[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 1, 2006
No. 04-15898
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 01-06530-CV-JEM
PRIMERA IGLESIA BAUTISTA HISPANA OF BOCA RATON, INC.,
a Florida corporation,
AUGUSTO PRATTS,
DAVID PRATTS,
Plaintiffs-Counter-
Defendants-Appellants
Cross-Appellees,
versus
BROWARD COUNTY,
a political subdivision of the State of Florida,
Defendant-Counter-
Claimant-Appellee
Cross-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(June 1, 2006)
Before BIRCH and MARCUS, Circuit Judges, and MILLS*, District Judge.
MARCUS, Circuit Judge:
Primera Iglesia Bautista Hispana of Boca Raton, Inc. ("Primera" or "the
Church") appeals from the entry of final judgment, after a bench trial, in favor of
the defendant, Broward County ("the County"). The district court found that the
County did not violate section 2(b)(1) (the "Equal Terms Provision") of the
Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), 42
U.S.C. § 2000cc(b)(1), by denying Primera a zoning variance. Primera also
appeals the district court's conclusion that Primera, as a corporation, lacked
standing to bring a section 1983 claim for the violation of its constitutional rights
under the Due Process, Equal Protection, and Free Exercise Clauses. After careful
review, we reverse the dismissal of Primera's section 1983 claims because
Primera, as an incorporated religious organization, both has standing in the case
and has stated a claim under the Constitution and laws of the United States. We
affirm, however, the district court's final judgment entered for the County on the
Church's RLUIPA claims.
I.
*
Honorable Richard Mills, United States District Judge for the Central District of Illinois,
sitting by designation.
2
The essential facts developed at trial are these. Use and development of
land in unincorporated Broward County is regulated by the Broward County
Zoning Code ("BCZC"). Article XIV of the BCZC sets forth the regulations
applicable to land designated A-1 Agricultural Estate. In July 1997, the County
amended Article XIV of the BCZC to require "a minimum distance of one
thousand (1,000) feet" between nonagricultural, nonresidential uses in the A-1
district (the "Separation Requirement"). BCZC § 39-245(9)(a). The stated purpose
of these regulations was "to protect, preserve and enhance the rural character and
lifestyle of existing low denisity areas and agricultural uses and comply with the
[relevant portions of the Comprehensive Plan]." BCZC § 39-246. Places of
worship are permitted in the A-1 zoning district, but like all nonagricultural,
nonresidential uses, they are subject to the Separation Requirement. BCZC §§ 39-
245, 39-249.
Primera is a Hispanic Baptist congregation affiliated with the Southern
Baptist Convention and serving Hispanic congregants in northern Broward
County, Florida.1 In December of 1997, Primera purchased a residential property
1
In addition to Primera, the complaint named two individuals, David Pratts and Augusto
Pratts, as plaintiffs. Before the trial, the district court dismissed the individual plaintiffs for lack
of standing. The individuals do not appeal their dismissal from this lawsuit.
3
located at 7450 Lyons Road in unincorporated northern Broward County ("the
Property"). The warranty deed conveying the Property to Primera unambiguously
states that the Property is subject to zoning ordinances and other restrictions and
prohibitions. The Church was represented by counsel in the purchase. The
Property is approximately one acre in size with a single family residence situated
thereon. It is located in the A-1 Agricultural Estate zoning district of Broward
County.
The Property is within 1,000 feet of other nonresidential, nonagricultural
uses. Among these properties, several were annexed into the City of Coconut
Creek before the County enacted the Separation Requirement. Once annexed,
those lands fell outside the A-1 zoning district and were not subject to the
Separation Requirement. At trial, Primera presented no evidence that any property
owner has obtained a variance from the Separation Requirement.
Of particular importance to this appeal is the Broward County Preparatory
School ("the School"), which is located within 1000 feet of the Church and
comprises some seventy acres of land. Coconut Creek annexed most of the
School's land from unincorporated Broward County before the County enacted the
Separation Requirement. But the School later acquired an additional ten-acre
parcel of land adjacent to its main grounds, located in unincorporated Broward
4
County and zoned A-1. In 2001, upon the School's application, the County
rezoned the ten-acre parcel from A-1 to I-1, Institutional and Educational District,
which does not impose any distance requirements. There is no evidence that the
School used the ten-acre parcel for any nonresidential, nonagricultural use before
the rezoning, but afterwards the School built a performing arts center and
auditorium on the land.
After Primera purchased the Property, it hired an architect to develop a site
plan to renovate the house into a place of worship and submitted those plans to the
County. A County official informed Primera that the Separation Requirement
prohibited any nonagricultural, nonresidential use of the property, and advised
them to seek a zoning variance. Primera applied for a variance in March 1998, but
at an April 1998 hearing, it withdrew the request after its attorney informed the
Church that there was no quorum of the Board of Adjustment ("the Board"), and
that it should try instead to work out any opposition from its neighbors. When the
Church's pastor, Augusto Pratts, spoke to the neighbors, he learned that some
objected to Primera's variance request. And at a hearing in June 1998, neighbors
voiced substantial opposition to Primera's renewed request. The Board denied the
variance, offering three reasons: (1) the Separation Requirement was necessary to
maintain the primary purpose of the agricultural district; (2) Primera created its
5
own hardship by buying an under-zoned property; and (3) Primera's request did
not meet the criteria for a variance set forth in the Zoning Code § 39-40.2
In spite of the Board's decision, Primera continued to use the Property for
various prayer meetings and church services. In response, in 1999, the County
issued Primera a Notice of Violation for "illegally conducting church services (by
admission)" in a residential structure in violation of the zoning code, and set a
hearing before the Board. At the hearing, on October 28, 1999, the Board found
that Primera, by admission, had illegally used the residential structure to conduct
church services.
