverride an otherwise valid land use regulation as asubstantial burden. It must show a severe shortage ofacceptable alternative properties. Guru Nanak, 456 F.3dat 989, 992; Episcopal Student Found. v. City of AnnArbor, 341 F. Supp. 2d 691, 707 (E.D. Mich. 2004)(distinguishing Cottonwood because the church in thatcase had "experienced massive growth over a 20-yearperiod, and had extensively explored and exhausted itsoptions before filing suit").

    Ample property that would meet the Church's needsexists within the City. The Church's realtor, Mr. Abarca,[*28] identified the Church's current rented location as apotential property to purchase. Although the size of thatproperty is adequate, the Church did not consider it anoption because it is too expensive and requires too manyimprovements. But the cost of acceptable property is justone of the "ordinary difficulties associated with location(by any person or entity, religious or nonreligious) in alarge city" and does not amount to a substantial burden.Civil Liberties for Urban Believers v. City of Chicago,342 F.3d 752, 761 (7th Cir. 2003) (citing Love Church v.City of Evanston, 896 F.2d 1082, 1086 (7th Cir. 1990)),accord San Jose Christian Coll., 360 F.3d at 1035;Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d1214, 1227 n.11 (11th Cir. 2004) ("That thecongregations may be unable to find suitable alternativespace does not create a substantial burden within themeaning of RLUIPA . . . [because] '[t]he harsh reality ofthe marketplace sometimes dictates that certain facilitiesare not available to those who desire them.").

    Mr. Abarca also identified a property at 660 E. 18thPlace that would meet the needs of the Church's currentcongregation. The Church did not consider that [*29]

    option because it preferred a building that couldaccommodate a 400-person congregation. Yet, as theChurch's own previous behavior shows, the desire for alarger facility does not justify excluding options thatwould meet the ordinary needs of the Church's currentcongregation. In 2005, it had made plans to build afacility that would have been adequate only for its currentcongregation. If the builder had not raised his price, theChurch would have built that facility and it would havebeen much smaller than 660 E. 18th Place. In fact, all ofthe buildings that the Church seriously considered from2003 to early 2007 were much smaller than 660 E. 18thPlace. Nevertheless, Mr. Abarca did not conduct anexhaustive search for buildings large enough only for theChurch's current congregation. Nor did he conduct anexhaustive search for undeveloped land within the Cityupon which the Church could build, even though thereare over 9,000 acres of such land within the City.

    The Church falls far short of showing a severe lackof available alternative properties, and the City's reasonfor denying the CUP does not indicate that it will alsodeny future applications to locate in areas other than[*30] Main Street. The City therefore did notsignificantly lessen the prospect of the Church locating asuitable property, and denial of the CUP is not asubstantial burden.

    B. Equal Terms Provision

    In a separate subsection entitled "Discrimination andexclusion," RLUIPA provides:

    (1) Equal terms. No government shallimpose or implement a land use regulationin a manner that treats a religiousassembly or institution on less than equalterms with a nonreligious assembly orinstitution.

    (2) Nondiscrimination. Nogovernment shall impose or implement aland use regulation that discriminatesagainst any assembly or institution on thebasis of religion or religiousdenomination.

    42 U.S.C. 2000cc(b)(1)-(2).

    Three general types of equal terms violations havebeen identified:

    Page 82009 U.S. Dist. LEXIS 7225, *26

  • (1) a statute that facially differentiatesbetween religious and nonreligiousassemblies or institutions; (2) a faciallyneutral statute that is nevertheless"gerrymandered" to place a burden solelyon religious, as opposed to nonreligious,assemblies or institutions; or (3) a trulyneutral statute that is selectively enforcedagainst religious, as opposed tononreligious assemblies or institutions.

    Primera Iglesia Bautista Hispana of Boca Raton, Inc. v.Broward County, 450 F.3d 1295, 1308 (11th Cir. 2006).[*31] The Church's primary allegation in this case is thatthe City's zoning code facially violates the equal termsprovision. Alternatively, it argues that the City's actualdenial of the CUP violates the provision.

