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

Memorandum in Opposition re Brief, 89 MOTION for Summary Judgment

S.D. Ala.November 13, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA THAI MEDITATION ASSOCIATION OF ALABAMA, INC., An Alabama Domestic Not-For-Profit Corporation, SIVAPORN NIMITYONGSKUL, VARIN NIMITYONGSKUL, SERENA NIMITYONGSKUL, and PRASIT NIMITYONGSKUL, Plaintiffs, vs. CITY OF MOBILE, ALABAMA, Defendant. Civil No. 1:16-cv-00395-CG-MU PLAINTIFFS’ BRIEF IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT JOHN LAWLER, ESQ. Post Office Box 47 Mobile, Alabama 36601 Tel: (251) 432-8861 Fax: (251) 432-8864 STORZER & ASSOCIATES, P.C. Roman P. Storzer, admitted pro hac vice Blair Lazarus Storzer, admitted pro hac vice 1025 Connecticut Ave., N.W. Suite 1000 Washington, D.C. 20036 Tel: (202) 857-9766 Fax: (202) 315-3996 Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 1 of 52 1 INTRODUCTION The City has failed to demonstrate that it is entitled to summary judgment. Its motion ignores material facts supporting Plaintiffs’ claims of burden on religious exercise and discrimination, argues against claims Plaintiffs do not make, fails to identify any compelling governmental interest (perhaps tacitly conceding that it has none), and does not attempt to prove the absence of any less restrictive means of advancing such interest. For the reasons discussed below, and for the reasons stated in Plaintiffs’ Memorandum in Support of Motion for Partial Summary Judgment (Dkt. #94) (“PM”), this Court should deny Defendant’s motion. RESPONSE TO DEFENDANT’S STATEMENT OF FACTS1 Defendant’s statement of facts generally outlines the formal steps taken by the Plaintiffs to build their Buddhist meditation center, and some of the responses of City officials and bodies. Defendant’s Brief in Support of Motion for Summary Judgment (Dkt. #90) (“DM”) at 4-23. While these facts are, for the most part,2 not in dispute--and in fact support Plaintiffs’ claims as demonstrated below--they are notable for what they exclude, most significantly: (1) the City and its officials’ admissions of lack of any reasonable, much less compelling, governmental interest in denying Plaintiffs’ application; and (2) most of the facts concerning the City and neighbors’ hostility towards Plaintiffs’ Buddhist religious exercise. These facts are discussed at length in Plaintiffs’ memorandum in support of their Motion. PM at 5-6, 9-29. The City presents a cursory and incomplete description of the community opposition to the Plaintiffs, ignoring the significant hostility demonstrated both on the record and behind the scenes towards the Buddhist meditation center’s proposed use, which opponents believe is not truly 1 Plaintiffs incorporate by reference the Statement of Facts contained in their Memorandum in Support of Plaintiffs’ Motion for Partial Summary Judgment (Dkt. #94) at 1-28. 2 Certain material facts are incorrect or incomplete as discussed herein. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 2 of 52 2 religious. For example, it claims that Tamela Esham, “stated that the opposition had nothing to do with meditation or religion,” DM at 15, asking the Court to ignore Esham’s repeated statements that the center was a “commercial business.” PM at 11-13; Exh. 93-29 at 27:11-22 (called it a “commercial business” to Anderson); Exh. 93-29 at 28:17-21 (Anderson discussed “whether or not they actually were a religious organization” with Esham’s attorney). It also references the statements of Clark Kelly and Angela Rangel (DM at 15-16), who made similar comments. See Exh. A (email from Kelly to Planning Commission) (claiming that “meditation centers” are “essentially commercial activity”); Exh. B (email from Rangel to City Council and Mayor) (“The Meditation Center . . . is also considered a business . . . please do not be fooled and cave into their manipulations.”); Exh. 92-15 at 40:11-12, 40:22-41:6 (Kelly testimony that “R-1’s allowance of churches is being misused as cover for this project’s secular and commercial nature. . . . 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. . . . Once approved under the guise or premise of a church, wouldn’t it be entitled to signage like an actual church?”); Exh. 92-15 at 39:14-19, 40:5-10 (Kelly testimony arguing that the center was not compatible precisely because it was “commercial activity” that was not an appropriate use within the R-1 zone); Exh. 92-15 at 43:10-12 (Rangel testimony “we oppose the business development”).3 Thus, every local resident referenced by the Defendant (DM at 15-16) exhibited hostility toward the Plaintiffs, claiming that they were not religious, and opposed it at least in substantial part on that basis. Additionally, the City barely mentions the actions of Doug Anderson--the main decisionmaker and chief City contact with the hostile opponents, ignoring all of his statements, 3 Ms. Rangel’s draft testimony sent to the City Council the morning before the appeal included this language, but it had been removed by the time of the hearing. See Dkt. #93-31 at 67:2-8. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 3 of 52 3 decisions and involvements, again both publicly and behind the scenes, demonstrating animus toward the Buddhist meditation center, including those to the City Council: “This is not a religious facility” and “This is not the Baptist Church or the Episcopal Church.” See PM at 11-19. Defendant admits that the after-the-fact “Letter of Decision” was based on what Richard Olsen’s “felt” about what the Planning Commission was thinking, rather than what the Planning Commission actually said (or did not say). DM at 17; Exh. N at 81:7-82:12 ((Deposition of Douglas. L. Anderson (“DA Dep.”)). As discussed in Plaintiffs’ prior memorandum, similar to the local residents and Anderson, the Planning Commission’s questions concerned whether a Buddhist meditation center was “religious.”4 PM at 15. Defendant suggests that the “Zoning Ordinance also contemplates generation of a Letter of Decision in this manner.” DM at 17 n.7. However, the Ordinance states: “[T]he director of urban development, or his agent, shall notify the applicant of the action of the planning commission on the application.” Dkt. #92-12 at 99 (ZO § 64-8(B)(2)(c)) (emphasis added). It does not give the director’s agent the authority to determine the grounds for decision himself based on his feelings. The City does not deny that the Planning Commission never provided the grounds for denial, approved them, nor even ever saw them. DM at 17-18. The review was left, again, solely to Anderson. Id. The reasons provided are “commonly-used” for the denial of planning approval. Exh. N at 84:6-85:4 (DA Dep.). With respect to the governmental interests served by denial of the Applications, while the 4 Such questions included, among others: “Does the fact that they are receiving compensation for providing these service [which is untrue, see #93-73 at ¶ 17] create any differentiation in your mind as to whether is religious or business use?” (Dkt. #92-15 at 14:10-13), whether the Center had a business license (id. at 15:5-7), “Is this organization like part of a larger organization or are they just totally independent?” (id. at 23:4-6), “Does this organization, the network, does it have a name or is it just a --” (id. at 24:1-4), “Just to make sure I’m clear what you and Mr. Lawler are saying, are you contending that this is a religious organization?” (id. at 24:11-13), “In the report it says that there are tests that the church must go through to prove that it’s religious with the IRS. Is that just the 509(a)(2) or are there other requirements that need to be demonstrated?” (id. at 25:19-26:1). Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 4 of 52 4 City states merely that the opponents’ attorney “noted that . . . the Planning Commission had the discretion to deny planning approval if the application did not meet the Zoning Ordinance’s standard” with respect to transportation and access, traffic congestion or creating a safety hazard, and being in harmony with the appropriate development of the district, DM at 14, it does not mention any facts or cite to any evidence actually demonstrating an issue with transportation, traffic congestion or hazards, or “harmony.”5 Rather, it is silent on the fact that its planner who worked on the Applications testified: “Q So other than this religious issue that we just discussed, is there anything in the Staff Report that suggested that Planning Approval could not be granted? A Aside from that issue, no.” Exh. 93-25 at 64:2-7. And the City’s traffic engineer admitted both that: “Q Do you believe that the proposed meditation center use would create traffic safety issues? A My opinion is no.” Exh. 93-18 at 75:23-76:3, and “Q Would you agree that the meditation center as proposed is a relatively low impact use from a traffic perspective? A Yes.” “Q Do you believe that the roadways would not be able to handle the traffic generated by the use? A . . . . [I]t could potentially handle additional volume of traffic based on capacity of the roadway.” 5 Defendant describes the Plaintiffs’ small proposed religious facility as a “meditation center complex” eight times throughout its Brief. The Court should not be misled; this is a very modest proposal, including a small meditation hall for a maximum of thirty people, a small cottage for monks, and a restroom facility for a total of 5,400 square feet, which is comparable to the development of their next-door neighbor’s 2.4-acre residential lot, on a much larger property. Dkt. #92-10; Exh. C, Mobile County Citizen Access Portal Property Tax Records (2354 Park Place); Exh. O at 9:14-10:20 (Deposition of Tamela Esham) (development on Esham’s property approximately 5,000 square feet). If the Property were subdivided into a “minimum” of twenty lots at 7,200 square feet, which would meet the Subdivision requirements according to Hoffman, each lot could have a house covering up to 35% of the ground area and could then be up to 35 feet tall. Dkt. 93-5 at 86:13-87:4 (BH Dep.); Exh. D at 113:10-15 (BH Dep.). Each lot could easily contain a 5,000-square foot house (as Esham’s does, not including the shop, greenhouse and two docks), and there would be 100,000 square feet of development, if houses of Esham’s size were to be built. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 5 of 52 5 Exh. 93-18 at 72:9-13, 74:9-20. An employee sent by the City to “observe” the traffic generated by one of the Plaintiffs’ retreat noted: “I inspected again on yesterday. I did not observe anything. I stayed in the area for a couple of hours to see if there were different cars leaving the area. I did not observe an increase in traffic flow.” Exh. 93-65 at COM9097. The City does not offer any evidence to support its claim that the use would be inappropriate at this seven-acre location zoned for such use. Rather, it states that hostile neighbors opposed the use based on their opinions, which did not discuss aspects of the project such as “scale” or traffic impact in a way that would permit land use professionals or the Planning Commission to ascertain the impacts of the project. Instead, Esham testified that she would oppose any meditation center on the Property regardless of size. Exh. O at 70:12-21 (TE Dep.); Exhibit D at 114:13-115:6, 196:22-197:2 (Deposition of Bert Hoffman (“BH Dep”)). For instance, Ms. Esham’s opinion (she is not a traffic engineer) that 150 cars would visit the site weekly, even if accurate,6 would be a drop in the bucket in terms of traffic impact, one that the City’s traffic engineer described as “not a substantial impact” and a “low impact use.” Exh. 93-18 at 72:9-13, 73:3-8, 74:5-8. Any place of worship would create some increase in traffic (and Plaintiffs are unaware of any religious facility that was granted planning approval having less of an impact than Plaintiffs’ very modest use), and an increase in traffic, without more, does not justify denial of Planning Approval. Dkt. #93-6 at 118:9-2, 119:18-22. Defendant also relies on the hostile residents’ attorney Graham for the proposition that the Property is located at “the end of a road.” DM at 14. The driveway for the Property is located near the beginning of Eloong Drive, before the neighbor’s homes. Dkt. #92-3; #92-13 at 13-15. Nor is it correct that the road is “so narrow it makes passing difficult.” See Exhibit E (Photographs 6 Which it is not. See PM at 27 n.11, citing Dkt. #93-68. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 6 of 52 6 showing two cars easily passing each other on Eloong Drive). Similarly, the City relies on Esham’s unreasonable statements that a meditation center would “take away the serene, calm, tranquil, and peaceful characteristics of the neighborhood” (and similar statements from other neighbors). DM at 15-16. Again, this is contrary to the determinations of City staff, including Hoffman, who stated that a meditation center would be “very conducive to a single family residential area.” Exh. 93-5 at 77:12-78:1. Also, homes on the Dog River are subject to motorized watercraft and music playing from boats, which is part of the character of the community and can be noisier than meditation activity. Exh. F at 74:6-20 (30(b)(6) Deposition of Richard Olsen (“30(b)(6) RO Dep.”)).7 Plaintiffs also dispute other facts related to them and their religious exercise. Serena Nimityongskul is not “primarily a secretary.” DM at 5. She earned a certificate to teach Buddhist “Middle Way” meditation during a three-month training in Thailand and during subsequent month- long meditation trainings in Thailand. Exh. G at 15:16-21 (Deposition of Serena “Nena” Nimityongskul (“NN Dep.”)); Exh. H at 245:23-246:8 (Deposition of Sivaporn Nimityongskul (“SN Dep.”); Declaration of Serena “Nena” Nimityongskul ¶¶ 1-3 (“NN Opp. Dec.”). Neither does the Association “promote activities such as quiet mind, massage therapy, yoga, and healing qigong” (DM at 6), and such statements are not supported by the cited references to Sivaporn Nimityongskul’s deposition transcript. The Zen Buddhist meditation retreat was being held at a yoga and massage therapy studio, which was called “Quiet Mind.” Exh. H at 235:4- 236:18 (SN Dep.). The Plaintiffs do not promote yoga and massage therapy themselves. Id. And 7 The reference to environmental concerns about the “canal . . . already in need of dredging” are completely unsupported (DM at 16), and Defendant has offered no evidence that the proposed use would somehow negatively impact the canal. Plaintiffs will certainly be subject to numerous regulatory requirements in developing their meditation center, some of which protect environmental interests. Neither was this a purported ground of the Planning Commission or asserted by the City as a governmental interest supporting denial. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 7 of 52 7 Qigong is related to Plaintiffs’ religious exercise. Exh. H at 239:10-240:13 (SN Dep.). Presumably, Defendant is attempting to characterize the Association as something other than a Buddhist meditation center, but the evidence does not support it. Similarly, it argues that Plaintiffs’ attorney suggested that the use “alternatively could also be considered a ‘community center’, a ‘recreation center’, or an ‘activity center’,” DM at 13, but ignores that the Center’s attorney confirmed that “religious facility is something that I think was the right choice because it is a religious facility,” and also “it is a religious use.” (Dkt. 92-15 at 12:20-22, 13:2-3.) It is also untrue that “[t]he 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 [April 2015] predevelopment meeting.” DM at 10. The separate meditation center facility was in fact discussed at the April 24, 2015 predevelopment meeting. Declaration of Sivaporn Nimityongskul ¶ 1 (“SN Opp. Dec.”); Exh. H at 106:2-18; 113:22-115:17 (SN Dep.). Marie Cross York, the City’s Planner in attendance at the meeting, recalled that there was a plan to initially use the ground floor of the house for the center, but that there was also a plan to construct a new meditation center building. Exh. I at 38:4-39:21 (Deposition of Marie Cross York). Sivaporn Nimityongskul also remembers that discussion. SN Opp. Dec. ¶ 2. Moreover, York’s contemporaneous notes of the meeting establish that the new construction was discussed, as they explicitly say: “Add meditation center & later small houses for monks” and “Amend PA & PUD if not included on initial for new structures.” Dkt. #93-28. Defendant also states that “Hoffman asked Nimit during a predevelopment meeting if the meditation was religious, which would allow for a planning approval route, or was something else like medical, which would require a variance or other route for approval. (Hoffman dep. 65:1-11).” DM at 11-12. Not only did Hoffman testify that he “cannot recall with certainty” that he asked Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 8 of 52 8 this question (Dkt. #93-5 at 65:1-11 (BH Dep.)), but he stated that he had no reason to believe that Ms. Nimityongskul was not truthful when she stated that the use would be religious. Dkt. #93-5 at 65:1-15 (BH Dep.). The October Planning Commission hearing was the first time Hoffman had heard the religious status of the proposed center questioned. Dkt. #93-5 at 134:9-17 (BH Dep.). ARGUMENT I. DEFENDANT IS NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS THAT THE CITY’S DENIAL BURDENS THEIR RELIGIOUS EXERCISE WITHOUT BEING THE LEAST RESTRICTIVE MEANS OF ACHIEVING A COMPELLING GOVERNMENTAL INTEREST. A. RLUIPA’s “Substantial Burdens” Provision (Count I) As a preliminary matter, it is important to note that RLUIPA, by its own terms, “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g). The Defendant’s proposed substantial burden standard, which is effectively that no denial of discretionary land use approval (such as Planning Approval) can violate the Substantial Burdens provision either because there is some other potential location where it can be practiced (DM at 27-29) or because Plaintiffs knew that they “would have to apply to the Planning Commission for planning approval in order to build the meditation center complex” (DM at 29-30), is contrary to this rule of construction and is not faithful to Congress’ intent in passing RLUIPA. See H.R. REP. 106-2198, 19-23 (noting testimony regarding discretionary permits such as “Regulators typically have virtually unlimited discretion in granting or denying permits for land use and in other aspects of implementing zoning laws,” “no clear rules permitted or forbade what we wanted to do, and everything was decided based on the specifics of this particular case (e.g., variance, waiver, special use permit, conditional 8 The Religious Liberty Protection Act of 1999 was the legislative predecessor to RLUIPA. See Freedom Baptist Church v. Twp. of Middletown, 204 F. Supp. 2d 857, 861 (E.D. Pa. 2002). Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 9 of 52 9 use permit, amendment to the zoning ordinance, etc.),” “The city denied the permit on the basis that a temple would not be in the best interests of and promote the public health, safety, morals, convenience, order, prosperity, and general welfare of the City” (citations omitted)); id. at 24 (“Land use regulation is commonly administered through individualized processes not controlled by neutral and generally applicable rules. The standards in individualized land use decisions are often vague, discretionary, and subjective.”); 146 CONG. REC. S7774, S7775 (July 27, 2000) (“Sometimes, zoning board members or neighborhood residents explicitly offer race or religion as the reason to exclude a proposed church, especially in cases of black churches and Jewish shuls and synagogues. More often, discrimination lurks behind such vague and universally applicable reasons as traffic, aesthetics, or ‘not consistent with the city’s land use plan.’”) (joint statement of Senators Hatch and Kennedy). Congress was clearly concerned with the discretionary application of permitting schemes for churches such as the City’s Planning Approval requirement. Various Courts of Appeals and courts within this Circuit9 have rejected the City’s position and have held that such denials of discretionary approval can or do violate RLUIPA’s Substantial Burdens provision. See, e.g., Fortress Bible Church v. Feiner, 694 F.3d 208 (2nd Cir. 2012) (denial of discretionary variance, waiver, and site plan approval); Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2nd Cir. 2007) (“WDS”) (denial of special use permit); Sts. Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005) (“Constantine”) (denial of rezoning); Rocky Mtn. Christian Church v. Board of Cty. Comm'rs, 613 F.3d 1229 (10th Cir., 2010) (denial of special use application); Guru Nanak Sikh 9 The Eleventh Circuit’s RLUIPA decisions did not involve substantial burden challenges to denials of discretionary land use permits. See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004) (“Midrash Sephardi”); Konikov v. Orange Cty., Fla., 410 F.3d 1317 (11th Cir. 2005); Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cty., 450 F.3d 1295 (11th Cir. 2006) (“Primera Iglesia”); Covenant Christian Ministries, Inc. v. City of Marietta, Ga., 654 F.3d 1231 (11th Cir. 2011). Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 10 of 52 10 Soc’y of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 2006) (“Guru Nanak”) (denial of conditional use permit); Church of Our Savior v. City of Jacksonville Beach, 108 F. Supp. 3d 1259 (M.D. Fla. 2015) (denial of conditional use permit); Hollywood Cmty. Synagogue, Inc. v. City of Hollywood, Fla., 430 F. Supp. 2d 1296 (S.D. Fla. 2006) (“Hollywood”) (conditional use permit); Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328 (N.D. Ga. 2012) (“Scientology”) (conditional approval of rezoning). 1. Plaintiffs’ proposed use constitutes religious exercise. Although Defendant continues to reference hostile neighbors’ claims that Buddhist meditation activity does not constitute religious exercise, see, e.g., DM at 11-14, there can be no reasonable dispute that it does. See generally Plaintiffs’ Motion for Partial Summary Judgment, Dkt. #91; the Declarations of Sivaporn Nimityongskul, Dkt. #93-73, Serena Nimityongskul, Dkt. #93-74, Dawn Barie, Dkt. #93-75, Eric Loomis, Dkt. #93-76, Ven. Nicholas Thanissaro, Dkt. #93- 78, and Ven. Phra Piya Piyawajako, Dkt. #93-79, as well as Plaintiffs’ Memorandum in Support of Motion for Partial Summary Judgment, Dkt. #94 at 3-4, 13-14, 32-33. 2. Denial of Plaintiffs’ applications substantially burdens their religious exercise under RLUIPA. The issue of whether a burden on religious exercise is “substantial” is a fact-specific question, taking into account many factors. See generally Scientology, 843 F. Supp. 2d at 1353- 56 (substantial burden analysis is “fact intensive” and listing factors); Chabad Lubavitch of Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm'n, 768 F.3d 183, 195 (2d Cir. 2014) (describing factors in “multifaceted analysis”). These are addressed in depth in Plaintiffs’ motion for partial summary judgment and Plaintiffs incorporate those arguments herein. PM at 30-37. a) Defendant’s arguments. The City is certainly correct that a burden need be “more than an inconvenience” to be Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 11 of 52 11 considered “substantial.”10 DM at 25 (quoting Midrash Sephardi). However, it then suggests that the Court should go to the other extreme and hold that RLUIPA’s Substantial Burdens provision only applies to laws and actions that prohibit all religious exercise, and that if Plaintiffs can engage in any religious exercise at any location, there cannot be a substantial burden. DM at 27-29. In support of its position, Defendant relies on Eagle Cove Camp and Conference Center, Inc. v. Town of Woodboro, 734 F.3d 673, 680 (7th Cir. 2013), without mentioning that that opinion was abrogated by the Supreme Court in Holt v. Hobbs, 135 S. Ct. 853 (2015), and Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), as recognized by the Seventh Circuit in Schlemm v. Wall, 784 F.3d 362 (7th Cir. 2015). The Court of Appeals held that “two later decisions of the Supreme Court . . . articulate a standard much easier to satisfy.” Schlemm, 784 F.3d at 364. Further, “Eagle Cove effectively limits the Act to those beliefs or practices that are “central” to religious beliefs; its approach did not survive Hobby Lobby and Holt.” Id. The other case cited by the City, Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548, 557 n.4 (4th Cir. 2013) (“Bethel”), supports the Plaintiffs as it articulated the “reasonable expectation” standard discussed by Plaintiffs in their motion, and was also decided in favor of the church. Bethel’s reasonable expectation standard was recently interpreted by a court in that Circuit analyzing the denial of a discretionary permit under RLUIPA, which distinguished Andon, LLC v. City of Newport News, 813 F.3d 510, 515 (4th Cir. 2016), also relied 10 The Court should disregard as irrelevant Defendant’s argument that Plaintiffs are trying to “exempt themselves from neutral zoning provisions” or avoiding “apply[ing] for” permits. DM at 26. It is undisputed that the Plaintiffs have worked within the administrative process (twice. Plaintiffs do not believe that they are “exempt” from the neutral requirement of having to apply for Planning Approval. They challenge the unreasonable, burdensome and discriminatory denial of that application. Dkt. #1 ¶ 3 (Complaint); Konikov, for example, involved a situation where the religious entity refused to apply for a permit. 410 F.3d at 1321 (“Konikov has never applied for a special exception to the Code, . . . . Rather, after the CEB entered its finding on March 20, 2002, Konikov filed a complaint . . . .”). That is undisputably not the case here. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 12 of 52 12 on by the City here: [U]nlike in Andon, the Church’s proposal was not categorically contrary to law. As noted, under Maryland law a special exception is presumed to be a valid use, subject to the satisfaction of prescribed conditions. Attar, 451 Md. at 285, 152 A.3d at 772. Nonetheless, to obtain a special exception the Church must satisfy the multiple conditions outlined in BCZR § 502.1. Approval is not automatic. Cf. Siena Corp., 2017 WL 4557505, at *4 (“To hold that the issuance of something as important as a building permit is wholly nondiscretionary even before the necessary conditions have been met would handcuff local land use decision-makers to an extraordinary extent. Indeed, it would leave them at the mercy of whatever plans a developer might devise....”). However, plaintiff alleges that its proposal met each condition. ECF 1, ¶ 261. In my view, the Church has stated a substantial burden claim under 42 U.S.C. § 2000cc(a)(1) because it has plausibly alleged that it had a reasonable expectation that it could build a house of worship on the Property if it satisfied the conditions. Moreover, the Church alleges that it complied with all of the objective standards under BCZR § 502.1 for the grant of a special exception. ECF 1, ¶¶ 261, 309. And, as demonstrated by the administrative record, the ALJ and one Board member agreed that the Church met all nine requirements, at least as to the portion pertaining to the construction of the structure. See ECF 8-2 at 13-20; ECF 8-2 at 145-49. Hunt Valley Baptist Church, Inc. v. Baltimore Cty., Md., Civ. No. 17-804, 2017 WL 4801542, at *27 (D. Md. Oct. 24, 2017). This case is similar, where the use is explicitly permitted in the district with planning approval11 “to encourage a suitable neighborhood environment for family life . . . .” Dkt. #93-2 at PLTF5689. No other church or religious facility had previously been denied Planning Approval by the City. PM at 19, 19 n.7. City staff never suggested that there would be any problems with the application, up until the Plaintiffs’ Buddhist practices were questioned as not “religious.” PM at 20. There was no legitimate reason to deny the Applications. See supra. Neither do Plaintiffs argue that “denial of a” discretionary permit is “per se . . . a substantial burden.” DM at 26-27 (quoting Church of Our Savior, 69 F. Supp. 3d at 1314 (M.D. Fla. 2014)), 11 Defendant’s reference to the fact that “the City has several zoning districts where a ‘church or religious facility’ may locate as a matter of right” (DM at 28) is also irrelevant. “Nothing in RLUIPA requires a religious institution, in order to take advantage of its provisions, to purchase only property on which the desired use is permitted outright.” Timberline Baptist Church v. Washington Cty., 211 Or. App. 437, 450-51, 154 P.3d 759, 766 (2007). Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 13 of 52 13 another straw man argument offered by the City. Such a denial can be a substantial burden and, for the reasons described below and in Plaintiffs’ Motion, it is here. The district court decisions cited by Defendant are distinguishable on their facts. See Men of Destiny Ministries, Inc. v. Osceola County, Civ. No. 06-624, 2006 WL 3219321, at *4-5 (M.D. Fla. Nov. 6, 2006) (noting that “[t]here was no argument” concerning the significance of the particular location); Williams Island Synagogue, Inc. v. City of Aventura, Fla., 358 F. Supp. 2d 1207, 1215-16 (S.D. Fla. 2005) (alleged limitations at current location are easily solved or are not actionable under RLUIPA). Stripping Defendant’s arguments of these irrelevant issues, the Court is presented with the central question of whether the denial of Plaintiffs’ applications in this instance creates a burden on their religious exercise that is “more than an inconvenience.” Defendant misses the mark by arguing that because there is a leased commercial location where some of the Plaintiffs’ religious exercise is unsatisfactorily accommodated, then the burden cannot be substantial. This is wrong both as a matter of law and a matter of fact. In every major RLUIPA decision by the Courts of Appeals that ruled in favor of the plaintiff, the religious entity was already engaged in religious exercise at some location. See International Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1061 (9th Cir. 2011) (“International Church”) (discussing “Church’s present location”); Constantine, 396 F.3d 895, 898 (7th Cir. 2005) (discussion plaintiff’s “existing church in the nearby city of Wauwatosa”); WDS, 504 F.3d at 344 (“school submitted construction plans” to expand its existing facilities); Bethel, 706 F.3d at 552 (noting that “Bethel . . . owns a place of worship in Silver Spring, Maryland”). A strong comparison here can be made to the facts presented in Bethel. See 706 F.3d at 558 (“Although the County suggests that Bethel’s burden is not substantial because the organization already owns one facility and rents another, Bethel has presented considerable Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 14 of 52 14 evidence that its current facilities inadequately serve its needs.”). The Eleventh Circuit states that the government action must cause a claimant to “forego religious precepts.”12 Midrash Sephardi, 366 F.3d at 1227. Here, the Center seeks to conduct its meditation retreats in accordance with the format applicable to all other Middle Way Meditation Centers around the world that are affiliates of the Dhammakaya Temple. SN Dec. ¶ 32 (Dkt. #93- 74). The Center lacks space for participants at overnight retreats, requiring participants to leave the retreat and break the meditative atmosphere. SN Dec. ¶ 15 (Dkt. #93-73). Additionally, the Center lacks a place for traveling monks to stay, and so cannot host them. SN Dec. ¶ 16. The Center’s location has also impeded Plaintiffs’ ability to teach the Dharma, which they believe will help liberate people from suffering. SN Dec ¶ 19 (Dkt. #93-74); SN Opp. Dec. ¶ 8. This is because those learning to meditate cannot focus due to the noise on Airport Boulevard, and some do not return to the Center as a result. SN Opp. Dec. ¶¶ 6-7. See Scientology, 843 F. Supp. 2d at 1358 (N.D. Ga. 2012) (barring “use of its property for the practice of Scientology as mandated by its scriptures” would “impos[e] a substantial burden on its religious exercise”). Defendant appears to believe that the burden asserted is the “size” of its current meditation hall. DM at 28. That is not the case; rather, the burdens involve the limitations on other aspects of the Plaintiffs’ religious practice which they cannot engage in and, significantly, the complete lack of an adequate environment to engage in Buddhist meditation practices, as discussed below. The fact that “Plaintiffs continue to practice meditation in the same manner they did back in 2015” (DM at 28) ignores the fact that the burdens existed in 2015 as they do today. In addition to the burdens described above, a very specific burden fundamentally impacts 12 The City is incorrect when it states that Plaintiffs must be “unable to carry out some core religious function.” DM at 28 (emphasis added). See 42 U.S.C. § 2000-5(7)(A) (“The term ‘religious exercise includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” (emphases added)). Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 15 of 52 15 Plaintiffs’ religious exercise: The City’s decision denying the Plaintiffs a quiet and serene environment for their Buddhist meditation activities. The Plaintiffs have demonstrated that this is a religious precept of their faith. The present location of the Center in a commercial area interferes with the proper development of meditative concentration, known as jhana in Pali, which is an essential element for progress in following Buddha’s path for liberation. Buddhist scriptures and traditions make clear that the appropriate environment for meditation is one that is quiet and secluded. Furthermore, commercial areas by their nature are intended to promote sensual desire, which is obstructs the development of meditative concentration. Declaration of Venerable Nicholas Thanissaro ¶ 27 (Dkt. # 93-78). The central concept of our meditation practice is to make the mind still. It is from that stillness of mind that we can see our true inner nature. In order to accomplish that it is important to be free from distractions, such as noise crowds and the like. This is the reason why it is vitally important to have a peaceful location for meditation and why traditionally Theravada Buddhist practice has been in quiet and peaceful locations. Declaration of Venerable Phra Piya Piyawajako ¶ 10 (Dkt. #93-79). Buddhist scriptures and tradition, going back to the Buddha himself, instruct us that a serene and quiet location is the proper place for meditative practice. Among many such scriptural injunctions is this from the Anguttara Nikaya: The factors which make a dwelling favorable to meditation are mentioned by the Buddha himself. It should not be too far from or too near a village that can be relied on as an alms resort, and should have a clear path: it should be quiet and secluded. (A.v,15). There are many such statements in Buddhist texts indicating and explaining the importance of a quiet and secluded location for meditation. Declaration of Serena Nimityongskul ¶ 31 (Dkt. #93-74). Likewise, Kamalasila, a major Buddhist saint, states in his Stages of Meditation that: “Because your mind moves like a river, it does not rest without the foundation of meditative serenity; a mind that is not in meditative equipoise cannot understand reality just as it is.” Santideva, another Buddhist saint, states in his Engaging in the Bodhisattva Deeds that: “The person whose mind is distracted lives between the fangs of the afflictions. The one who knows reality has said that prayers, austerities, and such, even if practiced for a long time, are pointless if done with a distracted mind. Insight possessed of serenity destroys the afflictions. Knowing this, seek serenity at the outset.” Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 16 of 52 16 Declaration of Eric Loomis ¶ 8 (Dkt. #93-76); SN Dec. ¶ 40 (Dkt. #93-73) (adopting same); Declaration of Serena Nimityongskul ¶ 39 (Dkt. #93-74) (adopting same). Some attendees have left the Center because of the existing conditions. NN Opp. Dec. ¶ 5; SN Opp. Dec. ¶ 7. Yet the City mentions local residents’ statements that such use is not in “harmony” with the R-1 district.13 DM at 14. It relies on the statements of hostile neighbors: [N]eighbor Tamela Esham, who lives immediately adjacent to the Eloong property, stated that . . . [the proposed use] would take away the serene, calm, tranquil, and peaceful characteristics of the neighborhood. DM at 15; see also id. at 15-16 (resident Clark stating that use “would fundamentally change a private and solidly residential neighborhood”); Def. Exh. 15 at 43:5-7 (Dkt. #92-15 at 38) (resident Rangel stating: “I have been fortunate to have experienced the tranquility and nature of this beautiful area for 22 years.”).14 This demonstrates that the City’s reasoning would apply to any location suitable for Plaintiffs’ religious exercise. See Guru Nanak, 456 F.3d at 991-92 (holding that County’s “underlying rationales and disregard for Guru Nanak’s accepted mitigation conditions . . . shrink[s] the large amount of land theoretically available to Guru Nanak under the Zoning Code,” constituting a substantial burden on religious exercise (footnote omitted)). The flaw in Defendant’s argument is further demonstrated by its insistence that Plaintiffs should relocate to a “vacant storefront on Dauphin Island Parkway” (DM at 18, 19), which would present the same constraints on their religious exercise as their present location. Thus, the City’s position is fundamentally opposed to Plaintiffs’ religious exercise; Plaintiffs seek to worship in a 13 Although the City has had no problem granting planning approval for Christian churches in such locations. See PM at 24. 14 It is ironic that the City dismisses the effect of the noise of a busy street and commercial area when it comes to the Plaintiffs’ religious exercise (DM at 27-28), but will treat the Plaintiffs differently and worse than any other religious applicant when it comes to its perceived impact on Plaintiffs’ neighbors from the “noise” of quiet meditation activity. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 17 of 52 17 quiet, secluded and serene location as a religious precept, and the City has determined that it is not entitled to one for fear that its meditation activities will disturb neighbors. “At the very least,” such a position “establishes that any future . . . applications . . . would be fraught with uncertainty.” Guru Nanak, 456 at 990-91. Plaintiffs could “continue[] filing applications with the City, but . . . there would have been delay, uncertainty, and expense. That the burden would not be insuperable would not make it insubstantial.” Constantine, 396 F.3d at 901. Defendant discusses another property owned by Plaintiffs which they considered using as a place of worship (the “University Boulevard” property). DM at 28. The City has no right to determine specifically where a religious organization may worship. See Guru Nanak, 456 F.3d at 992 n.20 (“RLUIPA does not contemplate that local governments can use broad and discretionary land use rationales as leverage to select the precise parcel of land where a religious group can worship.”). Further, the University Boulevard property is not a “readily available alternative” as the Courts use that term, as it is also located in the R-1 zoning district and would be subject to Planning Approval (which Plaintiffs were informed would likely be denied), and is also surrounded by single family homes. Unless the City deems the residents of Eloong Drive somehow more important than those around the University Boulevard property,15 there is no reason why the use is more in “harmony” with that location than on Eloong Drive. Furthermore, and significantly, in the judgment of Plaintiffs’ land use professionals the use would “probably not” have been approved there. Dkt. #93-74 ¶¶ 25-26; Dkt. #93-16 at 37:2-9. The University Boulevard property also lacked the necessary infrastructure for such use. Id. Defendant also suggests that Plaintiffs can simply engage in religious exercise at “the University of South Alabama, a local library, and outdoors,” or “online.” DM at 28-29. 15 Certainly, opponent Esham believes this to be the case. See Dkt. #93-30 at 89:4-11. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 18 of 52 18 Suggesting that a religious entity does not need an adequate facility because they can worship in a park is not construing the Act in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g). [T]he right to assemble for worship is at the very core of the free exercise of religion. Churches and synagogues cannot function without a physical space adequate to their needs and consistent with their theological requirements. The right to build, buy, or rent such a space is an indispensable adjunct of the core First Amendment right to assemble for religious purposes. 146 CONG. REC. at S7774–S7775 (joint statement of Senators Hatch and Kennedy on the Religious Land Use and Institutionalized Persons Act of 2000) (emphasis added); see also Reaching Hearts Int'l, Inc. v. Prince George’s Cty., 584 F. Supp. 2d 766, 796 (D. Md. 2008), aff'd, 368 F. App'x 370 (4th Cir. 2010) (“A house is not a home. The physical structure at Cedar Ridge may be a house for RHI but it is not and cannot serve as its religious home. Cedar Ridge has been, is, and will continue to be insufficient for RHI to exercise its rights under the Constitution and RLUIPA.”); Cottonwood Christian Ctr. v. Cypress Redev. Agency, 218 F. Supp. 2d 1203, 1226 (C.D. Cal. 2002) (“Preventing a church from building a worship site fundamentally inhibits its ability to practice its religion. Churches are central to the religious exercise of most religions. If Cottonwood could not build a church, it could not exist.”). And it does nothing to meet the other religious needs of Plaintiffs such as having a space to house visiting monks and conduct meditation retreats. Finally, the City argues that purchasing property in a zone where a religious facility must obtain planning approval use is a “self-imposed” burden. DM at 29-30. The line of cases relied upon, however, involve situations where the use is not permitted, either with planning approval, a special use permit, or otherwise. See Andon, LLC v. City of Newport News, 813 F.3d 510, 515 (4th Cir. 2016) (church use not permitted on property); Petra Presbyterian Church v. Village of Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 19 of 52 19 Northbrook, 489 F.3d 846, 847 (7th Cir. 2007) (church use was prohibited in zoning district).16 (This was the basis for the Fourth Circuit distinguishing Petra Presbyterian Church in Bethel. 