Opinion
Case No.: 01-6530-CIV-MARTINEZ/KLEIN.
September 30, 2004
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Following the bench trial held in this case on February 9-11, 2004, the Court's Findings of Facts and Conclusions of Law entered in accordance with the requirements of Fed.R.Civ.P. 52 are as follows:
I. FINDINGS OF FACTS
A. BACKGROUND
1. Plaintiff, Primera Iglesia Bautista Hispana of Boca Raton, Inc. [hereinafter "the Church"]. is a Hispanic Baptist institution, which is affiliated with the Southern Baptist Convention. The Church serves a growing population of parishioners of Hispanic descent in Northern Broward County, Florida. (Joint Pretrial Stipulation ("JPTS") ¶ VI(A)).
The claims of the individual Plaintiffs, Augusto Pratts and David Pratts, were dismissed by this Court for lack of standing; accordingly, the Church is the remaining Plaintiff. (See Court's Order, dated August 16, 2003, D.E. No. 218).
The Court, by Order dated February 19, 2002, permitted Attorney General of the State of Florida, Robert A. Butterworth, and the United States of America to Intervene solely to address the constitutionality of Florida's Religious Freedom Restoration Act, Fla. Stat. § 761.03 and the Religious Land Use and Institutionalized Persons Act of 2000, respectively (D.E. No. 40; see also D.E. Nos. 19, 24). As the Court found the acts were constitutional in its Order Adopting Magistrate Judge's Report and Recommendation (D.E. No. 218), the Intervenors are no longer participating in this action.
2. Augusto Pratts ("Pratts") is the founding Pastor and President of the Church. (Pratts Test.).
3. In late 1997, the Church identified for purchase, the property located at 7450 Lyons Road in unincorporated northern Broward County [hereinafter the "Property"]. (Pratts Test.). The Property was listed for sale by its owner, Jerome Sanzone ("Sanzone"). (Sanzone Test.). Sanzone testified he checked the zoning of the Property when he first listed the Property for sale in 1996. Id.
4. On December 19, 1997, Primera Iglesia purchased the Property from Sanzone for the sole purpose of renovating, building and developing it as the permanent home for realizing the mission of the Church. (Pratts Test.).
5. Sanzone conveyed the Property by statutory warranty deed, which states the Property is subject to zoning ordinances and other restrictions and prohibitions by appropriate government authority. (Def's Ex. WW). Pratts and the Church were represented by an attorney in purchasing the Property. (Pratts Test.; Def.'s Ex. H). Pratts did not consult with his attorney about making the purchase of the Property contingent upon appropriate zoning regulations. (Pratts Test.).
6. At all times material to this case, the Church is the owner of the Property, which is almost one (1) acre in size. (JPTS ¶ VI(B)).
7. The structure on the Property is a single-family residence, and the Property has a religious tax exemption from the Broward County Property Appraiser's Office. (JPTS ¶ VI(C)). The Church's application for the tax exemption application states the Property is used for Church services. (McConaghey Test.; Def.'s Ex. Q). The Church submitted with its tax exemption application a weekly church program (Def.'s Ex. R, which will be discussed below), along with Articles of Incorporation (Def.'s Ex. C), both of which list the Property as the address for the Church.
Pratts denies the weekly program was submitted with the Church's application for a tax exemption (Pratts Test).
8. The County designated the Property as "Estate" on its Future Unincorporated Area Land Use Element of the Broward County Comprehensive Plan ["Comprehensive Plan"] and as being located in the "A-1" zoning district of unincorporated Broward County, Florida. (JPTS ¶ VI(D)).
9. The property is located on Lyons road, which is a major, six-lane, north-south arterial roadway. (JPTS ¶ VI(E)).
10. Pratts testified he first learned of the zoning requirement after the purchase of the Church. (Pratts Test.). Pratts claims the Church purchased the Property and subsequently hired an architect to develop a site plan. Id. Pratts testified he submitted the site plan to the County in order to receive the permits to renovate the house on the Property. Id. Pratts stated he spoke with Mr. Howard Clark, an Associate Planner with the County (Def.'s Ex. I), who told Pratts the Church would require a zoning variance in order to operate a church on the property, which the Church submitted in March 1998. (Pratts Test.). Pratts did not think anyone would oppose the Church's request for a variance. Id. The County provided evidence in the form of a letter from the attorney's office that represented the Church in the purchase of the Property. (Def.'s Ex. II). The attorney's letter, dated January 26, 1998, states "the appraiser of the property" described the appropriate zoning. Id. B. BROWARD COUNTY'S LAND USE AND ZONING
11. Defendant, Broward County [hereinafter the "County"], is a political subdivision of the State of Florida. The County has jurisdictional powers to enact and enforce land use plans, comprehensive plans, land development codes, land development regulations, and zoning code provisions for the unincorporated areas of Broward County, Florida. (JPTS ¶ VI(E)).
12. Prior to 2003, the County operated a "Zoning Code Services Division" ("ZCSD"), which was responsible for enforcing the zoning regulations set forth in the Broward County Zoning Code ("Zoning Code").
13. In 2003, the "Broward County Community Code Compliance Division" ("CCCD") assumed the responsibilities for enforcing the County's Zoning Code. (Morris Test.).