    The federal courts of appeals that have interpretedRLUIPA's equal terms provision agree on certain generalprinciples. The mere fact that the City's zoning codeidentifies religious organizations as a distinct type of usedoes not impair its facial neutrality. Midrash Sephardi,Inc. v. Town of Surfside, 366 F.3d 1214, 1232 (11th Cir.2004) ("Merely the mention of a church or synagogue ina zoning code does not destroy a zoning code's neutrality. . . ."); cf. Church of the Lukumi Babalu Aye, Inc. v. Cityof Hialeah, 508 U.S. 520, 533, 113 S. Ct. 2217, 124 L.Ed. 2d 472 (1993) ("A law lacks facial neutrality if itrefers to a religious practice without a secular meaningdiscernable from the language or context."). This isbecause there can be legitimate reasons for a zoning codeto identify religious organizations as a distinct type ofland use. See, e.g., Vision Church v. Village of LongGrove, 468 F.3d 975, 999 (7th Cir. 2006) ("The PlanCommission was concerned about the size of the churchcomplex and its effect [*32] on the character of theVillage, concerns separate and independent from thereligious affiliation (or lack thereof) of the institution . . .."). The reason that Yuma City Code 154-187distinguishes between "religious organizations" and"membership organizations" is because under the SICreligious organizations are a subset of the broadercategory of membership organizations. The code'srecognition of that distinction does not by itself suggestthat it treats religious and nonreligious assemblies andinstitutions on less than equal terms.

    There is also wide agreement that the equal terms

    provision codifies the Supreme Court's Free ExerciseClause jurisprudence regarding neutral laws of generalapplicability. Lighthouse Inst. for Evangelism, Inc. v. Cityof Long Branch, 510 F.3d 253, 264 (3d Cir. 2007) ("It isundisputed that, when drafting the Equal Termsprovision, Congress intended to codify the existingjurisprudence interpreting the Free Exercise Clause."(citing 146 Cong. Rec. S7774 (July 27, 2007) (SenateSponsors' statement)); Midrash, 366 F.3d at 1232("RLUIPA's equal terms provision codifies theSmith-Lukumi line of precedent."). In Church of theLukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. at546, [*33] the Supreme Court declared that a "lawburdening religious practice that is not neutral or not ofgeneral application must undergo the most rigorous ofscrutiny." A law is not neutral "if the object of [the] lawis to infringe upon or restrict practices because of theirreligious motivation," id. at 533, and is not generallyapplicable if it "in a selective manner impose[s] burdensonly on conduct motivated by religious belief," id. at 543.See also San Jose Christian Coll., 360 F.3d at 1031(quoting Lukumi, 508 U.S. at 533, 543)). Congress"codif[ied] those standards for greater visibility andeasier enforceability" in RLUIPA's equal terms andnondiscrimination provisions. 146 Cong. Rec. at S7775.

    Beyond these general principles, there is someconflict among the federal courts of appeals. The core ofthe conflict is whether a religious organization can provea violation of RLUIPA's equal terms provision merely byshowing that some nonreligious assemblies or institutionsare afforded better treatment within a given jurisdiction.According to the reading of the provision advanced bythe Church in this case, "if a zoning regulation allows asecular assembly, all religious assemblies must [*34] bepermitted." Lighthouse, 510 F.3d at 268 (criticizing theinterpretation given in Midrash, 366 F.3d at 1231)(emphasis added). Such an interpretation has beencriticized as leading to the absurd result that "if a townallows a local, ten-member book club to meet in thesenior center, it must also permit a large church with athousand members." Id. An alternative interpretation ofthe provision, advanced by the City in this case, draws onFree Exercise Clause jurisprudence to conclude that areligious assembly or institution must show that it istreated less well than "secular assemblies or institutionsthat are similarly situated as to the regulatory purpose."Id. at 266. Our circuit has not yet clarified the test to beapplied.

    Page 92009 U.S. Dist. LEXIS 7225, *30

  • The statute requires comparison of "a religiousassociation or institution" with "a nonreligiousassociation or institution." 42 U.S.C. 2000cc(b)(1)(emphasis added). Furthermore, unlike the substantialburden provision, the language of the equal termsprovision does not explicitly provide for any evaluationof the strength of the governmental interests behind thelaw or the connection between the government'sobjectives and the means used to achieve those [*35]objectives. In the abstract, it could therefore mean that alaw that treats even a single nonreligious assembly orinstitution better than any religious assembly orinstitution is subject to strict liability. Yet the language ofthe provision is not so plain as to compel thatinterpretation. A better way to provide for such a testwould have been to prohibit laws that treat "any religiousassembly or institution on less than equal terms than anynonreligious assembly or institution." While theindefinite article "a" can also bear that meaning, it doesnot necessarily compel it without support from thecontext and purpose of RLUIPA. As explained below,such support is lacking.

