Thai Meditation Association of Alabama, Inc. et al v. City of Mobile, Alabama et al

RESPONSE in Opposition re MOTION for Partial Summary Judgment

S.D. Ala.November 13, 2017

30791195 v2 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION THAI MEDITATION ASSOCIATION OF ALABAMA, INC., et al., Plaintiffs, v. CITY OF MOBILE, ALABAMA, Defendant. ) ) ) ) ) ) ) ) ) ) CASE NO. 1:16-cv-00395-CG-MU BRIEF IN OPPOSITION TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT COMES NOW Defendant City of Mobile, Alabama ("the City") and submits this Brief in Opposition to Plaintiffs' Motion for Partial Summary Judgment (Doc. 91). The City adopts and incorporates its Narrative Summary of Undisputed Facts (Doc. 90, pp. 4-23) and Notice of Filing Evidence (Doc. 92) filed in support of its own motion for summary judgment (Doc. 89). As detailed herein, Plaintiffs are not entitled to summary judgment on any of their claims. I. DISPUTED FACTS PRECLUDING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS The City has adopted parts of its prior filings and added materials contained in a new Notice of Filing Additional Evidence filed together with this Brief. The City sets forth below Plaintiffs' "undisputed facts" which the City disputes, with the evidence by which they are disputed. "Plaintiff Thai Meditation Association of Alabama, Inc. (the "Association") has a leasehold interest in the Property." (Doc. 94, p. 2). (1) City Response: The lease of the Eloong property was signed on July 25, 2016, several months after the denial of planning approval and the day before this lawsuit was filed, and begins Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 1 of 71 30791195 v2 2 only when a certificate of occupancy is issued for the completed meditation center retreat. (Doc. 92-30 S. Nimit dep. 173:23-176:141; Doc. 92-20). "Plaintiffs seek to develop the Property with a Buddhist meditation center (the "Center") for the purpose of religious exercise." (Page 2) (2) City Response: The Meditation Center has issued public statements in the past including that it "does not promote any religion," is a "non-religious organization," and that it is dedicated to teaching "a non-religious form of meditation," among others. (Doc. 92-16). These statements were raised by neighboring landowners and brought to the attention of the City during the processing of the subject application. (Doc. 92-36 Olsen dep. 37:18-21; Doc. 92-16). There is no definition or standard for a "religious facility." (Page 3) (3) City Response: "Religious facility" is used by the City typically for those religions which deem it offensive to refer to their premises as a "church." (Olsen dep. 35:9-18 at Exh. 85). "Plaintiff Association is a Buddhist religious organization, with the stated purpose of 'Teaching and research into growth and development of mind and spirit through meditation and to expand the knowledge of Buddhism.'" (Page 3). (4) City Response: The City adopts its Response (2) above. According to Nimit, the Meditation Center's primary purpose is teaching meditation, and her vision is to spread the inner peace and happiness found through meditation. (Doc. 92-30 S. Nimit dep. 181:3-11, 182:7-15). The Meditation Center is for everyone, not just Thai or Buddhist people, as 95% of those who come 1 The designation "Doc. 92" followed by a number from 92- to 92-40 is a reference to an exhibit attached to the City's Notice of Filing Evidence filed with the Court on October 16, 2017. The designation "Doc. 93" followed by a number from 93-1 to 93-79 is a reference to Plaintiffs' Evidentiary Submission filed on that same date. A reference to "Exh." is a reference to a corresponding exhibit attached to the City's Notice of Filing Additional Evidence filed contemporaneously with this Brief on November 13, 2017. Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 2 of 71 30791195 v2 3 to the Meditation Center are something other than Buddhist. (Doc. 92-30 S. Nimit dep. 20:8-19, 208:22-210:1). "It is affiliated with the Dhammakaya school of Buddhism. The Dhammakaya school of Buddhism is a sect of Theravada Buddhism, headquartered at the Wat Phra Dhammakaya in Pathum Thani, Thailand. Meditation is a central religious practice of the Dhammakaya school. The only form of meditation taught by the Association at the Meditation Center of Alabama (the "Center") is Dhammakaya meditation. The Association is one of many local branches of the Dhammakaya school throughout the world, including approximately 26 in the United States. The events at the Center include talks on Buddhist scriptures and morality." (Page 3) (5) City Response: The City adopts its Responses (2) and (4) above. Promotional literature prepared and distributed by Plaintiffs expressly explains why religion is not important for meditation: The great thing about meditation is that philosophy/religious belief is not important. Meditation is about consciousness. The beliefs of the mind become trivial. You dive deep into the heart of the matter to gain access to your soul -your inner reality. Therefore meditation can be practiced by people of different religions or no religion at all. (Exh. 41; S. Nimit dep. 190:15-191:6 at Exh. 42). Similar promotional literature from Plaintiff describes themselves or their meditation as non-religious. (Exh. 83 and 84). "Weekly classes at the Center include video and internet viewings of services and talks from Buddhist monks, including a livestreamed service from the main Dhammakaya Temple. Plaintiffs' religious exercise also involves other Buddhist practices such as paying respect to Phramongkolthepmuni and other Buddhist teachers at Buddhist altars, and traditional offering ceremonies to Buddhist monks, including alms offerings and kathina, or robe offerings. The Association also regularly conducts talks on Buddhist scripture, study sessions focused on the Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 3 of 71 30791195 v2 4 dharma, or teachings of the Buddha, conducts Buddhist sangha (community) meetings, religious retreats and weekly Buddhist chanting." (Page 4) (6) City Response: The City adopts its Responses (2), (4), and (5) above. "Plaintiffs have in a few instances described their meditation activity as "non-religious," by which they mean that their Buddhist meditation center is open to all and that following Buddhist teachings does not require rejection of the particular theistic concepts that are central to Judeo-Christian notions of what is meant by "religion."" (Page 4) (7) City Response: The City adopts its Responses in (2), (4), and (5) above. "The Center began in 2007 at 4567 Airport Boulevard, Mobile, Alabama, where a Buddhist monk lived and taught meditation classes. In August through November of 2007, the City visited that property, issued violations against the Plaintiffs for engaging in and advertising "Worship (Temple) and meditation," and gave Plaintiffs ten days to cease such activity or apply for Planning Approval at that location. The City stated: 'They have been using the residential zone property for a place of worship (a temple).' The City's zoning inspector noted that '[t]hey have meditation classes and they preach Buddhism.' A City official informed Sivaporn Nimityongskul that she could not meditate at the Airport Boulevard residence, 'even with family and friends.' These actions scared Sivaporn and Serena Nimityongskul and caused them to fear discussing the religious nature of the Center or holding itself out as a 'church.'" (Page 5) (8) City Response: The City received a call in August, 2007 complaining of a sign on the right- of-way advertising services provided at the subject house. (Doc. 93-10). The call was assigned to a City inspector, who told the owner that the sign was not permitted and the sign was removed. (Id.). A Notice of Violation, given by the City as a courtesy to property owners where a potential violation is found, was issued giving the owner ten days to either cease the violation or seek Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 4 of 71 30791195 v2 5 planning approval. (Id.; Exh. 43; Hoffman 30(b)(6) dep. 45:8-14 at Exh. 45). Nimit filed an application for planning approval thereafter, and no additional action on the violation was taken by the City. (Doc. 93-10; Exh. 43). Nimit sent a letter to the City dated Sept. 10, 2007 stating that no meditation classes have started and that she will seek planning approval, with no mention of Buddhism therein but that meditation is taught "for all people, regardless of race, doctrine or religious beliefs." (Exh. 44). The City has never taken any action to discourage meditation at the existing Meditation Center facility. (Doc. 92-30 S. Nimit dep. 197:7-10). "In 2007, Plaintiffs applied to use the Airport Boulevard property, which was zoned R-1, as a church or religious facility. The religious nature of Plaintiffs' proposed use was not questioned at that time. The City's Staff Report on the Airport Boulevard Application explicitly stated: 'The Zoning Ordinance requires Planning Approval for the location of a church in residential districts.' The Airport Boulevard Application faced 'tremendous community opposition.' Local residents expressed fear that the Center was going to try to convert them and their children, and one resident stated: 'I had the occasion to visit Thailand, where there are countless temples, and streets are filling with Buddhist priests, wearing their colorful, orange robes. It was a quaint sight, but I had no desire to bring one back to my neighborhood, and install him there.' City staff recommended denial of the 2007 application, stating in part that 'Access management is a concern due to the fact that the lot has frontage on a major street and a minor street that is lined with residences.' Airport Boulevard is a 'major street.' The City has since rezoned property across the street from the Airport Boulevard residence to allow a Publix supermarket to be located there." (Page 5-6) (9) City Response: The home at 4567 Airport Boulevard was zoned R-1 and planning approval was required for a "church or religious facility," though Nimit wrote to the City in 2007 stating Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 5 of 71 30791195 v2 6 that the proposed meditation center was not a "church," just a meditation center. (Doc. 92-16). The home was in a residential neighborhood developed in the 1960's and, if approved, would have been the only non-residential use in the neighborhood. (Hoffman 30(b)(6) dep. 27:4-12 at Exh. 45). There was community opposition to the 2007 application based on traffic, noise, and the number of people who may use the proposed facility, as well as the property's location in a residential neighborhood with limited access to an abutting residential street feeding busy Airport Boulevard. (Hoffman 30(b)(6) dep. 26:13-25, 27:1-3 at Exh. 45). Aside from its proximity to Airport Boulevard, the neighborhood was of a similar character to the neighborhood surrounding the Eloong property -- single-family residential with few if any non-residential uses. (Hoffman 30(b)(6) dep. 27:18-25, 28:1-10 at Exh. 45). City staff recommended denial of the 2007 application because the proposed use and required modifications may preclude future single-family residential use of the site, leading to future rezoning or variance requests, and because the site plan did not reflect compliance with parking surface and maneuvering requirements, tree and landscape requirements, or buffering requirements, all found in the Zoning Ordinance. (Doc. 93-13; Hoffman 30(b)(6) dep. 28:11-21 at Exh. 45). The property which years later became a Publix supermarket, located across the six lanes of Airport Boulevard from the home, was formerly the site of an oil change facility and vacant restaurant, as well as some single-family homes which were re-zoned. (Hoffman 30(b)(6) dep. 31:8-13 at Exh. 45). "The Center then moved to its present location at 3821 Airport Boulevard in 2009, where the Association and its members have engaged in some of the Buddhist practices described above." (Page 6) (10) City Response: The City adopts its Responses (2), (4), (5), (6) and (7). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 6 of 71 30791195 v2 7 "Dhammakaya clergy, who are ordained monks, must live by a strict code of conduct and be in separate housing. The Center's present location does not have a place to house visiting monks, thus inhibiting the religious practices of the Plaintiffs." (Page 7) (11) City Response: The Nimits own several single-family homes in the City which could house visitors, including homes at 6055 Highland Woods Drive, 4567 Airport Boulevard, 209 April Street, 4592 Airport Boulevard, 4559 Airport Boulevard, and 3950 Gaylark Road. (Doc. 92-30 S. Nimit dep. 260:20-25, S. Nimit dep. 261:1-8, 263:10-265:7, 268:5-269:1 at Exh. 42). "The small size of the Center's current location is also insufficient for large groups and the Association must rent other locations for larger religious teaching events." (Page 7) (12) City response: The existing meditation center space at 3821 Airport Boulevard is 2,200 square feet, while the proposed meditation center building for the Eloong property is similarly sized at 2,400 square feet. (Doc. 92-30 S. Nimit dep. 38:2-8, 126:5-20). "Retreats are also a significant component of Plaintiffs' religious exercise. The Center's current location also lacks any space for persons participating in overnight retreats to sleep, which requires them to break the atmosphere of the retreat and interferes with the development of their meditative concentration." (Page 7) (13) City Response: The City adopts Responses (11) and (12) above. "The Center investigated the possibility of using real property located at University Boulevard and Bear Fork Road in Mobile; however, it was ultimately informed by its land use professionals that such use was "not feasible" and would probably not be approved." (Page 8) (14) City Response: Plaintiff TMAA received a donation of over 100 acres of land for the development of a meditation retreat. (Doc 92-30 S. Nimit dep. 86:1-9, 87:5-88:14, 89:13-90:19). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 7 of 71 30791195 v2 8 The donated property has appraised most recently for $550,000. (Doc. 92-30 S. Nimit dep. 90:11-19). "With respect to the proposed use on University Boulevard, Hoffman again determined that an application for Planning Approval would have been the appropriate course of action. Plaintiffs had attended a predevelopment ("PDM") meeting with City staff to discuss the possibility of locating the Center there. Neither Hoffman nor any other City staff suggested that such use would not fall within the "church or religious facility" use category." (Page 8) (15) City Response: Hoffman discussed with Nimit during a predevelopment meeting the multiple paths toward potential approval dependent on the type of meditation, with planning approval available if the meditation was religious and a variance path available if meditation were something like medicinal. (Hoffman dep. 65:1-11 at Exh. 59; Exh. 46). Hoffman knew meditation could take religious or non-religious forms, and asked Nimit about the nature of the meditation. (Doc. 92-34 Hoffman dep. 50:19-51:6). Hoffman had also researched how other governments had classified meditation centers, with some treating them as religious and some as non-religious. (Doc 92-34 Hoffman dep. 43:12-20, 45:14-46:3). "At the April 24, 2015 predevelopment meeting, City staff did not inform Plaintiffs that their Applications were not likely to be approved, and there were no negative comments regarding the proposed land use. City staff never stated that Plaintiffs' proposed use would not be considered a 'church or religious facility' at the PDM. The City understood the proposed use to be a 'church or religious facility.' Hoffman gave Youngblood an application for planning approval at the April 2015 predevelopment meeting. The City continued to process the Application for a 'church or religious facility.'" (Page 9-10) Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 8 of 71 30791195 v2 9 (16) City Response: Nimit and Youngblood, her attorney and realtor, attended a predevelopment meeting with City staff on Apr. 24, 2015. Nimit admits that as of this time, the site plan was just in the drawing process and unavailable. (Doc 92-30 S. Nimit dep. 110:9-16). The Applications for the Eloong property were not filed with the City until September 11, 2015, nearly five months after the predevelopment meeting. (Id.; Doc. 92-7; Doc. 92-30 S. Nimit dep. 120:6- 121:2, 121:23-122:19, 123:21-124:13). Hoffman gave Youngblood several applications to complete including one for planning approval. (Doc. 92-5; Doc. 92-30 S. Nimit dep.115:22-117- 25; S. Nimit dep. 118:1-20 at Exh. 42). Hoffman recalls from this meeting that the initial proposal was to use the existing home on the site for meditation classes, as Nimit wanted to make as few improvements as possible, with the possibility of building a standalone meditation center building and one or more cottages at some future date. (Doc. 92-34 Hoffman dep. 93:19- 94:1, 97:9-14; Doc. 93-27). Hoffman noted that these potential future improvements should be shown as future phases. (Doc. 93-27). Youngblood's notes confirm that the home would be used initially as a meditation center. (Exh. 47). Staff don't predict for applicants what the Planning Commission may do on an application. (Olsen dep. 15:23-16:5 at Exh. 85). "The City's October 15, 2015 Staff Report described the use as 'a religious meditation center,' and 'a religious meditation facility.' It did not 'reflect any questions about the application's religious status.' Nor did staff request any documentation concerning Plaintiffs' religious status before the October 15, 2015 Planning Commission hearing. Hoffman 'had no concern that a planning approval process was the right process,' and believed it was 'the correct route' and that 'the only way that planning approval would have been the correct process is if [the proposed use] was a religious facility.' The first Staff Report did not include any comments from staff suggesting that Planning Approval should be denied." (Page 10) Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 9 of 71 30791195 v2 10 (17) City Response: Hoffman and Olsen became aware just before the October 15, 2015 Planning Commission meeting of concerns expressed by opponents about whether the meditation center proposed for the property met the "church or religious facility" use. (Doc. 92-36 Olsen dep. 37:18-21). Plaintiffs' expert Dumont finds no fault whatsoever with actions of City staff from the predevelopment meetings through preparation of the Staff report for the October 15 meeting. (Doc. 92-35 Dumont dep. 106:1-10). The Staff Report, prepared prior to the time that public comments were received, recommended that the application be held over to a future Planning Commission meeting so that additional information and clarifications could be received. (Doc. 92-13). "Plaintiffs' religious nature became questioned around the time of the October 15, 2015 Planning Commission hearing. This question about whether a Buddhist meditation center constituted a 'church or religious facility' initiated with a joint effort between a nearby resident opposed to Plaintiffs' use, Tamela Esham, and Planning Commission attorney Anderson." (Page 11) (18) City Response: The City adopts Response (17) above. There is no evidence that Esham and Anderson spoke, or even knew each other, prior to the Oct. 15, 2015 Planning Commission meeting. (Esham dep. 58:21-60:12 at Exh. 48; Anderson dep. 25:3-16 at Exh. 82). Their first conversation after the meeting involved the approval process, as Esham and the other neighbors learned of the application just days before the meeting. (Esham dep. 59:8-60:8 at Exh. 48). Esham compiled past public statements by the Meditation Center and Nimit that it and the meditation were non-religious as Esham had been told this by Nimit, though Nimit now claimed the opposite. (Doc. 92-37 Esham dep. 17:6-13; Esham dep. 142:19-143:11 at Exh. 48; Doc. 92- 16). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 10 of 71 30791195 v2 11 "In an email just prior to the October 15, 2015 Planning Commission meeting, Esham 'questioned as to whether or not [the proposed use] was considered religious.' Ms. Esham discussed 'the non-religious nature of the proposed use with Mr. Anderson.' Ultimately, Anderson adopted Esham's position and stated: 'This is not a religious organization' and 'This is not the Baptist Church or the Episcopal Church.'" (19) City Response: The City adopts Response (18) above. After the Oct. 15 Planning Commission meeting, Esham discussed with Anderson several concerns about the application including the fundamental changes it would cause to the nature and character of the neighborhood, homes and living environment, issues of safety, noise, and lighting, as well potential issues of stormwater runoff from construction on the property. (Esham dep. 63:5-64:16 at Exh. 48). Esham also told Anderson she was surprised that Nimit now claimed the meditation center was a church or religious facility, as Nimit had spoken with Esham on her porch and said that it was not. (Esham dep. 61:10-63:4 at Exh. 48). Esham compiled the Meditation Center's past statements that it and its meditation were non-religious. (Doc. 92-16). "Esham has made the following comments concerning Plaintiffs and the proposed Buddhist meditation center: 'They were trying to manipulate the rules to get a religious exception and to manipulate the media to get support and now they are AGAIN admitting through their own advertising that this is NOT A RELIGIOUS ORGANIZATION'; 'These Retreats are clearly a business that charges customers for their services/activities'; 'relocation of a commercial business to our residential neighborhood'; 'Mrs. Nimityongskul is proposing to relocate her entire business to the subject property'; 'As you saw in their schedule of events there were [sic] no religious or worship services scheduled. The Darhma [sic] classes center around the peace Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 11 of 71 30791195 v2 12 revolution and social activism'; '[T]here will be at least 30 customers attending classes . . . .'; '[T]hese meditation retreats, they are very, very lucrative businesses.'" (Page 11-12) (20) City Response: The above passage mixes a couple of quotes attributable to Esham prior to the planning approval vote with several that followed Plaintiffs' holding of meditation retreats at the Eloong property after the City Council denial. Esham sent an email to Anderson on March 28, 2016, two months after the City Council denied the appeal, after a second weekend retreat held by the Meditation Center at the Eloong property. (Doc. 93-32). This email noted that the Meditation Center's Facebook page now referred to the Eloong property as its "retreat site," and that a one-day retreat had been held on March 5 and the most recent retreat ran from Friday, March 25 to Sunday, March 27. (Id.). Esham also noted that the retreats were advertised as not based on any specific religion, and sought monetary payment for overnight guests, many of whom stayed at the Eloong property. (Id.). Esham noted 40 to 45 attendees present at the retreat, stating: "However, whether business or religious --the location in our small quiet residential neighborhood with substandard streets is not suitable for their retreat business." (Id.) "Her attorney stated to the Planning Commission: 'And indeed meditation is certainly not limited to the Buddhist religion. Other religions engage in meditation as a technique that's collateral to their religious beliefs. So it seems to me very clear this is not a church . . . .'. Esham also spoke with Anderson about her belief that the Center was not religious. Anderson later made similar statements, saying that the Center 'is not a religious facility,' he 'questioned whether the meditation center . . . was even 'religious' in nature,' and said that Sivaporn Nimityongskul 'is running a business illegally . . . .' Esham also compiled materials regarding whether the Association was religious or not and drafted a memorandum about them to the City. Esham has spied on Plaintiffs, monitored their comings and goings at the Property, 'saw everything that was Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 12 of 71 30791195 v2 13 going on there,' and even monitored their activity at the Airport Boulevard home. Anderson testified that he 'might have' spoken with Esham in order to generate a "311" complaint against the Plaintiffs for activities taking place on the Property, after being told that such complaints cannot be made anonymously. In addition to email communications, Esham spoke with Anderson a half dozen times about the Applications and activities at the Property, hired an attorney to oppose the application (whom Anderson knows very well), and stated that '[she] would oppose [Plaintiffs] with everything she has.'" (Page 12-13) (21) City Response: The City adopts Responses (18), (19), and (20). Esham had compiled the Meditation Center's past statements that it and the meditation were non-religious. (Doc. 92-16). While devoting 1½ pages to Esham's comments made as a neighboring property owner before and after the planning approval decision, Plaintiffs omit Esham's comments and those of her attorney made to the Planning Commission and City Council grounded in the Planning Approval criteria which Plaintiffs contend was applicable to their proposal. The City adopts and incorporates its Narrative Summary of Facts at Doc. 90 at pp. 14-16 and pp. 19-20 as well as the evidence cited therein. Esham explained that she frequently passes the 4567 Airport Boulevard home due to her work and has seen the Nimits there. (Esham dep. 164:20-165:17 at Exh. 48). She can see activity at the Eloong property from her own home and knows that often there is no one present, save for activity just before a meditation event or retreat. (Doc. 92-37 Esham dep. 150:21-151:25; Esham dep. 152:1-152:19 at Exh. 48). "City officials then began questioning whether the Buddhist meditation center was a 'church or religious facility.' Olsen stated in an October 14, 2015 email to Hoffman and York: "Did we tell them religious facility, or was that their take because of the visiting monks?" and Hoffman responded: "I had brought it up during a predevelopment meeting." (Page 13) Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 13 of 71 30791195 v2 14 (22) City Response: The first emails on this issue among City officials involved neither Anderson nor Esham, but were among Hoffman, Olsen, and Marie York on the day before the October 15, 2015 Planning Commission meeting. (Doc. 93-42). Hoffman first noted the question of whether variances, and not planning approval, would be required. (Id.). "At the October 15, 2015 Planning Commission meeting, Anderson stated 'It just raises a red flag or a question in my mind, is it really religious? And if it's not, they're in the wrong place.' The applicant was asked to provide evidence concerning its religious status." (Page 13) (23) City Response: At the Planning Commission meeting of October 15, 2015, in response to an inquiry from one of the Planning Commission members, Anderson stated the following placed in full context: I just --I'm not saying I'm for it or against it, I just --when I first read it I saw that they were claiming that this was a religious facility with housing and meditation, not mediation, meditation. It just raises a red flag or a question in my mind, is it really religious? And if it's not, they're in the wrong place. But if they can provide us documentation that satisfies me that they're -and that satisfies you all they're religious, so be it. (Doc. 92-14, p. 57). "Hoffman forwarded the Plaintiffs' materials to Anderson, who determined 'I do not think it is. . . . Just because meditation is part of a religion (my preacher teaches contemplative prayer) does not make the building a church or the owner a religious organization.' Exh. 44 (Hoffman email); Exh. 45 (email string dated Nov 23, 2015). Such decision was made solely by Anderson and not by City staff. Exh. 6 at 15:16-20, 56:9-12 (30(b)(6) BH Dep.); Exh. 22 at 11; Exh. 25 at 61:6-15 (MY Dep.); Exh. 5 at 129:9-14 (BH Dep.). Anderson testified that 'what they had provided at that point in time did not indicate that they were a religious organization.'" (Page 15) (24) City Response: The City has never had a question arise about whether the proposed use was in fact a "church or religious facility." (Doc. 92-34 Hoffman dep. 99:13-100:6, 123:12-15, Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 14 of 71 30791195 v2 15 138:11-23). City staff therefore posed the question to counsel of whether the documentation submitted by the applicant met the Zoning Ordinance's use of "church or religious facility." (Id.). The City adopts its Responses (2), (4) and (5) above. "The December 3, 2015 Staff Report memorialized Anderson's decision, recommending denial of the Applications and stating '[t]he allowance of a meditation center within a residential district would, therefore, not be a determination to be made via Planning Approval, but rather, by a Use Variance through the Board of Zoning Adjustment' and 'The Planning Approval request should, therefore, be denied by the Planning Commission or withdrawn by the applicant.'" (Page 14) (25) City Response: While the Staff Report for the December 3, 2015 meeting recommended denial as the "church or religious facility" definition was not met, it is not binding upon the Planning Commission as sometimes denial is recommended and the Planning Commission approves, and sometimes approval is recommended and the Planning Commission votes to deny. (Doc. 92-40 York dep. 65:19-66:8). "The City has never questioned a 'church or religious facility' applicant's religious nature or required an applicant to prove or provide documentation that it was religious prior to the Plaintiffs' application. The City has never questioned the tax-exempt status of a 'church or religious facility' applicant prior to the Plaintiffs' application, or has any required tax-exempt status for a 'church or religious facility.'" (Page 14) (26) City Response: The City adopts Response (24) above. The City had before it materials showing that the Meditation Center referred to itself and its meditation as "non-religious." (Doc. 92-16). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 15 of 71 30791195 v2 16 "The Planning Commission held its second and final hearing on the Applications on December 3, 2015, at which they were denied. Planning Commission members' questions concerned only the religious nature of the Plaintiffs." (Page 15) (27) City Response: One member of the Planning Commission asked the applicant's counsel (Lawler) where he felt the meditation center fell as a use as he had placed it somewhere between church or religious facility and convent or monastery. (Doc. 92-15, p. 12). The Chair of the Planning Commission asked Hoffman how charges for meditation classes would impact whether it was a business or religious use, and the classification of any business license. (Doc. 92-15, pp. 14-15). One other member of the Planning Commission asked about IRS tax status. (Doc. 92-15, pp. 25-26). The Planning Commission heard extensive testimony at the December 3, 2015 public hearing about the meditation center application, its incompatibility with the existing residential neighborhood, traffic and access issues, frequency of use, environmental concerns and issues of lighting and noise, as well as other issues germane to the planning approval standard in the Zoning Ordinance. (Doc. 92-15, pp. 27-45). The City adopts and incorporates its Narrative Summary of Facts at Doc. 90 at pp. 14-16 and pp. 19-20, as well as the evidence cited therein. "Anderson again spoke about the religious nature of the Center. After having decided that the proposed Buddhist meditation center was not a 'church or religious facility,' and therefore the Staff Report included a determination that the use was not permitted on the Property, Anderson then switched tactics and cursorily told the Planning Commission 'to consider the use as a planning approval appropriate use and to make their decision based on that.' However, under the City's Code, such reversal could only have been made by the Board of Adjustment, and not by the Planning Commission." (Page 15) Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 16 of 71 30791195 v2 17 (28) City Response: The applicant, having been informed of the denial recommendation contained in the Staff Report, could have appealed to the Board of Adjustment, but did not and instead proceeded to the Planning Commission's December 3, 2015 meeting and urged that the Planning Commission consider the application under the planning approval standard, which is just what the Planning Commission did. (Hoffman 30(b)(6) dep. 18:2-19:20 at Exh. 45; Doc. 92- 15, pp. 8-12)("..it's before you now on a planning request"). Consideration of the application strictly on planning approval criteria was also urged by Anderson, and by the Planning Commission's chair. (Doc. 92-15, pp. 31-32, 98-99). "There were no comments from the Planning Commission members about community character, traffic, or other similar issues in its deliberations. No reasons for the denial were stated by its members." (Page 15) (29) City Response: The City adopts its Responses (27) and (28) above. The Planning Commission heard nothing refuting the concerns expressed by opponents about the application's incompatibility with the existing neighborhood, as well as the traffic and access issues posed by the application and proposed use. (Doc. 92-15). "However, just prior to the motion for denial, Olsen stated: '[T]he subdivision was recommended for denial because it was affiliated based on commercial-type subdivision or nonresidential use subdivision because the use was not single family residential. We recommend a denial.'" (Page 15) (30) City Response: Olsen's comments are preceded by a question on whether the subdivision application should be considered separate from the planning approval and PUD applications, with Olsen stating that the subdivision application was recommended for denial as it was "affiliated based on commercial-type subdivision or non-residential use subdivision because the Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 17 of 71 30791195 v2 18 use was not single family residential. We recommend a denial. We do not have any conditions for approval for that subdivision so at this point, if the … other applications are going to be denied…" (Doc. 92-15, pp. 99-101). "The Planning Commission's reasons for denial in a Letter of Decision are normally based on 'points that [the Planning Commission] discussed.' '[I]f there are not points that [the Planning Commission] discussed,' '[t]hen, generally, I don't think that we change . . . from the [staff] recommendation.'" (Page 16) (31) City Response: Olsen drafted the Letter of Decision based upon discussion during the Planning Commission meeting by both sides on traffic, access and compatibility. (Doc. 92-36 Olsen dep. 8:14-15, 63:6-11, 70:7-22, 91:5-12; Doc. 92-34 Hoffman dep. 190:17-194:3). The draft was based on the hearing's content. (Hoffman 30(b)(6) dep. 82:6-84:13, 84:1-85:1 at Exh. 45). "However, in this case Richard Olsen drafted an email purporting to be the reasons for the Planning Commission's denial and sent them to Anderson for approval, which were '1) the proposed use was not compatible with the surrounding area; 2) access to the site is not adequate for the proposed use; and 3) the proposed use would increase traffic on a very substandard street.'" (Page 16) (32) City Response: Olsen distributed the draft of the reasons to Anderson as legal counsel before finalizing the Letter of Decision because of the application's controversy and the fact that the applicant was represented by counsel. (Doc. 92-34 Hoffman dep. 152:2-16). Olsen's comments in the email preceding the draft reasons read as follows: Since there was discussion about regardless of determination of religious facility or not, and comparing to the Community center, recreation center; including social services, activity centers, outreach programs use, do