14. The Zoning Code applies to the County's unincorporated areas. (§ 39-2, Broward County Zoning Code; Marler Test.).
15. Permitted uses in the County's "A-1" zoning districts include places of worship, including churches. (JPTS ¶ VI(G). Marler Test.).
16. The County amended its Zoning Code to include, inter alia, § 39-245(9)(a) ["section 39-245"] in about July 1997. Section 39-245(9)(a) prescribes a one-thousand (1,000) foot distance separation [hereinafter "separation requirement"] between a proposed "nonagricultural, nonresidential use," which includes a place of worship, including, a church. (JPTS ¶ VI(II)).
17. The County's stated purpose for the separation requirement is to promote and protect the primary purposed of the agricultural districts (JPTS ¶ VI(I)). The purpose was codified in § 39. 246 of the Zoning Code, which states in part:
The A-1 Agricultural Estate, [sic] and A-1 General Agricultural Districts are intended to apply to those areas of unincorporated Broward County, the present and prospective use of which is primarily rural estates or agricultural. The regulations of these districts are intend to protect, preserve and enhance the rural character and lifestyle of existing low density areas and agricultural uses in compliance with the Agricultural and Rural Ranches land use designations of the certified Future Unincorporated Area Land Use Element of the Broward County Comprehensive Plan.
(Zoning Code, § 39-246; JPTS ¶ VI(1)).
18. Section 39-245 was amended in 1999 to provide, inter alia, that "there shall be a minimum distance of 1,000 feet between all plots upon which a development order has been issued for the construction or erection of a permitted nonresidential, nonagricultural use, except wireless communication facilities." (JPTS ¶ VI(L)).
19. The purpose was later amended by the County in 2000 to read:
The A-1 Agricultural Estate, [sic] and A-1 General Agricultural Districts are intended to apply to those areas of unincorporated Broward County, the present or prospective use of which is primarily rural, estates or agricultural. The regulations of these districts are intended to protect, preserve and enhance the rural character and lifestyle of existing low density areas and agricultural areas and agricultural uses and comply with the Agricultural, Estate and Rural Ranches land use designations of the Broward County Comprehensive Plan.
(Zoning Code, § 39-246 (amended); JPTS ¶ VI(J)).
20. The County did not conduct any studies to determine what impact, if any, the separation requirement would have on religious exercises and freedoms on property owners in the A-1 zoning district. (JPTS ¶ VI(K)).
21. At all times material to this case, there were other nonagricultural, nonresidential property uses within 1,000 feet of the Property, some of which are located within the municipal boundaries of the City of Coconut Creek, Florida ["Coconut Creek"] (JPTS ¶ VI(M)).
22. The County adopted an official policy that seeks to encourage the annexation of all unincorporated Broward County land uses, with the exception of certain regional facilities, into neighboring municipal jurisdictions by the calendar year 2010. The Property is included in the land sought to be annexed. The Broward County Legislative Delegation adopted a formal Delegation policy to encourage actions by the County and its residents to have the annexation completed by the calendar year 2005. (JPTS ¶ VI(N)).
23. The County's Zoning Official, Shirley Marler's responsibilities included implementing and interpreting the Zoning Code, and Marler proposed the 1997 Amendment, particularly the subject distance requirement provision and the County's expressed purpose for the A-1 zoning districts. (Marler Test.)
24. Marler testified the separation requirement crosses municipal boundaries, meaning other nonagricultural, nonresidential property uses within 1,000 feet of the Property are considered, regardless of whether they are in Coconut Creek or in the unincorporated area of Broward County. (Marler Test.). The purpose of this application is to prevent the nonagricultural, nonresidential property uses to congregate on the perimeters of the unincorporated area. Id.
25. The County did not distinguish between churches and any other nonresidential, nonagricultural use. (Marler Test.).
26. The Broward County Zoning Code ("BCZC") contains formal procedures that permit the county to make individualized assessment of proposed uses for property, including the unincorporated "A-1" zoning district that includes the Property (JPTS ¶ VI(O)). The BCZC includes: Definitions (§ 39-4); Establishment and Duties of its Board of Adjustment (§ 39-35); Application for Hearings (§ 39-36); Staff Review (§ 39-37); Authority (§ 39-39); and Considerations for Variances (§ 39-40). Id.
The Court, with the agreement of the parties, took judicial notice of the above-listed sections, along with the Comprehensive Plan.
27. Under the BCZC, the Broward County Board of Adjustment ("BOA") has sole authority to hear and decide requests for zoning variances. (§ 39-35, BCZC).
28. The BCZC specifically authorizes the BOA to consider requests for variances from separation requirements. (§ 39-39(a)(5), BCZC).
29. Any person seeking a variance from a provision of the BCZC, including a separation requirement, must submit an application requesting a quasi-judicial, public hearing before the BOA. (§ 39-36, BCZC).
30. When a variance application is submitted, Broward County staff is required to review the application and submit written comments and a recommendation relative thereto at the BOA's public hearing. (§ 39-37, BCZC).
C. THE CHURCH'S VARIANCE REQUESTS
31. After purchasing the Property in December 1997, the Church contacted the County's Code and Zoning Enforcement Division staff to determine whether the County's separation requirement applied to the Property. (JPTS ¶ VI(S); Def.'s Ex. 11; Marler Test.).