    Even if one thought so much force was packed intothe provision's use of the shortest word in our language,that supposedly plain meaning would not necessarilyprevail upon further inquiry. See County of Santa Cruz v.Cervantes (In re Cervantes), 219 F.3d 955, 960-61 (9thCir. 2000) ("[W]e ignore plain language only when a'literal interpretation would thwart the purpose of theover-all statutory scheme or lead to an absurd result.'").The extremity of the above described interpretation isself-evident. A zoning [*36] law that excluded all but asingle assembly or institution would fail such a test,despite treating religious assemblies and institutions onequal terms with the overwhelming majority of secularassemblies and institutions. Even though the law wouldprovide equal treatment to all assemblies and institutionsthat share the same land use impacts, and no matter howpeculiar or necessary the characteristics of that onepermitted secular use, all types of religious assembliesand institutions would have to be permitted as well. Sucha result asks too much of the provision's simple language."RLUIPA's Equal Terms provision requires equaltreatment, not special treatment." Primera Iglesia, 450F.3d at 1313. 3

    3 Our circuit has upheld the constitutionality ofRLUIPA's substantial burden provision as appliedto individualized land use determinations, such as

    the arbitrary denial of a CUP. See Guru Nanak,456 F.3d at 992-95. It must be noted, however,that the sweeping interpretation of the equal termsprovision described above might run afoul of theEstablishment Clause of the First Amendment andcould exceed Congress's powers under SectionFive of the Fourteenth Amendment. It would farexceed [*37] religious organizations' rights underthe Free Exercise Clause to exempt them, on thebasis of their religious motivation, from land userestrictions faced by all secular organizations withsimilar or identical land use impacts. Presumably,Congress intended the equal terms provision notto pose serious constitutional problems. SeeEdward J. DeBartolo Corp. v. Fla. Gulf CoastBldg. & Constr. Trades Council, 485 U.S. 568,575, 108 S. Ct. 1392, 99 L. Ed. 2d 645 (1988)("[W]here an otherwise acceptable construction ofa statute would raise serious constitutionalproblems, the Court will construe the statute toavoid such problems unless such construction isplainly contrary to the intent of Congress.").

    Congress included more in RLUIPA than the equalterms provision. It also included a provision that definesthe burden of persuasion in such cases.

    If a plaintiff produces prima facieevidence to support a claim alleging aviolation of the Free Exercise Clause or aviolation of section 2 [42 U.S.C. 2000cc], the government shall bear theburden of persuasion on any element ofthe claim . . . .

    42 U.S.C. 2000cc-2(b). This provision applies to theland use provisions of the statute. As it makes clear,Congress intended to simplify [*38] a religious assemblyor institution's burden to prove a prima facie case of aFree Exercise Clause violation. This is because it wasconfronting discrimination against religious uses that was"often covert" and it wanted to "codify" existing freeexercise standards "for greater visibility and easierenforceability." 146 Cong. Rec. at S7775. Therefore,through the equal terms provision, it required a religiousassembly or institution to identify a nonreligiousassembly or institution that is treated better. See Midrash,366 F.3d at 1230 ("[T]he relevant 'natural perimeter' forconsideration with respect to RLUIPA's prohibition is thecategory of 'assemblies and institutions.'"); Vision, 468

    Page 102009 U.S. Dist. LEXIS 7225, *34

  • F.3d at 1003 ("[T]he pertinent question is whether the'land use regulation. .. treats a religious assembly orinstitution on less than equal terms with a nonreligiousassembly or institution.'").

    However, it is beyond dispute that Congress onlycodified free exercise principles in the equal termsprovision; it did not change or exceed them. Lighthouse,510 F.3d at 264; Midrash, 366 F.3d at 1232. ThatCongress equated the equal terms provision with the freeexercise principles of neutrality and general [*39]applicability is apparent from RLUIPA's legislativehistory. "Each subsection [of the land use provisions]closely tracks the legal standards in one or more SupremeCourt opinions . . . ." 146 Cong. Rec. at S7775.Specifically, the equal terms and nondiscriminationprovisions "enforce the Free Exercise Clause rule againstlaws that burden religion and are not neutral andgenerally applicable." Id. at S7776.