we need to change the reasons for denial? Maybe something like the below since those were the points Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 18 of 71 30791195 v2 19 made by the opposition that led to the decision --even though there really wasn't any PC discussion? Or, just leave it like it was on the agenda? Or combine the two? (Doc. 93-48). "Anderson told Olsen to 'Use what is in the email, not the staff report.' Anderson made the decision of what 'reasons' to put in the letter of decision. Anderson reviewed the reasons for denial specifically because of the neighborhood opposition. Olsen asked Anderson: '[D]o we need to change the reasons for denial?,' by which he meant 'changing them from the staff report.'" (Page 16-17) (33) City Response: Olsen opposed non-residential use of the Eloong property. (Olsen dep. 88:8-16 at Exh. 85). Olsen sent the draft reasons to Anderson as legal counsel before finalizing the Letter of Decision because of the application's controversy and as the applicant was represented by counsel. (Doc 92-34 Hoffman dep. 152:2-16). Anderson responded, endorsing the reasons that Olsen had written to him in the email without any changes. (Doc. 93-48; Doc 92-36 Olsen dep. 77:2-6)("Anderson said to go with those --the reasons I had suggested"). The Letter of Decision went to Nimit without change in the reasons from Olsen's original email. (Doc. 92- 17). "The Planning Commission did not provide these 'reasons' to Olsen. No member of the Planning Commission ever stated that Olsen's 'reasons' were their reasons for denial, and the 'reasons' for denial were never sent to the Planning Commission for review. The Planning Commissioners never discussed the 'reasons' for denial at the hearings." (Page 17) (34) City Response: The City adopts Responses (31), (32) and (33). Further, the Zoning Ordinance assigns to City staff the drafting of a Letter of Decision concerning the Planning Commission's vote. (Doc. 92-12 at § 64-8(B)(2)(c)). In attendance at the meeting, Olsen felt that Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 19 of 71 30791195 v2 20 the Planning Commission members applied the Planning Approval standard to the application. (Olsen dep. 75:11-23 at Exh. 85). "The City produced draft 'Minutes' of the December 3, 2015 Planning Commission meeting that contains Olsen's 'reasons' purportedly stated by Planning Commissioner Daves; however, such statements were not made by Daves or any other Planning Commissioner at the meeting. There are apparently no 'final' Minutes of the December 3, 2015 meeting, and these draft Minutes were never approved by the Planning Commission." (Page 17) (35) City Response: The City adopts Responses (31), (32), (33) and (34) above. Further, the minutes prepared of Planning Commission meetings are not a literal transcript of the meeting as they would include, for example, the conditions included in a letter of decision without those conditions being expressly stated at the meeting. (Hoffman 30(b)(6) dep. 82:17-83:13 at Exh. 45). "Olsen admitted that he could not speak for the members of the Planning Commission 'and how they considered it,' and that 'there was not really any PC discussion.' Rather, Olsen testified that if there were not comments made by the Planning Commission, then his drafted reasons were 'an assumption on our part.'" (Page 17) (36) City Response: The City adopts Responses (31), (32), (33), (34) and (35) above. "All City staff agree that the decision as to the purported reasons for the Planning Commission's denial was made by Anderson, and not by City staff." (Page 17) (37) City Response: Most of Plaintiffs' citations concern whether documents submitted by the applicant showed the application to be for a "church or religious facility," which documents were sent to Anderson for analysis. None of the cited evidence shows that Anderson decided the reasons for the denial by the Planning Commission that went into the Letter of Decision; rather, Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 20 of 71 30791195 v2 21 these reasons were drafted by Olsen and endorsed by Anderson without change. The City adopts Responses (31), (32), (33) and (34) above. "Olsen's reasons were included in the Letter of Decision for the Planning Approval application, send to the Plaintiffs on December 8, 2015." (Page 18) (38) City Response: The City adopts Responses (31), (32), (33) and (34) above. "The City Council denied the Applicant's appeal for the same reasons as the Planning Commission. There was 'very announced opposition' to the Buddhist meditation center, which was taken into account by both the Planning Commission and City Council." (Page 18). (39) City Response: Olsen testified that the City Council's reasoning for denying the appeal was based on compatibility and access, and other comments from City Council members during the hearing. (Olsen 30(b)(6) dep. 36:11-21 at Exh. 70). The Planning Commission and City Council took into account both the support and the opposition. (Hoffman 30(b)(6) dep. 130:4-11 at Exh. 45). The City Council heard from the same speakers in opposition that the Planning Commission did on incompatibility, traffic, access, use frequency, environmental concerns, and other subjects. (Doc. 92-15 pp. 27-46; Doc. 92-19 pp. 53-67). The City adopts and incorporates its Narrative Statement of Facts from Doc. 90 pp. 14-16 and pp. 19-20 as well as the evidence cited therein. At the City Council hearing, Councilman Small detailed not only the complaints of his constituents about existing traffic issues on Riverside Drive, which is the only road to reach Eloong, but also of his own experience driving that road within the neighborhood. (Doc. 92-19 pp. 37-38, 74, 91-92). Hoffman does not feel that an assembly-type use at the subject location should have been granted as the location was inappropriate. (Hoffman 30(b)(6) dep. 130:12-19 at Exh. 45). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 21 of 71 30791195 v2 22 "Councilman C.J. Small is the councilman for District 3, which includes the Property. C.J. Small said that he doesn't know whether the Association is religious, that he asked Sivaporn Nimityongskul questions about the religious status of the Association at the City Council hearing based on what the opposition had said, that whether the Center was a business 'came across my mind' when he was considering the appeal of the Planning Commission's decision and, in comparing the Center's use, stated 'this is apples and oranges.'" (Page 18) (40) City Response: The City adopts its Response (39). At the City Council hearing, Councilman Small expressed to Nimit concerns about the increase in traffic that the application would generate in the neighborhood, indicating that the opposition was not to the meditation center itself but to its location in the neighborhood as Riverside Drive was not equipped for such traffic. (Doc. 92-19 pp. 37-38). Small encouraged Nimit to locate the Meditation Center in one of the empty storefronts on Dauphin Island Parkway nearby instead of in the neighborhood. (Doc 92-19 p. 38). Small said he has "no earthly idea" whether TMAA is a religious organization. (Doc. 92-39 Small dep. 8:21-9:1). Small asked Nimit when she came to his office to meet with him about why the Meditation Center promoted itself as non-religious, as his constituents had mentioned this to him. (Small dep. 11:10-12:4 at Exh. 49). The transcript of the City Council hearing contains no questions from Small about whether the meditation center was religious. (Doc. 97-19). Whether the Meditation Center was a business came across Small's mind only as far as converting the R-1 property, but "again, you know, my number one was the traffic concerns with the neighborhood." (Small dep. 21:18-22:5 at Exh. 49). During the City Council meeting, Small referred to the meditation center application and an earlier application for a mosque expansion as "apples and oranges" as the mosque had been there dating back to the 1990's, but the meditation center would be a new use on this property. (Doc. 92-19 p. 89). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 22 of 71 30791195 v2 23 Prior to the City Council hearing, Councilman Williams, who used to represent the neighborhood at the City Council, joked over email with a neighbor to the property who had written that he had heard that the meditation center was going to be a nude yoga center and stated that "it's just a business flying under the veil of religious use exemptions!!!" (Page 18) (41) City Response: Councilman Williams still communicates with his former constituents. (Small dep. 25:19-26:6 at Exh. 49). Williams' response to one constituent who had emailed him with his opposition and some humor was: "You just saying nude makes me certain NO is the answer. CJ is with us here as well." (Doc. 93-53). Williams' response nowhere states that the Meditation Center was a business or flying under a religious use exemption. (Id.). "Anderson spoke before the City Council on the appeal of the Applications, stating 'This is not a religious facility,' and 'The application was Meditation Center of Alabama or whatever. This is not the Baptist Church or the Episcopal Church.' Anderson falsely stated that 'the only evidence' presented to the City Council about the Plaintiffs' religious status was a letter from the IRS. When asked about the letters from Buddhist monks presented, he testified, 'If you consider those evidence, yes.'" (Page 18-19) (42) City Response: Addressing at the City Council hearing a comparison of the proposed meditation center to a prior application for a mosque expansion, Anderson's remarks followed speakers supporting the meditation center application and are as follows: As discussed in pre-council this morning and I think it was Councilman Small said this is apples and oranges. This is not a religious facility. The application was for Meditation Center of Alabama or whatever. This is not the Baptist church or the Episcopal Church. There were questions raised whether or not they actually qualified for that particular chart of permitted uses. That's why the issue came up. Now, as far as the mosque on East Drive, it's on a city improved --city standard street surrounded by R-3 uses. Yes, there's some R-1 right across the street, but it's a much heavier developed area with a lot more traffic. You've got apartments. You've got 200 yards away on Old Shell Road. You've got businesses. From a Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 23 of 71 30791195 v2 24 planning standpoint, if you look at the harmonious nature within the area, it's completely different. (Doc. 92-19, pp. 50-51). Following these remarks, the City Council heard from opponents of the application. (Doc. 92-19, pp. 53-67). The City adopts and incorporates its Narrative Statement of Facts from Doc. 90 pp. 14-16 and pp. 19-20 as well as the evidence cited therein. Later in the hearing, Anderson answered a question from a City Council member about the tax exempt status of the Meditation Center by stating that the only evidence on this presented at the Planning Commission stage was an IRS letter. (Doc. 92-19, pp. 82-83). "The City usually attempts to work with religious applicants to mitigate impacts and allow approval. This includes imposing conditions on planning approval in residential neighborhoods such as limiting the hours of operation, access, buffering and privacy fences, and building scale." (Page 19) (43) City Response: The City usually attempts to work with applicants, religious and non- religious, to mitigate impacts and resolve issues. (Olsen dep. 34:3-13 at Exh. 85). Conditions on expansions of a non-residential use in a residential neighborhood can include limiting hours of operation and access, requiring road improvements, buffering, and building scale. (Doc. 92-36 Olsen dep. 42:14-21). "The City has never denied another application for a religious facility, at least not within the last ten years. '[T]he City has not denied a land use application for a church or religious facility within the past ten years.'" (Page 19-20) (44) City Response: The City has denied planning approval applications for churches or religious facilities in the past. (Doc. 93-08). Olsen testified that the City had denied such planning approvals as provided by the City in a discovery response. (Olsen 30(b)(6) dep. 26:10- Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 24 of 71 30791195 v2 25 19 at Exh. 70). The City has had few applications in recent years for establishment of new churches; rather, most applications deal with expansions of existing facilities. (Doc. 92-36 Olsen dep. 38:15-39:1, 44:1-14). While the same planning approval standard applies to new uses and expansions of existing uses, an existing use is necessarily compatible with the surrounding area if it has already received planning approval. (Olsen 30(b)(6) dep. 13:4-17 at Exh. 70). "The City has granted applications for Planning Approval to Christian churches, even where there has been community opposition. The City rezoned property from R-1 to B-3 to accommodate a marina where the surrounding land uses were single family residential over community opposition about traffic, noise and trash." (Page 20) (45) City Response: The instances of "community opposition" cited by Plaintiffs to other applications pales in comparison to the opposition to the proposed meditation center retreat, which generated hundreds of signatures on a petition and several speakers in opposition before both the Planning Commission and City Council. (Exh. 50; Doc. 92-15, pp. 27-46; Doc. 92-19, pp. 53-67). The cited Port City Church of Christ parking lot expansion application in 2005 for an existing church generated two people spoke in opposition, with the Planning Commission holding over the application to allow the applicant to confer with nearby residents. (Exh. 51). After the applicant conferred and resolved neighbor concerns, no opposition appeared at the May 19, 2005 Planning Commission meeting where a revision to the expansion was approved. (Exh. 52). For the cited Ashland Place UMC application in 2009, two persons spoke in opposition with concerns over buffering, whether nearby houses would be removed, and removal of street front trees. (Exh. 53). The application amended a prior planning approval for an existing church to build an administrative office, classroom building, and patio, and expand its retention pond in an R-1 district. (Exh. 54). The Planning Commission held the matter over to another meeting and Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 25 of 71 30791195 v2 26 when considered at the April 2, 2009 meeting, no one appeared in opposition and the matter was approved. (Exh. 53; Exh. 55). Southern Marina sought rezoning (not planning approval) of property containing a marina from R-1 to B-3. (Olsen 30(b)(6) dep. 110:22-111:15 at Exh. 70). "Community opposition" was one letter from one resident. (Exh. 56). The Staff Report showed that rezoning would create one lot of record from five metes-and-bounds parcels, and would accommodate the existing marina business which had legal nonconforming status since 1986, with no new structures or expansion. (Exh. 57). Though surrounding areas were zoned R-1, several adjacent properties also enjoyed nonconforming status, with three of them used for marina operations and one rezoned in 2008 from R-1 to B-3 as requested here. (Id.). "City staff agreed that all issues (other than the religious status of the Buddhist meditation center) had been addressed or could be addressed, and that Planning Approval could be granted. The City has admitted that the proposed building and parking lot could be screened from the adjacent properties, and that the Property is large enough to 'provide sufficient space to screen the activity on the property from the meditation center from adjacent residential uses.' York admitted that, other than the issue of the Applicants' religious status, there was nothing in the Staff Report that suggested that Planning Approval could not be granted. Road access and driveway issues can be resolved by conditions on Planning Approval, such as regulating curb cuts and stating that development must comply with AASHTO standards and the International Fire Code. Compatibility with the R-1 neighborhood issues can be resolved by conditions such as tree and landscape buffers, a lighting plan for the property, a photometric plan at the time of land disturbance or access driveways. (Page 20-21) (46) City Response: There is no evidence supporting the statement that issues of compatibility with an existing R-1 neighborhood can be solved with conditions. Olsen testified that while it is Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 26 of 71 30791195 v2 27 not unusual for the Planning Commission to approve applications with conditions, it is uncommon for the Planning Commission to approve a new use not of a residential nature in the middle of an established residential neighborhood. (Olsen 30(b)(6) dep. 41:16-42:2 at Exh. 70). Olsen testified that if the Planning Commission had felt the use was appropriate for the location, they could have chosen to apply conditions. (Olsen 30(b)(6) dep. 43:17-23 at Exh. 70). York testified only that nothing in the Staff Reports, other than the "church or religious facility" issue, suggested that planning approval could not be granted by the Planning Commission. (York dep. 36:19-23, 64:2-7 at Exh. 86). City staff testified concerning the importance of public input to the Planning Commission, as public input from neighbors more familiar with the area helps identify issues that City staff may not even know about. (Doc. 92-40 York dep. 66:9-20; Bergin dep. 101:2-102:9, 105:8-22 at Exh. 58; Doc. 92-36 Olsen dep. 92:5-16, 93:14-94:6). Hoffman agreed possible conditions on approval can be tree/landscape buffers, a photometric and/or lighting plan, driveways, but in no way was this testimony pertaining specifically to R-1 compatibility issues or the application for the meditation center. (Hoffman dep. 36:19-37:7 at Exh. 59). "The City has granted Planning Approval to many Christian churches that would have land use impacts by imposing conditions on such approval related to community character and traffic issues." (Page 21) (47) City Response: The City responds to those examples cited by Plaintiffs. With no opposition present, New Home Baptist Church's 2002 application for planning approval sought to establish a church in an existing structure on a .8 acre parcel. (Exh. 60). Conditions on approval included elimination of certain curb cuts and screening from adjacent residential properties. (Id.). The site, located just south and west of St. Stephens Road (Hwy. 45), had previously been used as a church and no new buildings were contemplated. (Id.; Exh. 61). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 27 of 71 30791195 v2 28 Redeemed Community Church submitted an application for planning approval to open a church at a residential property in far west Mobile off Howells Ferry Road west of Hwy. 98, more than twenty miles from the Eloong property, with other churches having also been granted planning approval along Howells Ferry Road. (Exh. 62). Planning approval was granted without opposition in 2013, subject to conditions like a buffer from adjacent residential properties. (Id.). Mobile Terrace Christian Center submitted an application in 2010 for a .11 acre lot (11/100 of an acre) in the Mobile Terrace community west of Cody Road between Old Shell Road and Ziegler Boulevard. (Exh. 76). The main church facility was about 500 feet away, and when reconstructed, the building on the site would be a youth center. (Id.). The structure was limited to walls but had been a community center in the past. (Id.). Ninth Street was substandard, but all east/west streets in Mobile Terrace were substandard as the site was only annexed into the City in 2008. (Id.). The application for planning approval was granted at the March 17, 2011 meeting with no opposition. (Exh. 64). The St. Dominic Catholic Church application in 2007 only involved adjustments to a parking area and associated landscaping/lighting for a thirteen acre existing site in west Mobile. (Doc. 93-60). The Dunnaway, Inc. application was for a church school on a 25-acre site on Halls Mill Road that had operated previously as a faith-based school and adjoining church until 2005 when the school closed. (Exh. 65). The existing site has four buildings including a gym, classrooms, two out-buildings, and athletic fields, and the application did not seek to add additional buildings but to renovate in phases existing ones unused since 2005. (Id; Exh. 66). The St. Ignatius application in 2011 sought planning and PUD approval amending a master plan for a 13-acre existing church/school property bordering Spring Hill Avenue in Mobile. (Doc. 93-62). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 28 of 71 30791195 v2 29 The amendment addressed only re-grading greenspace to create a level play area, which re- grading was omitted from a prior approval back in 2000. (Id.). The Smith Memorial AME Church application in 2015 sought an extension of a prior approval of a reduced side yard setback at an existing church site bordered by Felhorn Road, Roslyn Drive, a single-family residence, and a vacant lot. (Exh. 67). The approval, granted without opposition, was for a new kitchen addition to an existing church, and the Staff Report referenced a prior 1994 approval for a sanctuary addition. (Exh. 68; Exh. 69). Olsen testified that the meditation center proposal was incompatible with the existing R-1 neighborhood as it planned three meditation activities per week with approximately thirty attendees, and there would be buildings built that were not occupied as residences. (Olsen dep. 40:13-41:6 at Doc. 85). It is uncommon for the Planning Commission to approve a new non- residential use in the middle of an established residential neighborhood. (Doc. 92-36 Olsen dep. 41:16-42:2). "The City's designee stated that review of the character of a community involves 'all sorts of various things,' and is a subjective analysis." (Page 21) (48) City Response: Hoffman testified that community character encompasses how an area is already developed; existing roads and structures whether residential, commercial, or a mix; how close buildings are to one another; vegetation of properties; proximity to water bodies, wetlands, and "all sorts of various things." (Hoffman 30(b)(6) dep. 89:14-90:1 at Exh. 45). "The City failed to consider any less restrictive means of achieving such interest." (Page 22) Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 29 of 71 30791195 v2 30 (49) City Response: If the Planning Commission felt that the meditation center use was appropriate for the location, they could have applied conditions. (Olsen 30(b)(6) dep. 43:17-23 at Exh. 70). "The City's explanation as to why the meditation center 'was incompatible with the existing R-1 neighborhood' was based on issues of the 'scale' of the facility and it being surrounding by single-family residences. Churches generally are larger in scale than single family homes. The proposed Center was planned to be built in the middle of the southern half of an approximately seven-acre property, with large forested buffer areas separating it from adjacent properties, not near any residences, and situated away from the Dog River." (Page 22) (50) City Response: The City disagrees that incompatibility was limited to scale as the information presented to the Planning Commission and City Council at the public hearings showed a wider incompatibility of the proposed use with the existing neighborhood. (Docs. 92- 14, 92-15, 92-19). As to the proposal's scale, Hoffman explained that on a home site, you expect a house and perhaps a free-standing garage or cottage; however, once additional buildings beyond that are added, one must consider the scale of the improvements when the use is non- residential. (Doc. 92-34 Hoffman dep. 101:17-102:20). The proposed meditation center use would be considered as it relates to the single-family residences around it. (Id.). One would also consider the property's size, placement of the proposed buildings, and the context of those buildings in relation to property boundaries, street frontages, and the like. (Hoffman dep. 106:12- 22 at Exh. 59). One would have to consider the specific site plan in relation to other sites, the building footprints, the vegetation and other context such as the development of the area, road type and design, placement of buildings, all of which are part of the context. (Hoffman dep. 106:23-108:2 at Exh. 59). Olsen testified that as the proposal was in the middle of a residential Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 30 of 71 30791195 v2 31 neighborhood completely surrounded by residences, adding buildings not occupied as dwellings affects the character of the site's development and is not characteristic of the remainder of the neighborhood. (Olsen dep. 73:10-74:3 at Exh. 85). The proposed meditation complex to be built consisted of a 2,400 square foot meditation center building, a 2,400 square foot four-bedroom cottage, a 600 square foot freestanding bathroom facility, and associated parking lots and lighting. (Doc. 92-30 S. Nimit dep. 126:10- 127:22; Doc. 92-9). Esham explained that she was able to see onto the Eloong property from ground level from her property, as she was beneath any tree canopy. (Esham dep. 152:11-19 at Exh. 48; Doc. 92-15, p. 37). "Hoffman testified: 'I would think the act of meditation is not an act that would generate much noise. . . . And, therefore, would be in that term very conducive to a single family residential area.' The City had previously stated: 'With regard to the general compatibility of the use, the meditation center would likely be a relatively 'quiet' neighbor and might generally be conducive to location in a residential area.'" (Page 22) (51) City Response: Hoffman's testimony concerned the 2007 planning approval application filed and later withdrawn by Nimit when it was recommended for denial, and the reference to meditation not generating much noise applies to the act of meditation itself. (Hoffman dep. 77:10-21 at Exh. 59). The 2007 application did not propose building five to six thousand square feet of new buildings in addition to an existing home, nor did it propose meditation classes for an average of thirty people to be held three evenings a week every week, nor weekend retreats of up to three days. (Doc. 93-13)("[t]he applicant specifically wishes to utilize the existing single- family residence as a meditation center, to accommodate up to 15 people a maximum of twice a week"). The Staff Report for the 2007 application also stated that "as parking improvements and, Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 31 of 71 30791195 v2 32 most likely, building code improvements would be required to accommodate the proposed use, the general compatibility appears to be less favorable." (Id.). "The City admitted that there are no reasons other than 'road access' why the Property 'is less appropriate than other areas in the R-1 district predominately developed with single family homes.'" (Page 22-23) (52) City Response: The Hoffman testimony is quoted inaccurately as applicable to the Eloong Drive property, where the question posed to Hoffman only asked for reasons "why that type of a location is less appropriate than other areas in the R-1 district." Hoffman testified the Eloong property was on a dead end street, making it less suitable for an assembly-type use due to its limited access to a more connected street like Riverside. (Hoffman 30(b)(6) dep. 93:16-94:2 at Exh. 45). Hoffman also testified that building a 2,400 square foot meditation center, residential cottages, and a freestanding bathroom facility was somewhat unusual in a single-family residential district and made it less appropriate for that location on that street. (Hoffman 30(b)(6) dep. 94:4-22 at Exh. 45). Hoffman felt other locations on Riverside may have been more conducive given their better access to the roadway. (Hoffman 30(b)(6) dep. 95:17-96: 10 at Exh. 45). "The City admitted that existing land uses and their expansions can affect community character, traffic, and noise issues. The standard to apply to applications for planning approval for new land uses and expansions of existing land uses is the same." (Page 23) (53) City Response: While the same planning approval standard under the Zoning Ordinance applies to expansions of existing uses and new uses, Olsen testified that an existing use is necessarily compatible with the surrounding area if it has already received planning approval. (Olsen 30(b)(6) dep. 13:4-17 at Exh. 70). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 32 of 71 30791195 v2 33 "There are other churches in the same neighborhood as the Property, including a church on Riverside Drive, approximately one to two blocks away at Park and Riverside, which is relatively close to the subject Property." (Page 23) (54) City Response: Olsen testified that there was a church down the street on Riverside Drive, but only that "there may be" other churches in the neighborhood. (Olsen dep. 74:7-13 at Exh. 85). The church Olsen referred to was present prior to the area being annexed into the City in 1956. (Olsen 30(b)(6) dep. 38:22-39:3 at Exh. 70; Doc. 92-35 Dumont dep. 99:4-11). "Neighbor Esham believes that no church is suitable for property on the riverfront, even if that property is zoned R-1. However, the City testified that there is no distinction between such properties and other properties in the R-1 district." (Page 23) (55) City Response: Esham explained that on the entire Dog River waterfront from the start of Eslava Creek and proceeding the five miles or so to the Dog River bridge, there are no complexes, churches, or businesses located along the river. (Doc. 92-37 Esham dep. 29:14-30:8). These are residential areas where it is peaceful, tranquil and quiet. (Doc. 92-37 Esham dep. 29:14-30:19). Esham agrees that churches are permitted in R-1 with planning approval; however, such properties on the waterfront do not meet the planning approval criteria. (Esham dep. 88:16- 89:11 at Exh. 48). Olsen testified only that there is not a distinction within the R-1 district between waterfront and non-waterfront properties. (Olsen 30(b)(6) dep. 17:21-18:21 at Exh. 70). However, the City can and does take into account the details of a particular area in regards to application of the planning approval standard. (Doc. 92-34 Hoffman dep. 97:22-99:4, 101:17- 102:20, 111:7-113:25, Hoffman dep. 114:1-115:6 at Exh. 59; Olsen dep. 73:10-74:3 at Exh. 85). "The Alba Club, on the Dog River, was approved for a new meeting hall and multiple buildings." (Page 23) Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 33 of 71 30791195 v2 34 (56) City Response: The Alba Club has been located a couple of miles from the Eloong property since the 1920's, preexisting not only most of the neighborhood but also annexation into the City. (Olsen dep. 74:18-75:4 at Exh. 85; Olsen 30(b)(6) dep. 76:9-19 at Exh. 70). The Alba Club sought planning approval in 2006 to allow it to rebuild the portion of a clubhouse damaged by Hurricane Katrina in 2005, and the application was approved without opposition at the June 1, 2006 Planning Commission meeting. (Exh. 71; Exh 72). "These other non-residential uses impact the character of the community." (Page 23) (57) City Response: The Alba Club is part of the neighborhood because it preexists most of the neighborhood. (Olsen dep. 74:22-75:3 at Exh. 85). "The City has granted Planning Approval to many Christian churches in the R-1 district where their proposed facility would be surrounded by single family residential uses." (Page 23) (58) City Response: The City adopts Response (45) concerning the 2005 application of Port City Church of Christ to expand parking for an existing church, as well as the Ashland Place UMC application. The City adopts Response (47) concerning the 2002 application for New Home Baptist Church to locate a church on a site previously used as a church; for the 2015 application of Smith Memorial AME Church seeking an extension of a prior approval for a reduced setback to accommodate a kitchen addition, as a church had stood on the site since at least 1994; for the St. Dominic Catholic Church application in 2007 which involved parking, landscaping and lighting; and for the St. Ignatius Catholic 2011 application which only involved an amendment to a prior approval to allow re-grading of green space for a level play area. Further, for Ashland Place UMC, St. Ignatius, and St. Dominic, the City shows that these churches have been located on their respective sites for decades, dating back to at least the 1950's Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 34 of 71 30791195 v2 35 or earlier, and therefore predating any planning approval requirement in the City's Zoning Ordinance. (Declaration of Bert Hoffman at Exh. 74). The application of Sweet Pilgrim Baptist Church in 2014 sought planning approval to replace a church on the same site which had been torn down due to extensive damage from the Christmas Day tornado in 2012. (Exh. 75). "The City also granted Planning Approval to the Alba Club for a 'substantial expansion' of a meeting hall, which could impact community character, at a location that was surrounded by single family residential dwellings. The City's designee testified that such location was 'very similar' to the subject Property. The streets near the Alba Club are so narrow that 'they . . . have to pull onto the side of the road . . . to go in and out . . . .'" (Page 24) (59) City Response: The City adopts its Response (56) above. "The City also granted Planning Approval to the Gates of Praise Missionary Baptist Church, which was situated on property similar to the subject Property, located on the Dog River in the R-1 district." (Page 24) (60) City Response: Gates of Praise Missionary Baptist Church, which applied for planning approval in 2000, is on a parcel having access by standard City street. (Olsen 30(b)(6) dep. 90:20-91:15, 92:22-93:5 at Exh. 70). The parcel is about 2.1 acres, and is bordered on three sides by Dog River, Webb Avenue, and McVay Drive North. (Doc. 74). "The City has granted Planning Approval to many Christian churches where their proposed facility is significantly out of scale with the surrounding single-family homes." (Page 24) (61) City Response: St. Dominic Catholic Church, St. Ignatius Catholic Church, and Ashland Place UMC have all been located on their respective sites for decades, dating back to at least the Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 35 of 71 30791195 v2 36 1950's or earlier, and therefore predating any planning approval requirement in the City's Zoning Ordinance. (Declaration of Bert Hoffman at Exh. 74). Plaintiffs make no showing that these churches were granted planning approval to establish a church on a new site subsequent to construction of nearby neighborhoods. The City also adopts Responses (45) and (47). "Olsen testified that no religious facility seeking to expand has been denied Planning Approval on this basis. It has also granted Planning Approval to Christian churches where staff recommended denial because the use was not in harmony with the residential nature of the area." (Page 24) (62) City Response: The Mobile Terrace Christian Center application, while initially recommended for denial, was later recommended for approval by City staff, and approval was then granted by the Planning Commission. (Olsen 30(b)(6) dep. 70:9-11 at Exh. 70). The initial recommendation of denial (subsequently reversed) was on seven different stated grounds, the last of which read: "[t]he proposed youth center is not compatible with the residential character of the area due to the substandard lot size, increased site coverage, inadequate setbacks, inadequate parking, and lack of adequate landscaping or buffering." (Exh. 76). "However, '[n]o evidence was provided by either side, both before and against, regarding the potential traffic impact of the center.'" (Page 25) (63) City Response: The Planning Commission and City Council heard from neighboring residents expressing concern over increased traffic generated by use of a meditation facility to host meditation classes