Case: 10-50035 Document: 00511505255 Page: 1 Date Filed: 06/10/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 10, 2011
No. 10-50035 Lyle W. Cayce
Clerk
THE ELIJAH GROUP, INC.,
Plaintiff-Appellant
v.
THE CITY OF LEON VALLEY, TEXAS,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
Before WIENER, GARZA, and PRADO, Circuit Judges.
WIENER, Circuit Judge:
Petitioner-Appellant The Elijah Group, Inc. (“the Church”) sued the City
of Leon Valley, Texas (“the City”), alleging that the City’s prohibition of the
Church from performing religious services on certain properties violates the
Texas Civil Practice and Remedies Code, the Texas Religious Freedom
Restoration Act (TRFRA), the federal Religious Land Use and Institutionalized
Persons Act (RLUIPA), and both the Texas and U.S. constitutions. After both
parties filed motions for summary judgment, the district court denied the
Church’s motion and granted the City’s, holding that the City did not violate any
of the statutes or either constitution relied on by the Church. We disagree with
the district court as to one of the Church’s RLUIPA claims and hold that the
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City’s imposition of its land use regulation violates the Equal Terms Clause of
that statute.
I. FACTS & PROCEEDINGS
A. Facts
The City is a relatively small municipality that is landlocked by the City
of San Antonio. Until March 2007, the City had maintained a zoning code that
allowed churches to obtain Special Use Permits (SUPs) to operate in business
zones designated “B-2.” At that time, however, the City amended its zoning code
for the announced purpose of stimulating the local economy by creating a retail
corridor on Bandera Road. That roadway through the City is lined primarily
with B-2 properties. The ordinance’s 2007 amendments both reclassified a
number of B-2 uses and eliminated the right of churches to obtain SUPs in B-2
zones. The City thereby effectively excluded churches entirely from B-2 zones
and relegated them to B-3 zones, which are designated for commercial uses with
larger space requirements. By contrast, the City preserved the right of some
similarly nonretail but nonreligious institutions to obtain SUPs in B-2 zones.
In January 2008, almost a year after the zoning ordinance was amended,
the Church entered into a contract to buy a property on Bandera Road that was
zoned B-2. The contract was contingent on the property owner successfully
petitioning the City to rezone the property from a B-2 to B-3 so that the Church
could occupy the property without restriction in accordance with the amended
ordinance. When the City denied that rezoning request, the Church nevertheless
agreed to lease the property from the owner until the zoning issue could be
resolved.
Despite generally zoning “churches” as B-3s, the City permitted the
Church to use the B-2 property for specified nonreligious activities. For example,
the Church obtained a Certificate of Occupancy from the City to allow day care
services on the B-2 property, but the certificate provides that “[t]he authorized
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use does not include any church use or any use which is inconsistent with the
B-2 zoning classification.” Therefore, when the Church later began to hold
religious services on that B-2 property, the City obtained a temporary
restraining order (TRO) against such activity as violative of the zoning
ordinance. Although the TRO has since expired, the City has declined to cite the
Church until this lawsuit is resolved.
B. Proceedings
The Church filed suit against the City in state court challenging the
amended ordinance’s validity and constitutionality under various state and
federal laws, including the RLUIPA. The City removed the case to federal court,
and the parties filed cross-motions for summary judgment. At the request of the
district court, a magistrate judge issued a report, which recommended that the
court grant the City’s motion for summary judgment and dismiss the Church’s
motion. The district court adopted the magistrate judge’s report in full and
entered the recommended judgment in favor of the City, dismissing all of the
Church’s claims. The Church timely filed a notice of appeal, challenging only the
district court’s dismissal of its claims under the Equal Terms and Substantial
Burden Clauses of the RLUIPA and under the TRFRA.
II. ANALYSIS
A. Standard of Review
We review a district court’s summary judgment disposition de novo,
applying the same legal standards as the district court.1 The district court
appropriately grants a motion for summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”2 In our review, we may only consider the summary
1
United States v. Caremark, Inc., Nos. 09-50727, 09-51053, 2011 WL 653183, at *5 (5th
Cir. Feb. 24, 2011) (citation omitted).