32. The County's staff advised the Church by letter, dated January 28, 1998, the Property was designated in "A-1" zone; of the separation requirement; and of the application procedures in the Zoning Code to seek a variance request of the separation requirement (JPTS ¶ VI(T); Def.'s Ex. 1; Marler Test.).
33. In March 1998, the Church applied to the BOA for a variance from the separation requirement. (JPTS ¶ VI(U)).
34. The Church, however, withdrew its variance request at the BOA hearing on April 2, 1998. (Pratts Test.). Pratts stated the Church's attorney advised Pratts there were not enough BOA members to vote ( e.g., there was no quorum), and the Church should withdraw its variance application and talk to the neighbors to try to work out any opposition. Id. Pratts admitted he did talk to the Church's neighbors and found some objected to the Church's variance request. Id.
35. The Church subsequently submitted another request for a variance from the separation requirement. (Pratts Test.).
36. The County's staff reviewed the Church's variance application and recommended to the BOA that the application be denied, because: 1) the separation requirement was necessary to maintain and protect the primary purpose of the agricultural district; 2) the Church created its own hardship; and 3) the Church's request did not meet the criteria set forth in the County's Zoning Code § 39-40. (JPTS ¶ VI(V); Pl.'s Ex. 51).
37. At the June 1998 public hearing, the Board of Adjustment denied the Church's request for a variance. (JPTS ¶ VI(W)). According to Pratt's testimony, there was "a lot of opposition to our case." (Pratts Test.).
D. THE COMPLAINTS AND INVESTIGATIONS
38. The Church admits that "[f]ollowing the initial denial [of the variance request], the Church's director and pastor used the property to conduct individual and small group prayer sessions, and also used the Property for occasional garage sales." (JPTS VI(X)).
39. Pratts testified after the second denial of the Church's variance request, members of the church and his family conducted prayer meetings at the property. Pratts further testified the prayer sessions were every Saturday from 7 p.m. to 8 p.m. and included sixteen to twenty people. (Pratts Test.).
40. Pratts testified regarding the Church's weekly program, which is found at Defendant's Exhibit R and was attached to the Church's tax exemption application. (McConaghey Test).
A. The weekly program is dated March 8, 1998 and states there was Sunday service; Bible school; and worship service. (Def.'s Ex. R). The program states Wednesday there would be Bible school and choir practice and on Saturday a missionary outreach prayer gathering. Id.
B. The address on the program is that of the Property.
C. Pratts testified the Church did hold services on March 8, 1998; however, they were held at 2350 Yamato Road, in Broward County. (Pratts Test.) Pratts further testified the Property's address was listed on the weekly program as a future advertisement. Id. Nowhere does the weekly program state an anticipated time for the Church to allegedly begin its services at the Property. (Def.'s Ex. R).
D. The weekly program, however, stated there would be a wedding on May 2, 1998 at the Yamato Road Church. (Def.'s Ex. R). Pratts had no explanation for the reason the weekly program would have to distinguish the location for the wedding if the Church routinely conducted services at the Yamato Road Church and not on the Property.
41. In April 1998, the ZCSD received a complaint that the Property was being operated as a church without a certificate of use and that there were illegal signs posted on the Property. (Def.'s Ex. VV). The ZCSD investigated the Property but found no zoning violations. Id. As a result, the ZCSD did not undertake any enforcement action against the Property at that time. Id.
42. After the Board of Adjustment's June 1998 denial of the Church's variance request, the ZCSD received a complaint the following year, on May 13, 1999, that the Church was conducting church services on the Property. (Pl.'s Ex. 15; Cruz Test.)
43. The ZCSD inspected the Property, and on May 28, 1999, issued a Notice of Violation to the Church for using the Property as a place of worship in violation of the separation requirement. (JPTS ¶ V(Y); Pl.'s Ex. 11; Pratts Test.). The County never found the Church guilty of the allegations contained within the Notice of Violation, dated May 28, 1999. (Cruz Test.).
44. Thereafter, ZCSD reinspected the Property but again found no zoning violations. (Cruz Test.) As a result, ZCSD did not undertake any further enforcement action against the Property at that time, and it officially closed the zoning file (File No. 99-03158) on the Property on August 31, 1999. (Pl.'s Ex. 22; Cruz and Hahn Test.).
45. Bruce Hahn, a ZCSD Supervisor, testified he performed surveillance of the Property beginning on August 28, 1999 and did not see church-related activities. (Hahn Test.). Hahn stated he only viewed behavior that inferred church-related activities were occurring, such as a high volume of automobiles and a number of well-dressed people visiting the Property, some of whom were carrying books. (Pl.'s Ex. 20, 21; Hahn Test.).
46. In August and September 1999, the Church admitted it had used and was using the Property as a church in order to bring the matter to a hearing as soon as possible. (Def.'s Ex. Y). The Church additionally admitted it was holding "organized worship services" on the Property. (Def.'s Ex. Y, Z; Hahn Test.).
47. Based on the Church's admissions, the ZCSD issued a Notice of Violation citing the Church for "illegally conducting church services (by admission)" in a residential structure, in violation of Zoning Code, and it set a hearing before the Broward County Code Enforcement Board ("CEB"). (Pl.'s Ex. 25, 26, 27, Hahn Test.).
48. On October 28, 1999, after conducting a hearing, the CEB found the Church "guilty (by admission)" of illegally using the residential structure on the Property to conduct church services, in violation of the Broward County Zoning Code. (Def.'s Ex. FF; Pratts Test.).