    That Congress codified but did not exceed freeexercise principles is also apparent from the language andstructure of RLUIPA's burden shifting provision. SeePrimera Iglesia, 450 F.3d at 1308 ("Under the statute, aplaintiff bears the initial burden of 'produc[ing] primafacie evidence to support a claim alleging a[n EqualTerms] violation." (alterations in original)). Congresstreated "a violation of the Free Exercise Clause" exactlythe same as a violation of the equal terms provision of thestatute, shifting the "burden of persuasion on any elementof the claim" to the government. 42 U.S.C. 2000cc-2(b). The same is not true of RLUIPA'ssubstantial burden provision, which departs from freeexercise jurisprudence by imposing strict scrutiny on alaw that substantially burdens [*40] a person's freeexercise of religion. 2000cc(a)(1). Consequently, underthe burden shifting provision, Congress was careful tonote that the burden to show a substantial burden remainswith the plaintiff at all times. 2000cc-2(b).

    Once a religious assembly or institution has providedprima facie evidence of an equal terms violation, thestatute places the burden on the government to show whya Free Exercise Clause violation has not occurred. Aneutral and generally applicable law does not ordinarilyviolate the Free Exercise Clause. Lukumi, 508 U.S. at531. Accordingly, the government may satisfy its burdenof persuasion by showing that any disparate treatment ofa religious and a nonreligious assembly or institutionstems from a neutral and generally applicable principle.

    The two federal courts of appeals with the mostdivergent views on the proper interpretation of RLUIPAboth agree with this principle. In Midrash Shephardi, Inc.v. Town of Surfside, the Court of Appeals for theEleventh Circuit explained that any violation ofRLUIPA's equal terms provision must also necessarilyviolate the principles of neutrality and generalapplicability. 366 F.3d at 1232-35 ("As demonstrated[*41] above, a violation of (b)'s equal treatmentprovision indicates that the offending law also violatesthe Smith rule requiring neutrality and generalapplicability."). In Lighthouse Institute for Evangelism,Inc. v. City of Long Branch, the Court of Appeals for theThird Circuit relied on the principles of neutrality andgeneral applicability explained in Lukumi to formulate its"similarly situated as to the regulatory purpose" test. 510F.3d at 265-66. Therefore, although the outcomes ofMidrash and Lighthouse were different, the courts agreedthat ultimately, "[b]y requiring equal treatment of secularand religious assemblies, RLUIPA allows courts todetermine whether a particular system of classificationsadopted by a city subtly or covertly departs fromrequirements of neutrality and general applicability."Midrash, 366 F.3d at 1232.

    If a city permits a few nonreligious assemblies orinstitutions in a given district, that does not necessarilymean that it must permit all religious assemblies orinstitutions under RLUIPA. In such a hypothetical case,numerous other secular assemblies and institutions wouldbe excluded from the district in addition to religiousorganizations. The government [*42] might be able toprove that some neutral and generally applicableprinciple causes the disadvantage, not religion. Read inthe greater context of RLUIPA, the principal effect of theequal terms provision is to enable a religious organizationto easily shift to the zoning authority the burden ofproving that the regulation is neutral and generallyapplicable. This serves Congress's purpose of rooting outcovert discrimination without overreaching existing FreeExercise Clause principles by exempting religious usesfrom zoning regulation. A zoning ordinance does notviolate the equal terms provision, even if it permits somesecular assemblies or institutions and excludes religiousassemblies or institutions, so long as there is a neutral andgenerally applicable principle for doing so.

    1. The Church's Prima Facie Evidence of an EqualTerms Violation

    Page 112009 U.S. Dist. LEXIS 7225, *38

  • The Church must provide prima facie evidence thatthe City's zoning code is not neutral and generallyapplicable because it treats a religious assembly orinstitution on less than equal terms than a nonreligiousassembly or institution. The code permits secularmembership organizations to locate in the Old TownDistrict as a matter of right, [*43] but requires religiousorganizations, educational services, and job training andvocational rehabilitation services to obtain a CUP. YumaCity Code 154-187 to 154-188. All of the usesmentioned above include organizations that fall withinthe plain meaning of the terms "assemblies andinstitutions."

    An "assembly" is "a company of personscollected together in one place [usually]and usually for some common purpose (asdeliberation and legislation, worship, orsocial entertainment);" or "[a] group ofpersons organized and united for somecommon purpose." An institution is "anestablished society or corporation: anestablishment or foundation esp. of apublic character;" or "an establishedorganization, esp. one of a public character. . . ."