Primera then sued the County in state court under the Florida Land Use and
2
The BCZC provides that, in determining whether to grant a variance, the Board
shall determine whether the applicant has met the following criteria:
(1) That there are unique and special circumstances or conditions applying to the
property in question, or to the intended use of the property, that do not apply
generally to other properties in the same district; (2) That any alleged hardship is
not self-created by any person having an interest in the property or is the result of
mere disregard for, or ignorance of, the provisions of the Code; (3) That strict
application of the provisions of the Code would deprive the petitioner of
reasonable use of the property for which the variance is sought; (4) That the
variance proposed is the minimum variance which makes possible the reasonable
use of the property; (5) That the granting of the variance will be in harmony with
the general intent and purpose of the Code and that such variance will not be
injurious to the area involved or otherwise detrimental to the public welfare; (6)
That there exists changed or changing circumstances which make approval of the
variance appropriate.
BCZC § 39-40.
6
Environmental Dispute Resolution Act, Fla. Stat. § 761.03 (2004), challenging the
County's enforcement of the Separation Requirement. However, the parties
reached a mediated resolution whereby Primera agreed to submit a new
application to the Board to request a variance. Primera, with the assistance of the
Zoning Code Services Division ("ZCSD") staff, submitted yet another variance
application that proposed additional use restrictions to mitigate any possible
negative effects. This time, the ZCSD staff recommended approval to the Board
on the following grounds: (1) the new site plan mitigated the negative effects of
the variance; (2) the hardship was not self-created;3 and (3) the operation of the
Church would not negatively affect traffic in the area.
The Board held another hearing on Primera's request, at which time
Primera's neighbors again voiced opposition and presented photographs and a
video of Primera's past use of the Property, depicting, among other things, garage
sales and religious services. The Board again voted to deny the variance because
"granting the variance would not be in harmony with the community or the general
intent or purpose of the Code and . . . such variance would be injurious to the area
involved and it would be otherwise detrimental to the public welfare by virtue of
3
The ZCSD staff changed its position on this point because of new information that
Primera had relied to its detriment on the seller's representations about the Property's zoning.
7
the traffic created."
Nevertheless, Primera continued to use the Property for worship services,
prompting still more complaints to the County, which resulted in the ZCSD
issuing still another Notice of Violation on September 12, 2000. Thereafter,
Primera stopped using the Property for worship services. Notably, Primera never
sought to have the Property re-zoned or annexed into the nearby municipality of
Coconut Creek.
In April 2001, Primera filed this lawsuit against the County in the United
States District Court for the Southern District of Florida, challenging the County's
decision denying Primera a variance. Primera's Amended Complaint alleged three
counts. Count I sought declaratory and injunctive relief pursuant to 42 U.S.C. §
1983 for violation of Primera's rights under the First, Fifth and Fourteenth
Amendments to the United States Constitution. Count II claimed that the County's
zoning decisions violated: RLUIPA section 2(a), 42 U.S.C. § 2000cc(a) (the
"Substantial Burden provision"), by imposing a substantial burden on Primera's
exercise of its religious freedoms; RLUIPA section 2(b)(1), 42 U.S.C. §
2000cc(b)(1) (the "Equal Terms provision"), by treating Primera on less than equal
terms with other nonreligious assemblies; RLUIPA section 2(b)(2), 42 U.S.C. §
2000cc(b)(2) (the "Nondiscrimination provision"), by discriminating against
8
Primera on the basis of religion or religious denomination; and, RLUIPA section
2(b)(3)(B), 42 U.S.C. § 2000cc(b)(3)(B) (the "Unreasonable Limitation
provision"), by imposing regulations that unreasonably limit religious assemblies
within the A-1 zoning district.4 Finally,
4
The full text of RLUIPA section 2, 42 U.S.C. § 2000cc, reads as follows:
(a) Substantial burdens
(1) General rule
No government shall impose or implement a land use regulation in a manner that imposes
a substantial burden on the religious exercise of a person, including a religious assembly
or institution, unless the government demonstrates that 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 governmental
interest.
(2) Scope of application
This subsection applies in any case in which--
(A) the substantial burden is imposed in a program or activity that receives
Federal financial assistance, even if the burden results from a rule of
general applicability;
(B) the substantial burden affects, or removal of that substantial burden would
affect, commerce with foreign nations, among the several States, or with
Indian tribes, even if the burden results from a rule of general
applicability; or
(C) the substantial burden is imposed in the implementation of a land use
regulation or system of land use regulations, under which a government
makes, or has in place formal or informal procedures or practices that
permit the government to make, individualized assessments of the
proposed uses for the property involved.
9
count III claimed a violation of a corollary state statute, the Florida Religious
Freedom Restoration Act of 1998 ("FRFRA").
After a three day bench trial the district court ruled in favor of the County
on all counts, making extensive findings of fact and conclusions of law. As an
initial matter, the district court determined that Primera, as a corporation, lacked
standing to pursue a section 1983 action to challenge the County's zoning
decisions, and therefore dismissed Primera's section 1983 claim. As for the
Religious Land Use and Institutionalized Persons Act claims, the district court
held that: (1) Primera failed to establish a violation of RLUIPA's Substantial
(b) Discrimination and exclusion
(1) Equal terms
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.
