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

Brief

S.D. Ala.October 16, 2017

30565570 v1 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 SUPPORT OF MOTION FOR SUMMARY JUDGMENT COMES NOW Defendant City of Mobile, Alabama ("the City"), by and through its undersigned counsel of record, and submits this Brief in support of its Motion for Summary Judgment filed contemporaneously herewith, showing unto this Court the following: I. INTRODUCTION Plaintiffs' claims arise from applications filed with the City seeking planning approval and other necessary approvals for the construction of a meditation retreat complex on a residential lot in a decades-old neighborhood on Eloong Drive in Mobile. The site plan originally proposed the construction of a 2,400 square foot meditation center, together with two four- bedroom cottages of 1,600 square feet each, a 600 square foot freestanding bathroom facility, and related parking and other improvements, all on a lot zoned R-1 (single-family residential) where a 5,000 square foot home and detached garage apartment already stood and were to remain. The purpose of the construction was to allow the newly-built meditation complex to host meditation classes three evenings a week, the same classes held for the past several years through today at a location on Airport Boulevard. In addition, the meditation complex would host occasional weekend retreats between one-half day and three days in duration, meaning that the Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 1 of 49 2 30565570 v1 meditation complex would host events three evenings a week every week and some weeks, would host events six days a week. As landowners in the established neighborhood learned of the proposal, they expressed concern and opposition. Property owners appeared at the December 3, 2015 Planning Commission hearing on the application, stating their opposition given the incompatibility of the proposed construction with the single-family neighborhood, the extent and frequency of the proposed use, environmental concerns over deforestation required of the property, and concerns over additional traffic and access, especially on Eloong and on Riverside Drive leading to Eloong. The neighbors had also researched and documented several past instances where Plaintiff Sivaporn Nimityongskul and/or the Meditation Center had publicly stated that the Meditation Center endorsed no particular religion and that the meditation classes were not religious in nature, questioning whether planning approval could be granted if the meditation center was not a "church or religious facility" in light of the City's Zoning Ordinance provisions. Despite this, the Planning Commission (and later the City Council) ultimately considered the application for the meditation center complex under the planning approval standard stated in the Zoning Ordinance, just as they had been urged to do by Plaintiffs' counsel, by the Planning Commission's own counsel, and by others during its December 3 meeting. For purposes of this motion, the Court can assume that planning approval was required for the meditation center complex under the Zoning Ordinance's Chart of Permitted Uses. After hearing speakers on both sides, when the application for planning approval was put to a vote, it failed to gain even a single vote of the Planning Commission members. When the applicant appealed the Planning Commission's decision to the City Council, the result was the same - not a single positive vote in favor of the application. The undisputed facts recited below Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 2 of 49 3 30565570 v1 show that the denial of planning approval was not based on any bias against the applicant's religion or against meditation. There is simply no evidence of this. Rather, the application's failure to gain even a single positive vote exemplifies what a poor match the proposed meditation center complex and its proposed use three to six days a week was for the existing single-family neighborhood and its infrastructure. Plaintiffs brought claims under the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), and the "facial" challenges to the City's Zoning Ordinance under RLUIPA have already been dismissed by this Court (Docs. 30, 31), leaving only "as-applied" RLUIPA challenges. The City will demonstrate below that the denial of the application placed no "substantial burden" on Plaintiffs as that term has been construed by the Eleventh Circuit. Further, the denial did not discriminate against Plaintiffs as compared to either other similar religious or nonreligious proposed uses. The proposed construction of a meditation complex on a residentially-zoned lot with an existing 5,000 square foot home is a novel, first-time application for the City without an analogous, similarly situated religious or secular comparator. Also, the City's Zoning Ordinance and denial of the applications did not run afoul of either the Free Exercise Clause or the Equal Protection Clause of the United States Constitution, nor did the City's enforcement of the Zoning Ordinance against Plaintiffs when meditation center retreats were advertised and held at the subject property even after the denial of the applications seeking the required planning approval. The City is also entitled to summary judgment on Plaintiffs' state law claims for negligent misrepresentation and under the Alabama Religious Freedom Act, a state constitutional provision that has not been violated and will not support an action for money damages. Finally, Plaintiff Thai Meditation Association of Alabama, Inc. has no standing to bring this action, as it was not Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 3 of 49 4 30565570 v1 an owner, lessee, or other holder of any interest in the subject Eloong property during the pendency of the planning approval applications submitted to the City. For all of the reasons detailed below, summary judgment is due to be entered in favor of Defendant. II. NARRATIVE STATEMENT OF UNDISPUTED FACTS Plaintiff Sivaporn Nimityongskul has lived at 2410 Eloong Drive ("the Eloong property") in Mobile with her husband, Plaintiff Prasit Nimityongskul, since August 25, 2015. (Sivaporn Nimit dep. (“S. Nimit”) 14:3-91). She goes by the last name "Nimit," an abbreviation adopted herein. (S. Nimit dep. 13:7-13). Nimit grew up in Thailand, eventually attended college in Michigan, got married, and moved to Mobile more than 30 years ago. (S. Nimit dep. 15:8-19). Nimit is the founder, president, and a director of Plaintiff Thai Meditation Association of Alabama, Inc. ("TMAA"), which operates as Meditation Center of Alabama ("Meditation Center"). (S. Nimit dep. 17:2-4; 18:17-19:7). According to Nimit, the Meditation Center is for everyone, not just Thai or Buddhist people. (S. Nimit dep. 20:8-19). Nimit agrees that most people who come to the Meditation Center, 95% or more, are Christian or are something other than Buddhist, and that she is one of only a few Buddhists who attend. (S. Nimit dep. 208:22- 209:9; 209:15-210:1). The primary purpose of the Meditation Center is teaching meditation, and Nimit's vision is to spread the inner peace and happiness found through its practice. (S. Nimit dep. 181:3-11; 182:7-15). 1 Deposition excerpts, referenced herein, are found in the Notice of Filing as follows: Sivaporn Nimityongskul (Ex. 30); Prasit Nimityongskul (Ex. 31); Serena Nimityongskul (Ex. 32); Varin Nimityongskul (Ex. 33); Bert Hoffman (Ex. 34); A. Bailey duMont (Ex. 35); Richard Olsen (Ex. 36); Tamela Esham (Ex. 37); Douglas Anderson (Ex. 38); CJ Small (Ex. 39); Marie Cross (Ex. 40). Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 4 of 49 5 30565570 v1 Plaintiff Prasit Nimit has no day-to-day role with the Meditation Center and its operations. (P. Nimit dep. 10:10-19; 45:19-46:5; 23:23-24:8; 25:22-26:3). Plaintiff Varin Nimit, the Nimits' son, also plays no role, having lived in New York for the last several years. (S. Nimit dep. 295:14-296:21; V. Nimit dep. 10:9- 11:9; 12:20- 13:7). Plaintiff Serena Nimit, the Nimits' daughter, teaches meditation at the Meditation Center and is involved with day-to-day operations primarily in the role of a secretary. (Serena Nimit dep. 15:10- 23). The Meditation Center is located at 3821 Airport Boulevard in 2,200 square feet of space, operating today the same way it did back in 2015, offering meditation classes, half-day retreats, and occasional weekend retreats promoted through email and social media. (S. Nimit dep. 22:22- 24:2; 24:14-21; 32:8-12; 34:11-13; 38:2-39:20). Emails sent from the Meditation Center go to about 700 people. (S. Nimit dep. 162:23-163:6). This property is where the Meditation Center has operated since 2009 and is owned by Nimit Two, LLC, owned by Nimit and her two children, Varin and Serena. (S. Nimit dep. 28:2-19; 29:4-7). The City has never discouraged the practice of meditation at this Airport Boulevard location. (S. Nimit dep. 197:7-10). Back in 2007, Nimit had been visited by a City zoning inspector after a ceremony held at a single family home on 4567 Airport Boulevard (different than the current 3821 Airport Boulevard facility), with the visit having been prompted by a citizen complaint. (S. Nimit dep. 212:19-213:12; Hoffman dep. 73:11-74:8). This visit is a typical City response to a citizen complaint concerning a property owner's use of their home, even one about a home-based Bible study; in this scenario an inspector will investigate the complaint and the City will move forward as appropriate under the Zoning Ordinance. (M. Cross dep. 13:17-22; 16:15-17:7). Nimit in 2007 applied for planning approval to establish a meditation center at that home, but later withdrew the application. (S. Nimit dep. 221:1-20; Notice of Filing Evidence (“NFE”) Exh. 1). Prior to its Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 5 of 49 6 30565570 v1 withdrawal, City staff recommended denial due to the proposed non-residential use and concern that others nearby may also apply for non-residential use. (Hoffman dep. 76:3-7; 82:1-10). Bert Hoffman, now principal planner for the City and the one who had recommended denial, had never seen an application where a church wanted to relocate to a single-family home. (Hoffman dep. 82:15-18). The aforementioned schedule of meditation classes, half-day retreats, and weekend retreats held presently at the Meditation Center is roughly what Nimit envisioned for the Eloong property. (S. Nimit dep. 39:16-20). Nimit feels that the Dhammakaya meditation technique taught at the Meditation Center is effective and easy to learn, and everyone regardless of age, race, or religion can benefit from it, as benefits include stress reduction, increased mental clarity, enhanced memory, profound levels of calm, joy and inner peace, and harmony of body and mind. (S. Nimit dep. 182:16-23; 183:1-7). The Meditation Center also promotes activities such as quiet mind, massage therapy, yoga, and healing qigong. (S. Nimit dep. 235:4-236:18; 238:23- 239:19). Nimit practices meditation daily, sometimes three to four times, and teaches people to meditate every second of their life. (S. Nimit dep. 210:2-14). Nimit and her husband practice meditation at the Eloong property, noting that every Saturday night, they connect online to the Dhammakaya Temple in Thailand. (S. Nimit dep. 210:15-211:9). Meditation is practiced by the Meditation Center at Airport Boulevard facility, but also at other locations such as the University of South Alabama or the West Regional Library. (S. Nimit dep. 226:18-227:1). Meditation can be practiced indoors or outdoors (weather permitting), and the Meditation Center has also promoted online meditation that users can access from anywhere. (S. Nimit dep. 187:9-14; 240:17-241:5). Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 6 of 49 7 30565570 v1 The Eloong Property and Events Leading to Applications The Nimit Plaintiffs (Sivaporn, Prasit, Varin, and Serena) took title to the Eloong property in August, 2015 in their names for a purchase price of $690,000. (S. Nimit dep. 53:8- 10). No funds for the down payment came from the TMAA. (S. Nimit dep. 79:21-80:14). To Nimit's understanding, her husband (Prasit) is the only borrower for the mortgage on the Eloong property. (S. Nimit dep. 82:19-23). Photographs of the Eloong property appear at Exh. 2 to the Notice of Filing Evidence ("NFE"). (S. Nimit dep. 40:1-11). The Eloong property presently has a 5,000 square foot home and a separate garage apartment. (S. Nimit dep. 40:23-41:23). Photographs attached as Exh. 3 to the NFE show the roads leading to the property's driveway, including Eloong and its intersection with Riverside Drive. (S. Nimit dep. 46:11- 48:23). Eloong has no outlet, and one must travel almost 500 feet on Eloong Drive after turning from Riverside Drive in order to access the property's sole driveway. (S. Nimit dep. 47:17-48:3; 48:15-23; 50:12-15). All neighbors on Eloong traveling to their property must pass the Nimit's property and driveway and, in leaving their property, all neighbors must pass the Nimit property. (S. Nimit dep. 49:19-50:9). An April 16, 2015 addendum to an offer from Nimit to purchase the Eloong property made the offer contingent on certain events, including the buyer determining that they had the right to build a separate meditation building and two additional dwellings for guest house purposes, as well as gain approvals from the fire department for the construction and other matters. (NFE Exh. 4; S. Nimit dep. 55:20-56:10). Nimit knew even then, months before the purchase was to close, that she would have to apply to the Planning Commission to get approval for the construction: Q. All right. At this point in time, April of 2015, and specifically April 16 of 2015, where this says "Buyer must determine that it has the right to construct a separate meditation building," was it your understanding that it would be the Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 7 of 49 8 30565570 v1 Planning Commission of the City of Mobile that would have to determine whether you had that right? A. I was told we have to go to Planning Commission to get approval. So I understand we have to get approval from them. (S. Nimit dep. 62:15-63:2). Similarly, as for the right to construct additional dwellings, Nimit concedes that she was told that she would have to get approval from the Planning Commission. (S. Nimit dep. 63:10- 22). Nimit knew from the first predevelopment meeting with City employees that she would have to go to the Planning Commission for approval. (S. Nimit dep. 64:22-65:22). During the two predevelopment meetings with City employees, no one with the City showed hostility to Nimit or the proposed meditation center project, but all acted professionally.2 (S. Nimit dep. 254:23-255:13). No one said anything negative about Buddhists or Nimit. (Hoffman dep. 89:8- 13). Hoffman gave Nimit's attorney and realtor, Bill Youngblood, an application for planning approval at the April, 2015 predevelopment meeting attended by Nimit because if the meditation center was a religious facility, planning approval would be required. (Hoffman dep. 66:5-9). All of the applications provided to Youngblood at the predevelopment meeting held April 24, 2015 are attached to the Notice of Filing Evidence as Exh. 5. (S. Nimit dep. 115:22-117:20). Nimit later voluntarily removed the above contingencies on the offer for the Eloong property by a document dated July 20, 2015 which states: "Buyer hereby removes all contingencies contained in said purchase agreement with regard to financing property inspection and usage approval." (NFE Exh. 6). As of this date, July 20, 2015, none of the applications had 2 There was an initial predevelopment meeting concerning a site at University and Bear Fork Road where TMAA had been donated over one hundred acres of land for the purpose of building a meditation center. (S. Nimit 86:1-9; 87:5-88:14; 89:13-90:19). Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 8 of 49 9 30565570 v1 yet been submitted to the City for planning approval or any other approval for the meditation center complex, even though at the April, 2015 predevelopment meeting attended by Nimit, Hoffman had handed these application forms out. (S. Nimit dep. 73:17-74:14; 259:17-260:15; 106:19-107:20). Hoffman recalls that at the April, 2015 predevelopment meeting, Nimit's plan was to use the existing house as a meditation center, with a meditation building and cottages to possibly be built in the future. (Hoffman dep. 93:19-94:1; 97:9-14). Nimit admits that as of the predevelopment meeting, the meditation center, cottages, and other structures were only in the drawing process. (S. Nimit dep. 110:9-16). Nimit understood that planning approval from the Planning Commission was required to build the meditation center, and Nimit had applied for planning approval once before (in 2007) for a meditation center to locate at a different residence. (S. Nimit dep. 76:3-77:1). Nimit knew that in seeking planning approval, sometimes there were approvals, sometimes there were denials, and sometimes applications were withdrawn. (S. Nimit dep. 77:2-8). Nimit and her representatives ultimately submitted to the City in September of 2015 the applications they had been furnished back in April: a Subdivision Application, a Planning Approval Application, and a Planned Urban Development Application (NFE Exh. 7; S. Nimit dep. 120:6-121:2; 121:23-122:19; 123:21-124:13), together with a variance request to the Board of Adjustment related to non-paved parking. (S. Nimit dep. 124:14-125:11). The planning approval application filed by Ms. Nimit included the following: The proposed use for this property is primarily as a residence, but it will also be used as a meditation center with meditation sessions approximately three times a week and an estimated attendance of about 30 people per session. (NFE Exh. 7). Nimit also submitted a site plan calling for the construction of two 1,600 square foot cottages, one meditation hall of 2,400 square feet, and one freestanding restroom with 600 square Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 9 of 49 10 30565570 v1 feet. (S. Nimit dep. 126:10-20; NFE Exh. 8). The site plan was later revised from two cottages to one, though the one was enlarged to 2,000 square feet. (S. Nimit dep. 126:21-127:22; 129:3-6; NFE Exh. 9). The additional buildings later shown in the site plan changed the proposal's scale as well as the potential scope of impact and appropriateness from what had been discussed in the predevelopment meeting. (Hoffman dep. 96:22-98:6; 101:17-102:20; 111:20-113:9). Thus, as of the Dec. 3, 2015 Planning Commission meeting where the Nimit applications for the meditation complex were considered, the revised site plan for the property proposed 5,000 square feet of new building construction between the meditation hall, proposed cottage, and bathroom, plus related parking. (S. Nimit dep. 129:13-21; NFE Exh. 9). Outside of said meeting, Nimit had no discussions with Planning Commission members. (S. Nimit dep. 135:3-8). Before the Dec. 3 Planning Commission meeting, Nimit had distributed a letter to about 25 residents near the property (NFE Exh. 10; S. Nimit dep. 145:9-13; 149:16-150:3), and had also made a slide presentation for two meetings with neighbors, including three pictures showing what she may like to build. (S. Nimit dep. 153:10-154:9; 154:14-155:3; NFE Exh. 11). Except for Councilman Small, no City employee or representative attended these meetings. (S. Nimit dep. 158:18-22). Planning approval is site plan specific. (Hoffman dep. 162:15-16). The standard for planning approval by the Planning Commission set forth in the City's Zoning Ordinance is located at § 64-12(1)(b), and states in pertinent part 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. … Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 10 of 49 11 30565570 v1 (§ 64-12(1)(b) attached to NFE Exh. 12).3 Plaintiffs' expert Bailey Dumont agrees that this standard is the one that churches and religious facilities must meet to get planning approval, the one that applied to the Nimit application, and the one that must be met under the Zoning Ordinance for the holding and public advertising of meditation retreats at the Eloong property. (Dumont dep. 91:1-92:16; 102:11-17). Dumont also feels the Planning Commission has wide discretion, with the last portion -- "… and as being in harmony with the orderly and appropriate development of the district in which the use is located…" -- giving the widest discretion. (Dumont dep. 212:22-213:17; 258:12-16).4 Just before an October 15, 2015 Planning Commission meeting on the application, City staff fielded questions from neighbors concerning whether the proposed meditation center was a "church or religious facility." (Olsen dep. 37:19-21). Hoffman had done some research before the April, 2015 predevelopment meeting on how other jurisdictions had classified meditation centers, knowing that meditation could be used outside of a religious purpose for medical treatment, and had found that some had been treated as religious and some had not. (Hoffman dep. 43:12-20; 45:14-46:3; 50:19-51:6). Hoffman asked Nimit during a predevelopment meeting if the meditation was religious, which would allow for a planning approval route, or was 3 The "chart" is the Chart of Permitted Uses in the Zoning Ordinance. One use in the Chart of Permitted Uses is "church or religious facility," meaning that if the meditation center complex to be built is a "church or religious facility," planning approval from the Planning Commission is required for an R-1 district like the Eloong property. See § 64-12, NFE Exh. 12). Other zoning districts within the City allows churches and religious facilities as a matter of right, without requiring planning approval. 4 While the City's Narrative includes certain limited citations to Dumont's deposition for the purpose of showing that there is no genuine issue of material fact, the City does so without waiving any potential challenge available under FRE 702 to the admissibility of opinions of Dumont. Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 11 of 49 12 30565570 v1 something else like medical, which would require a variance or other route for approval. (Hoffman dep. 65:1-11). City staff in the October 15, 2015 Staff Report, which had already been generated, had recommended that the Nimit applications be held over to a second meeting for other reasons, which is not unusual as applications are often held over for more information. (NFE Exh. 13; Olsen dep. 28:3-19). The Planning Commission is not bound by staff recommendations, sometimes denying applications recommended for approval and sometimes granting applications recommended for denial. (Cross dep. 65:19-66:8). Plaintiffs' expert Dumont takes no issue with any actions of City staff from the predevelopment meeting phase all the way through the preparation of this first Staff Report. (Dumont dep. 106:1-10). Both Olsen and Hoffman testified that during their time at the City, they had dealt almost exclusively with expansions of existing churches or religious facilities, rather than applications for new ones. (Olsen dep. 38:15-39:1; 44:1-14; Hoffman dep. 120:17-121:4). Hoffman could recall no instance where a new church attempted to build in a single family residential neighborhood, nor a situation where opponents questioned whether the proposed use was actually religious or not. (Hoffman dep. 123:12-15; 99:13-100:6). City staff therefore contacted legal counsel, and counsel advised the applicant's representative at the October 15, 2015 Planning Commission hearing that the applicant would need to submit documentation showing that the proposed use fit the "church or religious facility" use contained in the Chart of Permitted Uses. (Olsen dep. 39:7-10; NFE Exh. 14, p. 44-45). Olsen has contacted legal counsel on other occasions with questions about the appropriateness of a use for a zoning classification. (Olsen dep. 41:22-42:7). But