three evenings a week, and to host weekend retreats ranging from one- half day to a full three days occasionally. (Doc. 92-5, pp. 27-46; Doc. 92-19, pp. 53-67). The question posed to Mr. Hoffman and to which Hoffman responded was of "specific traffic impact," and neither side presented an expert on this to the Planning Commission or City Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 36 of 71 30791195 v2 37 Council. (Hoffman 30(b)(6) dep. 112:3-11 at Exh. 45). Hoffman also clarified his testimony about traffic impact in response to the next question: Q. Other than the number of people that would be in attendance? A. Of the number of people that were proposed. (Hoffman 30(b)(6) dep. 112:13-17 at Exh. 45). Hoffman also testified previously that the Planning Commission was presented with information about traffic concerns during the public hearing, concerns he found meritorious. (Hoffman 192:16-194:3 at Exh. 59). Hoffman acknowledges that local lay people add additional perspective to local conditions which may not be apparent to the City Traffic Engineer or other City staff. (Hoffman 30(b)(6) dep. 120:8-15 at Exh. 45). At the City Council hearing, Councilman Small detailed not only the complaints of his constituents about existing traffic issues on Riverside Drive, which is the only road to reach Eloong, but also of his own experience driving that road within the neighborhood. (Doc. 92-19, pp. 37-38, 74, 91-92). City Traffic Engineer MaryBeth Bergin agrees that in many instances, lay people including neighbors who drive the roads every day possess information or insights not apparent to her as traffic engineer. (Bergin dep. 101:2-102:9 at Exh. 58). "The Traffic department was never asked to do a traffic study or a trip generation calculation. The traffic engineering comments did not indicate that applications should be denied based on traffic issues, and were 'very ordinary comments.' Bergin testified that her 'comments could be satisfied.' Bergin's analysis was the only professional traffic analysis of the proposed use." (Page 25) (64) City Response: The City adopts Response (63). Bergin testified that a traffic impact study is required only if a use will cause an increase of 100 peak hour trips. (Bergin dep. 13:20-14:8 at Exh. 58). Bergin did not assess any off-site impacts that the proposed use may have, as her Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 37 of 71 30791195 v2 38 comments were limited to improvements that could be made on site, not off site. (Bergin dep. 50:5-51:10 at Exh. 58). Bergin does not make recommendations that an application be approved or denied. (Bergin dep. 52:5-23 at Exh. 58). "The City admits that there was nothing in the study to indicate that the use could not be allowed." (Page 25) (65) City Response: Hoffman's testimony was that there was not anything "to indicate in the study whether or not the proposed use could be allowed." (Hoffman 30(b)(6) dep. 70:17-23 at Exh. 45). "The City has stated that it relied upon comments from local residents concerning the traffic impact of the proposed use, but such residents did not provide any professional study." (Page 25) (66) City Response: The City adopts its Responses (63) and (64) above. "The City is unaware of any report or study from any professional planner, traffic expert, environmental professional, noise expert, or any professional report of any kind (other than what was prepared by City staff, mentioned above) concerning the Plaintiffs' proposed use." (Page 25- 26) (67) City Response: Hoffman noted that other than traffic studies for certain proposals, the City would not typically receive any reports or studies. (Hoffman 30(b)(6) dep. 73:10-21 at Exh. 45). "City traffic engineer Bergin testified regarding the traffic impact of the proposed Buddhist meditation center use: 'Based strictly on numbers, it is not a substantial impact.' She agreed that 'the meditation center as proposed is a relatively low impact use from a traffic perspective.'" (Page 26) (68) City Response: Bergin's testimony is taken far out of context: Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 38 of 71 30791195 v2 39 Q. Okay. Do you believe that the meditation center use would create a substantial traffic impact? A. That, I hate to say, is a loaded question. Based strictly on numbers, it is not a substantial impact. But if you were to compare it to what was existing and what was proposed, percentage-wise, it is a substantial increase in traffic. Bergin continued: Q. "Percentage-wise" meaning what? A. Like the percentage of traffic on Eloong was --if you say the existing traffic right now on Eloong was a hundred vehicles all day long and all of the sudden you're increasing that by --say if you had the thirty vehicles in and thirty vehicles out, that's sixty vehicles in just an hour. So that's, you know, greater than a 50 percent increase in traffic. So if you look at it relative to what's out there, it's substantial. But if it were located elsewhere on a more heavily traveled roadway, it is not substantial. (Bergin dep. 73:3-74:4 at Exh. 58). "She 'made an assumption that it was very much below the threshold that we would look for a [traffic] study. So [she] did not try to estimate it.' Traffic volume on both Eloong Drive and Riverside Drive is 'low,' and those roadways could handle the additional volume of traffic of the proposed Buddhist meditation center use. Traffic counts on those roads performed by the City 'indicate that there was not very much traffic over the two days that they occurred.'" (Page 26) (69) City Response: Bergin testified that a traffic impact study is only required if a use will cause an increase of 100 peak hour trips. (Bergin dep. 13:20-14:8 at Exh. 58). Bergin did not run an estimated trip generator for the proposed meditation center as it would fall below this threshold. (Bergin dep. 26:19-27:11 at Exh. 58). While traffic volume on Eloong and Riverside Drive was characterized by Bergin as low or very low, Bergin could not speak to the pavement conditions of those roadways but aside from that, they "could potentially handle additional volume of traffic based on capacity of roadway." (Bergin dep. 74:9-20 at Exh. 58). The City performed traffic counts on Eloong and on Riverside Drive in 2016, with Nimit requesting the Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 39 of 71 30791195 v2 40 count on Riverside Drive and the City doing the count on Eloong. (Bergin dep. 24:7-18 at Exh. 58). The Eloong count showed a peak count per hour of 10 cars. (Exh. 77). The Riverside count showed a peak count per hour of 42 cars. (Id.). "The City also admits that the Planning Commission could have imposed conditions as recommended by the Planning Department staff to address the stated issues concerning access, traffic and compatibility." (Page 27) (70) City Response: If the Planning Commission had felt the use was appropriate for the location, they could have chosen to apply conditions. (Olsen 30(b)(6) dep. 43:17-23 at Exh. 70). "The City has granted Planning Approval to Christian churches and other uses that would have traffic impacts by imposing conditions on access and road issues." (Page 27) (71) City Response: The City has granted planning approval while imposing conditions on access and road issues for the addition of a crematorium in 2013 to the existing Pinecrest funeral home (AASHTO-compliant driveways to be approved by Traffic Engineering and ALDOT as needed)(Exh. 80), Redeemed Community Church in 2013 (applying conditions including single AASHTO-compliant curb cut on Howells Ferry Road to be approved by Traffic Engineering and compliant with International Fire Code)(Exh. 62), for Dunnaway church school in 2017 (single AASHTO-compliant curb cut to be approved by Traffic Engineering, with access gate locked during non-operation hours, and on-site parking meeting Zoning Ordinance §64-6)(Exh. 81), St. Ignatius in 2011 (conditioning any new construction on submission of a traffic study)(Exh. 79), and Smith Memorial AME Church in 2015 (limiting site to existing curb cuts with size, location and design to be AASHTO-compliant and approved by Traffic Engineering)(Exh. 67). The City adopts Responses (45) and (47) concerning these applications. Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 40 of 71 30791195 v2 41 "The City has also stated that Eloong Drive has 'substandard paved width.' However, there is no prohibition against a church from locating such a road. The City admitted that the width of Eloong Drive may create an 'inconvenience,' but also that by itself it was not 'a reasonable basis to deny the application.'" (Page 27-28) (72) City Response: While there no specific prohibition against locating churches and religious facilities on a substandard road like Eloong, Hoffman's testimony referred to the criteria which must be met for all planning approvals. (Hoffman 30(b)(6) dep. 91:8-18 at Exh. 45). Olsen does not recall any approvals of churches on substandard roads in Mobile in the last 20 to 30 years. (Olsen dep. 50:1-9 at Exh. 85). Hoffman testified that the fact that the two cars cannot always pass at the same time on Eloong without one having to pull over is a factor to be considered, even if it may not justify denial in and of itself. (Hoffman 30(b)(6) dep. 125:2-126:7 at Exh. 45). "Significantly, the City's traffic engineer testified that the proposed use would not create any traffic safety issues." (Page 28) (73) City Response: The City adopts Responses (39), (46), (63), (64), (67) and (68), reflecting Bergin's opinion that area residents have a superior view of traffic issues in their neighborhoods, as well as Councilman Small's comments concerning his and his constituents' comments reflecting traffic concerns on Riverside and potential impacts from the proposed use. "The City has also admitted that it has permitted other religious facilities and nonreligious assembly and institutional uses to be located on substandard roads in residential zones. The Alba Club, granted planning approval for a meeting hall expansion, is located on two substandard roads. It is also located near the subject Property on the Dog River in the R-1 zone, surrounded by single family residences. Applications have been approved despite staff's recommendations for denial because of access issues." (Page 28) Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 41 of 71 30791195 v2 42 (74) City Response: Any approvals of churches or religious facilities on substandard streets are expansions of existing churches in neighborhoods. (Hoffman 30(b)(6) dep. 102:11-17 at Exh. 45). The Alba Club approval referred to in 2006 was to replace that portion of a meeting hall destroyed in Hurricane Katrina in 2005, with the Alba Club having been located at its site since 1921, prior to the neighborhood and prior to the City's annexation of the area. (Olsen dep. 74:18- 75:4 at Exh. 85; Olsen 30(b)(6) dep. 76:9-19 at Exh. 70). Mobile Terrace Christian Center was granted planning approval for a community center connected with a nearby church in 2010 as the site had previously been a community center and all of the east-west roads in the neighborhood were substandard, with the area having just been annexed into the City in 2008. (Exh. 76). The Planning Commission does not always take staff recommendations, sometimes denying an application when approval has been recommended, and sometimes granting approval when denial has been recommended. (Doc. 92-40 York dep. 65:19-66:8). The City adopts Responses (47) and (56) above. "The City has granted Planning Approval to Christian churches, while conditioning such approval on the performance of a later traffic impact study." (Page 28) (75) City Response: Bergin testified that for St. Dominic school, any increase in students requires a traffic study. (Bergin dep. 93:8-94:18 at Exh. 58). The cited Nazaree Full Gospel Church application for planning approval was for a school in a B-3 (Community Business) zoned area on a 12.2 acre site, with the site bordered by I-65, the existing church establishing the school, a vacant I-1 (Light Industry) parcel, and vacant land in a R-1 district, with the proposed school located at the far east portion of the parcel farthest from the vacant R-1 land. (Exh. 71). This requirement is common when a church adds a school. (Bergin dep. 92:20-93:14 at Exh. 58). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 42 of 71 30791195 v2 43 Under the Zoning Ordinance, churches and religious facilities are allowed as of right in B-3 (no planning approval required), but schools in B-3 do require planning approval. (Doc. 92-12). "The City has knowledge of regular Christian religious activity taking place at residents' homes such as weekly Bible club meetings, Bible study or church group meetings, including complaints regarding such activity, yet has not ever taken enforcement action against such activity." (Page 28) (76) City Response: York testified that a City inspector will make a visit to a property in response to a citizen complaint about an owner's use of their home, including complaints about home-based Bible study, with an inspector investigating and the City moving forward as appropriate under the Zoning Ordinance. (Doc. 92-40 York dep. 13:17-22, 16:15-17:7). "However, the City filed a lawsuit against the Plaintiffs for hosting two Buddhist events at the Property with approximately 20 people." (Page 28) (77) City Response: When the Meditation Center sends emails promoting its events, they go to about 700 people. (Doc. 92-30 S. Nimit dep. 162:23-163:6). The lawsuit filed by the City sought to enjoin a three-day meditation retreat event promoted by the Meditation Center through email and social media as taking place in June of 2016 at the Eloong property. (Docs. 92-25, 92-26; Doc. 92-37 Esham dep. 156:6-157:15). The Meditation Center had already promoted and held two weekend meditation events at the Eloong property in March, 2016, including one which Esham described as having in excess of forty people in attendance. (Doc. 92-37 Esham dep. 72:14-73:23, 150:10-151:25, 156:1-157:15; Esham dep. 83:13-85:23, 152:1-155:25 at Exh. 48; Doc. 92-23). Nimit admitted the two retreat events were held at the Eloong property in March, 2016. (Doc. 92-30 S. Nimit dep. 167:2-16). Esham also took photographs during parts of the March, 2016 three-day event from her property next door. (Doc. 92-28). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 43 of 71 30791195 v2 44 II. SUMMARY JUDGMENT MUST BE DENIED ON THE SUBSTANTIAL BURDEN CLAIM Plaintiffs cite other circuits which confuse the substantial burden analysis by considering not the effect (the burden) on the applicant, but the handling of the application. This is contrary to both the statutory language and Eleventh Circuit precedent. "To invoke the protection of § (a) of RLUIPA, plaintiffs bear the burden of first demonstrating that the regulation substantially burdens religious exercise." Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1225 (11th Cir. 2004)(emphasis added). "[T]aking seriously the requirement that a burden be 'substantial' is necessary to avoid an interpretation of RLUIPA that would exempt religious institutions from all land-use regulations." Livingston Christian Schools v. Genoa Charter Township, 858 F.3d 996, 1003 (6th Cir. 2017); Eagle Cove Camp and Conference Center, Inc. v. Town of Woodboro, 734 F.3d 673, 680 (7th Cir. 2013)("[t]he burden must be truly substantial, to hold otherwise would permit religious organizations to supplant even facially-neutral zoning restrictions under the auspices of religious freedom"). The Eleventh Circuit holds substantial burden to be "a question of law for courts to decide." Eternal Word Television Network, Inc. v. Secretary of U.S. Dep't of Health and Human Services, 818 F.3d 1122, 1144 (11th Cir. 2016). The Eleventh Circuit has defined "substantial burden" under RLUIPA: 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, the substantial burden can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct. Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). Courts must determine whether the government actually puts the religious adherent to the choice of incurring a serious penalty or engaging in conduct that seriously violates his religious beliefs. Eternal Word Television Network at 1144 (citing Holt v. Hobbs, __ U.S. ___, 135 S.Ct. Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 44 of 71 30791195 v2 45 853, 190 L.Ed.2d 747 (2015). "We reject a framework that takes away from courts the responsibility to decide what action the government requires and leaves that answer entirely to the religious adherent." Eternal Word, 818 F.3d at 1145. Plaintiffs' subjective perception of the government's action does not carry the day. Plaintiffs complain that their meditation facility placed several years ago in a shopping center they own is sometimes subject to noise from Airport Boulevard. They also complain that visiting monks have no place to stay, though Plaintiffs own several single-family homes in town which could provide housing. These complaints about the location where they have meditated for the past several years and still do today, coupled with the denial of planning approval, fall short of the "substantial burden" in cases Plaintiffs cite. See Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548 (4th Cir. 2013)(two facilities seating only 750 collectively where weekly worship attendance is 1,500, lacking space for other programs and education, and causing overcrowding and services to be cut short); Westchester Day School v. Village of Mamaroneck, 417 F.Supp.2d 477 (S.D.N.Y. 2006), aff'd 504 F.3d 338 (2nd Cir. 2007)(existing school facilities lacked large room for religious instruction, sufficient classroom space, caused increased class sizes and conversion of library, music and art rooms as well as closets and hallways to classrooms or educational spaces); Sts. Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005)(new church needed to accommodate growing congregation). Plaintiffs present no evidence of a need to accommodate a growing congregation, as shown by the similar size of the proposed meditation center building for the Eloong property versus its current facility (2,400 square feet vs. 2,200 square feet). Further, the City maintains zoning districts where churches or religious facilities may locate as a matter of right (without planning approval). Approximately 11% of the City is located Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 45 of 71 30791195 v2 46 in such districts, and about 65% of the City is in districts requiring planning approval. (Exh. 74). Plaintiffs make no showing of unavailability of properties located in the City in such districts, nor do they deny using the existing facility today in the same way they did for years before the application for the Eloong property. Plaintiffs do not claim that the Eloong property is uniquely suited to their faith aside from being serene or tranquil; rather, Plaintiffs intend to completely transform the Eloong property into a meditation retreat complex by adding several thousand square feet of new buildings, parking, and lighting. By Plaintiffs' reasoning, because they have some issues with the existing facility located in a building that they own and control, they can build whatever they want, wherever they want, and a denial of planning approval automatically violates RLUIPA. This view finds no support in the Eleventh Circuit. "Allowing the plaintiff in a RLUIPA case to meet its burden simply by showing that its conditional use permit ("CUP") application had been denied would be to effectively hold that the CUP requirement is always a substantial burden and that religious institutions are exempt from the requirement, propositions the Eleventh Circuit has rejected."2 Church of Our Savior v. City of Jacksonville Beach, 69 F.Supp.3d 1299, 1314 (M.D. Fla. 2014). Here, the City denied the required planning approval where Plaintiffs sought to build 5,000 square feet of buildings including a meditation center, a four-bedroom cottage, a freestanding bathroom facility, and related parking and lighting on a residential lot which already has a 5,000 square foot home and a separate garage apartment, all located within a decades-old, almost exclusively single-family residential neighborhood. (S. Nimit dep. 129:13-21 at Exh. 42; Doc. 92-9; Doc. 92-15 at p. 38-39; Doc. 92-35 Dumont dep. 99:4-11, 100:5-101:1). Having been denied planning approval, Plaintiffs may (1) continue use of the current facility; (2) search for a 2 A condition use permit (CUP) under Florida law is roughly analogous to planning approval here. Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 46 of 71 30791195 v2 47 suitable property where planning approval is not required or which presents a better chance for such approval; (3) develop the 106 acres that Plaintiff TMAA was donated to build a meditation center; and/or (4) apply to the City again for planning approval for use of the Eloong property in some form as a meditation center. The denial of the application submitted does not constitute a "substantial burden" as there is no "significant pressure" or coercion placed on Plaintiffs that would violate religious precepts, nor any mandating of religious conduct. See Men of Destiny Ministries, Inc. v. Osceola County, No. 6:06-cv-624-Orl-31DAB, 2006 WL 3219321, *5 (M.D. Fla. Nov. 6, 2006)(no substantial burden absent allegation plaintiff could exercise religion only at subject property and had other locations and methods reasonably available); Church of Our Savior, 69 F.Supp.3d at 1314 (no substantial burden where pastor felt "divine calling and religious necessity" to build on subject property, as CUP denial did not prevent relocation to district where it could operate as of right, where CUP application might be more successful, or remaining at its present location). Nor does the City's suit to enjoin Plaintiffs' advertising and holding of weekend meditation retreats at the Eloong property in violation of its zoning impose a substantial burden, as Plaintiffs show no lack of other suitable properties for such events. Plaintiffs urge the Court to compare this case to Midrash, supra. The City agrees. In Midrash, a town completely prohibited churches and synagogues except for one district where they were allowed with a CUP. Two synagogues leased space in a district where they were prohibited, with one having been denied a special use permit or variance. The congregations claimed that requiring relocation to the only permitted district would require congregants, especially those ill, young, or very old, to walk further, causing them to stop attending services and significantly impairing the synagogues' operation. Using its definition of "substantial burden," the Eleventh Circuit found none, rejecting even a claim of substantial burden based on Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 47 of 71 30791195 v2 48 Orthodox Judaism's prohibition of the use of cars or other transport on the weekly Sabbath or on religious holidays. The City here denied planning approval under facially neutral, generally applicable criteria set forth in the Zoning Ordinance as follows: Uses in the chart identified by "P" in any column are permitted in that particular district upon approval of their location and site plan by the planning commission as being appropriate with regard to transportation and access, water supply, waste disposal, fire and police protection, and other public facilities; as not causing traffic congestion or creating a traffic hazard; and as being in harmony with the orderly and appropriate development of the district in which the use is located. … (§ 64-12(1)(b) attached to Doc. 92-12)(emphasis added). Plaintiffs' expert admits this criteria gives wide discretion which is widest concerning whether an application is "in harmony with the orderly and appropriate development of the district in which the use is located." (Doc. 92-35 Dumont dep. 212:22-213:17, 258:12-16). There is simply no "substantial burden" placed upon Plaintiffs by the denial of planning approval. Indulging the conflated analysis argued by Plaintiffs without agreeing that it applies, the evidence shows that Plaintiffs had no reasonable expectation of being able to build a meditation center on the Eloong property. Nimit was told by City staff months before buying the Eloong property that she would have to apply to the Planning Commission for planning approval to build a meditation center. Nimit also knew from her past experience that such approval was not assured, having been recommended for denial the last time she sought planning approval to convert a single-family home in a neighborhood to a meditation center. Nimit knew that some applications for planning approval get approved, and some do not. Nimit's application here hit an issue when the Meditation Center's past public statements that it and its meditation were "non- religious" came to light; however, the Planning Commission and City Council ultimately considered the application based on the above planning approval criteria. Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 48 of 71 30791195 v2 49 Plaintiffs rely heavily on Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 2006). In Guru Nanak, a Sikh non-profit sought to build a temple on 1.89 acres in a single-family residential area, but a CUP (required in all zoning districts) was denied and another property sought. A year later, the non-profit found a 28 acre parcel in an unincorporated area zoned agricultural and planned to build the temple there, as another Sikh temple was less than a mile away on 10 acres zoned agricultural. The Board of Supervisors voted to deny the CUP. Thus, the applicant in Guru Nanak was denied the required CUP twice within one year for building on two completely different properties -- a small one zoned single-family residential, and a large one zoned agricultural. The facts here are far different. Nimit sought planning approval eight years apart for two separate properties both zoned R-1, both historically used as single-family residences, both in the middle of established single-family residential neighborhoods, with both applications attempting to convert the properties to the assembly-type use of a meditation center. Moreover, during the eight years separating the 2007 and 2015 applications, Nimit established the meditation center at its present location, and never experienced any discouragement of meditation by the City. Such evidence cannot support a finding of a "substantial burden." Not only can Plaintiffs not claim any reasonable expectation of planning approval, but the "substantial burden" that they now contend exists would be entirely self-inflicted. Livingston Christian Schools v. Genoa Charter Township, 858 F.3d 996 (6th Cir. 2017); Andon, LLC v. City of Newport News, 813 F.3d 510, 515 (4th Cir. 2016)(burden not substantial where self-imposed as plaintiff leased property knowing it violated setback requirements and variance would be denied); Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007)(plaintiff not substantially burdened when it purchased property in industrial zone for a church knowing special-use Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 49 of 71 30791195 v2 50 application would be denied as churches banned in that zone).3 Plaintiffs elected to close on the purchase of the Eloong property in August, 2015, knowing that they had to apply for planning approval from the Planning Commission but without having yet filed the applications with the City. Even if the Court were to find a substantial burden, the City has compelling interests in zoning and the safety of its residents through traffic restrictions. See Konikov v. Orange County, 302 F.Supp.2d 1328, 1343 (M.D.Fla.2004) rev'd in part on other grounds by 410 F.3d 1317 (11th Cir.2005)("[a] government's interest in zoning is indeed compelling."); see also Murphy v. Zoning Comm'n of the Town of New Milford, 289 F.Supp.2d 87, 108–09 (D.Conn. 2003). Moreover, as found in Grosz v. City of Miami Beach, 721 F.2d 729 (11th Cir. 1983), a City's enforcement of its zoning regulations, where the city has not prohibited religious conduct but instead "prohibited acts in furtherance of this conduct in certain geographical areas," and the zoning regulation does not single out religious organizations, does not rise to the level of a constitutional violation. See Grosz, 721 F.2d 729; see also, Konikov, 302 F.Supp.2d 1328, 1343-44 (applying Grosz and finding application of zoning ordinance met constitutional muster under all levels of scrutiny where plaintiff held holding religious ceremonies in only district prohibiting them). Here, as in Grosz and Konikov, the City has districts where religious organizations may operate as a matter of right. Additionally, as in those cases, here there would be a "total inconsistency between the accomplishment of the City's policy objectives, and the continuance of [ ] the conduct." Grosz, 721 F.2d at 738; Konikov, 302 F.Supp.2d at 1343. 3 The City later addresses TMAA's lack of standing; however, TMAA also had no "substantial burden" as it signed a lease for the Eloong property six months after the denial of planning approval and after the City sued to enjoin its use as a meditation retreat. A burden is not substantial when the plaintiff places that burden on itself. Livingston Christian Schools v. Genoa Charter Township, 858 F.3d 996 (6th Cir. 2017); Andon, LLC v. City of Newport News, 813 F.3d 510, 515 (4th Cir. 2016); Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 50 of 71 30791195 v2 51 Plaintiffs' motion for summary judgment on the Substantial Burden claim must be denied. III. SUMMARY JUDGMENT MUST BE DENIED TO PLAINTIFFS ON RLUIPA'S NONDISCRIMINATION AND EQUAL TERMS CLAIMS A. Nondiscrimination and Equal Terms Claims 1. The Nimit Plaintiffs are not an Assembly or Institution The statutory language creating the Nondiscrimination and Equal Terms claims confers such claims on a smaller group than RLUIPA's "substantial burden" provision. The Nondiscrimination provision states that "[n]o government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination." 42 U.S.C. § 2000cc(b)(2)(emphasis added). The Nimit Plaintiffs (Sivaporn, Prasit, Serena, and Varin) are individual persons, not an "assembly" or an "institution." Further, the Nondiscrimination provision differs from the Substantial Burden provision, which prohibits the imposition of a substantial burden "… on the religious exercise of a person, including a religious assembly or institution." 42 U.S.C. § 2000cc-2(b)(emphasis added). This difference in language is purposeful, clearly meaning that unlike a Substantial Burden claim, a Nondiscrimination Claim is not available to individuals but only to religious assemblies or institutions. See Moore-King v. County of Chesterfield, Va., 819 F.Supp.2d 604, 624 (E.D. Va. 2011)(42 U.S.C. § 2000cc(b) protects "institutions" and "assemblies" but plaintiff is neither); Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield, No. 3:09-CV- 1419 (JCH), 2016 WL 370696, *27 (D. Conn. Jan. 27, 2016)(dismissal of rabbi's claim as Nondiscrimination provision of RLUIPA bars government from discriminating against "any assembly or institution" but not against an individual). Accordingly, the Nimit Plaintiffs can bring no Nondiscrimination claim under RLUIPA and summary judgment must be denied. Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 51 of 71 30791195 v2 52 The Nimit Plaintiffs' Equal Terms claim fares no better, as the statute contains identical "assembly or institution" language: "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." 42 U.S.C. § 2000cc(b)(1). See Anselmo v. County of Shasta, Cal., 873 F.Supp.2d 1247, 1259 (E.D. Cal. 2012)(12(b)(6) motion granted on Equal Terms claim where plaintiff landowner was not religious assembly or institution). Accordingly, summary judgment must be denied to the Nimit Plaintiffs on the Equal Terms claim. 2. No Violation of Nondiscrimination or Equal Terms Provisions Without waiving the above, the City discusses the Nondiscrimination and Equal Terms claims. To prevail on a Nondiscrimination claim that the Zoning Ordinance was applied to Plaintiffs but not to other religious assemblies or institutions, Plaintiffs must show: (1) that they were treated differently from other similarly situated religious assemblies or institutions, and (2) the City unequally applied a facially neutral ordinance for the purpose of discriminating against Plaintiffs. Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006)(citing Strickland v. Alderman, 74 F.3d 260, 264 (11th Cir. 1996)). As part of its prima facie case, Plaintiffs must present evidence of intentional or purposeful discrimination by the City because of their religion. "[T]he plain text of the provision makes clear that, unlike the substantial burden and equal terms provisions, evidence of discriminatory intent is required to establish a claim." Chabad Lubavitch of Litchfield County v. Litchfield Historic District Commission, 768 F.2d 183, 198 (2nd Cir. 2014)(prohibiting discrimination "on the basis of religion or religious denomination"). On the Equal Terms claim, 42 U.S.C. § 2000cc(b)(1) provides that "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." To establish a prima facie Equal Terms claim, a plaintiff has the burden of showing that 1) it is a religious Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 52 of 71 30791195 v2 53 assembly or institution, 2) subject to a land use regulation, that 3) treats it on less than equal terms, 4) with a nonreligious assembly or institution. Prima Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295, 1307-08 (11th Cir. 2006). This provision requires equal treatment, not special treatment. Prima Iglesia, 450 F.3d at 1313. For an as-applied challenge like that of Plaintiffs, they "…must present evidence that a similarly situated nonreligious comparator received differential treatment under the challenged regulation." Prima Iglesia at 1311. "If a plaintiff offers no similarly situated comparator, then there can be no cognizable evidence of less than equal treatment, and the plaintiff has failed to meet its initial burden of proof." Id. The decision of whether a proposed project is a similarly situated comparator requires a close review of the circumstances of both projects. Church of Our Savior, 69 F.Supp.3d at 1321; Church of Scientology of Georgia, Inc. v. City of Sandy Springs, Ga., 843 F.Supp.2d 1328, 1362- 70 (N.D.Ga. 2012). If Plaintiffs make such a showing, the City bears the burden of attacking an element of the claim or establishing that the conduct at issue "employs a narrowly tailored means of achieving a compelling government interest." Primera Iglesia, 450 F.3d at 1308. a. The Lack of a Similarly Situated Comparator is Fatal to Plaintiffs' Nondiscrimination and Equal Terms Claims Identification of a similarly situated comparator is required for both the Nondiscrimination and Equal Terms claims, as well as the equal protection claim discussed infra. The Eleventh Circuit has held that in order to be similarly situated, a comparator must be prima facie identical in all relevant respects. Campbell, 434 F.3d at 1315. Plaintiffs here lack any comparator, religious (Nondiscrimination) or secular (Equal Terms), similarly situated to the proposed meditation center. Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 53 of 71 30791195 v2 54 At the outset, it is important to detail the unique 2015 planning approval application for the proposed meditation center. The proposal sought to convert an R-1 zoned property on a minor street of substandard width and which contained a 5,000 square foot home and separate garage apartment to a meditation center retreat, alleged to be a "church or religious facility," with said property surrounded by other R-1, single-family homes in a decades-old established residential neighborhood. (Doc. 92-8, Doc. 92-9; Doc. 92-35 Dumont dep. 99:4-11, 100:5- 101:1). The home and garage apartment would remain, but the application sought to build a new meditation center building (2,400 square feet), a four bedroom cottage (2,000 square feet), and freestanding bathroom facility (600 square feet), together with parking and lighting. (S. Nimit dep. 129:13-21 at Exh. 42; Doc. 92-9). The newly built meditation center would be used for meditation classes three evenings every week with attendance averaging 30 people, and also used for some weekend retreats lasting one to three days. (Doc. 92-9). When word of the proposal circulated, several hundred signatures were generated on a petition in opposition. (Exh. 50). With these details established, the City turns to analysis of comparators in the Eleventh Circuit, as the same analysis applies across the spectrum of employment claims, equal protection claims, and RLUIPA claims. See Church of Our Savior v. City of Jacksonville Beach, 69 F.Supp.3d 1299, 1321 (M.D. Fla. 2014)(under authority including equal protection cases, district court must determine that "the proposed comparator is similarly situated to the Property in the relevant aspects" for purposes of Equal Terms claim); Church of Scientology of Georgia, Inc. v. City of Sandy Springs, Georgia, 843 F.Supp.2d 1328, 1362 (N.D. Ga. 2012)(comparator "must be prima facie identical in all relevant respects" to be similarly situated for purposes of Nondiscrimination claim,). The Eleventh Circuit notes that it "applied a similar standard to private employment discrimination claims brought under the Equal Protection Clause outside the Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 54 of 71 30791195 v2 55 'class of one' context." Griffin Industries, Inc. v. Irvin, 496 F.3d 1189, 1204 (11th Cir. 2007); Knight v. Baptist Hospital of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003)(employees alleged to be comparators must be "similarly situated in all relevant respects"). The reasoning is that "[w]e see no reason that a plaintiff in a 'class of one' case should be subjected to a more lenient 'similarly situated' requirement than we have imposed in other contexts." Griffin Industries, 496 F.3d at 1204-1205. The Eleventh Circuit continued: The reason that there is a "similarly situated" requirement in the first place is that at their heart, equal protection claims, even "class of one" claims, are basically claims of discrimination. To maintain this focus on discrimination, and to avoid constitutionalizing every state regulatory dispute, we are obliged to apply the "similarly situated" requirement with rigor. Griffin Industries, 496 F.3d at 1207. In addressing land use regulation specifically, the Eleventh Circuit held that in a multi- factor decision-making process, like planning approval, finding a similarly situated comparator identical in all relevant respects may be tough sledding: Here, by contrast, the government's regulatory action was undeniably multi- dimensional, involving varied decisionmaking criteria applied in a series of discretionary decisions made over an extended period of time. In reviewing these decisions, we cannot use a simplistic, post-hoc caricature of the decisionmaking process. Governmental decisionmaking challenged under the "class of one" equal protection theory must be evaluated in light of the full variety of factors that an objectively reasonable governmental decisionmaker would have found relevant in making the challenged decision. Accordingly, when dissimilar governmental treatment is not the product of a one-dimensional decision -- such as a standard easement or a tax assessed at a pre-set percentage of market value -- the "similarly situated" requirement will be more difficult to establish. (citations omitted) Griffin Industries at 1203-04. The comparator analysis therefore applicable to land use applications was summarized by one district court as follows: When addressing whether two development projects are similarly situated in the equal protection "class of one" context, the Eleventh Circuit has required the plaintiff to establish the similarity of those projects with some "specificity." Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 55 of 71 30791195 v2 56 Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir, 2006), cert. denied, 549 U.S. 1020 (2006). The Court of Appeals explained that for one development to be similarly situated to the plaintiff's, "it must be prima facie identical in all relevant respects." Id. It must be "essentially the same size, have an equivalent impact on the community, … require the same zoning variances … [and] would need to be subject to the same governmental decisionmaking process…." Griffin Inds., Inc., 496 F.3d at 1204. "The burden of identifying similarly situated individuals [or entities] is a heavy one." Hicks v. Jackson Comm'n, 374 F.Supp.2d 1084, 1096 (N.D. Ala. 2005). Maverick Enterprises, LLC v. City of Alabaster, CV-09-BE-1084-S, 2011 WL 13175462, *8 (N.D. Ala. Jan. 14, 2011). In Maverick Enterprises, supra, the plaintiff in 2008 applied for a development including a 276 unit multi-family complex (later reduced to 198 units) which required a second entrance due to the number of units. Id. at *4. Plaintiff there alleged a single comparator .5 miles away, the only other apartment project in the city with more than 200 units but which was developed with a single road for ingress/egress. The comparator was not located in the same overlay district that plaintiff was and was first developed in the 1990's, long before plaintiff's proposed development and the adoption of the Fire Code requiring two entrances. Id. at *6. The comparator's structures were also near a public road allowing fire hoses to be pulled to its buildings, while plaintiff's proposed structures were one-half mile from any public road. The Court found that plaintiff had not met what it termed a "high burden." Id. at *8. While the comparator had "some similar elements," it "differs from the Weatherly Station project in many relevant respects" including the different districts and corresponding architectural review requirements, the different geography/topography concerns of plaintiff's proposed site, the differing fire code requirements given the difference in application and development dates, as well as differences in public road access. Id. at *9. The Court held that "[w]ithout a similarly situated comparator, Plaintiffs cannot say they are treated differently and cannot meet their prima facie case for a violation of the equal protection clause." Id. at *9. Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 56 of 71 30791195 v2 57 Plaintiffs' strategy here is at its heart an admission that there is no comparator similarly situated to the meditation center application. Rather than identify an application for planning approval for a church or religious facility (or other assembly-type use) having similar features to the proposed meditation center, Plaintiffs try to create a "composite" comparator by plucking a feature here and a feature there out of a dozen or so applications which, considered individually by themselves, are not identical to the proposed meditation center in all relevant respects. For instance, a logical starting point for a comparator would be whether Plaintiffs identify a church that obtained planning approval to build a standalone church on a site previously serving as a single-family residence, as Plaintiffs proposed to do. Plaintiffs identify none. Or a church that proposed to keep the residence on such a site, but would add multiple buildings to the site as Plaintiffs proposed to do. Again, Plaintiffs identify no comparator having these features. Further, any proposed comparator should seek to add new church buildings to a site previously used as a single-family residence, with the site being in the middle of an established, decades-old residential neighborhood. Plaintiffs of course submit no comparator having these characteristics. At a bare minimum, Plaintiffs' comparator should be one that went through the planning approval process ("the same governmental decisionmaking process") and earned planning approval to build a church on a given property for the first time. This eliminates decades-old church and church/school sites such as Ashland Place UMC, St. Ignatius Catholic, and St. Dominic Catholic, which were established at their present locations in the 1950's or earlier, prior to the City's adoption of the 1967 Zoning Ordinance first imposing a planning approval requirement for certain districts. (Exh. 74). Plaintiffs' comparator should be an application for planning approval for the construction of a new church building, not a mere expansion. Plaintiffs point to no such comparator. In fact, Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 57 of 71 30791195 v2 58 several applications that Plaintiffs cite propose no construction of buildings at all, whereas here the proposal was to build three new buildings totaling 5,000 square feet on a site previously used as a single-family residence, even while retaining the 5,000 square foot home and separate garage apartment. The above clearly highlights that rather than identify for the Court any comparator with all or even most of the relevant features of the subject application seeking planning approval to build a meditation center and other buildings from the ground up on a residential lot amidst a single-family residential neighborhood, Plaintiffs can present at best only a hodgepodge of decades-old church locations which pre-date the planning approval process (St. Dominic, St. Ignatius, Ashland Place)(Exh. 74); applications for expansions of or exceptions for parking lots for existing facilities (Port City Church of Christ in 2005; St. Dominic's application for parking/landscaping)(Exhs. 51-52; Doc. 93-60); applications in distant areas of the City on a road with nearby planning approvals for churches (Redeemed Community Church)(Exh. 63); applications where no new building construction is contemplated (Dunnaway church school; New Home Baptist; Port City Church of Christ)(Exhs. 51-52, 61, 65-66); applications for approvals other than planning approval (Southern Marina's rezoning request)(Exh. 57); applications where the site is bordered by City-standard streets (Gates of Praise, bordered by Webb Avenue and McVay Drive North)(Exh. 73); applications for minor expansions of existing decades-old churches (Smith AME application for kitchen addition)(Exh. 68); or applications to rebuild on the same site longstanding church or assembly facilities damaged by natural disasters like tornados (Sweet Pilgrim Baptist)(Exh. 75) or hurricanes (Alba Club)(Exh. 71). Plaintiffs also claim certain applications (Port City Church of Christ, Ashland Place UMC) were approved over "community opposition," which on review was only two residents at a single meeting who Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 58 of 71 30791195 v2 59 did not appear in opposition thereafter, as opposed to the hundreds from the Riverside neighborhood who opposed Plaintiffs' application in person and/or by signing a petition. (Exhs. 51-52, 53-55). Plaintiffs also raise a planning approval application for a community center in Mobile Terrace for the proposition that "churches and religious facilities" have been allowed on substandard streets; however, this application is for a .11 acre lot (less than 2% of Plaintiffs' acreage), on a site that was formerly a community center, with the associated church just 500 feet away, and in a neighborhood that has only substandard east/west streets running east/west because it was only annexed into the City in 2008. (Exh. 76). Plaintiffs also mention an application by Nazaree Full Gospel Church to establish a church school in a B-3 zone, where planning approval for the school is required (but not for a church). (Doc. 92-12). The proposed school property is bounded by an interstate, industrial property, and a vacant lot zoned R-1 -- about the furthest one can get from the single-family residential neighborhood on Dog River where the meditation center was proposed. (Exh. 78). Ironically, perhaps the closest comparator (though by no means similarly situated) was Nimit's own 2007 application for planning approval by which she sought to convert a single- family home in a decades-old, established residential neighborhood into a meditation center. City staff recommended denial for several reasons, one of which was incompatibility with the existing residential neighborhood, and Nimit withdrew the application before the Planning Commission voted. Incompatibility of a meditation center hosting events three days a week every week, and up to six days a week some weeks, with the existing single-family residential neighborhood was one of the primary reasons cited by opponents at the Dec. 3 Planning Commission meeting for their opposition, and incompatibility was cited in the Letter of Decision denying the application. Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 59 of 71 30791195 v2 60 b. No evidence of intentional discrimination by the City The applications for the proposed meditation center were denied by the Planning Commission and, on appeal, by the City Council, with the applications gaining not a single vote in favor. Plaintiffs submit no evidence that the hearings were irregular, that Plaintiffs could not present the evidence to these bodies that they wished, or that the vote of any Planning Commission or City Council member was based on a discriminatory motive. Councilman Small spoke in the City Council hearing and in his deposition about concerns with increasing traffic in the neighborhood on Riverside, with no sidewalks and which students regularly walk to and from school. (Doc. 92-39 Small dep. 14:23-17:7, 40:20-41:6, 69:16-70:10; Doc. 92-19 at p. 91-92). In fact, the Planning Commission and City Council were urged both by the applicant's counsel (Lawler) and by the Planning Commission's counsel (Anderson) to apply the planning approval criteria in the Zoning Ordinance to the subject application. At the respective hearings, the Planning Commission and City Council heard concerns of area residents about the proposed meditation center and its incompatibility with the existing single-family residential neighborhood, about traffic generated by holding meditation classes three times per week together with weekend retreats of one to three days, about access given the substandard width of Eloong Drive, and about construction of several thousand square feet of buildings, parking lots, and lighting on the traditionally single-family residential property, together with related impacts on nearby properties in terms of lighting, noise, and stormwater runoff. (Docs. 92-14, 92-15, 92- 19). Lacking evidence of a discriminatory motive by any member of the Planning Commission or City Council, Plaintiffs tellingly shift their allegations of discrimination to a "joint effort" between Tamela Esham, a regular private citizen whose home is next door to the Eloong property, and Anderson, an attorney in private practice who represents the Planning Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 60 of 71 30791195 v2 61 Commission. Such "joint effort" concoction is undermined several ways. One, it is undisputed that Esham and Anderson did not even know each other as of the Oct. 15 Planning Commission meeting. Two, there is no evidence that members of the Planning Commission or City Council knew of any later communications between Anderson and Esham. Three, Anderson told the Planning Commission at the Dec. 3, 2015 meeting to consider the meditation center application under the Zoning Ordinance's planning approval criteria. And fourth, Esham and Anderson are not members of the Planning Commission or City Council, and have no vote. There is no evidence that Anderson or Esham influenced the votes of the Planning Commission members beyond their comments made at the Dec. 3 public hearing, with the last of Anderson's comments urging the Planning Commission members to apply the planning approval criteria to the application in their vote, just as Plaintiffs' counsel urged. Nor is there evidence that the City's suit to enjoin Plaintiffs' advertising and holding of weekend meditation retreats at the Eloong property was done with discriminatory intent. This lack of evidence of discriminatory intent defeats Plaintiffs' Nondiscrimination claim, as well as their constitutional claims as discussed infra. Even if there were evidence that one member of the Planning Commission or City Council had some type of unconstitutional motive, this would be insufficient to impute an unconstitutional motive to the body as a whole. Matthews v. Columbia County, 294 F.3d 1294, 1297 (11th Cir. 2002)(rejecting theories that commissioner with improper motive influenced other commissioners, that commissioner's improper motive was known to other commissioners, or that commissioners often voted as a bloc). Plaintiffs' only evidence of some difference in treatment compared to other applicants concerns the request that the applicant present documentation that the proposed meditation center met the "church or religious facility" use found in the Zoning Ordinance's Chart of Permitted Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 61 of 71 30791195 v2 62 Uses. The City admits that no other application for a "church or religious facility" had evidence presented by opponents which questioned whether the use was in fact religious. Of course, this evidence presented consisted of public statements from Plaintiffs themselves over a period of years identifying the Meditation Center and its meditation as non-religious, including: • A June 6, 2010 news article which states "[w]hile the monks are trained in Buddhism, Nimityongskul insisted the center does not promote any religion." This is coupled with a June 4, 2010 article where Nimit states that her mission is "to spread world peace through inner peace, and have people see that meditation is not to be associated with any one particular race, culture and religion". • Prior to the filing of this lawsuit, the Facebook page for the Meditation Center identifies it as a "non-religious organization." • Several 2015 Fox10 news stories about the Meditation Center state that "their teaching is non-religious and suitable for all." Two August 2015 Fox10 news stories about the Meditation Center stated that "[t]he meditation classes are non- religious and open to all levels", and that "[o]ur teaching is non-religious and suitable for all." • An October, 2015 Fox10 