    Midrash, 366 F.3d at 1230-31 (citations omitted)(alterations in original). That the zoning code permitssecular membership organizations within the Old TownDistrict as a matter of right but requires a CUP fromreligious organizations is prima facie evidence of a facialequal terms violation. Additionally, the facts show thatthe City has actually allowed some secular assembliesand institutions to locate within the Old Town District buthas denied [*44] a CUP to the Church. That is primafacie evidence that the City applies the ordinance in away that violates the equal terms provision.

    2. Facial Validity of the CUP Requirement

    As explained above, the City's zoning code requiresa CUP not only from religious organizations, but alsofrom educational services and job training and vocationalrehabilitation services. It therefore places burdens onsome secular assemblies and institutions equal to theburdens placed on religious assemblies and institutions,but treats other secular assemblies and institutions betterthan religious organizations. The City bears the burden toshow that a neutral and generally applicable principle lies

    behind this distribution of burdens.

    It argues that a CUP is required for religiousorganizations because the Old Town District is "intendedto be a retail, business, and government center with aspecial emphasis on tourism and historic preservation, . . .[and where] commercial establishments are intended toserve the residents of the city, as well as visitors to thearea." Yuma City Code 154-185. The City relied uponthe SIC to classify uses for the Old Town District. TheSIC lists other kinds of uses that [*45] religiousorganizations often maintain, such as educationalinstitutions, hospitals, publishing houses, reading rooms,social services, second hand stores, and radio andtelevision stations. Religious organizations frequently usea single facility for purposes of assembly and for variousaccessary uses. See 146 Cong. Rec. at S7776 ("[N]otevery activity carried out by a religious entity orindividual constitutes 'religious exercise.' In many cases,real property is used by religious institutions for purposesthat are comparable to those carried out by otherinstitutions."); Brian W. Blaesser & Alan C. Weinstein,Federal Land Use Law & Litigation 7:36 at 694 (2008)("Uses that have been held to be accessory to churchescover an enormous variety of activities . . . ."); Sara C.Galvan, Note, Beyond Worship: The Religious Land Useand Institutionalized Persons Act of 2000 and ReligiousInstitutions' Auxiliary Uses, 24 Yale L. & Pol'y Rev. 207(2006) (discussing the proliferation of auxiliary uses runby religious institutions). In such circumstances, the Citymay need to regulate the accessary use to avoid conflictswith surrounding uses. It therefore decided that toaccomplish the [*46] overall plan for the Old TownDistrict religious organizations should undergoparticularized review.

    The Church's CUP application bears out the City'spoint. It includes the Church's intent to offer GED,English classes, and computer classes, which could be jobtraining services that would trigger the zoning code'sCUP requirement if pursued independently. However,since the Church undertakes such activities as part of itsreligious mission, and its primary use of the facility isassembly, the City might have to allow those accessoryuses if it permitted the Church in the Old Town Districtas a matter of right. See, e.g., Jirtle v. Bd. of Adjustment,175 N.C. App 178, 622 S.E.2d 713 (2005) (holding that achurch did not need a special permit to operate a foodpantry because it constituted an accessory use). Requiringa CUP from religious organizations enables the City to

    Page 122009 U.S. Dist. LEXIS 7225, *42

  • assess and mitigate the impact that such kinds ofaccessary uses might have on surrounding uses,irrespective of their religious motivation. See Family LifeChurch v. City of Elgin, 561 F. Supp. 2d 978, 985-988(N.D. Ill. 2008) (holding that under the Free ExerciseClause and RLUIPA a City could apply a CUPrequirement [*47] to a church that sought to operate ahomeless shelter as an accessory use). If religiousorganizations were allowed to locate in the Old TownDistrict as a matter of right, some would pose conflictswith surrounding entertainment and retail uses, and thedistrict would lose its planned direction.

    Moreover, within the Old Town District, the City hasengaged in a decade-long effort to revitalize andredevelop Main Street into a tourist, entertainment, andretail center for the City. It has invested millions ofdollars to that end. Allowing religious organizations tolocate on Main Street as a matter of right would derailthat plan. The State of Arizona restricts the issuance ofliquor licenses within 300 feet of religious organizations.A.R.S. 4-207. If there were to be just one religiousorganization on each of Main Street's three blocks, theentire street would be off limits to new bars, breweries,wine bars, clubs, liquor stores, and most other retailpurveyors of alcohol. Yet the City plans for Main Streetto be a tourist destination and entertainment area thatincludes those uses. The CUP requirement ensures thatthe mix of uses able to locate on Main Street is notaltered in a [*48] manner inconsistent with the City'splan.