the issue raised by neighbors - whether the proposed meditation center was Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 12 of 49 13 30565570 v1 actually a church or religious facility and the referral of the question to counsel - was a first. (Hoffman dep. 138:11-23). December 3, 2015 Planning Commission Meeting The December 3, 2015 Planning Commission meeting followed standard procedure, with four people speaking in favor of the application and four against. (Hoffman dep. 189:3-12). Public input from neighbors is very important to Planning Commission members, as they provide a better overview of traffic, access, and other concerns like compatibility. (Olsen dep. 92:5-93:5). Neighboring residents often bring to the Planning Commission members a better viewpoint on traffic, access and compatibility which they or City staff may not otherwise have in assessing an application. (Olsen dep. 93:14-94:6; Hoffman dep. 195:3-17). At the beginning of the Planning Commission meeting, Nimit's counsel (John Lawler) suggested that the meditation center was not only a "religious facility" within the Chart of Permitted Uses, but alternatively could also be considered a "community center", a "recreation center", or an "activity center", all of which are allowed in an R-1 district with planning approval per the Chart of Permitted Uses. (NFE Exh. 15, p. 10-11; see § 64-12 attached to NFE Exh. 12; Hoffman dep. 160:20-161:14). Next, a philosophy professor from the University of South Alabama spoke about the role of meditation in the Buddhist faith. (NFE Exh. 15, p. 15-17). Then, Frank Dagley, Nimit's site plan engineer, spoke about the site plan revision eliminating one cottage, fire department requirements, lighting on the site's parking lot, increased traffic as compared to traffic generated if the site were subdivided into 30 to 40 residential lots, and about stormwater retention that would be included in site construction. (NFE Exh. 15, pp. 18-20). Bill Youngblood, Ms. Nimit's attorney and realtor, spoke about issues such as the Meditation Center's business license, tax status, and articles of incorporation, and answered questions from Planning Commission members about these and the revised site plan. (NFE Exh. 15, pp. 20-26). Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 13 of 49 14 30565570 v1 The Planning Commission then heard from opponents, the first being an attorney (Duane Graham) representing several neighbors. (NFE Exh. 15, p. 27). After discussing the Zoning Ordinance, Graham referred to a handout provided which showed several instances where the Meditation Center had publicly stated that it did not promote any religion, was non-religious, or that the meditation classes were non-religious. (NFE Exh. 15, p. 28; NFE Exh. 16). Ms. Esham, an adjacent landowner, had compiled this documentation. (Esham dep. 12:9-17; 15:14-17; NFE Exh. 16). Graham noted that even if the proposed meditation center use was a "church or religious facility," the Planning Commission had the discretion to deny planning approval if the application did not meet the Zoning Ordinance's standard as being appropriate relative to transportation and access, as not causing traffic congestion or creating a traffic hazard, and being in harmony with the appropriate development of the district. (NFE Exh. 15, p. 28). Graham noted the total unsuitability of the location (the end of a road so narrow it makes passing difficult) and that much of the proposed activity is at night, with increased traffic entering and exiting the property at roughly the same time and on weekends when neighborhood children would be home and out playing. (NFE Exh. 15, pp. 29-30). The Chair of the Planning Commission observed that Graham and Lawler were in agreement in that whether the facility was considered a "church or religious facility" or was considered a "community center" or "recreation center," the religious aspect of it is "lifted out" and "[i]t's a question of whether or not there is going to be a grant of approval for this use in this facility, on this property." (NFE Exh. 15, p. 31). The Chair further elaborated: Okay. And I want to clarify that because I think if we get bogged in the question of whether it's religious or not religious, we may be here for a while. But I think the ultimate question and the issue is are we looking at a use that falls within church, religious facilities, community center, recreation center, social services, Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 14 of 49 15 30565570 v1 activities center, outreach program. I think if we get to the question of agreeing that this is something that is by permission as opposed to by right, we can focus on the character of this use in this particular neighborhood. So I wanted to be make sure I was clear on that and I understood -- (NFE Exh. 15, p. 32). Next, neighbor Tamela Esham, who lives immediately adjacent to the Eloong property, stated that the opposition had nothing to do with meditation or religion, but with the construction of six to seven thousand square feet of buildings and parking lots in her neighbor's yard, something that would take away the serene, calm, tranquil, and peaceful characteristics of the neighborhood. (NFE Exh. 15, pp. 32-33; Esham dep. 7:7-13; 8:16-9:13). She noted the extent of the proposed use, with all of the Meditation Center's meditation classes, half-day retreats, weekend retreats, and other activities relocated to the Eloong property, meaning that 150 cars would be coming in and out of the neighborhood each week.5 (Id.) She expressed concern for such traffic, especially with class times in the early evening when people get off work and are outside with their families. (Id. at 34-35). Esham also showed Nimit's picture of what a meditation center as built may look like, and expressed concerns over the volume of use as Nimit had stated that more than 700 people had come through the existing Meditation Center. (Id. at 35). Both Esham and Graham also noted a sizeable donation of over 100 acres of property elsewhere in the City which had been made to the Meditation Center for the purpose of constructing a facility. (Id. at 30-31, 36). Clark Kelly, an Eloong resident, stated that his and his neighbors' concern was that the proposal was inconsistent with a residential property, placed a burden of traffic and intense use on a narrow, winding street, and would fundamentally change a private and solidly residential 5 Ms. Esham's deposition testimony echoed these same concerns and others. (Esham dep. 18:16-20:6; 21:16-22:12; 29:5-35:23; 144:14-145:15). Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 15 of 49 16 30565570 v1 neighborhood.6 (Id. at 38). Kelly noted the proposed use was three times a week with 30 people per session, and the corresponding traffic. (Id. at 39). Kelly stated that the proposal was not for an empty corner lot with easy ingress, but instead was for a site already occupied by a home and surrounded by other homes. (Id.). Kelly stressed that the neighbors opposed the use "as we would any center, religious, secular, commercial, or otherwise, to be built on the site of our neighbor's home." (Id. at 40). Kelly also expressed concern over possible signage, and that if the property owner later sold to someone else, what that would mean in terms of the use. (Id. at 41). Kelly differentiated the proposed activities of the meditation center from other more typical gatherings: Now, I celebrate our new neighbor's freedom to meditate on their property as they like with friends or not, but when meditation with friends involves a complex of multiple buildings, provisions for 30 cars, freestanding bathroom facilities like at this ballpark, cottages for overnight visitors, et cetera. And money is changing hands. It becomes something far different, something completely out of step with the character of the area and it should enjoy neither R1's cover nor this Board's approval. (Id. at 40-41). Finally, Angela Rangel, a local biologist, spoke in opposition to express concerns over stormwater runoff carrying sediments and pollutants to the canal adjoining the property, one already in need of dredging. (Id. at 43-44). Rangel also expressed concern over increased cumulative impacts on the neighborhood from additional noise, traffic and lighting. (Id. at 45). After the Planning Commission's consideration of other applications before it, the Planning Commission heard from its legal counsel who expressed agreement with earlier comments of the Chair and Mr. Lawler: 6 The Riverside neighborhood was annexed by the City in 1956, with the larger portion of the neighborhood pre-existing the annexation. (Dumont dep. 99:4-11; 100:5-101:1). All properties on Riverside Drive all the way from Clubhouse Road to Eloong are zoned R-1. (Id.). Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 16 of 49 17 30565570 v1 Mr. Lawler is correct in that these lists of uses that he listed on his exhibit, you know, it's kind of like -- it's kind of a religious facility, it's kind of a community center, it's kind of an activity center, it's kind of an outreach program. Because of the residential nature, overnight stay of the monks, it kind of has a convent or monastery feature to it. So it kind of -- it fits in possibly to a multitude of those uses. But like Mr. Watkins said, I think the main thing is you all need to -- your decision is based on the planning approval aspect and does it fit the character of the neighborhood, just like you do any other planning approval. (Id. at 98-99; Anderson dep. 44:23-45:18). A motion was made to deny the application and seconded, with the Planning Commission members voting unanimously to deny planning approval. (NFE Exh. 15, pp. 99-101). Plaintiff's expert Dumont agrees that the Planning Commission should have considered the application under the planning approval standard, and that the Planning Commission could deny the application if members felt the standard was not met. (Dumont dep. 138: 9-15; 139:22-140-13). A Letter of Decision was issued from Olsen, as Deputy Director of Planning, which cited three grounds for the Planning Commission denial: 1) the proposed use is not compatible with the surrounding area; 2) access to the site is not adequate; and 3) the proposed use would increase traffic on a very substandard street. (NFE Exh. 17).7 Nimit received Letters of Decision on all three applications. (NFE Exh. 17; S. Nimit dep. 129:22-130:17). The Planning Commission decides whether or not an application will be approved, and a letter of decision is generated based upon discussion during the public hearing, though sometimes also based on the type of motion made during the meeting. (Olsen dep. 31:6-18; 32:13-23; 77:23-78:8). Olsen had attended the meeting and felt that the Planning Commission had analyzed the application under planning approval principles, taking any religious issues out of it in accordance with the discussion during the meeting. (Olsen dep. 8:14-15; 63:6-11; 70:7-22). Olsen's draft of the letter 7 The Zoning Ordinance also contemplates generation of a Letter of Decision in this manner. See § 64-8(B)(2)(c) as NFE Exh. 12. Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 17 of 49 18 30565570 v1 of decision was sent to the Planning Commission's counsel for review, given the controversy over the application and the fact that the applicant had legal counsel. (Hoffman dep. 152:2-16). Evidence had been put before the Planning Commission members about each of the three grounds cited above for the application's denial. (Olsen dep. 91:5-12; Hoffman dep. 190:17- 194:3). Olsen saw the concerns expressed by neighbors at the public hearing as meritorious. (Olsen dep. 92:5-93:5). City Council Meeting of January 19, 2016 An appeal of the decision of the Planning Commission was taken to the Mobile City Council, with a public hearing held on Jan. 19, 2016. (NFE Exh. 18). Nimit met with City Council member CJ Small at his office prior to the City Council hearing on the appeal, accompanied by some of her supporters. (S. Nimit dep. 137:17-139:19; Small dep. 9:23-11:2). Small encouraged her to relocate the Meditation Center to a vacant storefront on Dauphin Island Parkway nearby. (Id.). Other than this meeting, Nimit had no discussions or communications with City Council members about her application prior to the hearing. (S. Nimit dep. 142:8-15). Proponents of the application first addressed the City Council, with Lawler giving his opinion on the appropriateness of planning approval and Dagley speaking to fire department access, traffic on Eloong, and the revised site plan. (NFE Exh. 19, pp. 8-16). Youngblood addressed the proposed use, stating that rarely would more than 15 to 20 people be present, and arguing that the use was compatible with the existing neighborhood. (Id. at pp. 16-18). Kent Welsh, a member of the Meditation Center, spoke concerning the meditation sessions proposed for the complex to be built, characterizing the meditation as both religious and non-religious. (Id. at 18-20). A Buddhist monk also spoke in support of the application, as did an attendee concerning his experience at the Meditation Center as a Catholic. (Id. at 22-25). Another attendee, Mr. Lindsey, spoke about benefits of meditation and the good character of those he had Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 18 of 49 19 30565570 v1 met at the Meditation Center. (Id. at 26-29). Finally, Nimit told the history of the Meditation Center, characterized the property as densely wooded with a good buffer from noise and neighbors, and denied that the Meditation Center was a business. (Id. at 29-31). Nimit explained the benefits of meditation for her and for others. (Id. at p. 32). Councilman Small, whose district includes the Eloong property and Riverside, 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 center itself but to its location in the neighborhood as Riverside Drive was not equipped for such traffic. (Id. at pp. 37-38). Councilman Small again encouraged Nimit to locate the Meditation Center in one of the empty storefronts on Dauphin Island Parkway nearby, rather than in the Riverside community where the neighborhood and streets are not adequately equipped. (Id. at p. 38). Counsel for the Planning Commission addressed the City Council, summarizing for them the standard for planning approval: The review required for planning approval examines the applicant's location and site plan with regard to transportation, parking and access, public utilities and facilities, traffic congestion and hazard; and determine if the proposal is in harmony with the orderly and appropriate development of the district. (Id. at p. 44; NFE Exh. 19). The City Council then heard from the same four speakers in opposition who had addressed the Planning Commission at its Dec. 3 meeting. (NFE Exh. 19, pp. 53-67). Graham reiterated that religion has nothing to do with opposition to the project as opponents have nothing against Buddhists or meditation, but rather the opposition is based on the unsuitability of the project for the property, with a proposed use involving events primarily at night or on weekends, necessitating lighting for a parking lot and creating a corresponding increase in traffic. (Id. at 54- 55). Kelly again expressed concern over the building of a complex of non-residential buildings Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 19 of 49 20 30565570 v1 and dozens of parking spaces in anticipation of daily and weekend activities, forever changing not only the nature of the property but the private residential character of the neighborhood. (Id. at 56-57). Kelly again noted his opposition was whether the project was religious, secular, a corporate retreat center, or a Girl Scout camp, as the Zoning Ordinance is supposed to protect the character of the district. (Id. at 57-58). Esham again spoke, noting the lack of support in the neighborhood for the project, which proposed to build a meditation center, dormitory, bathroom facility, and related parking in her neighbor's yard, especially when the property already has an existing 5,000 square foot house and a 1,000 square foot guest house. (Id. at 58-60). Esham also expressed concern for de- forestation of the property to build the new structures and parking, and noted the presence of 40 to 50 people at the property the prior weekend, showing the loss of privacy for neighbors like her and fundamental change to the character of the neighborhood from the proposed meditation retreat. (Id. at 60-62). Rangel then re-stated the environmental and other concerns she put before the Planning Commission at the December 3 meeting. (Id. at 63-67). Councilman Small again, referencing photos, noted the narrowness of Eloong Drive at just 16.4 feet, well below the minimum set in the subdivision regulations, and its traffic count averaging just six cars per hour during peak daytime hours. (Id. at 74). Councilman Small also, noting a comparison of the application to one for a local mosque, stated that the mosque had existed at its property since 1991, whereas the use proposed for the Eloong property would be new. (Id. at 89-90). Councilman Small stated that he and the residents of the Riverside area, numbering about 4,000 residents, did not want more traffic on Riverside Drive given its existing problems with speeders and as it contains no sidewalks even as children use Riverside to walk to and from nearby Pillans, Gaillard, and B.C. Rain schools. (Id. at 91-92). Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 20 of 49 21 30565570 v1 The City Council, with one abstention, voted unanimously to deny the appeal. (Id. at pp. 93-94). Small cast his vote based on traffic and safety concerns in the neighborhood, not on any issue over whether the Meditation Center was a church or commercial enterprise. (Small dep. 69:16-70:10). His concerns were based on his own observations driving through the neighborhood, and on complaints from his constituents. (Small dep. 14:23-17:7; 40:20-41:6). Small felt that because he already received complaints from his constituents about traffic in the area, the construction of the proposed meditation center would add more traffic and complaints. (Small dep. 41:20-42:5; 52:15-53:4). As the Councilman for the district where the Eloong property was located, Small had attended the Planning Commission meetings. (Small dep. 7:21- 8:6; 29:22-30:3). After the City Council hearing, Nimit received a letter from the City Clerk concerning the denial. (NFE Exh. 20; S. Nimit dep. 142:20-143:3).8 Nimit acknowledges that those opposed to her proposal outnumbered its supporters at the public hearings. (S. Nimit dep. 166:1-8). Plaintiffs' expert Dumont examined no land use applications submitted to the City save for staff reports dated between 1986 and mid-1990, more than twenty-five years before the Nimit applications, and has no knowledge of planning approvals granted by the City for churches or religious facilities since mid-1990. (Dumont dep. 27:10-15; 52:2-20; 238:12-21). Dumont could name no new church buildings established in an R-1 zoning district on a lot already containing a single-family residence, nor any applications for a church to relocate from a commercial area to an R-1 zoned property that would also remain a single-family residence. (Dumont dep. 190:13- 191:3; 247:12-22). Dumont has no experience with the City's planning and zoning staff, Planning Commission, or Board of Adjustment since his retirement from the City in 2002, and could name 8 Nimit later withdrew the unpaved surface variance request to the Board of Adjustment, and received a letter confirming its withdrawal. (NFE Exh. 21; S. Nimit dep. 143:13-19). Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 21 of 49 22 30565570 v1 no planning approval application in the last fifteen years that received better treatment than Nimit's application. (Dumont dep. 10:9-11; 56:17-57:5; 261:8-23). Events Following Denial of the Applications Neighbors continued to monitor the Eloong property as they felt there might be activities happening there which were not allowed given the zoning. (Hoffman dep. 166:20-167:3). Just weeks after the City Council vote, Councilman Small began fielding complaints from neighbors about the Meditation Center's advertising of retreats at the Eloong property. (Small dep. 24:8- 25:14; NFE Exh. 22). One complaint came from the Eshams, who sent an email attaching a brochure from the Meditation Center advertising a half-day meditation retreat at the Eloong property for early March, 2016. (Esham dep. 150:10-151:21; NFE Exh. 23). Esham also sent emails before and after a March, 2016 three-day meditation retreat held by the Meditation Center on the Eloong property, including photographs. (Esham dep. 72:14-73:7; 149:14-21; NFE Exh. 24). The Meditation Center then began advertising another three-day retreat at the Eloong property for June, 2016, and Esham advised the City of this. (Esham dep. 156:6-157:15; NFE Exh. 25) Relative to a lawsuit filed by the City against the Nimits and the Meditation Center in May of 2016 to enjoin such activities, Nimit agrees with Paragraph 4 of the City's Complaint that a half-day meditation retreat was held at the Eloong property on March 5, 2016. (S. Nimit dep. 167:2-11; NFE Exh. 26). A photo of the half-day retreat of March 5, 2016 is attached to the NFE as Exh. 27. (S. Nimit dep. 170:4-12). Nimit also acknowledges as correct the allegation in Paragraph 5 of the City's Complaint that on March 25, 2016, a meditation retreat was held on the Eloong property lasting three days. (S. Nimit dep. 167:12-16). Photographs from this retreat held in March of 2016 are attached to the NFE as Exh. 28. (S. Nimit dep. 170:18-172:5). Attendance for this retreat was in the range of 20-30 people. (Id.). Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 22 of 49 23 30565570 v1 Nimit signed a lease agreement for a portion of the Eloong property both as the landlord (Sivaporn Nimityongskul) and as tenant (Thai Meditation Association of Alabama, Inc.) on July 25, 2016, more than six months after the City Council denied the appeal concerning the application for the Eloong property. (S. Nimit dep. 173:23-176:14; NFE Exh. 29). The lease purported to begin once approvals were received for the meditation center and construction was completed. (NFE Exh. 29). This lease was signed one day before the Complaint was filed in this action in this Court. III. STANDARD OF REVIEW Summary judgment under Federal Rule of Civil Procedure 56 is proper when the non- moving party fails to establish the existence of a genuine issue as to any material fact on an essential element of that party’s case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the party moving for summary judgment makes a prima facie showing that the non-movant does not have sufficient evidence to prove its case, the burden then shifts to the non-movant to designate specific facts showing that there is a genuine issue for trial. Id. at 323-324. “To defeat a motion for summary judgment, the [non-movant] must raise ‘significant probative evidence’ that would be sufficient for a jury to find for that party. Summary judgment may be granted if the evidence [in the non-movant’s favor] is ‘merely colorable.’” LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835 (11th Cir. 1998) (emphasis added). IV. THE CITY IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS' CLAIMS BROUGHT UNDER THE RLUIPA (COUNTS I, II, AND III) RLUIPA occupies a middle ground of local government neutrality relative to the regulation of land used for religious purposes. Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 23 of 49 24 30565570 v1 As a legislative accommodation of religion, RLUIPA occupies a treacherous narrow zone between the Free Exercise Clause, which seeks to assure that government does not interfere with the exercise of religion, and the Establishment Clause, which prohibits the government from becoming entwined with religion in a manner that would express preference for one religion over another, or religion over irreligion. Westchester Day School v. Village of Mamaroneck, 386 F.3d 183, 189 (2nd Cir. 2004). The City's application of its decades-old standard of planning approval embodied in the Zoning Ordinance (effective date June 1, 1967 per its § 64-10(C) at NFE Exh. 12) -- provisions which this Court has already determined survive Plaintiffs' facial challenges -- does not violate any of RLUIPA's three provisions pled in the first three counts of the Complaint, and summary judgment is due to be granted in favor of the City on these claims. A. Substantial Burden Claim RLUIPA's "substantial burden" provision giving rise to Count I of Plaintiffs' Complaint reads in pertinent part as follows: No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that the imposition of the burden . . . (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000cc. For a Substantial Burden claim, "the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiff's exercise of religion." 42 U.S.C. § 2000cc-2(b). "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). Citing seven sister circuits, the Eleventh Circuit has held that the question of substantial burden presents "a question of law for courts to decide." Eternal Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 24 of 49 25 30565570 v1 Word Television Network, Inc. v. Secretary of U.S. Dep't of Health and Human Services, 818 F.3d 1122, 1144 (11th Cir. 2016)(upholding accommodation concerning contraception coverage challenged under Religious Freedom Restoration Act).9 Courts are required to 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. Id. at 1144 (citing Holt v. Hobbs, __ U.S. ___, 135 S.Ct. 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. While RLUIPA itself does not define the term "substantial burden," nor has the Supreme Court focused on it in the land-use context, the Eleventh Circuit has established a definition: 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). Thus, not just any imposition on religious exercise will constitute a violation of RLUIPA. Instead, a burden must have some degree of severity to be considered "substantial." Livingston Christian Schools v. Genoa Charter Township, 858 F.3d 996, 1003 (6th Cir. 2017). Taking 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. Id.; see also Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548, 557 n.4 (4th Cir. 2013)("[t]hat is not to say that a religious organization can state a RLUIPA substantial 9 The 11th Circuit applies the same substantial burden analysis under both RLUIPA and RFRA. See Eternal Word, 818 F.3d at 1144, n.23. Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 25 of 49 26 30565570 v1 burden claim simply by alleging that it received an adverse land use ruling. Certainly Congress did not intend to permit religious organizations to exempt themselves from neutral zoning provisions"); 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"). Run of the mill zoning considerations like requiring churches and synagogues to apply for CUPs (Conditional Use Permits) do not amount to a substantial burden.10 Midrash, 366 F.3d at 1227, n. 11; Konikov v. Orange County, Florida, 410 F.3d 1317, 1323-24 (11th Cir. 2005). In Midrash, a city had filed two actions in state court against congregations and their lessors who failed to obtain a CUP from the town commission to operate a synagogue. The Eleventh Circuit noted at the outset that "[p]ast cases have held that zoning decisions do not generally impose a substantial burden on religious exercise." Midrash, 366 F.3d at 1225-26. In fact, in considering a CUP procedure roughly analogous to the City's planning approval procedure, the Eleventh Circuit has held that requiring churches and synagogues to apply for CUPs and thereby allow a zoning commission to consider factors such as size, congruity with existing uses, and availability of parking, does not constitute a substantial burden on religious exercise. Lady J. Lingerie, Inc. v. Jacksonville, 176 F.3d 1358, 1362 (11th Cir. 1999); see also Konikov, 410 F.3d at 1323 (application for special exception does not impose substantial burden). "A logical corollary of the principle that requiring a church to apply for a CUP does not impose a substantial burden is that denial of a CUP does not operate per se as a substantial burden." Church of Our Savior v. City of Jacksonville Beach, 69 F.Supp.3d 1299, 1314 (M.D. 10 Conditional Use Permits under Florida law are analogous to the City's planning approval process contained in the Zoning Ordinance. Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 26 of 49 27 30565570 v1 Fla. 2014); see also Men of Destiny Ministries, Inc. v. Osceola County, No. 6:06-cv-624-Orl- 31DAB, 2006 WL 3219321, at *4-5 (M.D. Fla. Nov. 6, 2006)(denial of CUP does not constitute substantial burden); Williams Island Synagogue, Inc. v. City Aventura, 358 F.Supp.2d 1207, 1215-16 (S.D. Fla. 2005)(same). "Allowing the plaintiff in a RLUIPA case to meet its burden simply by showing that its 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." Church of Our Savior, 69 F.Supp.3d at 1314. The City here has only adjudicated through the planning approval process an application and site plan by which Plaintiffs sought to build a meditation complex consisting of 5,000 square feet of buildings, including a meditation center, cottage, bathroom facility, and related parking, at the Eloong property. (S. Nimit dep. 129:13-21; NFE Exh. 9). The City has made no decisions exerting "pressure that tends to force adherents to forego religious precepts" or "that mandates religious conduct" as required by Midrash. In fact, Plaintiffs freely admit that they continue today to engage in their same meditation activity at the same frequency and at the same location as they have for several years on Airport Boulevard, and that the City has never attempted to discourage the practice of meditation at that location. (S. Nimit dep. 22:22-24:2; 24:14-21; 32:8- 12; 34:11-13; 38:2-39:20;197:7-10).11 While Plaintiffs generally complain of "noise" from Airport Boulevard, this cannot in and of itself constitute a substantial burden as there is no 11 To the extent Plaintiffs devote attention to an application for planning approval they filed in 2007 to allow a residence at 4567 Airport Boulevard near University Drive to be used as a meditation center, and related visits by a City inspector prompted by neighbor complaints, the statute of limitations has long since run on such claims. See Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1337 (11th Cir. 2008) (the statute of limitations for section 1983 based claims in Alabama district courts is two years); 28 U.S.C. § 1658(a) (four-year statute of limitations for civil claims arising under an Act of Congress enacted after December 1, 1990, such as RLUIPA) Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 27 of 49 28 30565570 v1 evidence that using the existing Meditation Center location used by Plaintiffs for several years causes Plaintiffs to be unable to carry out some core religious function. Per the Zoning Ordinance's Chart of Permitted Uses, the City has several zoning districts where a "church or religious facility" may locate as a matter of right, i.e, without planning approval. (See § 64-12 to NFE Exh. 12). In fact, Plaintiffs practice meditation in such a location at 3821 Airport Boulevard which consists of roughly 2,200 square feet -- nearly the same size as the 2,400 square foot meditation center building proposed for the Eloong property -- and have done so since 2009. (S. Nimit dep. 22:22-24:2; 24:14-21; 32:8-12; 34:11-13; 38:2-39:20). Plaintiffs continue to practice meditation in the same manner they did back in 2015 before the application for planning approval was submitted for the Eloong property. (Id.). Plaintiffs also received a donation of over one hundred acres for the purpose of building a meditation center. (S. Nimit 86:1-9; 87:5-88:14; 89:13-90:19). See Men of Destiny Ministries, supra (no substantial burden absent allegation plaintiff could exercise religion only at property in question and had other locations and methods reasonably available); Church of Our Savior, 69 F.Supp.3d at 1314 (no substantial burden despite testimony of pastor who felt "divine calling and religious necessity" to build on subject property, as CUP denial did not prevent church from relocating to different property where it could operate as a matter of right or where a CUP application might be more successful, or at its present location). Here, there is no action by the City preventing Plaintiffs from engaging in meditation practice. In fact, Plaintiffs Sivaporn and Prasit Nimit have engaged in meditation practice even at the Eloong property since buying it in 2015. (S. Nimit dep. 210:2-14). The Meditation Center also holds meditation events not only at their Airport Boulevard location but at other locations within the City like the University of South Alabama, a local library, and outdoors, even Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 28 of 49 29 30565570 v1 promoting online meditation allowing users to connect and practice meditation from anywhere. (S. Nimit dep. 187:9-14; 226:18-227:1; 240:17-241:5). Accordingly, neither the City's denial of planning approval to build the desired meditation complex at the Eloong property nor the City's filing of suit to enjoin Plaintiffs from holding meditation retreats at the Eloong property in contravention of the Zoning Ordinance has placed a substantial burden on Plaintiffs' religious exercise. Lastly, several circuits have held that, when a plaintiff has imposed a burden upon itself, the government cannot be liable for a RLUIPA substantial-burden violation. 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 Circ. 2007)(plaintiff not substantially burdened when it purchased property in industrial zone for a church knowing special-use application would be denied as churches banned in that zone).12 Here, Nimit knew both from her prior personal experience with planning approval in 2007 and through her meetings with City staff that she would have to apply to the Planning Commission for planning approval in order to build the meditation center complex at the Eloong property, with her representative having been given the applications for this at a meeting held 12 The City addresses the lack of standing of Plaintiff Thai Meditation Association of Alabama, Inc. ("TMAA") later herein; however, if TMAA had standing under RLUIPA, it cannot have a "substantial burden" claim as TMAA signed a lease agreement for use of the Eloong property as a meditation center more than six months after the City Council denied the appeal concerning planning approval, and well after the City had filed suit to enjoin the use of the Eloong property 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 90 Filed 10/16/17 Page 29 of 49 30 30565570 v1 with City staff in April of 2015. (NFE Exh. 5; S. Nimit dep. 62:15-63:2; 63:10-22; 64:22-65:22; 115:22-117:20; 221:1-20). Nimit also knew that with planning approval applications, some applications get approved, some get denied, and some are simply withdrawn. (S. Nimit dep. 77:2-8). Nimit's own planning approval application to locate a meditation center in a single- family home had been recommended for denial back in 2007, leading her to withdraw the application. (S. Nimit dep. 221:1-20; NFE Exh. 1). Nimit had originally made the offer for the Eloong property contingent on receiving approvals to build the meditation center complex, but Plaintiffs elected to go ahead and complete the purchase of the Eloong property in August of 2015, even though they had not yet even submitted to the City the applications for planning approval and the other approvals required for the meditation center. (NFE Exhs. 6, 7; S. Nimit dep. 73:17-74:14; 106:19-107:20; 259:17-260:15). Such a self-inflicted burden cannot be a substantial burden under RLUIPA. B. Nondiscrimination Claim (Count II) RLUIPA's 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). To prevail on a claim that the Zoning Ordinance was applied to Plaintiffs but not to other religious assemblies or institutions, Plaintiffs must show: (1) that it was treated differently from other similarly situated religious assemblies or institutions, and (2) that 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 with the equal terms provision, the plaintiff bears the initial burden of establishing a Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 30 of 49 31 30565570 v1 prima facie claim, after which the government bears the burden of persuasion on the elements of the nondiscrimination claim. 