2
FED . R. CIV . P. 56(a).
3
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judgment record that was before the district court, and we must view that
evidence in the light most favorable to the non-moving party.3
B. The Equal Terms Clause
The Equal Terms Clause of the RLUIPA (“the Clause”) states:
No government shall impose or implement a land use regulation in
a manner that treats a religious assembly or institution on less than
equal terms with a nonreligious assembly or institution.4
When we focus on the text of the Clause, we read it as prohibiting the
government from “imposing,” i.e., enacting, a facially discriminatory ordinance
or “implementing,” i.e., enforcing a facially neutral ordinance in a discriminatory
manner. Here, issue is not taken with the City’s implementation of the zoning
ordinance as to the Church; rather, the Church makes a facial challenge to the
ordinance’s treating “churches” less favorably than other nonretail, nonreligious
institutions.
In prohibiting the government from treating a religious institution “on less
than equal terms with a nonreligious assembly or institution,” the Clause by its
nature requires that the religious institution in question be compared to a
nonreligious counterpart, or “comparator.” Since the enactment of the RLUIPA,
four circuits have constructed different tests for applying the Clause, each with
varying determinations of which nonreligious assemblies and institutions are
proper comparators to the religious assembly or institution that brings the
claim.
The Eleventh Circuit determines comparators based on whether the
challenged ordinance is facially neutral or facially discriminatory.5 If the
3
Caremark, 2011 WL 653183, at *5 (citations omitted).
4
42 U.S.C. § 2000cc(b)(1).
5
See Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d
1295, 1308 (11th Cir. 2006).
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ordinance is facially discriminatory, any nonreligious assembly or
institution—broadly defined as a “company of persons collected together in one
place” or an “establishment”—can be a comparator.6 Under that reading,
virtually every facially discriminatory ordinance violates the Equal Terms
Clause. The Eleventh Circuit further recognizes, however, that a violation of the
clause is “not necessarily fatal to the land use regulation.”7 It does this by extra-
statutorily engrafting strict scrutiny review onto its test.8 As for ordinances that
are facially neutral, however, the Eleventh Circuit classifies claims under the
Clause as either (1) those that challenge ordinances of “general applicability” but
that “nevertheless target[] religion through a ‘religious gerrymander’” 9 or
(2) those that challenge “discriminatory application.”10 When alleging “religious
gerrymander,” a religious plaintiff must show that “the challenged zoning
regulation separates permissible from impermissible assemblies or institutions
in a way that burdens almost only religious uses”11 —thus assessing the
treatment of the religious plaintiff relative to all other nonreligious occupants.
When alleging discriminatory application, however, a religious plaintiff must
show that “a similarly situated nonreligious comparator received differential
treatment under the challenged regulation.” 12
The Third and Seventh Circuits, in contrast, do not distinguish claims
6
See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1230-31 (11th Cir.
2004).
7
Primera Iglesia, 450 F.3d at 1308.
8
See id.
9
Id. at 1309 (citation omitted).
10
Id. at 1310 (emphasis in original).
11
Id. at 1309 (internal quotation marks omitted).
12
Id. at 1311 (emphasis in original).
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based on the nature of the zoning ordinance but apply the same test when
addressing all claims under the Clause. The Third Circuit stated that “a
regulation will violate the Equal Terms provision only if it treats religious
assemblies or institutions less well than secular assemblies or institutions that
are similarly situated as to the regulatory purpose.” 13 The Seventh Circuit
alternatively has announced a more “objective” test, viz., that a zoning ordinance
violates the Clause if it treats a religious assembly or institution on less than
equal terms with a nonreligious assembly or institution that is similarly situated
as to “accepted zoning criteria.” 14
Most recently, the Second Circuit addressed a claim under the Clause
raised by a church that was prohibited from operating catering services when a
hotel in the same zone was not.15 Although the court attempted to avoid choosing
among the other three circuits’ tests, it concluded that the hotel was a valid
comparator to the church because “the Church’s and the hotels’ catering
activities [are] similarly situated with regard to their legality under [the City’s]
law.”16 In other words, the Second Circuit first determined whether the two
parties’ activities should both be “legal” under the zoning ordinance at issue and
then looked to whether the city treated the similarly “legal” religious and
nonreligious institutions on equal terms. The court ultimately concluded that the
city’s imposition of the ordinance violated the Clause because “the formal
differences the City asserts cannot protect its course of conduct and [ ] the
13
Lighthouse Inst. for Evangelism v. City of Long Branch, 510 F.3d 253, 266 (3d Cir.