(2) Nondiscrimination
No government shall impose or implement a land use regulation that discriminates
against any assembly or institution on the basis of religion or religious denomination.
(3) Exclusions and limits
No government shall impose or implement a land use regulation that--
(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or structures within
a jurisdiction.
10
Burden provision because the Separation Requirement predated Primera's
acquisition; RLUIPA does not mandate that municipalities allow residents to
operate religious institutions wherever they please; and the County did not
prohibit all religious uses, but merely imposed a 1000 foot separation requirement;
(2) Primera did not present prima facie evidence that the County violated
RLUIPA's Equal Terms provision because the Separation Requirement is facially
neutral as between religious and nonreligious assemblies and institutions, and the
Separation Requirement is applied equally to nonreligious assemblies and
institutions; and, finally, (3) the County's Separation Requirement did not
constitute an unreasonable limitation on religious exercise in violation of
RLUIPA. The court also concluded that, since the standard for finding a violation
of FRFRA and RLUIPA's substantial burden provision are identical, there was no
violation of the FRFRA. Primera does not appeal from that determination.
II.
On appeal, Primera first claims that the district court committed reversible
error when it dismissed, for lack of standing, Primera’s section 1983 claims
alleging that the County deprived Primera of its constitutional rights. We review
de novo the district court's conclusions of law. Fla. Ass'n of Rehab. Facilities, Inc.
v. Fla. Dept. of Health and Rehab. Servs., 225 F.3d 1208, 1216 (11th Cir. 2000),
11
and find that the dismissal of the section 1983 claims was erroneous for several
reasons and requires reversal.
It is by now axiomatic that "[i]n every federal case, the party bringing the
suit must establish standing to prosecute the action. In essence the question of
standing is whether the litigant is entitled to have the court decide the merits of the
dispute or of particular issues." Elk Grove Unified School Dist. v. Newdow, 542
U.S. 1, 11 (2004) (internal quotation marks omitted). The Supreme Court’s
standing jurisprudence "contains two strands: Article III standing, which enforces
the Constitution's case or controversy requirement, and prudential standing, which
embodies judicially self-imposed limits on the exercise of federal jurisdiction.” Id.
at 11-12 (quotation marks omitted). Only Article III standing is at issue in this
case.
To demonstrate Article III standing, a "plaintiff must show that the conduct
of which he complains has caused him to suffer an 'injury in fact' that a favorable
judgment will redress." Id. As we have explained, this requires a plaintiff to
show "(1) that he has suffered an actual or threatened injury, (2) that the injury is
fairly traceable to the challenged conduct of the defendant, and (3) that the injury
is likely to be redressed by a favorable ruling." Harris v. Evans, 20 F.3d 1118,
1121 (11th Cir. 1994) (en banc).
12
"[T]o establish an injury in fact, [a plaintiff] must first demonstrate that the
[defendant] has invaded some 'legally protected interest' of his." Bochese v. Town
of Ponce Inlet, 405 F.3d 964, 980-81 (11th Cir. 2005). A "legally cognizable
injury" requires infringment of "an interest . . . protected by statute or otherwise."
Id. (internal quotation marks omitted) (quoting Cox Cable Commc'ns, Inc. v.
United States, 992 F.2d 1178, 1182 (11th Cir.1993)). That "interest must consist
of obtaining compensation for, or preventing, the violation of a legally protected
right." Id. (internal quotation marks omitted) (quoting Vt. Agency of Natural Res.
v. United States ex rel. Stevens, 529 U.S. 765, 772 (2000)). We have held that a
zoning restriction on property use constitutes an injury in fact. Midrash Sephardi,
Inc. v. Town of Surfside, 366 F.3d 1214, 1224 (11th Cir. 2004). Primera plainly
has suffered an actual injury: it is barred from assembling for religious worship on
the Property.
Moreover, the remaining two standing requirements also are clearly present.
The Church's injury is fairly and easily traceable to the zoning ordinance because
applying the ordinance to the Church directly and expressly limits Primera's use of
the Property for religious worship services. See id.; Fla. Pub. Interest Research
Group Citizen Lobby, Inc. v. E.P.A., 386 F.3d 1070, 1085 (11th Cir. 2004)
(holding that the "fairly traceable" element is met where continued injury would
13
result if the challenged conduct persisted). Finally, the injury would be redressed
by a ruling in Primera's favor: the church would be free to use the Property for
religious services. See Midrash, 366 F.3d at 1224. Thus, to the extent the district
court grounded its dismissal on Primera's lack of standing, it erred.
The district court's order is sufficiently ambiguous as to suggest that when it
employed the doctrine of "standing" it really meant to connote Primera's failure to
state a claim under 42 U.S.C. § 1983. If that was the basis of the order, however,
this too would be error because Primera stated a claim for the violation of its
constitutional rights.
The district court based its dismissal on language drawn from our opinion in
L.S.T., Inc. v. Crow, 49 F.3d 679 (11th Cir. 1995), where a panel of this Court
observed that "[a] corporation is not a 'citizen' entitled to the privileges and
immunities secured by federal law for purposes of § 1983." Id. at 682-83 n.6
(citing Hague v. Comm. for Indus. Org., 307 U.S. 496, 514 (1939) ("Natural
persons, and they alone, are entitled to the privileges an immunities which section
1 of the Fourteenth Amendment secures for 'citizens of the United States.'")). But
Primera's section 1983 claims are not based on the privileges and immunities
incident to its citizenship; they are based on its rights as a "person." And this
distinction makes all the difference.