42 U.S.C. § 2000cc-2(b). To meet this prima facie case of discrimination under section (b) of RLUIPA, Plaintiffs must present evidence of intentional or purposeful discrimination by the City because of Plaintiffs' religious denomination. "[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"). The Eleventh Circuit view of RLUIPA's Nondiscrimination provision is in accord with the deferential rational basis review provided to neutral laws of general application which only incidentally burden religious exercise: As construed by the Eleventh Circuit, RLUIPA's nondiscrimination provision codifies the heightened strict scrutiny standard of constitutional review the Supreme Court applies in religious free exercise and nondiscrimination cases, while incorporating the Court's holding in Employment Div. Dept. of Human Resources v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), that strict scrutiny is inapplicable to "neutral laws of general applicability that incidentally burden religious exercise." Midrash, 366 F. 3d at 1231-32 ("Congress enshrined similar nondiscrimination principles in § (b)'s requirement that religious and nonreligious assemblies or institutions be treated equally.")... Church of Scientiology of Georgia, Inc. v. City of Sandy Springs, 843 F.Supp.2d 1328, 1360 (N.D.Ga. 2013). The Eleventh Circuit has held that in order for any religious assembly or institution to be similarly situated to Plaintiffs, it must be prima facie identical in all relevant respects. Campbell, 434 F.3d at 1315. The use of the proposed development is quite relevant. Id. at 1314-1315 (affirming district court's limitation on comparators to apartment developers rather than all commercial developments). Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 31 of 49 32 30565570 v1 Plaintiffs lack proof not only of comparators similarly situated to Plaintiffs here, but of intentional discrimination by the City. Nimit's application was certainly unique, having attributes of no other land use application submitted to the City. Plaintiffs' own named expert admitted as such. Plaintiffs' proposal was to relocate an existing "church or religious" facility from a commercial district to an R-1 lot on a minor street, which lot was surrounded by other R-1, single-family residences. (NFE Exhs. 8, 9). On this lot, a 5,000 square foot house stood and was to remain, together with a separate garage apartment. (Id.) Rather than use the existing structures for the meditation classes, Plaintiffs proposed to build a new meditation center (2,400 square feet), a four bedroom cottage (2,000 square feet), and a bathroom facility (600 square feet), together with parking and lighting, with Nimit and her husband to live in the house. (S. Nimit dep. 129:13-21; NFE Exh.9). Unless Plaintiffs can bring forward evidence of the City's approval of an application for planning approval for a church or religious facility which contains these unique attributes, there is no similarly situated comparator and the City is entitled to summary judgment on this claim. Further, however, there is no evidence that the decision of the Planning Commission or the City Council was the product of intentional or purposeful discrimination against Plaintiffs on the basis of their religion. The hearings before both bodies produced abundant evidence that the construction of the proposed meditation complex and its frequent use three to six days each week was incompatible with the existing residential neighborhood and would increase traffic on roads already of concern to residents. (NFE Exhs. 15, 19). There is no evidence at all that any member of the Planning Commission or City Council cast their vote against the proposal based upon intentional discrimination against the applicant based on their religion. (Id.). Rather, the record of the public hearings reflects that both sides were able to present the information they wished to Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 32 of 49 33 30565570 v1 present at the Planning Commission and City Council thereafter voted to deny the applications based upon the planning approval criteria of compatibility, traffic and access specified in the Zoning Ordinance. (Id.) Councilman Small spoke at length about his concerns over increasing traffic in the neighborhood on Riverside Drive, which has no sidewalks and which students regularly use to walk to and from school. (Small dep. 14:23-17:7; 40:20-41:6; 69:16-70:10; NFE Exh. 19, at p. 91-92). For the foregoing reasons, summary judgment is due to be entered in favor of the City on the Nondiscrimination claim under RLUIPA. C. Equal Terms Claim (Count III) 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." RLUIPA's Equal Terms provision requires equal treatment, not special treatment. Prima Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County, 450 F.3d 1295, 1313 (11th Cir. 2006). To establish a prima facie case under the Equal Terms provision of RLUIPA, a plaintiff has the burden of showing that 1) it is a religious 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, 450 F.3d at 1307-08 (11th Cir. 2006). "A plaintiff bringing an as- applied challenge must present evidence that a similarly situated nonreligious comparator received differential treatment under the challenged regulation." Id. 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 requires a close review of the circumstances of both projects. Church of Our Savior, 69 Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 33 of 49 34 30565570 v1 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 a prima facie showing, the City then 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. Once again, Plaintiffs' expert concedes that he knows of no applicant for planning approval who received better treatment than Nimit over the past fifteen years, and he has undertaken no examination of planning approval applications submitted to the City for the twenty-five years preceding the Nimit application. (Dumont dep. 27:10-15; 52:2-20; 238:12-21; 261:8-23). Any proposed comparator would have to show the requisite similarity to the Nimit application and proposed use as discussed in Section IV.B. above concerning the Nondiscrimination claim. Absent evidence that the City approved an application for planning approval of a similar nonreligious assembly or institution, summary judgment is due to be granted in favor of the City on Plaintiffs' Equal Terms claim. V. THE CITY IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS' CONSTITUTIONAL CLAIMS (COUNTS IV AND V) A. The Free Exercise Claim Plaintiffs’ Free Exercise Claim, including both facial and as applied challenges, is due to be dismissed. The Free Exercise clause of the First Amendment, made applicable to the States through the Fourteenth Amendment, provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…." U.S. Const., Amdt. 1 (emphasis added). However, as the Supreme Court held in Employment Division Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 879 (1990)"[t]he right of free exercise does Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 34 of 49 35 30565570 v1 not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Although RFRA and subsequently RLUIPA were enacted following the Smith holding, the Eleventh Circuit has explained recently that the “Smith decision continues to apply to Free Exercise claims outside of the RFRA context. ”Eternal Word Television Network, Inc. v. Sec’y Dep’t of Health and Human Servs., 818 F.3d 1122, 1164 (11th Cir. 2016). Thus, the Free Exercise analysis is as follows: [T]he threshold questions in analyzing a law challenged under the Free Exercise Clause are (1) is the law neutral, and (2) is the law of general applicability? The neutrality inquiry asks whether the object of a law is to infringe upon or restrict practices because of their religious motivation. The general applicability prong asks whether the government has in a selective manner impose[d] burdens only on conduct motivated by religious belief. [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. Rather, it needs only to survive rational basis review, under which it is presumed constitutional and the burden is on the plaintiff to prove that it is not rationally related to a legitimate government interest. Keeton v. Anderson-Wiley, 664 F.3d 865, 879-80 (11th Cir. 2011). 1. The City Zoning Ordinance Provisions are Facially Neutral and of General Applicability. A law is neutral unless "the object of a law is to infringe upon or restrict practices because of their religious motivation." Eternal Word, 818 F.3d at 1164 (quoting Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 113 S.Ct. 2217, 2227 (1993). “[A] law is generally applicable if it does not “in a selective manner impose burdens only on conduct motivated by religious belief.” Id. Under the Free Exercise clause, "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 35 of 49 36 30565570 v1 the law has the incidental effect of burdening a particular religious practice." Church of the Lukumi Babalu Aye, 508 U.S. at 531, 113 S.Ct. 2217 (1993). But "if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral." Id. at 533, 113 S.Ct. 2217. The City's Zoning Ordinance provisions here concerning planning approval are neutral and apply to all properties within the R-1 zoning district where the subject property is located. The planning approval standard applicable here applies not only to churches and religious facilities that wish to locate in an R-1 zoning district but also to a variety of other secular uses such as community centers, recreation center, public parks, playgrounds, and sport and recreation clubs for golf, swimming, and tennis. (See Chart of Permitted Uses, § 64-12, NFE Exh. 12). There is no evidence that any provision of the Zoning Ordinance was enacted to target Plaintiffs or as a reaction to the subject application, or applied in any manner that would violate Plaintiffs rights under the Free Exercise Clause. The applicable planning approval provisions of the Zoning Ordinance have been in force for decades, and do not single out religious organizations. Thus, the applicable Zoning Ordinance provisions are facially neutral and of general applicability. See First Assembly of God of Naples, Florida, Inc. v. Collier County, Florida, 20 F.3d 419 (11th Cir. 1994)(church's Free Exercise claim failed where ordinance required it to seek a provisional permit for a homeless shelter but it had not as ordinance was neutral and generally applicable). In fact this Court has already found these ordinances to be facially neutral in the context of the claims brought under RLUIPA, which involved a lesser burden for the Plaintiff as compared to the Free Exercise claim. (See Doc. 30 at 18, “Since the ZO does not make reference to any particular religion or give any religion special treatment, and since the terms employed by the Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 36 of 49 37 30565570 v1 ZO are neutral as to the religious use envisioned by the Plaintiffs, the ZO cannot be said to be religiously discriminatory on its face.”) The same reasoning applies here. 2. The Zoning Ordinance Does Not Violate Plaintiffs Free Exercise Rights As It is Rationally Related to a Legitimate Government Interest. Because the Zoning Ordinance is facially neutral and of general applicability, to resolve the Free Exercise claim, rational basis scrutiny is applied requiring only that the law at issue be "rationally related to a legitimate government interest." Eternal Word, 818 F.3d at 1165. The Zoning Ordinance recites its overall purpose as: provid[ing] for the harmonious development of the City of Mobile in accordance with the master plan [ ], to lessen congestion in the public streets, secure safety from fire, provide adequate light and air, avoid undue concentration of population, promote health and the general welfare and conserve the value of buildings by encouraging the most appropriate use of the land by districting according to peculiar suitability of the land for particular purposes, all to create conditions favorable to health, safety, convenience or prosperity. (NFE Ex. 12, p. 5). The Zoning Ordinance provides as to R-1 districts specifically that "the district regulations are designed to protect the residential character of the developed areas . . . ." (Id., p. 21). The City clearly has a legitimate interest in being able to create and enforce zoning laws in order to protect the character, health, and safety of areas within its zoning discretion. See Grosz v. City of Miami Bach, Fla., 721 F.2d 729 (11th Cir. 1983) (recognizing governmental interest in regulating zoning in Free Exercise challenge); First Assembly of God of Naples, Florida, Inc. v. Collier County, Florida, 20 F.3d 419 (11th Cir. 1994)(same); see also, City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S. Ct. 925, 930, 89 L. Ed. 2d 29 (1986)( a city's “interest in attempting to preserve the quality of urban life is one that must be accorded high respect.”) Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 37 of 49 38 30565570 v1 Abundant evidence was presented both to the Planning Commission and City Council in open, public forums that the application for the construction of a meditation center at the Eloong property did not meet the criteria for planning approval under the City's neutral and generally applicable zoning ordinance. Thus, the Zoning Ordinance and the City's efforts to enforce the provisions of the Zoning Ordinance, in denying Nimit’s application and in preventing Plaintiffs from using the Eloong property for a meditation retreat, were undertaken in the interest of a legitimate governmental interest and do not run afoul of the Free Exercise Clause. Specifically, as to the City’s enforcement of the R-1 zoning regulation, after receiving complaints from area residents, the City filed a lawsuit against Plaintiffs, alleging that the Eloong property had been used for meditation retreats of one-half day and three-days in March of 2016, with another scheduled three-day retreat in June of 2016. Nimit admitted these allegations. (S. Nimit dep. 167:12-16). As the Eleventh Circuit has held previously, the City's attempt to enforce its Zoning Ordinance under the circumstances presented here cannot serve as a violation of the Free Exercise Clause. For example, in Grosz v. City of Miami Bach, Fla., 721 F.2d 729 (11th Cir. 1983), a Jewish rabbi began conducting orthodox worship services out of his home in violation of local zoning ordinances. In ruling for the City after balancing the respective interests, the Eleventh Circuit explained: On the free exercise side of the balance weighs the burden that Appellees bear of conducting their services in compliance with applicable zoning restrictions or relocating in a suitably zoned district. Countering on the government's side is the substantial infringement of the City's zoning policy that would occur were the conduct allowed to continue…. [T]he relative weights of the burdens favor the government. Grosz, 721 F.2d at 741. Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 38 of 49 39 30565570 v1 More recently, in First Assembly of God, supra, the Eleventh Circuit held that enforcement of a county's zoning ordinance against a church operating a homeless shelter without the required permit did not run afoul of the Free Exercise clause: The burden on First Assembly to either conform its shelter to the zoning laws, or to move the shelter to an appropriately zoned area, is less than the burden on the County were it to be forced to allow the zoning violation. Thus, under the Grosz test, First Assembly's right to free exercise of religion is not violated by the County's zoning ordinances. The Naples ordinances pass the threshold tests under the Supreme Court's Free Exercise Clause analysis, as well as this court's test as articulated in the Grosz case. Thus, the district court did not err in granting summary judgment in favor of the County on this issue. First Assembly, 20 F.3d at 424. In short, the Zoning Ordinance is a neutral and generally applicable law that was created and employed under the facts herein to serve a legitimate governmental interest. The Plaintiffs’ Free Exercise claim is due to be dismissed. B. The Equal Protection Claim Plaintiffs Equal Protection Claim (facial and as applied) fails as a matter of law. First, as to a facial equal protection challenge, Plaintiffs must show that “the mere enactment or application of an ordinance [on its face] is unconstitutional, as it treats his property differently than similarly situated landowners.” Dibbs v. Hillsborough Cnty, Fla, 67 F.Supp.3d 1340, 1349 (M.D. Fla. 2014). The Supreme Court has established that a “facial challenge to a legislative act is … the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the act would be valid.” Id. at 1349. This “no set of circumstances test” remains the standard in the Eleventh Circuit. GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1255, n. 19 (11th Cir. 2012) (applying no set of circumstances rule to Free Exercise claim). The Zoning Ordinance as explained above and as already explained by this Court in the context of the RLUIPA claims is not discriminatory on its face, was not enacted Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 39 of 49 40 30565570 v1 to target Plaintiffs, and Plaintiff cannot show that as written it treats Plaintiffs property different than other similarly situated land-owners. (Doc. 30 at 16, 18, 22). Thus, there is no issue of fact concerning a facial equal protection challenge. A facially neutral zoning or licensing ordinance violates the Equal Protection clause only where the plaintiff can demonstrate "that she has 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). It is well-established that a law, "neutral on its face and serving ends otherwise within the power of government to pursue", is not invalid under the Equal Protection Clause simply because it may affect a greater proportion of one group than of another. Washington v. Davis, 426 U.S. 229, 242, 96 S. Ct. 2040, 2049, 48 L. Ed. 2d 597 (1976). Consistent with rational basis review13, the City's zoning ordinance is presumed valid and, as they concern matters of social and economic policy, the City is afforded wide latitude. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 400, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985); see also Dukes, 427 U.S. at 303, 96 S.Ct. 2513 ("States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with less than mathematical exactitude."). Thus, to prevail on an equal protection claim that a defendant unequally applied a facially neutral statute, a plaintiff must show intentional discrimination. E & T Realty v. Strickland, 830 13 Some Courts have held that a heightened compelling interest standard should be applied if an ordinance specifically classifies religious groups separately, but still agree that where religious groups are treated exactly the same as similarly situated non-religious groups, rational basis review is appropriate. See e.g., Vineyard Christian Fellowship of Evanston, Inc. v. City of Evanston, 250 F. Supp. 2d 961, 977 (N.D. Ill. 2003) ("If, for example, religious institutions are treated the same under a zoning ordinance as their similarly situated counterparts (such as cultural and membership organizations), a court might well conclude that the classification is not on the basis of religion, and therefore require the municipality only to show a rational basis for its zoning code.") Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 40 of 49 41 30565570 v1 F.2d 1107, 1112 (11th Cir. 1987); Daytona Rescue Mission, Inc. v. City of Daytona Beach, 885 F. Supp. 1554, 1561 (M.D. Fla. 1995); Men of Destiny Ministries, Inc. v. Osceola County, No. 6:06-cv-624-Orl-31DAB, 2006 WL 3219321, *7 (M.D. Fla. Nov. 6, 2006). Mere error or mistake in judgment when applying a facially neutral statute does not violate the Equal Protection clause. E & T Realty, 830 F.2d at 1112. Here, once again, there is no evidence of intentional discrimination by the members of the Planning Commission or City Council as concerns the denial of planning approval. These bodies heard presentations in the normal course at a public hearing from those in favor of and those against the application, and all voting members of those bodies decided that under the facially-neutral planning approval standard contained in the Zoning Ordinance, the application for construction of the proposed meditation center complex at the subject property did not meet the criteria. Councilman Small requested on more than one occasion that Plaintiffs establish their meditation center in one of the vacant storefronts on Dauphin Island Parkway instead of at the subject property given the traffic and other concerns of the residents. There is no evidence to the contrary in the record, and summary judgment is due to be granted in favor of the City on the Equal Protection claim. VI. THE CITY IS ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS' STATE LAW CLAIMS (COUNTS VI AND VII) A. Alabama Religious Freedom Act Plaintiffs’ claim under the Alabama Religious Freedom Act (Ala. Const. Art. 1, § 3.01)(“ARFA”) is due to be dismissed as a matter of law. For the same reasons described herein that Plaintiffs’ RLUIPA claim fails, the ARFA claim also fails. Federal courts in Alabama, noting the dearth of Alabama law interpreting ARFA, apply the same federal scheme used for RLUIPA claims to ARFA claims. See Presley v. Scott, No. 4:13-CV-020267-LSC-TMP, 2014 Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 41 of 49 42 30565570 v1 WL 7146837, *24 (N.D. Ala. Sept. 5, 2014)(analyzing ARFA claim under RLUIPA); see also, Doggrell v. City of Anniston, Alabama, No. 1:16-CV-0239-VEH, 2017 WL 4340449 (N.D. Ala. Sep. 29, 2017)(compiling and discussing limited Alabama precedent involving ARFA). As discussed above, the undisputed facts show that the denial of planning approval was not based in any way on some bias against the applicant's religion or against meditation; rather, it reflected the application's failure to gain a single positive vote at the Planning Commission or City Council levels due to the incompatibility of the proposed use with the single-family neighborhood and its infrastructure. ARFA has in no way been violated. Additionally, even if some aspect of Plaintiffs' ARFA claim survived, no Alabama Court has ever recognized a private right of action to pursue money damages under the Alabama Constitution. Thus, to the extent Plaintiffs seeks money damages under this claim, none are available. See Matthews v. Alabama Agric. & Mech. Univ., 787 So.2d 691, 698 (Ala. 2000) (“However, Matthews presented no authority to the trial court, and he has presented no authority to this Court, that recognizes a private cause of action for monetary damages based on violations of the provisions of the Constitution of Alabama of 1901, and we have found none.”); see also Ross v. Alabama, 893 F.Supp. 1545, 1555 (M.D. Ala. 1995)(“The court has concerns as to whether a plaintiff may bring an action against a state employee in his or her individual capacity and seek monetary relief for violations of state constitutional law”)(emphasis in original); Roberts v. City of Geneva, 114 F.Supp.2d 1199, 1215 (M.D. Ala. 2000)(“The Supreme Court of Alabama has held that there is no authority that ‘recognizes