2007) (emphasis in original).
14
River of Life Kingdom Ministries v. Village of Hazel Crest, Ill., 611 F.3d 367, 371 (7th
Cir. 2010) (en banc) (emphasis in original).
15
Third Church of Christ, Scientist, of New York City v. City of New York, 626 F.3d 667
(2d Cir. 2010).
16
Id. at 670 (emphasis added).
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institutions are similarly situated for all functional intents and purposes
relevant here.”17 Even if unintentionally, the Second Circuit thus has created a
fourth test—somewhat combining the Third and Seventh Circuits’ tests—which
identifies a comparator that is similarly situated for all “functional intents and
purposes” of the regulation.
In the instant case, the Church urged the district court to apply the Third
Circuit’s test. The magistrate judge did so—considering the zoning ordinance’s
regulatory purpose of “creat[ing] a retail corridor along Bandera Road”—and
recommended dismissing the Church’s claim under the Clause because “[t]he
Church ha[d] not identified a non-religious assembly which is treated more
favorably than a religious assembly in creating a retail corridor.” On appeal, the
Church asserts that the district court should have applied the Eleventh Circuit’s
test to what the Church claims is a facially discriminatory zoning ordinance. The
Church insists that the district court erred in refusing to invalidate the City’s
ordinance for differentiating between religious and nonreligious assemblies and
for the ordinance’s failure to pass strict scrutiny review.
We turn first to the City’s zoning ordinance. In articulating the reasoning
behind and criteria to be used for creating the retail corridor on Bandera Road,
the text of the ordinance does not mention religion. The City’s real problem lies
in the ordinance’s “Permitted Use Table,”18 which lists many types of buildings
by use and then specifies the zone or zones in which each is or is not permitted.
Specifically, the use table notes that “Churches” are not allowed in B-2 zones at
all, but that many nonreligious, nonretail buildings, e.g., “Club or Lodge
(private),” are allowed to request SUPs and, if granted, to occupy a B-2 zone. Try
17
Id. at 668.
18
The “Permitted Use Table” is part of the ordinance itself, as clarified at oral
argument.
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as we may, we cannot reconcile the ordinance’s facial treatment of a church
differently than a private club in light of the way that B-2 zones are defined.
In assessing the City’s ordinance under the Clause, we conclude that the
Clause does require the Church to show more than simply that its religious use
is forbidden and some other nonreligious use is permitted. The “less than equal
terms” must be measured by the ordinance itself and the criteria by which it
treats institutions differently. When we analyze the City’s ordinance within this
framework, we are convinced that it is invalid because it prohibits the Church
from even applying for a SUP when, e.g., a nonreligious private club may apply
for a SUP despite the obvious conclusion that the Church and a private club
must be treated the same, i.e., on “equal terms” by the ordinance, given the
similar non–B-2 nature of each.19
At bottom, the ordinance treats the Church on terms that are less than
equal to the terms on which it treats similarly situated nonreligious institutions.
We conclude therefore that the imposition of the City’s ordinance violates the
RLUIPA’s Equal Terms Clause.20
III. CONCLUSION
For the foregoing reasons, the district court’s order granting the City’s
motion for summary judgment and denying the Church’s motion for summary
judgment is reversed, and the case is remanded for further proceedings
consistent with this ruling.
REVERSED and REMANDED.
19
This analysis should not be interpreted as necessarily adopting any of the tests
heretofore adopted by the other circuits.
20
Because we hold that the City’s ordinance violates the Equal Terms Clause, we need
not and therefore do not reach the Church’s claims brought under the Substantial Burden
Clause and the TRFRA.
8