14
By its terms, section 1983 provides a cause of action for "person[s] within
the jurisdiction" who have been "depriv[ed] of any rights, privileges, or
immunities secured by the Constitution and laws" by a person acting "under color
of any statute, ordinance, regulation, custom, or usage, of any State." 42 U.S.C. §
1983. We have clearly and repeatedly held that corporations are "persons" within
the meaning of section 1983. See, e.g., Fla. Right to Life, Inc. v. Lamar, 273 F.3d
1318, 1323 (11th Cir. 2001) (corporation may sue under section 1983 to vindicate
its First and Fourteenth Amendment rights); Church of Scientology Flag Serv.
Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1526 (11th Cir. 1993) (holding that a
religious corporation has standing to bring section 1983 claim to vindicate First
Amendment rights); see also Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 547 (1993) (granting church corporation relief in § 1983
suit to vindicate Free Exercise rights).
Moreover, corporations possess Fourteenth Amendment rights of equal
protection, due process, and, through the doctrine of incorporation,5 the free
exercise of religion. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 780
n.15 (1978) ("It has been settled for almost a century that corporations are persons
5
See Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) ("The fundamental
concept of liberty embodied in [the Fourteenth] Amendment embraces the liberties
guaranteed by the First Amendment.").
15
within the meaning of the Fourteenth Amendment."); Grosjean v. Am. Press Co.,
297 U.S. 233, 244 (1936) ("[A] corporation is a 'person' within the meaning of the
equal protection and due process of law clauses . . . ."). Although the rights of
corporate persons and natural persons are not entirely coextensive, see First Nat'l
Bank v. Bellotti, 435 U.S. 765, 778 n.14 (1978) ("Certain 'purely personal'
guarantees, such as the privilege against compulsory self-incrimination, are
unavailable to corporations and other organizations because the 'historic function'
of the particular guarantee has been limited to the protection of individuals."),
corporations plainly possess the rights the Church asserted here: due process,
equal protection, and the free exercise of religion, see Grosjean, 297 U.S. at 244;
Lukumi, 508 U.S. at 547; Church of Scientology, 2 F.3d at 1526; cf. Bellotti, 435
U.S. at 780 ("Freedom of speech and the other freedoms encompassed by the First
Amendment always have been viewed as fundamental components of the liberty
safeguarded by the Due Process Clause, and the Court has not identified a separate
source for the right when it has been asserted by corporations." (citations
omitted)).
Accordingly, we easily conclude that Primera, as an incorporated religious
organization, stated a section 1983 claim for the alleged violation of its equal
protection, due process, and free exercise rights. The district court, therefore,
16
erred in dismissing Primera's constitutional claims.
The County nevertheless urges us to affirm the dismissal of Primera's §1983
suit by applying "the well-established rule that where, as here, both constitutional
and statutory claims arising from the same set of operative facts are asserted, only
the statutory issues should be decided." (Appellee's Br. at 15.) The County cites a
variety of decisions for the unremarkable proposition that a case should be decided
on statutory, rather than constitutional grounds, whenever possible -- Spector
Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944); Konikov v. Orange
County, 410 F.3d 1317, 1319 n.1 (11th Cir. 2005); Communist Party of Ind. v.
Whitcomb, 414 U.S. 441, 452 (1974).
The County is surely correct that the Supreme Court and this Court have
long held that where a party raises both statutory and constitutional arguments in
support of a judgment, a court should first consider whether the plaintiff is entitled
to full relief under a statute, and if so, should not reach the constitutional issue.
See, e.g., McLaughlin, 323 U.S. at 105 ("If there is one doctrine more deeply
rooted than any other in the process of constitutional adjudication, it is that we
ought not to pass on questions of constitutionality . . . unless such adjudication is
unavoidable."); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)
(Brandeis, J., concurring) (explaining that the Court avoids constitutional
17
questions "if a case can be decided [by] a question of statutory construction or
general law"); Konikov, 410 F.3d at 1319 n.1. But if a plaintiff is not entitled to
statutory relief (as is the case here), then the constitutional claims are unavoidable
and the federal court must address their merits. See Quackenbush v. Allstate Ins.
Co., 517 U.S. 706, 716 (1996) ("We have often acknowledged that federal courts
have a strict duty to exercise the jurisdiction that is conferred upon them by
Congress."); Metropolitan Life v. Lockette, 155 F.3d 1339, 1341 (11th Cir. 1998)
("Abstention from the exercise of federal jurisdiction is the exception, not the rule.
The doctrine of abstention . . . is an extraordinary and narrow exception to the duty
of a District Court to adjudicate a controversy properly before it." (internal
quotation marks omitted)).
The County, in a corollary argument, invites us to hold that, because
RLUIPA's protections equal or exceed the constitutional protections Primera
asserts, Primera's failure to prove its constitutional claims necessarily follows from
its failure to prove a statutory violation of RLUIPA. We decline the County's
invitation to address the merits of this argument, because the district court did not
make any findings of fact specifically related to Primera's constitutional claims,
and we are unwilling to make such findings in the first instance. As we have
observed elsewhere, "[t]he reviewing court oversteps the bounds of its duty . . . if
18
it undertakes to duplicate the role of the lower court. . . . '[A]ppellate courts must
constantly have in mind that their function is not to decide factual issues de
novo.'" Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1351 (11th Cir.
2005) (quoting Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123
(1969)). We are reluctant to reach out to decide an important constitutional
question before the district court has made any findings of fact or drawn any
conclusions of law on this issue.
Accordingly, we hold that Primera, as an incorporated religious
organization, stated a section 1983 claim for violation of its equal protection, due
process, and free exercise rights. Because the district court erred in dismissing
Primera's constitutional claims, we reverse that order and remand for further
proceedings consistent with this opinion.