news story about the Meditation Center stated that "[i]t is a non-religious meditation suitable for beginners and experienced practitioners." (Doc. 92-16). Thus, questions of whether the proposed use was religious or not were borne not of any prejudice or discrimination, but simply from Plaintiffs' own past statements about itself and its meditation. The above quotes are consistent with other advertising materials Plaintiffs produced in discovery. In one, the Meditation Center describes itself: "[w]e are a non-profit organization dedicated to spreading peace through the teachings of a non-religious form of meditation." (Exh. 83; S. Nimit dep. 192:20-193:7 at Exh. 42). A 2012 fundraising flyer answers the question of "Who we are" by stating "A nonprofit, non-religious organization." (Exh. 84; S. Nimit dep. 201:11-17 at Exh. 42). A 2013 promotional brochure by the Meditation Center answered the question "Is Meditation Religious?" by stating: Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 62 of 71 30791195 v2 63 The great thing about meditation is that philosophy/religious belief is not important. Meditation is about consciousness. The beliefs of the mind become trivial. You dive deep into the heart of the matter to gain access to your soul - your inner reality. Therefore meditation can be practiced by people of different religions or no religion at all. (Exh. 41; S. Nimit 185:1-9, 190:15-191:6 at Exh. 42). Even courts may inquire into whether a claimant actually holds the beliefs he claims to hold. Davila v. Gladden, 777 F.3d 1198, 1204 (11th Cir. 2015). Is the City not permitted such inquiry in the face of the above information? There is no evidence of course that any other church applying to the City for planning approval called itself or its worship "non-religious." Nevertheless, the initial recommendation that the documentation provided did not establish the use as a "church or religious facility" worked no prejudice as it is undisputed that the Planning Commission can and often do vote contrary to recommendations of City staff. Moreover, the issue was to put to rest during the Dec. 3, 2015 Planning Commission meeting as Planning Commission members were directed to simply apply the Zoning Ordinance's planning approval criteria to the meditation center application as they would any other. This is just what Plaintiffs' lawyer (Lawler) urged at the beginning of the hearing. There is no evidence of any improper motive by the members of the Planning Commission or City Council in their vote to deny the meditation center application. Plaintiffs cite to Islamic Center of Mississippi, Inc. v. City of Starkville, Miss., 840 F.2d 293 (5th Cir. 1988), though this case shows little similarity to the facts here. In Islamic Center, the City of Starkville allowed no churches as a matter of right but required an exception from a Board of Aldermen which nine churches had obtained (sixteen others were grandfathered) with none being denied. The Islamic Center presented to the City several proposed properties for its religious services, two of which were across the street from churches, but were told that these locations would not be approved. Id. at 295. When the Islamic Center bought a property that had Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 63 of 71 30791195 v2 64 been suggested by the City, the Board of Aldermen denied the required exception over the Planning Commission's recommendation of approval, even though five churches lay within a quarter mile of the proposed site. Id. at 295-96. The Fifth Circuit concluded that exceptions for these other churches suggested unequal treatment, declared the ordinance unconstitutional as applied to the Islamic Center, and enjoined its enforcement. Id. at 302-303. No similar facts exist here relative to the denial of the subject application. First, it is undisputed that Plaintiffs have operated a Meditation Center within the City for several years with no discouragement from the City. Second, Plaintiffs' application was far from simply using the existing structure at the Eloong property for meditation; rather, Plaintiffs' application sought transformation of the Eloong property from a single-family residence in a single-family residential neighborhood by building several thousand square feet of new buildings, parking lots and lighting. Third, Plaintiffs make no showing that any churches in the Riverside neighborhood received planning approval (as opposed to preexisting the City's annexation in the 1950's). Islamic Center has limited precedential value in light of these stark factual differences. Plaintiffs' motions for summary judgment on the Nondiscrimination and Equal Terms claims are due to be denied due to the lack of a similarly situated comparator, as well as the lack of intentional discrimination. IV. SUMMARY JUDGMENT MUST BE DENIED ON THE FEDERAL AND STATE CONSTITUTIONAL CLAIMS (COUNTS IV, V AND VI) Plaintiffs do not argue entitlement to summary judgment on any facial challenge to the City's Zoning Ordinance based on Free Exercise or Equal Protection grounds, an RLUIPA-based facial challenge having been already rejected by this Court. To the extent a facial challenge exists, the City adopts its discussion of the Zoning Ordinance as a neutral law of general Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 64 of 71 30791195 v2 65 applicability set forth in its Brief in Support of Motion for Summary Judgment at Doc. 90, pp. 35-36, 39-40. The City now focuses on Plaintiffs' "as-applied" challenge. A. Attempts to Impose § 1983 Liability on the City for Free Exercise and Equal Protection Violations Must Fail Municipal liability under 42 U.S.C. § 1983 is limited and Plaintiffs' attempts to impose on the City liability for some "joint effort" of Esham, a private citizen, and Anderson, an attorney in private practice representing the Planning Commission, necessarily fail. Recall that the subject application to build a meditation center complex at the Eloong property earned not a single vote in favor from either the Planning Commission or City Council, with both hearing ample evidence for denying planning approval under the neutral criteria in the Zoning Ordinance. There is no evidence of a discriminatory motive by any Planning Commission or City Council member in casting their vote, and the City Council is the final decisionmaker by virtue of its authority to hear appeals concerning planning approval. See Doc. 92-12 at § 64-8(B)(2)(c). Thus, for liability under § 1983 to attach to the City, a final policymaker (the City Council) must ratify not only the decision itself, but the unconstitutional basis for it. Matthews v. Columbia County, 294 F.3d 1294, 1298 (11th Cir. 2002). The Eleventh Circuit has held that "[w]hen such review procedures are in place, we have often found that the subordinate official does not exercise final policymaking authority." Willingham v. City of Valparaiso Florida, 638 Fed.Appx. 903, 907 (11th Cir. 2016). Thus, Plaintiffs' theory that Anderson (alone or by "joint effort" with Esham) controlled the Planning Commission in some way neither explained nor shown by the evidence is irrelevant as "[f]inal policymaking authority over a particular subject area does not vest in an official whose decisions in the area are subject to meaningful administrative review." Scala v. City of Winter Park, 116 F.3d 1396 (11th Cir. 1997)(city not liable for termination under § 1983 as civil service board could review subordinate decision upon Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 65 of 71 30791195 v2 66 appeal). Here, because the Planning Commission is not a final decisionmaker, neither could the Planning Commission's attorney (Anderson) be. As noted above, Plaintiffs must present evidence that the City Council in denying planning approval not only accepted the Planning Commission decision, but knew of and ratified some allegedly improper motive for it. No evidence shows an improper motive by the Planning Commission, nor does evidence show ratification of the City Council of such improper motive. Instead, the respective public hearings reflect considerable evidence before the Planning Commission and City Council for why denial of planning approval was justified. B. Plaintiffs' Free Exercise Claim Fails. Plaintiffs' contention that their Free Exercise claim is subject to strict scrutiny (apparently regardless of whether the zoning law is neutral and of general applicability) is erroneous. As the Eleventh Circuit explained just last year in Eternal Word Television Network, Inc. v. Sec'y of U.S. Dep't of Health & Human Servs., 818 F.3d 1122, 1139 (11th Cir. 2016), the Religious Freedom Restoration Act and RLUIPA were passed by Congress to expand protection for religious organizations in the wake of Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which held that "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Eternal Word, 818 F.3d at 1139. If strict scrutiny always applied to a Free Exercise claim grounded upon denial of a land use application, then Congress must have wasted its time enacting RLUIPA as it, due to the required predicate showing of a "substantial burden," would afford religious land use less protection than Plaintiffs' interpretation of a Free Exercise claim. At best, a claim under the Free Exercise clause arising from the application of a zoning ordinance Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 66 of 71 30791195 v2 67 burdening religious rights is redundant of an RLUIPA claim4. See World Outreach Conf. Center v. City of Chicago, 591 F.3d 531, 534 (7th Cir. 2009)(noting "there isn't much point to a plaintiff's adding a claim under 42 U.S.C. §1983" alleging a free exercise violation in a case where RLUIPA is applicable as it would cover the same territory). In any event, those cases cited by Plaintiffs in support of their Free Exercise claim, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), where a municipality enacted legislation directly targeting a particular religion and outlawing its religious practice of animal sacrifice, and Cottonwood Christian Center v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203 (C.D. Cal. 2002), where a city council adopted a moratorium on granting discretionary land permits that extended two full years, and Brown v. Borough of Mahaffey, Pa., 35 F.3d 846 (3rd Cir. 1994), where city council members intentionally locked a gate to physically impede access to a revival, are clearly inapposite. There is no analogous conduct here by the City warranting application of strict scrutiny to the Free Exercise claim. Summary judgment must be denied on Plaintiffs' Free Exercise claim for the same reasons that Plaintiffs' substantial burden claim under RLUIPA fails, as stated supra. The City also incorporates its argument on the Free Exercise claim from its summary judgment brief. (Doc. 90 at 34-49). C. Plaintiffs' Equal Protection Claim Fails. Plaintiffs' as-applied Equal Protection claim involving a facially neutral statute requires a showing that Plaintiffs "have been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000)(per curiam); see also, Daytona 4 Indeed, Plaintiffs tellingly collapse their analysis of RLUIPA and Free Exercise claims into one. (Doc. 94 at 30-41). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 67 of 71 30791195 v2 68 Rescue Mission, Inc. v. City of Daytona Beach, 885 F.Supp. 1554, 1560 (M.D. Fla. 1995)("[T]o maintain an equal protection clause claim with any significance independent of the free exercise count [ ], [Plaintiffs] must also allege and prove that they have received different treatment from other similarly situated individuals or groups."). Different treatment of dissimilarly situated persons does not violate the equal protection clause. Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006). As discussed supra at 51-64, Plaintiffs cannot show that they have received different treatment from a similarly situated group, nor that they have been intentionally discriminated against. Plaintiffs rely heavily on Village of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 265 (1977), and its discussion of factors that can show discriminatory intent from a totality of circumstantial and direct evidence. First, however, that case in no way dispenses with the necessity of showing similarly situated comparators who have been treated differently, which Plaintiffs have not done. See Cochran v. City of Atlanta, 150 F.Supp.3d 1305, 1321 (N.D. Ga. 2015)("Plaintiff cannot mount an equal protection claim because he has not properly alleged a similarly situated comparator which is required whether Plaintiff is proceeding under a classic or class-of-one equal protection theory."). Second, the evidence does not support Plaintiffs' argument even considering the Arlington Heights factors. Among other things, (1) the issue of whether the proposed meditation center was a "church or religious facility" arose only because of the Meditation Center's own past public pronouncements that it and its meditation were "non-religious"; (2) the Planning Commission applied the Zoning Ordinance's planning approval criteria as urged by Plaintiffs' counsel; (3) Anderson and Esham are not members of the Planning Commission or City Council, and there is no evidence that they influenced the votes of those bodies beyond their comments at Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 68 of 71 30791195 v2 69 public hearings; (4) the meditation center application to transform a single-family residential property in a single-family residential neighborhood into a meditation center retreat in use three to six days a week was unique as shown by Plaintiffs' aforementioned inability to identify a similarly situated comparator; (5) the hearings before the Planning Commission and City Council did not vary from "established norms"; and (6) there were no statements from either decision- making body or from the wider community of concerned citizens indicating discriminatory intent toward Plaintiffs. Plaintiffs' motion for summary judgment on its Equal Protection claim must be denied. D. Plaintiffs' Alabama Religious Freedom Act Claim Fails. Plaintiffs incorrectly state the standard for a claim under the Alabama Religious Freedom Act ("ARFA"), claiming it "requires strict scrutiny review of any burden on religious exercise- substantial or not- and is therefore an even stronger protection than RLUIPA." (Doc. 94 at 32). No Alabama case has ever interpreted ARFA this way. To the contrary, the Northern District of Alabama, the only Alabama court to truly consider an ARFA claim on the merits, followed an RLUIPA-inspired analysis, applying the same substantial burden standard. See Presley v. Scott, No. 4:13-cv-02067-LSC-TMP, 2014 WL 7146837, *24 (N.D. Ala. Dec. 15, 2014)("Because the language of this State constitutional provision essentially tracks that of RLUIPA, the court, at least initially, will interpret and apply this provision in light of case law decided under RLUIPA"). Another Northern District of Alabama opinion acknowledged that analysis while ultimately rejecting an ARFA claim on multiple other grounds. Doggrell v. City of Anniston, Alabama, --F.Supp.3d--, 2017 WL 4340449 (N.D. Ala. 2017). This Court should follow these authorities from the Northern District of Alabama, and for the same reasons discussed supra at 44-50, deny Plaintiffs' summary judgment motion (and grant the relief sought by the City). Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 69 of 71 30791195 v2 70 V. PLAINTIFF THAI MEDITATION ASSOCIATION OF ALABAMA HAS NO STANDING AND SUMMARY JUDGMENT MUST BE DENIED Summary judgment is due to be denied the claims of Plaintiff Thai Meditation Association of Alabama, Inc. ("TMAA") as it has no standing to prosecute this action, failing to meet either threshold constitutional standing under Article III ("jurisdictional standing") or non- jurisdictional standing specifically under RLUIPA. See Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1386-88 (2014). It is undisputed that TMAA never owned an interest in the subject Eloong property, and signed a lease to use the Eloong property as a meditation center only several months after the denials of the application for planning approval, and months after the City filed suit seeking to enjoin the holding of meditation retreats at the Eloong property. In fact, the lease itself only goes into effect once the meditation center retreat shown in the site plan is built and issued a certificate of occupancy. Thus, TMAA had no interest in the Eloong property at all during the time of the events giving rise to the suit. TMAA has simply continued to operate the Meditation Center at the 3821 Airport Blvd. location for the past several years through the present with the same weekly meditation classes, half-day retreats, three-day retreats, and other events. (Doc. 92-30 S. Nimit dep. 22:22-24:2, 24:14-21, 32:8-12, 34:11-13, 38:2-39:20). The City incorporates its arguments on standing contained in its Brief in Support of Motion for Summary Judgment at Doc. 90, pp. 45-48. VI. CONCLUSION For all of the reasons set forth herein, Plaintiffs' motion for partial summary judgment is due to be denied. Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 70 of 71 30791195 v2 71 Respectfully submitted, s/ Michael D. Strasavich DOUGLAS L. ANDERSON (ANDED9624) danderson@burr.com MICHAEL D. STRASAVICH (STRAM9557) mstrasavich@burr.com TAYLOR BARR JOHNSON (BARRT8851) tjohnson@burr.com Attorneys for Defendant, City of Mobile, Alabama OF COUNSEL: BURR & FORMAN LLP Post Office Box 2287 Mobile, Alabama 36652 Telephone: (251) 344-5151 Facsimile: (251) 344-9696 CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing document by Notice of Electronic Filing, or, if the party served does not participate in Notice of Electronic Filing, by U.S. First Class Mail, hand delivery, fax or email on this the 13th day of November, 2017: John L. Lawler, Esq. Post Office Box 47 Mobile, AL 36601 Roman P. Storzer, Esq. Blair Lazarus Storzer, Esq. Storzer & Associates, P.C. 1025 Connecticut Ave., N.W. Suite 1000 Washington, DC 20036 s/ Michael D. Strasavich OF COUNSEL Case 1:16-cv-00395-CG-MU Document 100 Filed 11/13/17 Page 71 of 71