49. The Church filed an action against the County under the Florida Land Use and Environmental Dispute Resolution Act challenging the County's enforcement of the separation requirement. (JPTS ¶ VI(Z)).
50. The parties reached a mediated resolution which required the Church to submit another application to the BOA requesting a variance from the separation requirement. (JPTS ¶ VI(AA)). The Church did submit another application. (Pl.'s Ex. 31, 32, 60; Pratts and Orosz Test.)
51. The third application included additional use restrictions on the Church's proposed use of the Property, which the Church previously discussed with ZCSD staff and which were meant to mitigate any negative effects allegedly associated with the use. (Pl.'s Ex. 31, 32, 60; also Pratts and Orosz Test.).
52. The parties also agreed the County's ZCSD staff would reconsider the basis of its prior recommendation to the BOA to deny the Church's variance. (JPTS ¶ VI (BB)).
53. The ZCSD staff recommended approval of the Church's third variance request, because: 1) the Church had developed a site plan designed to mitigate possible negative effects on the surrounding neighborhood; 2) the Church's hardship was not self-created; and 3) the operation of a church on the Property would not negatively impact the traffic in the area. (JPTS ¶ VI(CC); Pl.'s Ex. 51).
ZCSD staff changed its position in this regard because of the Church's "new information," that it had relied, to its detriment, on representations of the seller who claimed knowledge of the Broward County Zoning Code on that basis that he was a Building Official in Palm Beach County. (Pl.'s Ex. 51; also Sanzone Test.). Noticeably absent from the Church's first two variance requests is any allegation of "hardship" based upon Sanzone's alleged representations. While the Church proffered allegations of hardship on the earlier applications, such assertions were not based upon Sanzone's alleged representations. Additionally, Sanzone testified he had checked the zoning of the Property when he placed it for sale in 1996 and later sold it in December 1997. However, the zoning had changed in July 1997, several months before the sale of the Property Sanzone also testified he was available to testify at the hearings regarding the Church's variance requests. There is no evidence before the Court, however, as to the content of Sanzone's testimony, if he testified at all.
54. On January 6, 2000, the BOA conducted a public hearing on the Church's request for a variance. (JPTS ¶ VI(DD); Pl.'s Ex. 53; Def.'s Ex. II).
55. At the end of the hearing, the BOA voted to deny the variance request on the basis that the "granting of the variance would not be in harmony with the community or the general intent or purpose of the Code and that such variance would be injurious to the area involved and it would be otherwise detrimental to the public welfare by virtue of the traffic created." (JPTS VI(DD), (EE); Pratts Test.).
56. During the hearing, neighbors of the Church voiced opposition to the variance request, including by showing a video and photographs. (Pratts Test.). Pratts testified the neighbors took the videos and photographs "every time we [had] a garage sale or service." (Pratts Test.).
57. Despite the BOA's denial of the Church's third variance request, the Church "continued to use the Property to conduct individual and small group prayers, and to use the Property for occasional garage sales." (JPTS ¶ VI(FF)). The County received a complaint in June 2000 that the Church was still conducting religious worship services at the Property. ( See JPTS ¶ VI(GG)).
58. After receiving the June 2000 complaint, the ZCSD investigated the Property and on September 12, 2000, issued a Notice of Violation charging the Church with "illegal[ly] conducting church services" on the Property in violation of the separation requirement. (JPTS ¶ VI(GG)).
59. The Church "discontinued the meetings" after the notice of violation was issued in 2000. (Pratts Test.).
60. The Church never sought to have the Property re-zoned, rather the Church only submitted the above-described variance requests. (Oros% Test.). There is no evidence the Church sought to be annexed into Coconut Creek.
E. OTHER PROPERTIES WITHIN 1,000 FEET
61. The properties known as the Apostolic Christian Church, Our Lady of the Sign Catholic Church, Park Springs Presbyterian Church, Renfrew of Florida, O'Donnell Farms, and the North Broward Preparatory School (with the exception of a ten-acre parcel) were all annexed into the City of Coconut Creek prior to the County's enactment of the A-1 zoning district regulations specifying distance requirements for nonagricultural, nonresidential uses. Therefore, those lands ceased to be within the jurisdiction of unincorporated Broward County as of the date of their annexations. (Def.'s Ex. QQ).
62. The properties known as the Bed and Biscuit Pet Inn and His Caring Place, which are nonresidential, nonagricultural uses located in the A-1 District, were established prior to the July 7, 1997 enactment of the separation requirement and thus, are legal, nonconforming uses under the Zoning Code. (Def.'s Ex. QQ: §§ 39-245(13) and 39-39, BCZC).
63. The South Florida Academy of Learning and a ten-acre parcel of the North Broward Preparatory School are zoned "1-1. Institutional and Education District," which does not impose any distance requirements on educational facilities. (Def.'s Ex. QQ).
64. The property located at 75.30 Lyons Road is classified as a single family residence by the Broward County Property Appraiser's office. (Def.'s Ex. TT).
