We tend not to think of churches as “blighting” their neighborhoods. But what about a church in a downtown “entertainment” district, where the nearby businesses are bars, nightclubs, and liquor stores, and placing a church in the area might limit the availability of liquor licenses?
In a sort of reversal of the usual LULU (locally undersirable land uses) issue, in Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, No. 09-15442 (July 12, 2011), the Ninth Circuit considered whether a municipality ran afoul of RLUIPA’s “equal terms” provision when it required a church to seek a conditional use permit before it could relocate to a downtown entertainment area, and then denied the permit because it might limit the liquor licenses that could be issued to nearby businesses.
Arizona law prohibits issuance of a liquor license to any new bar, nightclub, or liquor store within 300 feet of a church or school, and consequently, Yuma’s land use ordinance requires religious organizations and schools to obtain a CUP before they can open in the Old Town Main Street district. Most other uses do not need a CUP.
Centro Familiar, a 250-member congregation, wanted to relocate from an old movie theater to a former J.C. Penney store downtown, and several businesses already there objected. Although it noted the positive features the church would add to the downtown neighborhood, staff at the city’s Planning and Zoning Commission recommended denial of the permit because the church would be “inconsistent with a ’24/7 downtown neighborhood involving retail, residential, office and entertainment.’ The liquor license problem was the ‘pivotal factor.'” Slip op. at 9363. Centro Familiar sued under RLUIPA’s equal terms provision, seeking declaratory and injunctive relief, and damages. The district court ruled in favor of the city.
The Ninth Circuit reversed. It first concluded that Centro Familiar’s requests for declaratory and injunctive were moot because after the lawsuit was filed, the church lost the property to foreclosure, and because the state law imposing the 300 foot no-liquor-license zone was amended to allow for waivers. However, the court held that the damage claim remained a live controversy because damages are available to the church under RLUIPA’s “appropriate relief against the government” provision.
On the merits, the court held that Yuma’s ordinance violated RLUIPA’s equal terms provision — which requires the government in land use matters to treat religious assemblies and institutions on “no less than equal terms” than their nonreligious equivalents — because it requires “religious organizations” to seek a CUP in circumstances where nonreligious organizations would not. Centro Familiar made out a prima facie case of violation, so the burden shifted to the city to carry the burden of persuasion. The most interesting part of the opinion is the court’s treatment of the term “equal,” and how it applies in context:
Under the equal terms provision, analysis should focus on what “equal” means in the context. Equality is always with respect to a characteristic that may or may not be material. For example, one can legitimately treat a tall person differently from a short person for the purposes of picking a basketball team, but not for the purposes of picking a jury. Likewise, a ten-member book club is equal to a ten-member church for purposes of parking burdens on a street, but unequal to a 1000-member church. Equality, “except when used of mathematical or scientific relations, signifies not equivalence or identity, but proper relation to relevant concerns.” Thus, an ordinance that allowed membership organizations below some size would not have to allow churches substantially above that size, if parking were a relevant concern.
Slip op. at 9373-74 (footnote omitted). Applying this standard, the court concluded that the RLUIPA test is “[t]he city violates the equal terms provision only when a church is treated on a less than equal basis with a secular comparator, similarly situated with respect to an accepted zoning criteria. The burden is not on the church to show a similarly situated secular assembly, but on the city to show that the treatment received by the church should not be deemed unequal, where it appears to be unequal on the face of the ordinance” Id. at 9374-75 (footnote omitted). [Cert alert: footnote 47 notes that this test differs from the Third Circuit’s.]
The court concluded that the only zoning criterion identified was the “damper” on liquor licenses, a justification the court rejected because Yuma’s ordinance singled out religious organizations and there was no indication in the ordinance why it lumped schools in with religious organizations.The court also held that the ordinance was overbroad because it did not explain why it covered religious organizations when the state liquor license zone only covered “churches,” and “[t]he exclusion of religious organizations is too broad for the liquor license statute to explain it away, because it excludes religious uses other than churches.” Slip op. at 9377. Finally, the ordinance did not treat the church equally because “many of the uses permitted as of right would have the same practical effect as a church of blighting a potential block of bars and nightclubs. An apartment building taking up the whole block may be developed as of right, and so may a post office or prison.” Slip op. at 9378 (footnote omitted).
This was an issue of first impression in the circuit; the court had considered RLUIPA’s “substantial burden” provision in an earlier case, but never the equal terms provision. Now it has.