III.
Primera also argues the district court erred in concluding that the County
did not violate RLUIPA's Equal Terms provision. According to Primera, the
evidence at trial established that the County treated Primera on less than equal
terms with the Broward Preparatory School. Primera assigns three basic errors:
first, the district court improperly held that the School and Primera are not
similarly situated; second, the district court failed to recognize that "the County's
19
differing treatment toward [Primera and the School is] simply inexplicable," from
which one must infer a hostility to religion; and finally, the district court failed to
consider that the County applied to Primera a separation requirement that "was
never intended to apply to that area," as evidenced by the County's differential
treatment of the School. Although Primera styles these as separate arguments, in
fact each is based on the premise that by comparing Primera's treatment with the
School's, the district court necessarily should have found unequal treatment in
violation of the Equal Terms provision of the statute. We are unpersuaded.
RLUIPA's Equal Terms provision states that "[n]o government shall impose
or implement a land use regulation in a manner that treats a religious assembly or
institution on less than equal terms with a nonreligious assembly or institution." 42
U.S.C. § 2000cc(b)(1). This statutory command "requir[es] equal treatment of
secular and religious assemblies [and] allows courts to determine whether a
particular system of classifications adopted by a city subtly or covertly departs
from requirements of neutrality and general applicability." Midrash Sephardi, Inc.
v. Town of Surfside, 366 F.3d 1214, 1232 (11th Cir. 2004) (emphasis added).
There are four elements of an Equal Terms violation: (1) the plaintiff must
be a religious assembly or institution, (2) subject to a land use regulation, that (3)
treats the religious assembly on less than equal terms, with (4) a nonreligious
20
assembly or institution.6 42 U.S.C. § 2000cc(b)(1); see Midrash, 366 F.3d at
1232. Under the statute, the plaintiff bears the initial burden of "produc[ing] prima
facie evidence to support a claim alleging a[n Equal Terms] violation." 42 U.S.C.
§ 2000cc-2(b). If the plaintiff meets its initial burden, "the government . . . bear[s]
the burden of persuasion on any element of the claim." Id.7 We have also held that
a violation of the Equal Terms provision is not necessarily fatal to the land use
6
We have defined an "assembly" as "a company of persons collected together in one
place and usually for some common purpose (as deliberation and legislation, worship, or social
entertainment)," and an "institution" as "an established society or corporation: an establishment
or foundation especially of a public character." Konikov v. Orange County, Fla., 410 F.3d 1317,
1325 (11th Cir. 2005) (internal quotation marks omitted). Although the statute does not define
the term "religious," we give this common term it its natural meaning: "relating to that which is
acknowledged as ultimate reality: manifesting devotion to and reflecting the nature of the divine
or that which one holds to be of ultimate importance." Webster's Third New International
Dictionary (2002); see also Nat'l Coal Ass'n v. Chater, 81 F.3d 1077, 1081 (11th Cir. 1996)
("Terms that are not defined in the statute . . . are given their ordinary or natural meaning."). The
statute defines a "land use regulation" as "a zoning or landmarking law, or the application of such
a law, that limits or restricts a claimant's use or development of land (including a structure
affixed to land), if the claimant has a[] . . . property interest in the regulated land." 42 U.S.C. §
2000cc-5(5).
7
The statute's burden shifting provision states:
(b) Burden of persuasion
If a plaintiff produces prima facie evidence to support a claim alleging a
violation of the Free Exercise Clause or a violation of section 2000cc of
this title, the government shall bear the burden of persuasion on any
element of the claim, except that the plaintiff shall bear the burden of
persuasion on whether the law (including a regulation) or government
practice that is challenged by the claim substantially burdens the plaintiff's
exercise of religion.
42 U.S.C. § 2000cc-2(b).
21
regulation, Midrash, 366 F.3d at 1231-35, but "a violation of § (b)'s equal
treatment provision . . . must undergo strict scrutiny." Id. at 1232. Under that
rubric, the offending conduct may be upheld if the defendant establishes that the
conduct employs a narrowly tailored means of achieving a compelling government
interest. Id. (citing Lukumi, 508 U.S. at 546).
The parties agree (and the record is undisputed) that Primera is a religious
assembly subject to a land use regulation, so the first two elements are readily
satisfied. The dispute on appeal thus concerns whether Primera met its initial
burden to produce evidence supporting the last two elements of the claim: that the
land use regulation treats the religious assembly on less than equal terms with a
nonreligious assembly or institution. We review de novo the district court's
conclusions of law, including its interpretation of a statute. Dysert v. U.S. Sec'y of
Labor, 105 F.3d 607, 609 (11th Cir. 1997).
Based on a review of our case law construing the Equal Terms provision
and reviewing closely related Supreme Court precedent arising under the Free
Exercise Clause of the First Amendment, we can discern at least three distinct
kinds of Equal Terms statutory violations: (1) a statute that facially differentiates
between religious and nonreligious assemblies or institutions; (2) a facially neutral
statute that is nevertheless "gerrymandered" to place a burden solely on religious,
22
as opposed to nonreligious, assemblies or institutions; or (3) a truly neutral statute
that is selectively enforced against religious, as opposed to nonreligious
assemblies or institutions. We discuss each in turn and conclude that on this
record none have been established.