    The Church relies on Digrugilliers v. ConsolidatedCity of Indianapolis, 506 F.3d 612, 615 (7th Cir. 2007),to argue that the City "cannot, by granting churchesspecial privileges (the right of a church official to residein a building in a nonresidential district, or the right ofthe church to be free from offensive land uses in itsvicinity), furnish the premise for excluding churches fromotherwise suitable districts." In other words, the City maynot gerrymander the zoning ordinance by using faciallyneutral terms to achieve the exclusion of religiousorganizations. But quite separately from the City, the SICand the foregoing sources confirm the practical realitythat many religious organizations customarily engage inwide-ranging accessary uses. Furthermore, many yearsbefore the City created the Old Town District, it was thestate that decided to benefit churches and schools byrestricting liquor licensing within their vicinity. See FirstBaptist Church v. Ariz. State Liquor Bd., 149 Ariz. 20,

    716 P.2d 81 (Ct. App. 1986) (holding the original statutean unconstitutional establishment of religion because itgave churches a veto power over [*49] the issuance ofliquor licenses). When the City created the Old TownDistrict, it was working within these legitimateconstraints, not inventing them to mask discrimination.See Lighthouse, 510 F.3d at 271 n.15 (declining to followDigrugilliers). Perhaps more importantly, unlikeDigrugilliers, the City has not sought to exclude religiousorganizations altogether. Rather, through the CUPrequirement, it seeks to include them in the Old TownDistrict in a manner consistent with its plan.

    There is no indication that the City hasgerrymandered the ordinance to exclude religiousorganizations. "Zoning laws inherently distinguishbetween uses and necessarily involve selection andcategorization, often restricting religious assemblies todesignated districts and frequently requiring that religiousassembles complete a conditional use applicationprocedure." Midrash, 366 F.3d at 1234. "[I]nequalityresults when a legislature decides that the governmentalinterests it seeks to advance are worthy of being pursuedonly against conduct with a religious motivation." Id.(quoting Lukumi, 508 U.S. at 542-43). The zoning codedoes not assert its plan for the Old Town District only, oreven primarily, [*50] against uses motivated by religiousbelief. It also requires a CUP from educational servicesand job training and vocational rehabilitation services.Those are types of assemblies or institutions that, ifpermitted as a matter of right, could derail the plan for thedistrict in much the same way as religious organizations.See Ass'n of Zone A & B Homeowners Subsidiary, Inc. v.Zoning Bd. of Appeals, 298 A.D.2d 583, 749 N.Y.S.2d 68(App. Div. 2d Dep't 2002) ("Educational institutions aregenerally permitted to engage in activities and locate ontheir property facilities for such social, recreational,athletic, and other accessory uses as are reasonablyassociated with their educational purpose."). Notably,schools trigger the same restrictions on liquor licensing asdo churches, A.R.S. 4-207, and so they also must obtaina CUP to locate in the Old Town District.

    Although the zoning law permits other kinds ofmembership organizations in the Old Town District as amatter of right, the City has shown that it considerssecular reasons for assembling no more valuable thanreligious reasons. Secular membership organizations donot trigger restrictions on alcohol licensing. Furthermore,nonreligious [*51] "membership organizations" under

    Page 132009 U.S. Dist. LEXIS 7225, *46

  • the SIC, such as business associations, labor unions, andpolitical organizations, do not customarily engage inwide-ranging accessory uses. Therefore, if a particularbusiness association, for example, did engage in someactivity exceeding the definition of "businessassociation," that activity could easily be classified undera different category of the SIC and not be permitted as amatter of right. The City need not worry that bypermitting such organizations it is opening the door tosecondary land use impacts, so there is no reason torequire a CUP.

    The City was not targeting religious organizationsbecause of their religious motivations, and it did notpursue its interests only against religious organizations.Rather, it was guided by the neutral desire to redevelopthe Old Town District in general, and Main Street inparticular as a tourism, entertainment, and retail area.Uses that posed particularly acute and obvious threats tothat goal if left unregulated, irrespective of their secularor religious motivation, were allowed only on conditionof obtaining a CUP. The zoning code does not violateRLUIPA on its face.