65. Regarding the property at 75.30 Lyons Road [referred to as the "7530 property"], in December 2003, the CCCD became aware of an internet website advertising religious worship services at the 7530 Lyons Road property. (Morris Test.). Based on that website, the CCCD issued a Notice of Violation to the property owners, Baila and Yosef Gansburg, charging them with illegally conducting religious worship services in violation of the separation requirement. (Pl.'s Ex. 50; Def.'s Ex. YY). Previously, in April 2002, the County received a complaint the 7530 property was being used for church services. Id. The County inspected the 7530 property, twice in May 2002. Id. Hippolito Cruz a member of ZCSD staff, testified he inspected the 7530 property and memorialized his inspection in an e-mail that states he observed a lectern and chairs stacked against the wall, but he did not observe church services. (Cruz Test.; also Pl.'s Ex. 50).
II. CONCLUSIONS OF LAW
A. JURISDICTION
1. This Court has federal question jurisdiction under 28 U.S.C. § 1331, as the Church raised claims pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc. The Court has supplemental jurisdiction, 28 U.S.C. § 1367, over the Church's claim arising under Florida's Religious Freedom Restoration Act, Fla. Stat. § 761.03, as well as the County's counterclaim for injunctive relief.
B. COUNT I — 42 U.S.C. § 1983
2. In Count 1 of the Amended Complaint, the Church alleges, under 42 U.S.C. § 1983, the County's application and enforcement of the separation requirement set forth in Section 39-245(9)(a) of the Broward County Zoning Code violates its free exercise rights, speech rights, association and assembly rights, and substantive due process rights, as secured by the First, Fifth, and Fourteenth Amendments of the United States Constitution.
3. Section 1983 of Title 42 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.42 U.S.C. § 1983 (emphasis added).
4. The Eleventh Circuit Court of Appeals affirmed a lower court's dismissal of a corporate plaintiff for lack of standing in a § 1983 suit by stating:
A corporation is not a "citizen" entitled to the privileges and immunities secured by federal law for purposes of § 1983. See Hague v. Committee for Indus. Org., 307 U.S. 496, 514, 59 S.Ct. 954, 963, 83 L.Ed. 1423, 1436 (1939) ("Natural persons, and they alone, are entitled to the privileges an immunities which § 1 of the Fourteenth Amendment secures for `citizens of the United States.'").L.S.T., Inc. v. Crow, 49 F.3d 679, 683 (11th Cir. 1995).
5. Accordingly, the Church, lacks standing to bring a claim under 42 U.S.C. § 1983. Therefore, Count I is dismissed.
The Court, sua sponte, raised this issue before trial commenced. The parties failed to respond to the issue. The parties also did not file amended findings of fact and conclusions of law following the trial, on this or any other issue, in accordance with Local Rule 16.1.1.
C. COUNT II — RLUIPA
6. In Count II, the Church contend the County's application of the separation violates the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). As the Court previously held RLUIPA is constitutional, the Court will proceed to address the merits of the Church's claim. See also Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004) (holding RLUIPA was a proper exercise of Congress's Fourteenth Amendment powers and did not violate either the Establishment Clause or the Tenth Amendment.) RLUIPA provides:
No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution —
(A) is in furtherance of a compelling governmental interest; and
(B) is the least restrictive means of furthering that compelling governmental interest.42 U.S.C. § 2000cc(a)(1) (emphasis added).
7. The Eleventh Circuit Court of Appeals, in discussing a case brought under RLUIPA, clarified:
Section (a)(1) applies only if one of three jurisdictional tests is first met: either (A) the burden is imposed in a federally-funded program or activity; (B) the burden affects, or removal of the burden would affect, interstate commerce; or (C) the "burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes . . . individualized assessments of the proposed uses for the property involved."Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1225 (11th Cir. 2004) (citing 42 U.S.C. § 2000cc(a)(2)) (emphasis added). "`Land use regulation' is defined as a `zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use or development of land (including a structure affixed to land), if the claimant has . . . [a] leasehold . . . in the regulated land or a contract or option to acquire such an interest.'" Id. (citing 42 U.S.C. § 2000cc5(5)).
8. RLUIPA also prohibits discrimination:
(1) Equal terms No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.
(2) Nondiscrimination. No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.
(3) Exclusions and limits. No government shall impose or implement a land use regulation that —
(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction.42 U.S.C. § 2000cc(b).
9. The Court will address each of RLUIPA's prohibitions, which are referred to according to their applicable subsection of 42 U.S.C. § 2000cc, in turn.
1. Substantially Burdened
10. The Eleventh Circuit stated, first, the Court must determine whether one of the three requirements of section (a)(2)(C) are met, before turning to the substantially burdened test. Midrash Sephardi, 366 F.3d 1225. The Court concludes the jurisdictional requirement of 42 U.S.C. § 2000cc(a)(2)(C) is met. While the separation requirement does not require the government to make individualized assessments of the proposed uses of property, the variance request procedure, as stipulated by the parties, does. (JPTS ¶ VI(O); Broward County Zoning Code §§ 39-4, 39-35, 39-36, 39-37, 39-39, 39-40).
11 Accordingly, the Church must first show its religious exercise has been substantially burdened. After the Church makes such a showing, the burden shifts to the County to prove that its governmental interest is compelling, and the means employed in furthering such interest is the least restrictive means. (JPTS ¶ VIII(B)).