In Midrash, we confronted the first kind of statutory Equal Terms violation -
- facial discrimination. There, the zoning ordinance under consideration created a
zoning district in which certain non-religious assemblies and institutions were
permitted, but religious assemblies were prohibited. Midrash, 366 F.3d at 1230-
31. A panel of this Court held that the ordinance facially violated RLUIPA's
Equal Terms provision, and struck the ordinance down after determining that it
failed strict scrutiny review. Midrash, 366 F.3d at 1231-35. Here, Primera
concedes, and we agree, that the zoning provisions in question -- the Separation
Requirement, BCZC § 39-246(9)(a), variance provisions, id. at §§ 39-35 - 39-44,
and rezoning provisions, id. at §§ 39-24 - 39-32 -- are facially neutral and
therefore do not constitute a facial Equal Terms statutory violation.
The second manner in which a law could violate the Equal Terms
provision's "requirements of neutrality and general applicability," Midrash, 366
F.3d at 1232, may be exemplified by the Supreme Court's decision in Lukumi,
which examined the constitutionality of a facially neutral law that nevertheless
23
targeted religion through a "religious gerrymander."8 508 U.S. at 535. The City of
Hialeah ordinances at issue in Lukumi had the effect of proscribing ritualistic
animal sacrifice by adherents of the Santeria religion, while at the same time
permitting animal slaughter for other religious or secular purposes. The Supreme
Court looked to the text of the challenged ordinances and concluded that they were
"drafted in tandem to achieve [the] result" that "almost the only conduct subject to
[the challenged ordinances was] the religious exercise of Santeria church
members." Id. This careful drafting of otherwise facially neutral classifications
essentially constituted a religious "gerrymander" that departed from principles of
neutrality because it revealed that the ordinances "had as their object the
suppression of religion." Id. at 542. The Supreme Court also held that the
ordinances were not generally applicable because they pursued the city's interests
only against conduct motivated by religious belief. Id. at 544-45. Accordingly, the
Court employed strict scrutiny review to strike down the ordinances as violating
the Free Exercise Clause of the First Amendment, determining that they were not
8
To "gerrymander" is "[t]o divide (an area) into political units in an unnatural and unfair
way with the purpose of giving special advantages to one group." Webster's Third New
International Dictionary 952 (2002). In 1812, "the notoriously outrageous political districting in
Massachusetts . . . gave the gerrymander its name--an amalgam of the names of Massachusetts
Governor Elbridge Gerry and the creature ('salamander') which the outline of an election district
he was credited with forming was thought to resemble." Vieth v. Jubelirer, 541 U.S. 267, 274
(2004) (citing Webster's New International Dictionary 1052 (2d ed.1945)).
24
narrowly tailored to accomplish a compelling government interest.9 Id. at 546.
Thus, a religious "gerrymander" that departs from basic principles of
neutrality may also support a RLUIPA Equal Terms violation. To prove this kind
of statutory violation, Primera would have to show that the challenged zoning
regulation separates permissible from impermissible assemblies or institutions in a
way that burdens "almost only" religious uses. But Primera presented no such
evidence here, and our review of the local zoning ordinances at issue reveals that
they were not in the slightest degree "gerrymandered" to burden only religious
uses. Indeed, the County's 1000-foot Separation Requirement applies generally to
all non-agricultural, non-residential uses without regard to religion. See BCZC §
39-246(9)(a). Owners may avoid the separation requirement only by requesting a
variance or rezoning; there are no special carve-outs or exceptions made for for
non-religious land uses. Id. at §§ 39-35 - 39-44, and §§ 39-24 - 39-32. The zoning
code provisions setting forth criteria for variances and rezoning are likewise
neutral and generally applicable. Id. Moreover, all of the zoning ordinances at
issue were enacted before Primera purchased the Property, further undermining
9
Although in Employment Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 877-90
(1990), the Supreme Court, interpreting the Free Exercise Clause, held that a neutral law of
general applicability is not subject to strict scrutiny even if the law has the incidental effect of
burdening religious exercise, the Lukumi court applied strict scrutiny precisely because it found
the statute covertly departed from principles of neutrality and general applicability, thereby
placing it outside the ambit of the Smith rule. Lukumi, 508 U.S. at 546.
25
any suggestion that the zoning code "target[ed] Primera's lesser known religious
sect." Accordingly, the record is abundantly clear that Primera failed to produce
any evidence that the County violated RLUIPA's Equal Terms provision by
engaging in a religious "gerrymander."
A third kind of statutory Equal Terms violation would arise in the case of
discriminatory application of a facially neutral, generally applicable statute. See
Konikov, 410 F.3d at 1327-29 (holding that discriminatory application of a
facially neutral statute violates RLUIPA's Equal Terms provision); cf. Lukumi,
508 U.S. at 532 ("At a minimum, the protections of the Free Exercise Clause
pertain if the law at issue . . . regulates or prohibits conduct because it is
undertaken for religious reasons."). Primera essentially claims this kind of as-
applied Equal Terms violation is evident because the County rezoned the Broward
County Preparatory School's property, while, at the same time, it denied Primera's
request for a variance. The Church further claims that under our decision in
Midrash, "RLUIPA's equal terms provision does not require a finding that the
alleged disparate treatment be between two uses similarly situated in all relevant
respects." The County responds, and we agree, that the School is simply not a
valid comparator here because the "rezoning" process is an entirely different form
of relief from obtaining a "variance."
26
In Konikov, the plaintiff brought an as-applied Equal Terms challenge to
zoning regulations that prohibited a rabbi from conducting thrice-weekly
"Chabad" meetings in his residence.10 The plaintiff contended that the
municipality discriminatorily applied a zoning regulation requiring a special
exception for religious and social organizations located in a certain district. The
plaintiff presented evidence that the municipality required religious assemblies
meeting thrice-weekly in a rabbi's home to apply for a special permit, but did not
require a permit to conduct similarly frequent in-home secular assembly meetings.