706 F.3d at 557.) Conversely, the decisions of various Courts of Appeals (including the Fourth, Sixth and Seventh Circuits) would have gone the other way if burdens such as the Plaintiffs’ were viewed as “self-imposed.” See Bethel, 706 F.3d at 553 (public water and sewer service were available in zoning district on a case-by-case basis); Constantine, 396 F.3d at 898 (rezoning was required for church use on the property); WDS, 504 F.3d at 345 (modification of special permit required for school expansion). Under Defendant’s view, there can never be a RLUIPA violation if an applicant must go through any discretionary permit review process. But having to go through some zoning process is not a “self-imposed burden” as the Courts use that term, especially as every other religious facility has been approved within the City, the religious nature of such a use has never been questioned before, and where staff was positive concerning the reaction up until hostile neighbors and Anderson derailed the process. See PM at 19-21. Blaming the Plaintiffs for the City’s action rings hollow here, especially given the undisputed facts of differential treatment by the City. b) Reasonable expectation As discussed above, the Eleventh Circuit’s RLUIPA Substantial Burdens decisions do not address the context of a permitting system such as the one presented here. Other courts in a similar context have held that a substantial burden may exist on religious exercise where a religious land use applicant had a “reasonable expectation” of approval, as discussed in Plaintiffs’ motion for summary judgment. See PM at 34-35. Under such analysis, there is no requirement that approval 16 The exception is Livingston Christian Schools v. Genoa Charter Township, 858 F.3d 996 (6th Cir. 2017) (denial of special-use permit), which relied for its holding on the plaintiff failing to provide evidence concerning the asserted burdens. 858 F.3d at 1006-08; see also id. at 1009 (plaintiff “has not identified any religious activity . . . that could not be performed . . . .”). Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 20 of 52 20 must be “guaranteed,” just that the expectation to receive such approval was reasonable. See Bethel, 706 F.3d at 558 (“[M]odern zoning practices are such that landowners are rarely guaranteed approvals.” (emphasis in original)); Hunt Valley Baptist Church, Civ. No. 17-804, 2017 WL 4801542, at *28 (D. Md. Oct. 24, 2017) (“The fact that the Church lacked any guarantee from the County does not preclude this conclusion.” (emphasis in original)). The evidence here demonstrates that Plaintiffs had a reasonable expectation of approval. Of particular importance is the fact that City staff did not identify any problems with the proposed use other than being ordered by Anderson to recommend that a Buddhist meditation center was not a “church or religious facility.” See PM at 34-35. Putting Anderson’s discriminatory determination aside, there was no basis for denial. No impacts justified denial, Plaintiffs reduced the size of the project, changed the layout per staff’s prior recommendations, and were willing to take any additional steps required for approval. c) Complete denial. Defendant fails to address the fact that the City denied the applications outright, instead of attempting to mitigate any legitimate land use impacts. See Scientology, 843 F. Supp. 2d at 1354 (holding that a substantial burden may exist where “[t]he implementation of a land use regulation that completely bars the use of the property for religious exercise,” and collecting cases); Guru Nanak, 456 F.3d at 991 (“[T]he Board of Supervisors disregarded, without explanation, the Planning Division's finding that Guru Nanak's acceptance of various mitigation conditions would make the proposed temple have a less-than-significant impact on surrounding land uses.”); Bethel, 706 F.3d at 558 (holding that it is “significant that the County has completely prevented [the Church] from building any church on its property, rather than simply imposing limitations on a new building.”); WDS, 504 F.3d at 352 (considering as a factor in its substantial burden analysis Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 21 of 52 21 whether village’s denial of school's application was conditional or absolute). Similarly, here, the City refused to apply conditions to Planning Approval and instead denied it completely. Plaintiffs were prevented from mitigating any land use impacts because of Anderson’s discriminatory decision that it was not a church or religious facility. City Staff had waited to do additional work on the December 3, 2015 Staff Report until they heard from Anderson. Exh. D at 143:20-145:8 (BH Dep.). Once Anderson had directed planning staff to recommend denial of the applications, the staff member writing the report wrote, “That simplifies the process a bit.” Exh. 93-45; Exh. D at 48:20-22 (BH Dep.). “Rather than having to go through the complete analysis of the revised site plan that was provided . . . he could just instead say that the use does not appear to be planning approval specific path . . . .” Exh. D at 139:19-140:5. The December 3, 2015 Staff Report does not analyze the revised site plan with specificity (and what is there is incorrect, as it pertains to fire truck access although the plan was never submitted to the fire department). Exh. D at 147:12-148:1 (BH Dep.); PM at 27 n.12. There was never a proper analysis of the revised plan, or consideration of less restrictive means. The City suggests that the Applications were denied because of “harmony” and “traffic” issues, but Anderson’s discriminatory decision prevented Plaintiffs and City staff from addressing these issues. d) Repeated denials. Defendant admits that City staff also recommended denial for the Plaintiffs’ use at a different location on a busy road.17 DM at 6; see generally PM at 5-6 (discussing 2007 Application). See Guru Nanak, 456 F.3d at 990-91 (after multiple denials, “any future CUP applications for a temple on land zoned “agricultural” would be fraught with uncertainty); Constantine, 396 F.3d at at 901 (finding a substantial burden where a church’s future efforts to 17 Significantly, the location is across the street from where the City later approved a Publix supermarket, again demonstrating its discriminatory treatment. See PM at 6. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 22 of 52 22 locate another parcel of property or file new land use applications would result in “delay, uncertainty, and expense”). The City’s only response to the 2007 Application is that “the statute of limitations has long since run.” DM at 27 n.11. Plaintiffs do not seek relief regarding those events, but only reference them to demonstrate the City’s “inconsistent decision-making [that] establishes that any future . . . applications . . . would be fraught with uncertainty.” Guru Nanak, supra. See id. (“We ‘cannot view [the denial of the second CUP application] ‘in isolation’; [rather, it] ‘must be viewed in the context of [Guru Nanak's permit process] history.’’ See Westchester Day Sch. v. Village of Mamaroneck, 417 F. Supp. 2d 477, 548 (S.D.N.Y. 2006) . . . .”). e) Arbitrary, capricious and discriminatory actions. Finally, “[w]here the arbitrary, capricious, or unlawful nature of a defendant’s challenged action suggests that a religious institution received less than even-handed treatment, the application of RLUIPA's substantial burden provision usefully ‘backstops the explicit prohibition of religious discrimination in the later section of the Act.’ Saints Constantine and Helen, 396 F.3d at 900.” WDS, 504 F.3d at 351; Guru Nanak, 456 F.3d at 989-91 (same). The evidence demonstrates the arbitrary and discriminatory actions suffered by the Plaintiffs, with further counsel in favor of granting them summary judgment. PM at 42-50. The City, on the other hand, discusses neither this factor nor the significant relevant evidence weighing in favor of Plaintiffs. 3. The City has not asserted that any compelling governmental interest justifies its denial, or that such denial was the least restrictive means of achieving such interest. The Substantial Burdens provision of RLUIPA provides that a government cannot substantially burden religious exercise “unless the government demonstrates that imposition of the burden on that person, assembly, or institution—(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 23 of 52 23 governmental interest.” Plaintiffs have demonstrated in their Motion (and incorporates such arguments herein) that no such governmental interest exists and, even if it did, there are numerous ways of achieving it without a complete denial. PM at 37-41. It is telling that Defendant has not even attempted to assert a compelling interest, especially as it has the burden of persuasion on such issues.18 42 U.S.C. § 2000cc–2(b); cf. Dimmitt v. City of Clearwater, 985 F.2d 1565, 1570 (11th Cir. 1993) (deleterious effect on visual aesthetics and traffic safety is not a compelling state interest of the sort required to justify content based regulation of noncommercial speech). “If a land-use decision . . . imposes a substantial burden on religious exercise . . . , and the decision maker cannot justify it, the inference arises that hostility to religion, or more likely to a particular sect, influenced the decision.” Constantine, 396 F.3d at 900; see also Guru Nanak, 456 F.3d at 989–91 (holding that a substantial burden was shown where government officials “inconsistently applied” specific policies and disregarded relevant findings “without explanation”); WDS, 504 F.3d at 351 (holding that religious exercise was substantially burdened where “purported justifications set forth in the Resolution do not bear the necessary substantial relation to public health, safety or welfare”). Defendant does not show any facts sufficient to create a material factual question as to any compelling governmental interest justifying the denial. For the reasons described above, and in Plaintiffs’ Motion, Defendant is not entitled to summary judgment on Count I of Plaintiffs’ Complaint. B. Alabama Religious Freedom Amendment (Count VI) As Plaintiffs demonstrate in their motion, the Alabama Religious Freedom Act is not merely a redundant clone of RLUIPA; in fact, it was adopted prior to RLUIPA’s passage. It applies by its own terms to all burdens on religious exercise and not merely “substantial” burdens. See 18 The City refers to certain statements of hostile residents in its brief, but neither adopts them nor claims that such “reasons” for opposition support its decision to deny the applications. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 24 of 52 24 PM at 31-32 & n 13; Ex parte Snider, 929 So. 2d 447, 466 n.15 (Ala. 2005) (Parker, J., dissenting) (“In fact, Alabama’s constitutional protection of the right to worship God was designed to be stronger than that of the Constitution of the United States as interpreted by the United States Supreme Court. . . . Alabamians showed that our state motto—’We dare defend our rights’—is no mere slogan by ratifying the Alabama Religious Freedom Amendment in 1999.”). Defendant suggests that the Court should not apply ARFA independently from RLUIPA, DM at 41-42, which would inject a “substantiality” requirement on prohibited religious burdens that does not exist in the state Constitution. See Merritt v. Dillard Paper Co., 120 F.3d 1181, 1187 (11th Cir. 1997) (“Courts have no authority to alter statutory language. We cannot add to the terms of Title VII's anti-retaliation provision what Congress left out: . . . .”); United States v. Fulford, 662 F.3d 1174, 1178 (11th Cir. 2011) (“it is not our function to modify, amend, or improve statutes or guidelines”); Nguyen v. United States, 556 F.3d 1244, 1256 (11th Cir. 2009) (“We are not authorized to rewrite, revise, modify, or amend statutory language in the guise of interpreting it”). The state legislature was well aware of the “substantial burden” language in the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq., adopted in 1993, and held unconstitutional by the Supreme Court as applied to the states in 1997. City of Boerne v. Flores, 521 U.S. 507 (1997). In fact, the first five19 legislative findings in ARFA track the first five legislative findings in RFRA, with the notable omission of the term “substantially.” Where RFRA’s third finding states: “governments should not substantially burden religious exercise without compelling justification;” ARFA’s states: “Governments should not burden religious exercise without 19 The sixth and final legislative finding in ARFA is: “Congress passed the Religious Freedom Restoration Act, 42 U.S.C., § 2000bb, to establish the compelling interest test set forth in prior federal court rulings, but in City of Boerne v. Flores, 117 S. Ct. 2157 (1997), the United States Supreme Court held the act unconstitutional stating that the right to regulate was retained by the states,” Ala. Const. Art. I, § 3.01(II)(6). Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 25 of 52 25 compelling justification.” 42 U.S.C. § 2000bb(a)(3); Ala. Const. Art. I, § 3.01(II)(3). Similarly, the “Purpose” section of ARFA uses the term “burden” instead of “substantially burden.” Compare 42 U.S.C. § 2000bb(b)(1),(2) (“to guarantee its application in all cases where free exercise of religion is substantially burdened; and . . . to provide a claim or defense to persons whose religious exercise is substantially burdened by government.”) with Ala. Const. Art. I, § 3.01(III) (“to guarantee that the freedom of religion is not burdened by state and local law; and to provide a claim or defense to persons whose religious freedom is burdened by government”). Alabama ratified this amendment with full knowledge of RFRA and the history of federal free exercise jurisprudence. It chose to be more protective of religious freedom, and AFRA should not be rewritten to negate its protections. Neither is the statute ambiguous. It states clearly: “Government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).” Ala. Const. Art. I, § 3.01(V)(a). It repeats the term “burden” again in section 3.01(V)(b). Again, these provisions mirror the text of RFRA, without the modifying term “substantially.” See 42 U.S.C. § 2000bb-1(a),(b). Its rule of construction also states that it “shall be liberally construed to effectuate its remedial and deterrent purposes.” Id. § 3.01(VII). See CBS Inc. v. PrimeTime 24 J.V., 245 F.3d 1217, 1228 (11th Cir. 2001) (“‘The language of the statute is entirely clear; and if that is not what Congress meant then Congress has made a mistake and Congress will have to correct it.’ Conroy, 507 U.S. at 528, 113 S. Ct. at 1572 (Scalia, J., concurring).”). Under Alabama law, “where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.” IMED Corp. v. System Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala. 1992). Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 26 of 52 26 The cases cited by Defendant are not to the contrary. DM at 41-42. The unreported decision in Presley v. Scott, Civ. No. 13-020267, 2014 WL 7146837, *24 (N.D. Ala. Sept. 5, 2014), only permitted the plaintiff’s claims to proceed, stating “the court, at least initially, will interpret and apply this provision in the light of case law decided under RLUIPA” and that “[t]here is no explanation of how rigidly the term ‘burden’ is to be used.” Id. This is hardly a definitive ruling. Doggrell v. City of Anniston, Ala., Civ. No. 16-0239, 2017 WL 4340449 (N.D. Ala. Sep. 29, 2017), supports Plaintiffs in that it found that plaintiff had not identified any government action “that infringed upon or burdened (substantially or otherwise) his freedom of religion, he has no cognizable ARFA claim.” Id. at *21 (emphasis added). The Alabama Attorney General has also not interpreted ARFA to apply only to “substantial” burdens. See Ala. Op. Atty. Gen. No. 2002- 073, at *2 (Ala. A.G.), 2001 WL 1850469 (ARFA “requires government to use the least restrictive means of furthering a compelling government interest in order to burden a person’s free exercise of religion under section 3 of article I of the Constitution of Alabama.” (emphasis added)). Defendant also argues that ARFA is not violated because “the denial of planning approval was not based in any way on some bias against the applicant’s religion or against meditation; . . . .” DM at 42. This is both untrue and irrelevant. By its own terms, ARFA applies “even if the burden results from a rule of general applicability, . . . .” Ala. Const. Art. I, § 3.01(V)(a). Finally, Defendant argues that there is no private right of action to pursue money damages under this provision. DM at 42-43. This does not prevent the Court from granting injunctive and declaratory relief to Plaintiffs. Since there is no dispute that there is, at the very least, some burden on Plaintiffs’ religious exercise, and Defendant has not attempted to justify such burden by demonstrating that denial of the applications is the least restrictive means of achieving a compelling governmental interest, Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 27 of 52 27 Plaintiffs, and not Defendant, are entitled to summary judgment on Count VI of their Complaint. C. First Amendment, Free Exercise Clause (Count VI) Plaintiffs incorporate herein the Free Exercise argument made in their Motion. PM at 31, 32-41. In their Motion, Defendant argues for judgment on Count VI for two reasons: (1) that the “Zoning Ordinance Provisions” are neutral and of general applicability, and (2) that the state court enforcement action is justified. DM at 35-37, 38-39. Neither of these is relevant as Plaintiffs challenge neither the City’s zoning ordinance provisions20 nor its state court enforcement action. Rather, Plaintiffs challenge the denial of their applications, which is subject to strict scrutiny review under the Free Exercise Clause because it is both (a) an individualized assessment, see infra, and (b) not “neutral and of general applicability” for the reasons discussed infra, section II. See Eternal Word Television Network, Inc. v. Sec’y Dep’t of Health and Human Servs., 818 F.3d 1122, 1164 (11th Cir. 2016) (challenged law is not neutral if “‘the object of a law is to infringe upon or restrict practices because of their religious motivation.’” (quoting Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993))); Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 132 (3d Cir. 2002) (“Supreme Court precedent is clear that the First Amendment prohibits municipalities from applying their laws differently among various religious groups.”). Defendant’s “rational basis” analysis is therefore inapposite. DM at 37-39. Even if the denial did not target the Plaintiffs based on their religion, it would still be subject to strict scrutiny review because it was rendered in a system of individualized exemptions, which is not a law of general applicability. See Employment Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872, 884 (1990) (strict scrutiny applicable where there are “individualized governmental assessment[s]”); Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 537 (“As we 20 Plaintiffs’ facial challenges to the Ordinance were dismissed by Order of this Court on October 31, 2016 (Dkt. #31). Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 28 of 52 28 noted in Smith, in circumstances in which individualized exemptions from a general requirement are available, the government ‘may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.’”). This principle has been applied regularly in the discretionary zoning permit context. See Freedom Baptist Church of Delaware Cty. v. Township of Middletown, 204 F. Supp. 2d 857, 868 (E.D. Pa. 2002) (“No one contests that zoning ordinances must by their nature impose individual assessment regimes” and “are, therefore, of necessity different from laws of general applicability which do not admit to exceptions on Free Exercise grounds”); Church of Hills of Twp. of Bedminster v. Township of Bedminster, Civ. No. 05-3332, 2006 WL 462674, at *4 (D.N.J. Feb. 24, 2006) (“The issuance of zoning variances, like those at issue in this case, are part of a process of ‘individualized exemptions’ from general zoning laws” and are therefore subject to strict scrutiny under the Free Exercise Clause); Cottonwood Christian Ctr., 218 F. Supp. 2d at 1222 (“Defendants’ land-use decisions here are not generally applicable laws” and are therefore subject to strict scrutiny under Free Exercise Clause). For the reasons described above, and in Plaintiffs’ Motion, because the denial was not “neutral” and because it was rendered in a system of individualized assessments, it is subject to strict scrutiny review, which it cannot survive for the reasons described above. Defendant is not entitled to summary judgment on Count VI of Plaintiffs’ Complaint. II. DEFENDANT IS NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ CLAIMS THAT THE CITY’S DENIAL DISCRIMINATES AGAINST THEM ON THE BASIS OF RELIGION. A. RLUIPA’s “Nondiscrimination” Provision (Count II) and Equal Protection Clause (Count V). The Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To prove a violation of the Equal Protection Clause, the Plaintiffs must establish purposeful Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 29 of 52 29 discrimination by the Defendant, directed at a suspect class such as a racial group, or a religion.21 Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977); Jean v. Nelson, 711 F.2d 1455, 1485 (11th Cir. 1983). Courts have held that discriminatory purpose may be inferred from the totality of relevant facts, including the following circumstantial and direct evidence: (a) the series of events leading up to a land use decision; (b) the context in which the decision was made; (c) whether the decision or decisionmaking process departed from established norms, including the City’s actions with respect to other proposed projects; (d) statements made by the decisionmaking body and community members; (e) reports issued by the decisionmaking body; (f) whether a discriminatory impact was foreseeable; and (g) whether less discriminatory avenues were available. Arlington Heights, 429 U.S. at 267; Church of the Lukumi Babalu Aye, 508 U.S. at 540; Scientology, 843 F. Supp. 2d at 1371. Additionally, in cases involving land use, courts have specifically focused on government decisionmakers’ responsiveness to hostile local residents in determining discriminatory intent. See LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995) (Fair Housing Act); Al Falah Ctr. v. Township of Bridgewater, Civ. No. 11- 2397, slip op. at 13 (D.N.J. Sept. 30, 2013) (Dkt. #93-72); Estvanko v. City of Perry, Civ. No. 5:09-CV-137, 2011 WL 1750232, at *12 (M.D. Ga. May 6, 2011) (“to establish a prima facie case of intentional discrimination, the plaintiff must present evidence that animus against the protected group was a significant factor in the position taken by the municipal decision-makers themselves or by those to whom the decision-makers were knowingly responsive.” (citation omitted)); Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 915 F. Supp. 2d 574, 616-17 (S.D.N.Y. 2013) (same in RLUIPA case); Church of Jesus Christ of Latter-Day Saints v. Jefferson 21 As with Plaintiffs’ Free Exercise claim, it appears that Defendant believes that their Equal Protection claim is a “facial” challenge to the City’s zoning ordinance. DM at 39-40. It is not; rather, Plaintiffs challenge the denial of their applications as discriminatory, given the evidence of intentional discrimination and the approval of similarly situated Christian churches. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 30 of 52 30 Cty., Ala., 721 F. Supp. 1212, 1218-19 (N.D. Ala. 1989) (denying summary judgment to county where there was “no proof of any actual intent by any one of the three members of the Commission who voted against the Church to inhibit or to interfere with the exercise of the Mormon faith” but “objecting, prospective residential neighbors were motivated to oppose the zoning change, at least to some extent, by an aversion they may have for this particular religious group”). Discriminatory purpose is demonstrated if a governmental decisionmaker selected a particular course of action at least in part because of, not merely in spite of, its adverse effects upon an identifiable group. It need not be the sole motivating factor, or even “the primary, or dominant purpose” for a governmental decisionmaker’s particular course of action, but it must be a significant factor. Arlington Heights, 429 U.S. at 265; Church of Scientology of Georgia, Inc., 843 F. Supp. 2d at 1371. If Plaintiffs make such a showing, the law at issue is subject to strict judicial scrutiny, such that the law may be upheld only if it furthers a compelling state interest and is narrowly tailored to accomplish that purpose. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). RLUIPA’s “Nondiscrimination” provision provides 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). In Midrash Sephardi, the Eleventh Circuit established that a facially neutral law that is applied in a discriminatory manner ceases to be neutral. 366 F.3d at 1234. Various courts have employed the standard used for applying the Equal Protection Clause to RLUIPA Nondiscrimination claims. See Chabad Lubavitch of Litchfield Cty., 768 F.3d at 198; Bethel, 706 F.3d at 559; Scientology, 843 F. Supp. 2d at 1361, 1370-72 (“The application of a neutral ordinance may violate RLUIPA’s nondiscrimination provision if it differentially treats similarly situated religious assemblies on the basis of denomination.”). In this Circuit, strict scrutiny review is appropriate for all claims under Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 31 of 52 31 section 2000cc(b) of RLUIPA. Midrash Sephardi, 366 F.3d at 1234-1235 (holding that “a law violating § (b) must therefore undergo the most rigorous of scrutiny.”). Defendant states that “deferential rational basis review” applies to “neutral laws of general application which only incidentally burden religious exercise.” DM at 31. Plaintiffs are not challenging any “neutral laws of general application.” Rather, their discrimination claims relate to the discriminatory application of the City’s zoning laws. The Eleventh Circuit has identified three distinct kinds of statutory equal protection/nondiscrimination violations: (1) a statute that facially differentiates between religious assemblies or institutions; (2) a facially neutral statute that is nevertheless “gerrymandered” to place a burden solely on a particular religious assembly or institution; or (3) a truly neutral statute that is selectively enforced against one religious denomination as opposed to another. Primera, 450 F.3d at 1308. Scientology, 843 F. Supp. 2d at 1361 (footnote omitted); Primera Iglesia, 450 F.3d at 1310 (same). Plaintiffs’ claims involve the third type of violation, not the first type, as Defendant argues. With respect to Plaintiffs’ claim that it was treated differently and worse than other religious institutions in Mobile, “[t]o prevail on a . . . selective enforcement claim[], Plaintiff 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 Plaintiff.” Scientology, 843 F. Supp. 2d at 1361 (citing Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006) (citing Strickland v. Alderman, 74 F.3d 260, 264 (11th Cir. 1996))). Plaintiffs have done so, as discussed in their Motion and infra. Even without a comparator, Plaintiffs have established a violation of the Equal Protection Clause and Nondiscrimination provision because of the specific anti-Buddhist treatment of the Plaintiffs by the City, as described in Plaintiffs’ Motion and below.22 During the Plaintiffs’ appeal 22 It is undisputable that if Planning Approval was denied to a church on the grounds that, for example, “The Planning Commission is opposed to the doctrines of the Roman Catholic Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 32 of 52 32 to the City Council, the City’s attorney stated that, “This is not a religious organization” and “This is not the Baptist Church or the Episcopal Church.” Dkt. #93-31 at 50:20-51:6 (Transcript); Dkt. #93-29 at 64:10-14 (DA Dep.). The Second Circuit reversed a district court’s grant of summary judgment to the defendant municipality precisely because “the district court looked solely to whether the [plaintiff] had identified comparator religious institutions that were ‘identical in all relevant respects’ to the [plaintiff]”: Here, the district court bypassed consideration of circumstantial evidence that might have supported the Chabad’s claim and instead considered only the Chabad’s cited comparators. While such evidence is certainly germane to a selective enforcement analysis, it is not necessary to establish a nondiscrimination claim. Contrary to the equal terms provision, which turns on “less than equal” treatment of religious as compared to nonreligious assemblies or institutions, the nondiscrimination provision bars discrimination “on the basis of religion or religious denomination,” a fact that may be proven without reference to a religious analogue. Chabad Lubavitch of Litchfield Cty., 768 F.3d at 199 (emphasis added, footnote omitted). Where a government expressly discriminates on the basis of religion, however, the Nondiscrimination Provision does not require a showing of similarly situated comparators. The instant case presents an example of express discrimination, thus precluding the need to identify specific comparators. Islamic Soc'y of Basking Ridge v. Township of Bernards, 226 F. Supp. 3d 320, 344 (D.N.J. 2016). Plaintiffs addressed their Equal Protection and Nondiscrimination arguments in their Motion and incorporate those facts and arguments herein. See PM at 5-6, 11-28, 41-50. They include: a. The hostile treatment of local residents claiming that a Buddhist meditation center is not a “church or religious facility,” which was then adopted by Anderson and ultimately incorporated into the staff report’s recommendation of denial, and the main focus of the Planning Commission and the City Council hearing. This includes statements by City officials and the main City decision-maker, and Anderson falsely telling the City Council that the only evidence concerning Plaintiffs’ religious nature was an IRS letter, ignoring other significant evidence, and the post hoc justification of the Planning Commission’s decision with pretextual reasons. See PM at 11-19, 45-47. Church,” such a decision would violate these nondiscrimination protections, regardless of whether a similarly situated comparator exists. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 33 of 52 33 b. The City’s differential treatment of the Plaintiffs as compared to other religious applicants for Planning Approval, including approval of every Christian church or religious facility that had similar (or much greater) impacts as the Plaintiffs’ proposed use. See PM at 19-28, 47-50. c. The City’s differential treatment of a Buddhist meditation center and Christian Bible club meetings, Bible study and church group meetings. See PM at 28, 44-45. d. Other targeting of the Plaintiffs, including Anderson having Esham file a “311” complaint against Plaintiffs, statements made by Anderson to the City Council and in the press. See PM at 11-13, 18-19, 50. e. The availability of less discriminatory avenues to address any legitimate governmental interests, which the City admitted that it failed to consider. See PM at 22, 41, 50. f. The foreseeability of the discriminatory impact. See PM at 50. Defendant fails completely to address the evidence, which at the very least establishes a prima facie case of discrimination under the Equal Protection Clause and RLUIPA’s Nondiscrimination provision. The City argues that “Plaintiffs lack proof” of both comparators and intentional discrimination (DM at 32), but it disregards all of the evidence referred to above and described in Plaintiffs’ Motion. Failing to address it does not mean that it does not exist. 1. Plaintiffs were treated differently from other similarly situated religious assemblies or institutions. Defendant argues that the only relevant comparator would be another meditation center with an existing 5,000 square foot house and a garage where the owners reside, a 2,400-square foot meditation center, a 2,000-square foot cottage, and a 600-square foot bathroom facility. DM at 32 (arguing that comparators must “contain these unique attributes”). This, again, is not the law. Comparable religious institutions must be similarly situated in their relevant aspects, not in all aspects. Scientology, 843 F. Supp. 2d at 1362; see also Church of Our Savior, 69 F. Supp. 3d at 1323 (holding that school granted CUP was a similarly situated comparator despite differences, as “no two situations are ever going to be exactly the same”); cf. Midrash Sephardi, 366 F.3d at Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 34 of 52 34 1230 (same, in Equal Terms context). “[A] requirement that [comparators] be ‘identical’ is unduly restrictive. See Third Church of Christ, Scientist, 626 F.3d at 670 (surveying various bases for comparison relied upon by circuits, none of which require comparators to be ‘identical’).” Chabad Lubavitch, 768 F.3d at 199-200. The Second Circuit discussed the holding of Konikov in the context of a section 2000cc(b)(1) Equal Terms challenge: [A] secular comparator in an as-applied challenge should be selected by looking at “the evidence considered by” the governmental body imposing the restriction to ascertain the criteria it used in making its determination and then identifying a secular organization meeting those same criteria. In most zoning cases, because the government’s focus is on the impact of the land use, the court should look for an organization “having comparable community impact” as the religious group. Id. Third Church of Christ, 626 F.3d at 670. Thus, a use that would have “similar” (not “identical”) impacts such as a prayer meeting and a cub scout troop were comparable. See also Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 265 (3rd Cir. 2007) (comparing a church to an assembly hall). Here, Plaintiffs produced a substantial amount of evidence of various, much larger Christian churches that would have not only similar but greater impacts on the criteria used (“harmony” and traffic issues). This includes: 1. The City has not produced any documents demonstrating that any application for Planning Approval for another church or religious facility has ever been ultimately denied. The City has admitted that it has not denied such an application within the last ten years, and its 30(b)(6) witness “believes” that one church had been denied prior to that, but he lacked certainty. See PM at 19-20 & n 7. 2. The City has granted Planning Approval to churches where there was community opposition. PM at 20 (Port City Church of Christ; Ashland Place UMC)). 3. The City usually attempts to work with religious applicants to mitigate impacts and allow approval. PM at 19. 4. The City has granted Planning Approval to religious facilities in the R-1 district that would create land use impacts related to community character and traffic issues Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 35 of 52 35 by imposing conditions on such approvals.23 PM at 21 (New Home Baptist Church, Redeemed Community Church, Mobile Terrace Christian Center, St. Dominic Catholic Church, Dunnaway church school, St. Ignatius, Smith Memorial AME Church). 5. The City has granted Planning Approval to churches in the R-1 district that would be surrounded by single family residential uses. PM at 23-24 ((Port City Church of Christ, New Home Baptist Church, Ashland Place UMC, St. Dominic Catholic Church, St. Ignatius, Smith Memorial AME Church, Sweet Pilgrim Baptist Church, Ashland Place UMC). 6. The City has granted Planning Approval to a church in the R-1 district that was located on the Dog River on property very similar to Plaintiffs’ location. PM at 24 (Gates of Praise Missionary Baptist Church). 7. The City has granted Planning Approval to churches in the R-1 district that were significantly out of scale with the surrounding single-family homes. PM at 24 (St. Dominic, St. Dominic, Port City Church of Christ, St. Ignatius). 8. The City has granted Planning Approval to a church in the R-1 district where staff recommended denial because the use was not in harmony with the residential nature of the area. PM at 24 (Mobile Terrace Christian Center). 9. No application for Planning Approval has been denied based on a simple increase in traffic. PM at 26. 10. The City has granted Planning Approval to religious facilities in the R-1 district that would have traffic impacts by imposing conditions on access and road issues. PM at 27 (Redeemed Community Church, Dunnaway church school, St. Ignatius, Smith Memorial AME Church). 11. The City has granted Planning Approval to religious facilities in the R-1 district that were located on substandard roads, over staff’s recommendation of denial. PM at 28 (Dkt. #1 ¶¶ 282-283, Dkt. #32 ¶¶ 282-283, Mobile Terrace Christian Center). These comparators are all similarly situated as to the “reasons” provided in the purported letter of decision and were all granted Planning Approval, while Plaintiffs were denied. See Guru Nanak, 456 F.3d at 990 (“Hence, the County inconsistently applied its concern with leapfrog development to Guru Nanak.” (footnote omitted)); Church of Our Savior, 69 F. Supp. 3d at 1322 (holding that Montessori School was similarly situated comparator “with respect to circumstances and the 23 The City has admitted that expansions of existing church uses can also affect community character, traffic and noise issues, and that the standard to be applied to Planning Approval is the same for existing and new land uses. PM at 23. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 36 of 52 36 considerations at play in both situations”); Scientology, 843 F. Supp. 2d at 1366 (holding that synagogue was a similarly situated comparator where “Plaintiff was in the same position as [synagogue] in terms of potentially utilizing a shared parking arrangement . . . .”). 2. Defendant has not rebutted Plaintiffs’ prima facie case that it unequally applied its zoning laws for the purpose of discriminating against Plaintiff. Plaintiffs have provided prima facie evidence24 that they were treated differently and worse by the City of Mobile based on their religious beliefs and practices. Since Plaintiffs have met their burden under section (b)(2) of RLUIPA, the burden of persuasion shifts to the Defendant. 42 U.S.C. § 2000cc-2(b); Chabad Lubavitch, 768 F.3d at 198 (“As with the equal terms provision, the plaintiff bears the initial burden of establishing a prima facie claim, after which the government bears the burden of persuasion on the elements of the nondiscrimination claim.”). Courts have applied equal protection analysis to nondiscrimination claims under RLUIPA, holding that selective enforcement of a facially neutral law violates RLUIPA. Scientology, 843 F. Supp. 2d at 1361 (citing Primera Iglesia, 450 F.3d at 1308 (11th Cir. 2006). For example, in Adhi Parasakthi Charitable, Medical, Educational, & Cultural Society of North America v. Township of West Pikeland, 721 F. Supp. 2d 361, 386 (E.D. Pa. 2010), the district court held that summary judgment was inappropriate on Plaintiff’s nondiscrimination claim because a question of material fact existed as to whether the facially neutral law had been applied in a discriminatory manner. The City states, without evidentiary support, that the Planning Commission decided against the Plaintiffs “under the facially-neutral planning approval standard contained in the Zoning Ordinance, . . . .” DM at 41. There is no support for this conclusion. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985) (holding that “conclusory allegations without specific 24 That evidence is summarized below and discussed in Plaintiffs’ Statement of Facts included in Plaintiffs’ Memorandum filed in Support of their Motion for Partial Summary Judgment at pages 1-28, and additionally at Section II(B) of the Memorandum at 44-50. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 37 of 52 37 supporting facts have no probative value.”). The Defendant has failed to advance any nondiscriminatory reason for the land use decision in this case, but rather appears merely to repeat--without adopting as its own reasons--statements made by hostile third parties, which are unsupported by any professional analysis and at all points enmeshed with statements of hostility toward Plaintiffs’ beliefs. DM at 14-16; DM at 32-33. See City of Cleburne, 473 U.S. at 448 (“mere negative attitudes, or fear, unsubstantiated by factors which are properly cognizable in a zoning proceeding, are not permissible bases for treating a home for the mentally retarded differently from apartment houses, multiple dwellings, and the like.”); cf. Church of Jesus Christ of Latter-Day Saints v. Jefferson Cty., 741 F. Supp. 1522, 1534 (N.D. Ala. 1990) (“Allowing churches to go only where they are welcome smacks of an unreasonable burden, even if the opposition is not related to the denomination of the church.”). Councilman Small admitted as much, stating that his concern was based in part “on complaints from his constituents.” DM at 21; Exh. J at 14:23-17:7; 40:20-41:6 (Deposition of C.J. Small). Even if the Court were to adopt the statements of hostile neighbors as the City’s own position--which the City has not done--the objections are merely pretextual,25 as demonstrated by 25 Pretext analysis applies in the RLUIPA context. See United States v. Cty. of Culpeper, Va., 245 F. Supp. 3d 758, 765 (W.D. Va. 2017) (holding that “the facts alleged support an inference that the contemporaneous, supposed reasons for denial . . . were pretexts for religious discrimination”); Albanian Associated Fund v. Twp. of Wayne, Civ. No. 06-3217, 2007 WL 2904194, at *6 (D.N.J. Oct. 1, 2007) (“the issue is whether defendants can demonstrate that plaintiffs cannot, as a matter of law, establish by clear and convincing evidence that the taking for open space is pretext for discrimination”); Westchester Day School, 417 F. Supp. 2d at 559 (“The ZBA should not be allowed to frustrate the December 2002 Order by providing less than a fair hearing and simply denying the Application in response to the same small but vocal public outcry that prompted it improperly to rescind the Negative Declaration under the guise of the same pretextual concerns.”), aff'd, 504 F.3d 338 (2d Cir. 2007); Hunt Valley Baptist Church, 2017 WL 4801542, at *23 (noting that “the Subcommittee heard testimony concerning ‘a pattern of abuse that exists among land use authorities who deny many religious groups their right to free exercise, often using mere pretexts (such as traffic, safety, or behavioral concerns) to mask the actual goal of prohibiting constitutionally protected religious activity.’ H.R. Rep. 106-219, at 20.”). Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 38 of 52 38 the departures from neutrality and selective enforcement of the zoning ordinance that characterized the City’s treatment of Plaintiffs’ applications. “A plaintiff may show pretext by either directly persuading the court that a discriminatory reason motivated the [defendant], or by indirectly showing that the [defendant’s] proffered explanation is unworthy of credence.” Ivey v. Paulson, 222 Fed. Appx. 815, 818 (11th Cir. 2007) (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981)). Under the second method, a plaintiff must establish “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [defendant’s] proffered legitimate reasons . . . that a reasonable factfinder could find them unworthy of credence.” Moore v. Jefferson Cnty. Dep't of Human Res., 277 Fed. Appx. 857, 859 (11th Cir. 2008) (citing Cooper v. S. Co., 390 F.3d 695, 725 (11th Cir. 2004)). See Open Homes Fellowship, Inc. v. Orange Cty., Fla., 325 F. Supp. 2d 1349, 1360 & n.26 (M.D. Fla. 2004) (“[T]he city’s rejection of the center’s special use application was not rationally related to a legitimate government purpose but instead was based upon unfounded fear, speculation, and prejudice. The court found the government’s stated purposes to be pretextual, . . . .”). Both showings are made here. The evidence of discriminatory motivation is discussed in Plaintiffs’ motion at pages 11- 19, 28 and 45-47 of their memorandum (Dkt. #94), and includes: A. The City’s admission in its responses to interrogatories that the proposed Buddhist meditation center is not a “church or religious facility” under its interpretation of its Code. PM at 15-16. B. Anderson deciding that the Buddhist meditation center was not a “church or religious facility” like a Baptist or Episcopal church, and his decision incorporated into the City’s second staff report, even though prior to Esham and Anderson raising the issue, no staff disputed the religious nature of the use. PM at 9-10, 13-16. C. Anderson and the City being responsive to hostile residents who claimed that a Buddhist meditation center was not a religious use, spied on Plaintiffs, and were likely told by Anderson to submit a “311” complaint against Plaintiffs. PM at 11-12. D. Failure to inform Plaintiffs that the use might not be permitted because the City decided the use was not a “church or religious facility,” even though that would be the normal Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 39 of 52 39 course of action for City staff. PM at 9. E. The City requiring Plaintiffs to provide proof about their religious status, even though no prior applicant has ever been requested to produce the same. PM at 13-14. Defendant admits in their brief that no other applicant had been treated in this manner. DM at 12-13 (issue raised “was a first”). F. After holdover, City staff being ordered by Anderson to recommend denial on the sole basis that the Buddhist meditation center was not a church or religious facility. PM at 14. This is significant because if there were any remaining legitimate land use impacts that could have been addressed prior to the second Planning Commission hearing, the Plaintiffs were unable to do so based on the City’s determination that the use was not permitted. Therefore, the Plaintiffs were treated differently and worse than other applicants, based on their religion. G. Planning Commission questions at the second hearing only concerned the religious nature of the proposed use. PM at 15. H. The Planning Commission purportedly reversing City staff’s decision about the nature of the use, even though only the Board of Adjustment has such authority. PM at 10- 11; Exh. N at 44:14-19 (DA Dep.). I. Boilerplate “reasons” for denial that were formulated after the Planning Commission’s hearing and ordered to be used by Anderson, which were not provided by the Planning Commission, discussed by the Planning Commission, reviewed by the Planning Commission, or approved by the Planning Commission. PM at 16-17. The draft “Minutes” (no final Minutes were produced) state that the “reasons” were stated by Planning Commissioner Daves, which was untrue. PM at 17. J. During the Plaintiffs’ appeal, Anderson told the City Council that “This is not a religious facility.” PM at 18-19. K. Anderson falsely told the City Council that only an IRS letter was produced by the Plaintiffs to demonstrate the religious nature of the use, even though articles of incorporation, letters from Buddhist monks who had taught at the Center, a letter on behalf of the Dhammakaya Foundation discussing the Center’s affiliation, and a letter from a University professor discussing the centrality of meditation to Buddhism was provided to the City. PM at 13-14, 19. Hoffman does not recall discussing these letters either. Dkt. #93-5 at 134:18-20 (BH Dep.). L. The City shutting down all Buddhist meditation activity at a prior location because it was a place of worship, then recommending denial at the Eloong Drive property because it was not a place of worship. PM at 5. M. Permitting Bible club meetings, Bible study or church group meetings to take place at residential homes on a regular basis, while prohibiting Plaintiffs’ meditation activity. PM at 28; Exh. N at 72:14-73:5; 74:17-23 (DA Dep.) (Anderson is not aware of any enforcement against group Bible study in a home and does not believe that such use violates the zoning code). Cf. Konikov v. Orange Cty., Fla., 410 F.3d 1317, 1328 (11th Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 40 of 52 40 Cir. 2005) (“[A] group meeting with the same frequency as Konikov’s would not violate the Code, so long as religion is not discussed. This is the heart of our discomfort with the enforcement of this provision.” (emphasis in original)). N. “Tremendous” community opposition to Plaintiffs’ use at the Airport Boulevard location where they had previously applied, as well as at the Eloong Drive location. PM at 6, 18. There is no evidentiary support for Defendant’s position that the Planning Commission’s decision was based on anything other than the City’s position (Dkt. #93-8 No. 18) that the Buddhist meditation center is not a “church or religious facility.” Evidence that the opponents’ “reasons” are “unworthy of credence,” PM at 19-28, 37-41, primarily includes the testimony of the City’s own staff, who admit: A. The use could be screened from the adjacent properties, and that the Property is large enough to “provide sufficient space to screen the activity on the property from the meditation center from adjacent residential uses.” PM at 20. B. (By the City’s Planner) That other than the issue of the Applicants’ religious status, there was nothing in the Staff Report that suggested that Planning Approval could not be granted. PM at 20. C. Road access and driveway issues can be resolved by conditions on Planning Approval, such as regulating curb cuts and stating that development must comply with AASHTO standards and the International Fire Code. PM at 20. D. That the use (with respect to the previous application) would be very conducive to a single family residential area, and “[w]ith regard to the general compatibility of the use, the meditation center would likely be a relatively ‘quiet’ neighbor and might generally be conducive to location in a residential area.” PM at 22. E. “No evidence was provided by either side, both before and against, regarding the potential traffic impact of the center,” no level of service analysis was performed, and the Traffic department was never asked to do a traffic study or a trip generation calculation. PM at 25. F. Traffic engineering comments on the application were “very ordinary comments” and “could be satisfied.” PM at 25. G. The width of Eloong Drive was not “a reasonable basis to deny the application.” PM at 28. H. (By the City’s traffic engineer) The proposed meditation center use would not create traffic safety issues. Exh. 93-18 at 75:23-76:3. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 41 of 52 41 This evidence demonstrates that the purported “reasons” are mere pretext, meant to cover the City and residents’ hostility towards Plaintiffs based on religion. Defendant responds by stating that “[t]here 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.” DM at 32. First, that is not true, as the comments and questions nearly completely focused on Plaintiffs’ religious character. Second, Plaintiffs are not required to prove that the members of the Planning Commission directly stated: “I denied the applications because I am hostile toward Buddhists.” See Scientology, 843 F. Supp. 2d at 1371 (noting that “it is rare for a government to expressly offer religion as its reason to exclude a church”); Veasey v. Abbott, 830 F.3d 216, 235 (5th Cir. 2016) (“In this day and age we rarely have legislators announcing an intent to discriminate . . . . To require direct evidence of intent would essentially give legislatures free rein to racially discriminate so long as they do not overtly state discrimination as their purpose and so long as they proffer a seemingly neutral reason for their actions.”). In drafting RLUIPA, Congress observed that “discrimination lurks behind such vague and universally applicable reasons as traffic, aesthetics, or ‘not consistent with the city’s land use plan.’” 146 CONG. REC. S7774-01, S7774, 2000 WL 1079346 (Joint Statement of Sens. Hatch and Kennedy on RLUIPA). Discrimination may result from “subtle departures from neutrality,” Church of the Lukumi Babalu Aye, 508 U.S. at 534; Hollywood, 430 F. Supp. 2d at 1315 (same). “Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.” Hialeah, 508 U.S. at 520. Nor do Plaintiffs need to demonstrate that discriminatory motivation was the sole factor in the decision, but rather just a significant reason. Arlington Heights, 429 U.S. at 265 (“Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 42 of 52 42 motivated solely by a single concern, or even that a particular purpose was the “dominant” or “primary” one.”); Scientology, 843 F. Supp. 2d at 1371 (same); Hunter v. Underwood, 471 U.S. 222, 232 (1985) (stating that “an additional purpose . . . would not render nugatory the purpose to discriminate . . . .”); Pers. Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 277 (1979) (“Discriminatory intent is simply not amenable to calibration. It either is a factor that has influenced the legislative choice or it is not.”). 3. Defendant has failed to assert that it has used the least restrictive means of achieving any compelling governmental interest. “Once the plaintiff meets its initial burden and produces prima facie evidence supporting [a RLUIPA section 2000cc(b)] claim, the government bears the burden of showing that its implementation of the land use regulation passes strict scrutiny—that is, the regulation ‘employs a narrowly tailored means of achieving a compelling government interest.’ Covenant Christian Ministries, Inc. v. City of Marietta, 654 F.3d 1231, 1245 (11th Cir. 2011) (citing Primera, 450 F.3d at 1308).” Scientology, 843 F. Supp. 2d at 1360. The same applies under the Equal Protection Clause. See Chabad of Nova, Inc. v. City of Cooper City, 575 F. Supp. 2d 1280, 1292 (S.D. Fla. 2008) (citing City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976)). Again, Defendant has failed to address this element of Plaintiffs’ claims and therefore for the reasons stated above and in their Motion, Plaintiffs, and not the City, are entitled to summary judgment on Counts II and V of their Complaint. B. RLUIPA’s “Equal Terms” Provision (Count III) With respect to Defendant’s arguments regarding Plaintiffs’ Equal Terms claim under 42 U.S.C. § 2000cc(b)(1), the City again ignores the existence of similarly situated nonreligious assembly and institutional land uses that support Plaintiffs’ claim. See generally PM at 23-24, 28, 49-50 (arguments incorporated herein). Its argument appears to be that because Plaintiffs’ expert Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 43 of 52 43 witness is unaware of any similarly situated nonreligious assembly or institutional use within the last fifteen years, then Plaintiffs’ claim must fail. DM at 34. This disregards other evidence concerning a nearly identical comparator, the Alba Fishing and Hunting Club. PM at 23. This Club is located in the R-1 district, near the subject Property, on the Dog River, surrounded by single family residential uses, and on two substandard local roads. Id. at 23-24, 28, 49. The property is approximately 8.5 acres, very similar to the subject Property. Exh. K at 1 (Staff Report and Letter of Decision). The City’s 30(b)(6) witness testified that the location was “very similar” to the subject Property and Councilman Small admitted that the streets near the Club are so narrow that drivers “have to pull onto the side of the road . . . to go in and out . . . .” PM at 24. Nevertheless, it was approved for a “substantial expansion” in 2006 including a new meeting hall and multiple buildings to be constructed on its property. PM at 49; Exh. K at COM011179-80; Exh. L (Floor Plan). Many conditions were recommended for this substantial expansion to mitigate land use impacts. Exh. K at 6. Another nonreligious assembly or institutional comparator that received Planning Approval was the Pinecrest East crematorium (see PM at 27, noting that City was willing to approve by imposing conditions on access and road issues). A municipality violates RLUIPA if an application for a secular purpose is treated differently than one with a religious purpose. Midrash Sephardi, 366 F.3d at 1230-31. In reviewing an Equal Terms claim, a court determines whether a secular organization meets the same criteria used by the governmental body when making its decision (as in the Nondiscrimination context, supra), and if there was a difference in treatment. Konikov, 410 F.3d at 1327. Here, the Alba Club meets the same criteria as the Plaintiffs. The focus of the court’s analysis should therefore be on the community impact caused by the religious organization in contrast to the impact from the secular comparator. Konikov, 410 F.3d at 1327; see also Lighthouse Inst. for Evangelism, Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 44 of 52 44 Inc. v. City of Long Branch, 510 F.3d 253, 265 (3rd Cir. 2007) (comparing a church to an assembly hall). This Court should not focus on minor formal or technical distinctions that may exist between Plaintiffs’ proposed use and other approved uses. Third Church of Christ, 626 F.3d at 671; Irshad Learning Ctr. v. County of Dupage, 937 F. Supp. 2d 910, 936 (N.D. Ill. 2013) (holding that “the equal-terms provision does not require that ILC demonstrate an exact comparison” but rather “must still establish that it was sufficiently similar . . . with respect to accepted zoning criteria in order to prevail on an equal-terms claim”). Finally, as the Eleventh Circuit has attached a strict scrutiny review component to the Equal Terms analysis, Primera Iglesia, 450 F.3d at 1308, it is again necessary to point out that the City makes no argument that denial of the Applications was the least restrictive means of achieving a compelling governmental interest. III. DEFENDANT IS NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFFS’ NEGLIGENT MISREPRESENTATION CLAIM (COUNT VII). The Defendant’s argument as to Plaintiffs’ Count VII is based on a misreading of Plaintiff’s Complaint (Dkt. #1 at ¶¶ 127, 310), Plaintiff’s Opposition to Defendant’s Motion to Dismiss (Dkt. #25 at 25-26) and Judge Milling’s Report and Recommendation dated October 12, 2016 (Dkt. #30), adopted by this Court on October 31, 2016 (Dkt. #31). Each of these identifies the basis for Plaintiffs’ negligent misrepresentation claim: that Hoffman told Plaintiffs during the April 24, 2015 predevelopment meeting that the proposed use would be treated as a religious facility during the zoning process, the Plaintiffs reasonably relied on that representation, and that this was not done, causing harm to Plaintiffs. Dkt. #30 at 23. Plaintiffs do not allege that they were promised that the use “would ultimately be approved.” DM at 43. Defendant ignores this Court’s prior Order and again argues that Plaintiffs actually pled a promissory fraud claim. DM at 44. Defendant is rehashing its unsuccessful Motion to Dismiss argument. (Dkt. #18 at 14-15.) Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 45 of 52 45 Plaintiffs did not move for summary judgment under Count VII of their Complaint, since disputed issues of material fact may exist as to this claim. PM at 30 n 13. On April 16, 2015, Sivaporn Nimityongskul entered into an addendum to the purchase contract for the Property conditioning the purchase on the buyer determining that it has the right to construct a meditation building and dwellings for monks. SN Opp. Dec. ¶ 5; Exh. L (Response to Counter Offer); Exh. H at 55:20-58:3 (SN Dep.). Sivaporn Nimityongskul then attended the April 24, 2015 predevelopment meeting and recalls being told “many times” that a Meditation Center at 2410 Eloong Drive was “allowed” with planning approval. SN Opp. Dec. ¶ 6; Exh. H at 74:15-76:12 (SN Dep.). That recollection is supported by Hoffman’s email following the meeting, “We told the potential applicant that the use of the house as a meditation center would require: 1) Planning Approval for worship related use; . . . .” (Dkt. #93-27.) Ms. Nimityongskul then removed the contingencies and purchased the property. SN Opp. Dec. ¶ 6; Dkt. #92-6. Later, the City’s attorney determined otherwise and Planning Staff wrote prior to the December 3, 2015 hearing that, “[t]he allowance of a meditation center within a residential district would not be a determination to be made via Planning Approval, but rather, by a Use Variance through the Board of Zoning Adjustment.” (Dkt. #93-22 at 12.) At the December 3, 2015 Planning Commission meeting, Plaintiffs’ applications for the Center were not treated as a “worship related use,” Plaintiffs were not provided the opportunity to address any remaining land use issues, and the stated “reasons” for denial were pretextual. See supra; PM at 15. Contrary to Mr. Hoffman’s representations during the predevelopment meeting, Plaintiffs were forced to spend most of the Planning Commission hearing on their application defending the zoning classification rather than discussing the planning aspects of the proposed use.26 If Ms. Nimityongskul had been advised 26 Whether or not Plaintiffs’ use was “religious” is entirely a zoning question, although it predominated the Staff’s review and the discussion at the hearing. The Alabama Supreme Court Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 46 of 52 46 during the predevelopment meeting that she would be forced to obtain a use variance, she would not have purchased the property. SN Opp. Dec. ¶ 7; Exh. H at 322:4-8. Whether or not Plaintiffs’ use was eligible for Planning Approval versus requiring a Use Variance is a material fact. To obtain a use variance, it is necessary that one prove that the plight of the premises is unique in that they cannot be put reasonably to a conforming use. City of Mobile v. Surrell, 124 So. 2d 463, 465 (Ala. 1960). The subject Property can be put to a conforming use since a single-family residence exists on the property now. In City of Mobile v. Sullivan, the court held that the City was negligent in its misrepresentation that the property’s zoning classification would allow the property owner’s intended use. 667 So. 2d 122, 123-124 (Ala. Civ. App. 1995). The owners had paid for land they could not use for their intended purpose, just as Plaintiffs in this case obtained land that they cannot use as intended. Further, Plaintiffs’ reliance on Hoffman’s representation was reasonable. In Alabama, reliance is reasonable unless “the circumstances are such that a reasonably prudent person who exercised ordinary care would have discovered the truth facts.” Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757, 759 (Ala. 1983); Bryant Bank v. Talmadge Kirkland & Co. Inc., 155 So. 3d 231, 236 (Ala. 2014) (recognizing Torres standard for reasonable reliance governs claims of negligent misrepresentation). Plaintiffs exercised ordinary care and could not have foreseen the way the Defendant would change its treatment of Plaintiffs’ applications. Defendant’s Motion as has distinguished these concepts: “‘Zoning’ and ‘planning’ are not synonymous, though they are sometimes so used. ‘Planning’ and ‘zoning’ include some common objectives, but most authorities agree that they are separate and distinct. Broadly speaking, ‘planning’ relates to the systematic and orderly development of a community with particular regard for streets, parks, industrial and commercial undertakings, civic beauty and other kindred matters properly within the police power. ‘Zoning’ is primarily concerned with the regulation of the use of property, to structural and architectural designs of buildings, and the character of use to which the property or the buildings within classified or designated districts may be put.” Robertson v. City of Montgomery, 233 So. 2d 69, 72 (Ala. 1970). Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 47 of 52 47 to Count VIII should be denied. IV. THE THAI MEDITATION ASSOCIATION OF ALABAMA, INC. HAS STANDING. At this late date, the Defendant challenges the standing of one of the Plaintiffs, the Thai Meditation Association of Alabama, Inc. (the “Association”). Defendant alleges that the lease is somehow invalid because of the timing of its execution. DM at 46. However, the intention was always for the Association to operate the Center on the Property. SN Opp. Dec. ¶ 3. The Association operates the existing facility on Airport Boulevard, which would be moved to the Eloong Drive location. SN Opp. Dec. ¶ 3. The purpose of the lease was for the Association to be able to operate there if the Plaintiffs prevail in this suit. SN Opp. Dec. ¶ 4. Defendant’s argument that there is no “concrete injury” because the Association has continued to operate at the Airport Boulevard location (DM at 47) speaks to the merits of Plaintiffs’ claims and not to whether the Association has standing to challenge the denial of Planning Approval for the Eloong Drive property (otherwise no plaintiff that currently operates would ever have standing, such as those in WDS and Sts. Constantine & Helen). The City’s argument that the Association has not suffered “an injury in fact” because it was not an applicant before the Planning Commission and the City Council is not supported by the text or the legislative history of RLUIPA, nor do the City’s cited cases support their position. Rather, RLUIPA states explicitly that, “[s]tanding to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.” 42 U.S.C. § 2000cc–2(a). There is no “statutory standing” (generally known as “prudential standing”) requirement under RLUIPA, as Defendant suggests (DM at 45, 47). Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 (2014) (discussing the “‘prudential’ branch of standing, a doctrine not derived from Article III”). See Oblates of St. Joseph v. Nichols, Civ. No. Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 48 of 52 48 01-2349, 2002 WL 34938200, at *5 (E.D. Cal. Apr. 26, 2002) (“It seems clear that as to plaintiffs’ claims under 42 U.S.C. § 2000cc, Congress intended to eliminate prudential standing requirements.” (citing 42 U.S.C. § 2000cc–2(a))). A zoning restriction on property constitutes an injury in fact. Midrash Sephardi, 366 F.3d at 1224 (11th Cir. 2004). For purposes of RLUIPA standing, a plaintiff is injured if it is “barred from assembling for religious worship on the Property,” a situation that most certainly applies to the Association in this case. Primera Iglesia, 450 F.3d at 1304 (11th Cir. 2006). The Plaintiff Association has a leasehold interest in the Property at issue, has possessed its interest since the start of this litigation, and cannot engage in religious exercise on the Property. It falls within the text of the RLUIPA. 42 U.S.C. § 2000cc-5(5) . This inability to engage in religious exercise is a direct result of the City’s denial of Planning Approval. There is therefore an injury to the Association that is fairly traceable to the City. See Florida Pub. Interest Research Grp. Citizen Lobby, Inc. v. E.P.A., 386 F.3d 1070, 1085 (11th Cir., 2004). This injury can be redressed by a ruling in favor of the Plaintiffs; as such a ruling would permit the Association to be able to use the property for religious services. See Primera Iglesia, 450 F.3d at 1304 (11th Cir. 2006); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Standing must exist “at the time the action commences . . . .” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191 (2000). The “case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. . . . The parties must continue to have a ‘personal stake in the outcome’ of the lawsuit.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478 (1990) (emphasis added). There is no requirement Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 49 of 52 49 that a plaintiff have some theoretical “standing”27 prior to the litigation. The other Plaintiffs transferred an interest in the Property (the leasehold) to the Association prior to the commencement of the litigation. Cf. Sprint Commc'ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 285-86, 289 (2008) (holding that assignees can satisfy Article III standing requirements, where assigning a claim “confers a property right”); Rasmussen v. Central Fla. Council Boy Scouts of Am., Inc., 412 Fed. App’x 230, 234 (11th Cir. 2011) (third party assigned property rights had standing to litigate claim); Carter v. AMC, LLC, 645 F.3d 840, 844 (7th Cir. 2011) (agent had standing to pursue collection of a debt when it acquired the authority to collect the money). Such assignees of rights presumably would not have had standing to file suit to redress an original injury when it occurred; they gained it upon assignment. Federal Rule of Civil Procedure 25(c) even contemplates such transfers of interest during the course of litigation. Fed. R. Civ. P. 25(c) (discussing substitution of parties if interest is transferred). The City’s reliance on Love Church v. City of Evanston, 896 F.2d 1082 (7th Cir., 1990), which pre-dates RLUIPA, is misplaced. In Love Church, the underlying lease for the property that the Church sought to make use of was not entered into until March 15, 1988, nearly 15 months after the onset of the litigation, unlike the situation here. Id. at 1084. It was the nonexistence of a valid lease at the commencement of the litigation which formed the basis of the court’s decision regarding standing. Id. at 1083. The case stands for the proposition that if a lawful lease is executed prior to the start of litigation, the leaseholder has standing. Foresite, LLC v. City of Mobile Bd. of Zoning Adjustment, Civ. No. 14-0048, 2014 WL 1760992, *2 (S.D. Ala. 2014), stands only for the well-established proposition that a party pursuing 27 There is no concept of Article III “standing” outside and independent of a federal action; standing relates to “[t]he Constitution's case-or-controversy limitation on federal judicial authority, . . . .” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 50 of 52 50 a claim for breach of contract “must show that [it] held a legally protected interest in the [contract].” Id. (quoting Avenue CLO Fund, Ltd. v. Bank of America, 709 F.3d 1072, 1077 (11th Cir. 2013)). In Foresite, the damages incurred by the Plaintiff were speculative, reliant upon work that would be done after the applications were approved and therefore plaintiff’s compensation was expressly conditioned on government approval of the applications. Id. Here, the Association already has a leasehold interest in the regulated property. The Association is not asserting a cause of action based on someone else’s prohibited religious exercise but rather regarding its own. Such religious exercise is prevented based on the City’s actions and can be redressed with a favorable decision by the Court. It had a property interest pursuant to 42 U.S.C. § 2000cc–5(5) when it filed suit. Nothing more is required for Article III standing, and there is no requirement that the Association was required to have a legal interest in the Property at some other point in the past. CONCLUSION For the foregoing reasons, and for the reasons discussed in Plaintiffs’ Motion for Partial Summary Judgment, Plaintiffs Thai Mediation Association of Alabama, Inc., Sivaporn Nimityongskul, Prasit Nimityongskul, Serena Nimityongskul and Varin Nimityongskul respectfully request that this Court deny Defendant’s Motion for Summary Judgment. /s/ Blair Lazarus Storzer John L. Lawler Roman Paul Storzer, admitted pro hac vice Post Office Box 47 Blair Lazarus Storzer, admitted pro hac vice Mobile, AL 36601 Storzer & Associates, P.C. Tel: 251-432-8861 1025 Connecticut Avenue, NW, #1000 lawler@micro-comm.net Washington, DC 20036 Tel: 202-857-9766 storzer@storzerlaw.com Attorneys for Plaintiffs bstorzer@storzerlaw.com Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 51 of 52 51 CERTIFICATE OF SERVICE I hereby certify that I served a copy of the foregoing document through the Court’s ECF system on November 13, 2017 to the below attorneys: Michael D. Strasavich Taylor B. Johnson Burr & Forman, LLP P.O. Box 2287 Mobile, AL 36652 /s/ Blair Lazarus Storzer Blair Lazarus Storzer Attorney for Plaintiffs Case 1:16-cv-00395-CG-MU Document 98 Filed 11/13/17 Page 52 of 52