12 As RLUIPA does not define the term "substantial burden," the Eleventh Circuit recently clarified.
[A] "substantial burden" must place more than an inconvenience on religious exercise; a "substantial burden" is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly. Thus, a substantial burden can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct.Midrash Sephardi, 366 F.3d at 1227. This Court has restated its focus as: "the Court is required to determine whether Defendant's application of its Land Use Regulations has imposed pressure so significant as to require Plaintiff's congregation to forego their religious beliefs." Williams Island Synagogue v. City of Aventura, 329 F. Supp. 2d 1319 (S.D. Fla. 2004).
13. The Church claims the separation requirement prohibits "the Church from renovating and using the Property as a church and for other religious activities and thus[,] has placed a substantial burden on the Church's religious exercise rights." (JPTS ¶ 11(A)).
14. In Midrash Sephardi, the plaintiffs, two synagogue congregations, argued the Town of Surfside, Florida's zoning, which excluded churches and synagogues in seven of eight zoning districts, violated RLUIPA. 366 F.3d 1214. Plaintiffs in that case argued the zoning ordinances substantially burdened their religious exercise, because they would be required to relocate to the one zoning district that allowed churches and synagogues, which would require their congregants to walk farther, and as a result, they would lose congregants. Id. at 1227. The Eleventh Circuit rejected those arguments. Plaintiffs further argued they were not able to relocate to the permissible zoning district, because they could not find a suitable facility. Id. at n. 11. The Eleventh Circuit stated: "As the Seventh Circuit noted, `whatever specific difficulties [the plaintiff church] claims to have encountered, they are the same ones that face all [land users], not merely churches. The harsh reality of the marketplace sometimes dictates that certain facilities are not available to those who desire them.'" Id. (citing Love Church v. City of Evanston, 896 F.2d 1082, 1086 (7th Cir. 1990)).
15. Pratts further testified for several years, Church members and his family conducted prayer meetings. (Pratts Test.; see also JPTS ¶ VII(FF)). Pratts testified the Church "discontinued the meetings" after the Notice of Violation in 2000. The Court, however, finds Pratts's testimony is not entirely credible. Pratts testified, with regard to Defendant's Exhibit R, the weekly church program, which listed the Property as the address of the Church. Pratts testified this was an error, and services were held on Yamato Road. The program, however, indicates there would be a wedding held on Yamato Road. It is unlikely a church would be required to give the address of a wedding, if that were the address services normally were held. Pratts also testified the program was an advertisement for the Church's future location. This allegation is unsupported. Pratts further attempts to distinguish between "prayer meetings," which he apparently thinks are permissible and "church services," which apparently are impermissible. However, it is unclear, according to Pratts, what characteristics render such a distinction necessary, except, ostensibly, prayer meetings do not violate the BCZC.
16. This Court is persuaded by the reasoning of its sister court, the District Court for the Middle District of Florida, which explained:
The legislative history of the statute also reflects that although Congress was concerned with discrimination against religious organizations, it did not intend to relieve such organizations from zoning ordinances or from special permit requirements. A joint statement issued by the sponsors of the legislation, Senators Orrin Hatch and Ted Kennedy, specifically explains that "this Act [RLUIPA] does not provide religious institutions with immunity from land use regulation, nor does it relieve religious institutions from applying for variances, special permits or exceptions, hardship approval, or other relief provisions in land use regulations, where available without discrimination or unfair delay." 146 Cong. Rec. S7774-01, at *S7776. Clearly, it was not the intent of Congress to force municipalities to allow their residents to operate a religious institution in a residential subdivision. Konikov v. Orange County, 302 F. Supp. 2d 1328, 1346 (M.D. Fla. 2003) (emphasis added).
17. RLUIPA provides: "[n]o government shall impose . . .;" however, in the case at hand, the Church created its own burden. The separation requirement went into effect in July 1997. Five months later, in December 1999, the Church, represented by an attorney, purchased the Property without a condition of zoning. In other words, the Church created its own hardship. See City of Miami Beach v. Greater Miami Hebrew Academy, 108 So. 2d 50, 53 (Fla. 3d DCA 1959) (because plaintiff purchased the land in the face of existing zoning restrictions, any claimed hardship is unactionable as self-imposed). Although the Church claims it was unaware of the separation requirement at the time it purchased the property, "ignorance of the law is no excuse."
18. Accordingly, the Church has not carried its burden of showing the County substantially burdened its religious exercise. Here, the Church has shown nothing more than an incidental effect on religious exercise, which was created, largely, by the Church itself. The Church failed to establish a prima facie case under § (a).
19. The Court must, then discuss the second prohibition of RLUIPA.
2. Equal Terms
20. RLUIPA's second prohibition provides: "No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination."
21. The Eleventh Circuit mandates: "Under RLUIPA, we must first evaluate whether an entity qualifies as an `assembly or institution,' as that term is used in RLUIPA, before considering whether the governmental authority treats a religious assembly or institution differently than a nonreligious assembly or institution." Mudrash Sephardi, 366 F.3d at 1230 (citing 42 U.S.C. 2000cc(b)(1)). The Eleventh Circuit stated RLUIPA does not define either "assembly" or "institution." Id. Thus, the Eleventh Circuit provided the plain meanings of the terms:
An "assembly" is "a company of persons collected together in one place [usually] and usually for some common purpose (as deliberation and legislation, worship, or social entertainment)," WEBSTER'S 3D NEW INT'L UNABRIDGED DICTIONARY 131 (1993); or "[a] group of persons organized and united for some common purpose." BLACK'S LAW DICTIONARY 111 (7th ed. 1999). An institution is "an established society or corporation: an establishment or foundation esp. of a public character," WEBSTER'S 3D NEW INT'L UNABRIDGED DICTIONARY 1171 (1993); or "an established organization, esp. one of a public character. . . ." BLACK'S LAW DICTIONARY 801 (7th ed. 1999).Id. at 1230-31 (bracketed terms in original).