    3. Application of the CUP Requirement [*52] to theChurch

    The Church has also identified nonreligiousassemblies and institutions actually located on MainStreet, so the City bears the burden of persuasion that itsdenial of the CUP to the Church is consistent with theFree Exercise Clause. The actual conditions on MainStreet and the City's consideration of the CUP applicationshow that the City was guided by neutral and generallyapplicable principles. The secular assemblies andinstitutions that exist on Main Street include a movietheater, an art center and theater, a dance hall and studio,and a fitness center. All of those uses fit the City's goal ofcreating a tourism, entertainment, and retail corridor. TheCity has not approved CUP applications from otherchurches, educational services, or job training services tolocate on or near Main Street. In fact, the City declined tosupport the Yuma Reading Council, United Way, ParentsAnonymous, and Big Brothers Big Sisters when thoseorganizations offered to purchase and renovate the verysame property, 354 S. Main St., for use in theircommunity work. The City does allow a ChristianScience Church to operate in the Old Town District, butthat organization is not located on [*53] or near MainStreet. The two secular membership organizations most

    analogous to the Church located in the Old Town Districtare the Fraternal Order of Eagles and The MasonicTemple. Neither of those uses is on Main Street, and inany event, both predate the creation of the Old TownDistrict.

    Judging from the Staff Report and the transcript ofthe hearing before the Commission, there can be no doubtthat the dispositive factor in the denial of the CUP wasthe negative effect that allowing a church on Main Streetwould have on the long-term redevelopment plan.Although the Staff Report noted that the Church'stax-exempt status would allow it to avoid paying themaintenance tax for common facilities along Main Street,such as parking, that was not cited as a basis for denyingthe CUP. Rather, the staff recommended that if theCommission granted the CUP, they should accept theChurch's offer to pay a fee in lieu of taxes for thatpurpose. The restrictions on liquor licensing were apivotal concern for the staff. The inability to sitecomplementary entertainment uses on one-third of amajor tourism, entertainment, and retail center for theCity and the potential harm to adjacent property [*54]values outweighed the positive impacts brought by theChurch. The decision to deny the CUP therefore hadnothing to do with the Church's religious motivation, butrather concentrated on its land use impacts and theconsequences to the redevelopment plan.

    4. Rational Basis Review

    Since the equal terms provision codifies free exerciseprinciples, rational basis review must be applied wherethe government shows that the unequal treatmentidentified by a religious organization actually stems froma neutral and generally applicable principle. See Midrash,366 F.3d at 1235 (concluding that strict scrutiny appliesto laws that violate the equal terms provision). Underrational basis review, the regulations will be upheld ifthey are rationally related to a legitimate governmentalpurpose. Campanelli v. Allstate Life Ins. Co., 322 F.3d1086, 1100 (9th Cir. 2003). "[T]he burden is on the oneattacking the legislative arrangement to negative everyconceivable basis which might support it." Silveira v.Lockyer, 312 F.3d 1052, 1089 (9th Cir. 2002) (quotingHeller v. Doe, 509 U.S. 312, 320, 113 S. Ct. 2637, 125 L.Ed. 2d 257 (1993)). Although it is a court's duty toscrutinize the connection between the government'sobjective and the [*55] means that it has used toaccomplish that objective, "courts are compelled under

    Page 142009 U.S. Dist. LEXIS 7225, *51

  • rational-basis review to accept a legislature'sgeneralizations even when there is an imperfect fitbetween means and ends." Philips v. Perry, 106 F.3d1420, 1425 (9th Cir. 1997) (quoting Heller, 509 U.S. at321)).

    The zoning code's CUP requirement for religiousorganizations and the City's denial of a CUP to theChurch bear a rational relationship to the City'sredevelopment goals for Main Street. The Church arguesthat it would mesh with the City's goal for Main Streetbecause it has an active congregation that wishes to beinvolved in the downtown community. It would not havebeen appropriate for the City to consider the livelycharacter of the Church's congregation or its willingnessto participate in the commercial and community activitieson Main Street. Such considerations risk discriminatingbetween religious uses. Denying a CUP to a church of aless accommodating character on that basis would mostcertainly run afoul of the Free Exercise Clause. SeeLighthouse, 510 F.3d at 271 n.16 ("To allow Lighthousean exemption because of the 'upbeat' nature of its servicesand their frequency, as well as [*56] [its] willingness toengage in commercial activities, is to risk discriminatingbetween religious uses . . . .").