Id. at 1327. The Konikov Court framed its as-applied Equal Terms analysis this
way:
Even though the Code, on its face, treats all of the relevant
comparable groups the same . . . If, as here, the [municipality] deems
a group that meets three times per week a religious organization, but
does not consider a group having comparable community impact a
"social organization," that is a violation.
Id. (emphasis added). The Court went on to compare the government's treatment
of religious and nonreligious organizations, and concluded that it violated the
Equal Terms provision because "[g]roups that meet with similar frequency are in
violation of the Code only if the purpose of their assembly is religious." Id. at
10
Chabad "refers . . . to a particular movement/philosophy/denomination within
Orthodox Judaism that emphasized certain mystical teachings, as well as outreach and education
in the Jewish world." Konikov, 410 F.3d at 1320 n.2.
27
1329 (emphasis added). Accordingly, we reversed the district court's grant of
summary judgment and held that the plaintiff presented sufficient evidence to
prove an as-applied Equal Terms violation.
Thus Konikov stands for the proposition that a neutral statute's application
may violate the Equal Terms provision if it differentially treats similarly situated
religious and nonreligious assemblies.11 410 F.3d at 1327-29; cf. Campbell, 434
F.3d at 1314 ("[D]ifferent treatment of dissimilarly situated persons does not
violate the equal protection clause." (internal quotation marks omitted)). A
plaintiff bringing an as-applied Equal Terms challenge must present evidence that
a similarly situated nonreligious comparator received differential treatment under
the challenged regulation. If a plaintiff offers no similarly situated comparator,
then there can be no cognizable evidence of less than equal treatment, and the
plaintiff has failed to meet its initial burden of proof. See 42 U.S.C. § 2000cc-
2(b).
With this in mind, we turn to the question of whether Primera presented a
similarly situated comparator. Primera says that it was similarly situated with the
11
Although Primera relies on our decision in Midrash for the proposition that, for Equal
Terms purposes, non-religious comparators need not be similarly situtated to the religious
plaintiff, its reliance is misplaced. Midrash involved a facial Equal Terms challenge, 366 F.3d at
1230, while Konikov, decided an as-applied Equal Terms challenge by engaging in a similarly
situtated analysis. 410 F.3d at 1326-28. In deciding the as-applied Equal Terms claim before us,
we are therefore guided more by Konikov than by Midrash.
28
School, but we disagree. Primera and the School are not similarly situated
because, notably, they sought markedly different forms of zoning relief, from
different decision-making bodies, under sharply different provisions of local law.
To begin with, rezoning and variance plainly have different purposes. As
Primera’s own expert testified at trial, a variance is
a legal procedure whereby [the Board of Adjustment] gives relief . . .
to individual property owners where it becomes impractical or there is
a hardship that surrounds the particular use of property. Zoning
codes can't be designed to meet every particular piece of property that
they zone, so, therefore, the variance procedure is a commonly
acceptable form of giving individual relief to a specific property
owner based on specific set of conditions and standards applicable
only to that location.
(emphasis added). Since a variance is meant to alleviate a particular owner's
hardship, it does not alter the property's zoning classification; it merely grants the
present owner a right to deviate from the general rule.
By contrast, rezoning is not meant to alleviate a particular landowner’s
hardship; rather, it is a general adjustment of the zoning scheme that affects the
rights of all future landowners. As Primera’s expert explained, rezoning
“chang[es] . . . the map portion of the property rights. . . . The rights to the
property.” And because rezoning is a general adjustment of the zoning scheme,
the County takes “substantially more time to review the details of what the impact
would be and if it would be appropriate for this location.”
29
Moreover, different decision-making bodies within the County government
decide whether to grant rezonings or variances: a party seeking to rezone its
property petitions the Zoning Board, BCZC § 39-26, while a party seeking a
variance applies to the Board of Adjustment, BCZC § 39-35. These wholly
different decision-making bodies are guided by different standards as well, and
there is a different application and approval process for rezoning versus a
variance.
For example, the Zoning Board conducts a public hearing on a request for
rezoning after providing due notice. BCZC § 39-27. The Zoning Board then
formulates a recommendation, taking into consideration the criteria discussed
below and comments received during the public hearing. The Zoning Board may
defer the matter, recommend a less intensive zoning classification than requested,
recommend approval, or recommend denial. BCZC § 39-29. The Zoning Board's
recommendation then goes to the County Commission for final approval or denial.
BCZC § 39-30. In sharp contrast, a party seeking a variance applies to the Board
of Adjustment. BCZC § 39-35. The County zoning staff review any variance
application, and present a recommendation to the Board of Adjustment, which
must then conduct a public hearing. After the public hearing the Board of
Adjustment decides whether to grant the variance.
30
While there is some overlap in the criteria that govern the decision to rezone
or grant a variance -- in both instances, the decision-maker will consider whether
the relief is consistent with the general intent and purpose of the zoning code, and
whether there exists changed or changing conditions which make approval of the
request appropriate, BCZC §§ 39-28, 39-40 -- these similarities are slight in
comparison to the pronounced differences in the criteria governing variance and
rezoning decisions. Thus, for example, when deciding whether to rezone a
property, the Zoning Board considers the following factors, which the Board of
Adjustment does not consider when deciding on a variance: (1) whether there
exists an error or ambiguity which must be corrected; (2) whether the request is
consistent with the densities, intensities, and general uses set forth in the Broward
County Comprehensive Plan and Land Use Element Map; (3) whether the request
will protect, conserve, or preserve environmentally critical areas and natural
resources; (4) whether the request will place an undue burden on existing
infrastructure and whether capacity exists for any projected increase that may be
generated; and (5) whether the permitted uses in a requested rezoning are
compatible with existing and proposed uses in the general vicinity; except,
however, nonconforming uses of neighboring lands, structures, or buildings shall
not be considered as support for approval of any request. BCZC § 39-28.