22. The separation requirement applies to all nonresidential, nonagricultural uses. Both residential use and agricultural use are neither an assembly nor an institution. On the other hand, the separation requirement applies equally to all assemblies and institutions, such as private clubs, social institutions, as well as churches and synagogues. The County has not completely prohibited churches or other places of worship in the A-1 District. Rather, the distance requirement regulates the density of all nonresidential, nonagricultural uses.
In addition to the Agricultural Districts, places of worship are permitted in the County's Rural, Estate, Residential, and Commercial Districts. (Broward County Zoning Code, §§ 39-263, 39-279, 39-295).
23. The County has not applied the separation requirement in a manner that treats the Church on less than equal terms than other nonreligious assemblies or institutions. As mentioned above, Renfrew of Florida, O'Donnell Farms, and the North Broward Preparatory School (with the exception of a ten-acre parcel) were all annexed into the City of Coconut Creek prior to the County's enactment of the separation requirement in July 1997. The Bed and Biscuit Pet Inn and His Caring Place, which are located in the A-1 District, were established prior to the enactment of the separation requirement, and thus, they are legal nonconforming uses under the Zoning Code. Additionally, the South Florida Academy of Learning and a ten-acre parcel of the North Broward Preparatory School are zoned 1-1 — Institutional and Education District ("1-1 District"), which does not impose any distance requirements on educational facilities.
24. Thus, under the "equal terms" provision of RLUIPA, the Church has not established a prima facie case, as the separation requirement is applied equally with all nonreligious assemblies and institutions. See 42 U.S.C. § 2000cc(b)(1).
25. Further, the County has not shown discrimination based upon religious denomination. As discussed above, all the religious institutions within 1,000 feet of the Church are legal non-conforming uses, as they are either in a different zoning area or were "grand-fathered," because they existed before the separation requirement went into effect.
26. Finally, the Church asserts the County has not applied the Zoning Code against the property located at 7530 Lyons Road (the "Chabad"). The Church's allegation is belied by the record evidence. The ZCSD investigated the 7530 property in May 2002, after receiving a complaint. Cruz testified he did not witness church services, and thus, the 7530 property was not given a Notice of Violation at that time. Cruz testified there was no distinction between any denomination of church services, and his inquiry was whether any church services were being conducted in violation of the BCZC. After the County became aware of a website showing the 7530 property was being used for church services, the County issued a Notice of Violation in December 2003.
The Church asserts the 7530 property should have been cited by the County based upon a variety of reasons: a sign stated "Chabad," which Hahn testified did not have religious meaning to him, since it could have been a name; a "menorah," which Hahn testified did not have the correct number of lights and any of his staff would have assumed that was a lighting fixture; people walking to the 7530 property wearing yarmulkas, when Hahn testified he declined to cite the Church merely for people walking to the Property carrying what appeared to be bibles; and Cruz viewing a room with a lectern and chairs stacked against the wall. Apparently, the Church seems to argue that while the County refused to cite it for viewing activity that raised the inference of religious activity, the 7530 property should have been cited based upon similar inferences.
27. Contrary to the Church's allegations, the Court finds the County declined to issue Notices of Violation to the Chabad and to the Church based upon mere inferences of improper activity. The County has cited both the Chabad and the Church for violating the separation requirement, based upon the available evidence, such as the website for the Chabad and the Church's own admission.
28. The Church originally received a Notice of Violation in May 1999; however, the County did not find the Church guilty of the allegations contained within the Notice of Violation, and the file was closed. The County later reinspected the Property and did not find a violation. The County did not issue another Notice of Violation to the Church until after Pratts admitted to using the Property impermissibly. The County based its Notice of Violation upon that admission.
29. There is no evidence the County had knowledge the 7530 property was being used improperly and failed to cite the property accordingly. There is no evidence the 7530 property applied for and was awarded a variance request. Therefore, the evidence available to this Court shows the County implemented the separation requirement equally with regard to both the Chabad and the Church.
30. Accordingly, the Church has not carried its burden of showing a violation of § (b) of RLUIPA.
3. Unreasonably Limits
31. RLUIPA finally provides: "No government shall impose or implement a land use regulation that . . . unreasonably limits religious assemblies, institutions, or structures within a jurisdiction." 42 U.S.C. § 2000cc(b)(3)(B). The District Court for the Middle District of Florida explained: "This provision [RLUIPA section (b)(3)] suggests that Congress contemplated that religious assemblies could be reasonably limited within a jurisdiction." Konikov, 302 F. Supp. 2d at 1345-1346.
32. The County's separation requirement does not "totally exclude" religious assemblies in violation of 42 U.S.C. § 2000cc(b)(3)(A). It limits the geographical location of all nonresidential, nonagricultural uses. The Court finds this is a reasonable limitation under RLUIPA section (B)(3)(B).