a private right of action for monetary damages based on violations of provisions of the Constitution of Alabama.’”); Tomberlin v. Clark, 1 F.Supp.3d 1213, 1234 (N.D. Ala. 2014) (“These [due process and other] claims fail Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 42 of 49 43 30565570 v1 because the Alabama constitution does not create a private right of action to sue for monetary damages.”). B. Negligent Misrepresentation Summary judgment is due to be granted on Plaintiffs' Negligent Misrepresentation claim (Count VII). Under Alabama law, “[t]he elements of a misrepresentation claim are 1) a misrepresentation of material fact, 2) made willfully to deceive, recklessly, without knowledge, or mistakenly, 3) which was reasonably relied on by the plaintiff under the circumstances, and 4) which caused damage as a proximate consequence.” Bryant Bank v. Talmage Kirkland & Co., Inc., 155 So. 3d 231, 238 (Ala. 2014). The gravamen of Plaintiffs' misrepresentation claim is that the City allegedly misrepresented at a pre-development meeting that Ms. Nimit’s proposed plan to purchase the Eloong property and construct a meditation center was in line with the property’s R-1 zoning, and would ultimately be approved. (See Doc. 25 at 26). However, the record does not bear out that the City ever made any representation guaranteeing approval. To the contrary, the Complaint alleges and Nimit admitted in her deposition testimony that Hoffman advised and she was aware prior to purchasing the Eloong property that the use of the property as a meditation center would require planning approval from the Planning Commission. (S. Nimit dep. 62:15-63:2; 115:22- 117:20; Doc. 1 at 46). Further, Nimit's real estate agent and attorney, Mr. Youngblood, was given applications at the pre-development meeting, including a planning approval application, which would need to be completed and submitted to the City for consideration by the Planning Commission. (NFE Exh. 5; S. Nimit dep. 115:22-117:20). Thus, the alleged misrepresentation did not occur. Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 43 of 49 44 30565570 v1 Additionally, however, Plaintiffs cannot show any reasonable reliance on such a statement as the Nimits removed all contingencies in their offer to buy the Eloong property regarding planning approval and closed on the purchase of the property not only prior to planning approval being granted, but prior to the time that the applications for planning approval were even submitted to the City. (NFE Exhs. 6, 7; S. Nimit dep. 73:17-74:14; 259:17-260:15; 106:19-107:20). Moreover, because the allegation concerning the granting of the planning approval application concerns a promise about a future event, the claim sounds in promissory fraud, and not negligent misrepresentation which can only apply to a misrepresentation of an existing fact. Promissory fraud requires additional elements of intent not to perform and intent to deceive which there is no record evidence to support. Southland Bank v. A&A Drywall Supply Co., 21 So. 3d 1196, 1210 (Ala. 2008) (quoting Padgett v. Hughes, 535 So. 2d 140, 142 (Ala. 1988)). A second alleged misrepresentation, concerning whether the property would be treated as a religious facility requiring only planning approval as opposed to a commercial use requiring a zoning variance (requiring a separate application), is also without merit.14 See (Doc. 1 at 46). The record confirms that the planning approval application was reviewed and ultimately denied by the Planning Commission and City Council under the planning approval guidelines found in the text of the Zoning Ordinance. (NFE Exhs. 17, 20; Olsen dep. 8:14-15; 63:6-11; 70:7-22). While questions were raised initially by neighbors regarding whether the property in fact should be classified as religious, and as Hoffman acknowledged this was a novel situation (Hoffman dep. 138:11-23), the ultimate decision by the Planning Commission was based on a 14 In its Motion to Dismiss order (Doc. 30), Magistrate Judge Milling found that the Complaint at least alleged negligent misrepresentation concerning the zoning classification of the property. Id. at 22-23. However, the record evidence clearly does not support this claim. Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 44 of 49 45 30565570 v1 straightforward application of the planning approval criteria. (Olsen dep. 37:19-21). As the Chair of the Planning Commission observed at the Planning Commission meeting, both sides were in agreement that whether the facility was considered a “church or religious facility” or a “community center” or “recreation center,” the religious aspect of it was “lifted out” and "[i]t’s a question of whether or not there is going to be a grant of approval for this use in this facility, on this property.” (NFE Exh. 15, p. 31). In other words, the fact that the application submitted sought planning approval rather than some form of use variance was ultimately a non-issue. No misrepresentation was made regarding which application to file -- Nimit having been provided the proper forms at the April, 2015 predevelopment meeting -- and, in any event, no damages could arise from any such misrepresentation as the application was considered under the planning approval guidelines as urged by Nimit and her counsel. VII. PLAINTIFF THAI MEDITATION ASSOCIATION OF ALABAMA HAS NO STANDING TO MAINTAIN ANY CLAIM AGAINST THE CITY All claims brought by Plaintiff Thai Meditation Association of Alabama, Inc. ("TMAA") are due to be dismissed as a matter of law as it has no standing to prosecute this action. There are two strands of standing analysis: threshold constitutional standing under Article III (“jurisdictional standing”), and a second non-jurisdictional analysis concerning questions of whether a plaintiff falls within the class of plaintiffs which Congress has authorized to sue under a particular statute (“statutory standing”). See Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1386-88 (2014). Plaintiff TMAA fails to meet either of these. The "irreducible constitutional minimum of standing" requires a plaintiff to show: (1) "'injury in fact' -- an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) 'actual or imminent, not conjectural or 'hypothetical,'" (2) "a causal connection between the injury and the conduct complained of -- the injury has to be 'fairly ... Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 45 of 49 46 30565570 v1 trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court;'" and (3) "that the injury will be 'redressed by a favorable decision.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)(footnote & citation omitted)(emphasis added). TMAA cannot meet the first requirement as it was not an applicant on the planning approval and other applications submitted to the City and denied by the Planning Commission and City Council that are the subject of the Complaint. It has sustained no “injury in fact.” It is undisputed that the Eloong propery is owned by the Nimit Plaintiffs (Sivaporn, Prasit, Varin, and Serena), and TMAA contributed no funds to the purchase price for the property. TMAA simply had no legal interest in the Eloong property at any time from the day the applications were submitted in September of 2015 through the City Council's denial of the appeal in January of 2016. Moreover, TMAA has 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. (S. Nimit dep. 22:22-24:2; 24:14- 21; 32:8-12; 34:11-13; 38:2-39:20). Interestingly, TMAA only gained any arguable interest in the Eloong property on the day prior to the instant lawsuit, when Nimit signed a lease as both landlord and as tenant (for TMAA) for a lease to TMAA to commence once the subject meditation complex was constructed. (S. Nimit depo., pp. 173:23-176:14; NFE Exh. 29). This lease was signed more than six months after the City Council rejected the appeal of the Planning Commission’s decision. (Id.) This last- minute lease does not confer standing where TMAA had no legal interest in the property at the time of the application and subsequent denial thereof. See Foresite LLC v. City of Mobile, No. 14-0048-WS-C, 2014 WL 1760992, *2 (S.D. Ala. 2014)(“Although this case challenges Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 46 of 49 47 30565570 v1 governmental action other than breach of contract, by analogy, the plaintiff here must show it held a legally protected interest in AT&T’s applications and rulings thereon, not simply that it held an interest in a contract adversely affected by the denial of the applications.”); see also, Granite State Outdoor Advertising, Inc. v. City of Clearwater, FL, 351 F.3d 1112, 117 (11th Cir. 2003)(“Granite State does not have standing to challenge Article 4 of the Code because it has suffered no injury with regard to the City’s permitting and appeals process [which it did not avail itself of].”); Love Church v. City of Evanston, 896 F.2d 1082, 1085 (7th Cir. 1990) (holding that a church that never applied for a special use permit or leased property that would trigger the implementation of the challenged ordinance, lacked standing to challenge the constitutionality of the ordinance): Cf. Temple B’Nai Zion, Inc. v. City of Sunny Isles Beach, Fla., 727 F.3d 1349, 1359 n.5 (11th Cir. 2013)(“As the owner of a fee simple interest in the property, the Temple has allegedly suffered an injury- the designation of its property as a historic site- that imbues it with standing….”). Moreover, since no approval was ever granted to build and operate the meditation center at the Eloong property, TMAA's Meditation Center on Airport Blvd. never ceased operations and continues to operate where it has been located since 2009 without interruption. Thus, no “concrete injury” has occurred. Only the Nimits, not TMAA, are the parties with standing to bring this action, and the claims on behalf of TMAA should be dismissed. On the second issue of whether TMAA is authorized to sue under RLUIPA, after consideration of (1) whether the plaintiff’s interest falls within the zone of interests protected by the law, and (2) whether the alleged injuries were proximately caused by violations of the statute, a similar conclusion is reached. See Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1388-91 (2014). The RLUIPA statute itself, which provides relief from the Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 47 of 49 48 30565570 v1 imposition or implementation of a “land use regulation,” defines “land use regulation” as “the application of such law, that limits restricts a claimant’s use or development of land [ ], if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or contract or option to acquire such interest.” 42 U.S.C. § 2000cc(a), 2000cc-5. TMAA therefore does not come within the terms of the statute as TMAA was not a claimant with any of the aforementioned ownership or leasehold interests when the application was submitted, denied, and appealed. Rather, TMAA only entered post hoc into a lease for the property with Plaintiff Sivaporn Niamit one day before filing the lawsuit and more than six months after the City Council's denial of the appeal. Because TMAA filed no application with the City, had no ownership or leasehold interest in the property during the subject application and appeal process ending in January of 2016, and because TMAA continued to operate the Meditation Center normally at its existing location on Airport Boulevard during the application process as it has since 2009, TMAA has no standing and the City is entitled to summary judgment on all of its claims. VIII. CONCLUSION For all of the foregoing reasons, summary judgment is due to be granted in favor of the City on all claims asserted by Plaintiffs herein. 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 Case 1:16-cv-00395-CG-MU Document 90 Filed 10/16/17 Page 48 of 49 49 30565570 v1 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 16th day of October, 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 90 Filed 10/16/17 Page 49 of 49