31
Conversely, the Board of Adjustment must consider the following criteria in
deciding whether to grant a variance, which the Zoning Board does not consider at
all in deciding whether to rezone property: (1) whether there are unique and
special circumstances or conditions applying to the property in question, or to the
intended use of the property, that do not apply generally to other properties in the
same district; (2) whether any alleged hardship is not self-created by any person
having an interest in the property or is the result of mere disregard for, or
ignorance of, the provisions of the Code; (3) whether strict application of the
provisions of the Code would deprive the petitioner of reasonable use of the
property for which the variance is sought; and (4) whether the variance proposed
is the minimum variance which makes possible the reasonable use of the property.
BCZC § 39-40.
In addition to the differences apparent from the BCZC's terms, Primera
itself acknowledges important differences between a variance and rezoning, and
between Primera and the School: "Whether a property owner seeks a variance
versus a rezoning is primarily dependent upon the size of the parcel and the future
anticipated uses of the site. Primera's property is less than one acre in size in
contrast to the Prep School's current size of nearly 70 acres." This neatly describes
one of the powerful reasons the School is an inapt comparator: its property is
32
seventy times as large as Primera's. Nor, tellingly, does Primera allege that any
other small property owner would be granted the same zoning relief as a property
owner with seventy times as much land. Cf. Civil Liberties for Urban Believers v.
City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) ("Whatever specific
difficulties [plaintiff church] claims to have encountered, they are the same ones
that face all [land users]. The harsh reality of the marketplace sometimes dictates
that certain facilities are not available to those who desire them." (alterations in
original) (quoting Love Church v. City of Evanston, 896 F.2d 1082, 1086 (7th
Cir.1990)).
Viewed in this light, it is abundently clear, as the district court found, that
Primera failed to establish a prima facie Equal Terms violation because it
introduced no evidence that the County applied the BCZC in a manner that "subtly
or covertly depart[ed] from requirements of neutrality and general applicability."
Midrash, 366 F.3d at 1232. The evidence Primera adduced regarding its
treatment and the School's treatment is consistent with the County's neutral
application of different zoning regulations. Primera's evidence establishes only
that the School received different treatment, not unequal treatment.
This conclusion is consonant with our recent holding in the Equal
Protection context that "projects which seek different types of variances are not
33
similarly situated." Campbell, 434 F.3d at 1314. Cf. E & T Realty v. Strickland,
830 F.2d 1107, 1109 (11th Cir. 1987) ("Different treatment of dissimilarly situated
persons does not violate the equal protection clause."); Lighthouse Inst. for
Evangelism Inc. v. City of Long Branch, 100 Fed. Appx. 70, 77 (3d Cir. 2004)
(holding that the plaintiff failed as a matter of law to establish a prima facie
violation of RLUIPA's Equal Terms provision because "the Mission . . . failed to
produce evidence to support its contention that the secular assemblies it identified
were actually similarly situated such that a meaningful comparison could be
made.").
The bottom line, fatal for Primera's statutory claim, is that RLUIPA's Equal
Terms provision requires equal treatment, not special treatment. Midrash, 366 F.3d
at 1231-32; Civil Liberties for Urban Believers, 342 F.3d at 762 ("[N]o . . . free
pass for religious land uses masquerades among the legitimate protections
RLUIPA affords to religious exercise."); cf. Lukumi, 508 U.S. at 533; Smith, 494
U.S. at 886. And without identifying a similarly situated nonreligious comparator
that received favorable treatment, Primera failed to establish a prima facie Equal
Terms violation.12 The result in this case might be different if the Church had
12
Although Primera argues that the district court made certain erroneous factual findings
related to the timing of the School's rezoning requests, we need not reach that issue because
Primera concedes it did not seek the same zoning relief as the School.
34
been denied a request for rezoning -- at the very least it would have afforded a
reasonable basis for comparison -- but on these facts, the Church's Equal Terms
claim plainly fails.13
Accordingly, we reverse the district court's dismissal of Primera's section
1983 claims and remand for further proceedings consistent with this opinion, but
we affirm the district court's entry of final judgment, after trial, on Primera's Equal
Terms RLUIPA claim.14
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
13
The County also contends that Primera failed to offer evidence supporting the fourth
element of an Equal Terms violation: the secularity of its comparator assembly. Although such
proof is unquestionably required to support an Equal Terms claim, 42 U.S.C. § 2000cc(b)(1), we
need not consider the sufficiency of Primera's evidence on this element because we have already
decided that Primera failed to support the "less than equal terms" element of its prima facie case.
42 U.S.C. §§ 2000cc(b)(1), 2000cc-2(b).
14
The County filed a Notice of Cross-Appeal challenging the constitutionality of
RLUIPA and FRFRA's "substantial burden" provisions, but expressly abandoned its cross-appeal
in its Answer Brief. Accordingly, the County's cross-appeal is DISMISSED.
35
Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward County
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2006-06-01
Citations: 450 F.3d 1295
Copy Citations