The Church argues the County totally excluded it from religious assemblies. The Church incorrectly focuses on what the County could have done to accommodate the Church, such as ways to accept its variance request. (Orosz Test.). This is the incorrect focus. The correct parameter is "No government shall impose or implement a land use regulation that (A) totally excludes religious assemblies from a jurisdiction" under RLUIPA. The Church has incorrectly taken an egocentric view of the law and focused its evidence improperly. Had the Church focused on the separation requirement upon the jurisdiction as a whole, and whether the imposition of such, is unreasonable or totally excludes religious assembly, then the Court would be assessing whether such was a violation of RLUIPA.
33. Thus, the Church has not shown the County violated RLUIPA section (b)(3).
4. RLUIPA Conclusion
34. The Church has not established the County violated RLUIPA. Accordingly, the Court will enter judgment in favor of the County on Count II. D. COUNT III — FLORIDA'S RFRA
35. Florida's Religious Freedom Restoration Act ("FRFRA") provides:
The government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability, except that government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person:
(a) Is in furtherance of a compelling governmental interest; and
(b) Is the least restrictive means of furthering that compelling governmental interest.
Fla. Stat. § 761.03(1) (emphasis added).
"The word `person' includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations." Fla. Stat. § 1.01(b) (emphasis added).
36. The Florida Supreme Court, in answering questions the Eleventh Circuit Court of Appeals certified regarding FRFRA, stated that under FRFRA:
[T]he plaintiff hears the initial burden of showing that a regulation constitutes a substantial burden on his or her free exercise of religion. See § 761.03(1), Fla. Stat. (2003). Once that threshold determination has been made, the government bears the burden of establishing that the regulation furthers a compelling governmental interest and is the least restrictive means of furthering that interest. See § 761.03(1)(a)-(b), Fla. Stat. (2003). Thus, the plaintiffs must demonstrate that the government has placed a substantial burden on a practice motivated by a sincere religious belief.Warner v. City of Boca Raton, 2004 Fla. LEXIS 1449 (Fla. 2004) (additional citations omitted).
37. The Florida Supreme Court also discussed the various means the federal courts have defined "substantial burden:"
The Fourth, Ninth, and Eleventh Circuits define "substantial burden" as one that either compels the religious adherent to engage in conduct that his religion forbids (such as eating pork, for a Muslim or Jew) or forbids him to engage in conduct that his religion requires (such as prayer). The Eighth and Tenth Circuits use a broader definition — action that forces religious adherents "to refrain from religiously motivated conduct," or that "significantly inhibits or constrains conduct or expression that manifests some central tenet of a [person's] individual beliefs," imposes a substantial burden on the exercise of the individual's religion. The Sixth Circuit seems to straddle this divide, asking whether the burdened practice is "essential" or "fundamental."Id. at *27-28 (quoting Mack v. O'Leary, 80 F.3d 1175, 1178 (7th Cir. 1996) (internal citations omitted). The Florida Supreme Court held:
[W]e conclude that the narrow definition of substantial burden adopted by the Fourth, Ninth, and Eleventh Circuits is most consistent with the language and intent of the FRFRA. Thus, we hold that a substantial burden on the free exercise of religion is one that either compels the religious adherent to engage in conduct that his religion forbids or forbids him to engage in conduct that his religion requires.Id. at *29.
38. Thus, as the standard for the Church to show it was substantially burdened is the same, in this jurisdiction, under both RLUIPA and FRFRA, as discussed supra, the Church has not carried its burden of showing its exercise of religion was substantially burdened.
39. Accordingly, the Court finds in favor of the County on Count III.
E. THE COUNTY'S COUNTERCLAIM
40. The County seeks a permanent injunction enjoining the Church from violating the BCZC, including prohibiting the Church from operating a place of worship in the A-1 District within 1,000 feet of other nonresidential, nonagricultural uses.
41. The requirements for issuance of a permanent injunction are: success on the merits; irreparable injury; and no adequate remedy at law. Kenner v. Convergy's Corp., 342 F.3d 1264, 1269 (11th Cir. 2003). The Church stipulated it operated a church at the Property, in the A-1 District in violation of the separation requirement. Moreover, as discussed above, the separation requirement is constitutional as applied to Plaintiff, and as such, it is enforceable. Accordingly, the County is entitled to injunctive relief. See Metropolitan Dade County v. O'Brien, 660 So.2d 364, 365 (Fla. 3d DCA 1995) ("Where the government seeks an injunction in order to enforce its police power, any alternative legal remedy is ignored and irreparable harm is presumed." (citations omitted)).
42. The Court finds in favor of the County on its Counterclaim for injunctive relief.
F. CONCLUSION
43. Any of the foregoing conclusions of law which may represent findings of fact are adopted as findings of fact. See Miller v. Fenton, 474 U.S. at 114-15.
44. The Court dismissed Count 1, § 1983, as the Church does not have standing. The Court finds in favor of Defendant, Broward County, on Count II (RLUIPA) and Count III (FRFRA). The Court also finds in favor of Defendant, Broward County, on its counterclaim for injunctive relief.
45. The Court retains jurisdiction for the purpose of awarding attorney's fees and costs. It is hereby:
ORDERED AND ADJUDGED that
Within five (5) days of the date of this Order. Defendant shall submit a proposed final judgment drafted in accordance with the findings of fact and conclusions of law set forth herein. The Clerk of the Court is DIRECTED to mark this case CLOSED and DENY all pending motions as moot.
DONE AND ORDERED.