    There is no doubt that allowing religiousorganizations to locate on Main Street would affect themix of other uses able to operate there and couldconsequently compromise the City's plans andinvestments. Granting the CUP to the Church would haveprevented most new liquor licensing for one-third ofMain Street's total area. The Church points out thatnumerous other permitted uses in the Old Town Districtare not tourism, entertainment, or retail oriented, but ithas not shown that those other uses similarly threaten toalter the types of uses that can locate on Main Street. Italso argues that state law would not prevent restaurants,hotels, and special events from serving liquor even if theChurch was allowed to locate on Main Street. It isenough, however, that the Church would have preventedall other types of liquor licensing, altering the mix of useson a significant portion of Main Street in a mannerinconsistent with the City's plan. "Although there may beroom for disagreement over [the City's] prioritizing theavailability of alcohol consumption over the ability [*57]to seek spiritual enlightenment," Lighthouse, 510 F.3d at272, the City's actions bear a rational relationship to itsobjectives for Main Street.

    III. Other Constitutional and Statutory Claims

    The Church asserts that the City's zoning code andits denial of the CUP violates several provisions of theConstitution of the United States. The foregoing analysisshows why each of those claims fail. Beginning with theFree Exercise Clause of the First Amendment, it alreadyhas been explained that the zoning code's CUPrequirement is neutral and generally applicable.Therefore, even assuming that it burdens the Church'sfree exercise of religion, it does not violate the FreeExercise Clause. See Vision, 468 F.3d at 996-97(collapsing claims under RLUIPA and the Free ExerciseClause).

    Similarly, the City has not violated the ArizonaReligious Freedom Restoration Act, A.R.S. 41-1493.01.The language of the Arizona statute is slightly differentthan RLUIPA, but it still requires that the challenged lawimpose a "substantial burden" on the free exercise ofreligion. The briefing on the subject has been minimal,but no party has argued that the meaning of substantialburden under the Arizona statute [*58] is any differentthan under RLUIPA. The City has not violated theArizona statute because, as explained previously, it hasnot imposed a substantial burden on the Church's freeexercise.

    Since the CUP requirement is neutral and generallyapplicable, it does not discriminate against the Church orreligious organizations "on the basis of religion." Vision,468 F.3d at 1001. Therefore, when analyzed under theEqual Protection Clause of the Fourteenth Amendment,"no suspect class or fundamental right is involved," and"[w]e therefore apply only rational basis scrutiny to [thereligious organization's] equal protection claims." Id. at1000-01 (citing Locke v. Davey, 540 U.S. 712, 720 n.3,124 S. Ct. 1307, 158 L. Ed. 2d 1 (2004)). The City'szoning code and its denial of the CUP to the Church bothsurvive rational basis review for reasons alreadyexplained.

    Neither the zoning code nor denial of the CUPviolates the Church's First Amendment free speech rights.The analysis above has shown that the CUP requirementfurthers the neutral, generally applicable, and substantialinterests of the City. It therefore is not a "pretext forsuppressing expression." San Jose Christian Coll., 360F.3d at 1033 (quoting City of Renton v. PlaytimeTheatres, Inc., 475 U.S. 41, 48, 54, 106 S. Ct. 925, 89 L.Ed. 2d 29 (1986)). [*59] Nor does it "'ban' speech, but

    Page 152009 U.S. Dist. LEXIS 7225, *55

  • merely designate[s] where such speech may occur." Id. at1032. Since there is ample property not subject to a CUPrequirement within the City, the zoning code does not"unreasonably limit alternative avenues ofcommunication," and it is a valid "content-neutral 'time,place and manner' restriction." Id. at 1032-33.

    The City's denial of the CUP does not violate theChurch's First Amendment right to free association. TheCity has effectively denied the Church the ability toassemble at its property at 354 S. Main St. or at any otherlocation on Main Street. "But the fact that the church'scongregants cannot assemble at that precise location doesnot equate to a denial of assembly altogether." Id. at 1033(citing Christian Gospel Church, Inc. v. City & County ofS.F., 896 F.2d 1221, 1224 (9th Cir. 1990)). Accordingly,there has been no violation of the Church's right to free


    IT IS THEREFORE ORDERED that the motion forpreliminary injunction (doc. # 3) is denied.

    IT IS FURTHER ORDERED that the Clerk enterjudgment against Plaintiffs and in favor of Defendantsand that Plaintiffs take nothing. The Clerk shall terminatethis action.

    Dated: January [*60] 30, 2009.

    /s/ Neil V. Wake

    Neil V. Wake

    United States District Judge

    Page 162009 U.S. Dist. LEXIS 7225, *59


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