FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CENTRO FAMILIAR CRISTIANO
BUENAS NUEVAS and JORGE No. 09-15422
OROZCO, Pastor, D.C. No.
Plaintiffs-Appellants,
2:08-cv-00996-
v. NVW
CITY OF YUMA, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
April 15, 2010—San Francisco, California
Filed July 12, 2011
Before: Andrew J. Kleinfeld, A. Wallace Tashima and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Kleinfeld
9357
CENTRO FAMILIAR v. CITY OF YUMA 9361
COUNSEL
Byron J. Babione, Alliance Defense Fund, Scottsdale, Ari-
zona, for the appellants.
Ronald W. Messerly, Snell & Wilmer, Phoenix, Arizona, for
the appellee.
Christopher C. Wang, United States Department of Justice,
Appellate Section, Civil Rights Division, Washington, D.C.,
for the amicus curiae.
OPINION
KLEINFELD, Circuit Judge:
We address the “equal terms” provision of the Religious
Land Use and Institutionalized Persons Act (RLUIPA).1
I. Facts
Centro Familiar Cristiano Buenas Nuevas, founded in
1998, is a Christian congregation of around 250 members,
associated with the Arizona Southern Baptist Convention. The
church sued for a declaratory judgment, injunction, and dam-
ages, when the City of Yuma prevented it from conducting
church services in a building it had bought for that purpose.
The parties agreed to consolidate the preliminary injunction
hearing with trial on the merits, and stipulated to many of the
1
42 U.S.C. §§ 2000cc.
9362 CENTRO FAMILIAR v. CITY OF YUMA
facts. No facts are at issue on appeal. We describe the facts
in accord with the trial judge’s findings of fact. This is a sort
of reverse urban blight case, with the twist that instead of bars
and nightclubs being treated as blighting their more genteel
environs, the church is treated as blighting the bar and night-
club district.
The City of Yuma, through the 1990s, tried to revive its
Old Town Main Street area as a tourist district. The city
decided to salt Main Street with a “mixture of commercial,
cultural, governmental, and residential uses that will help to
ensure a lively pedestrian-oriented district.” The three-block
Main Street area included a large, vacant building that had
been a J. C. Penney department store from 1952 to 1976, then
declined into factory and warehouse space for garment manu-
facturers, then a temporary facility for a bakery in 1998, and
then a vacant hulk. The church bought the building in 2007.
The church had been looking for space because the half of
a former movie theater it had been renting was inadequate. It
bought the old J. C. Penney store because it was cheap, and
because the municipality did not impose parking requirements
on Main Street. The old vacant store, with a big public park-
ing lot in back, was in foreclosure, and had to be purchased
fast in order to get the distress sale price. The city told the
church that it would need a conditional use permit to hold
church services there, but the owner of the building was not
willing to hold off on selling while the permit was sought, so
the church had to buy knowing that the permit might be
denied.
Some owners of neighboring properties objected to a per-
mit on various grounds. A major concern was that a church
would prevent issuance of liquor licenses, because state law
prohibited new bars, nightclubs, or liquor stores within 300
feet of a church.2 The Community Planning Staff of the City
2
Ariz. Rev. Stat. § 4-207(A) (2000). The subsection states:
A retailer’s license shall not be issued for any premises which
CENTRO FAMILIAR v. CITY OF YUMA 9363
of Yuma prepared a report for the City Planning and Zoning
Commission recommending denial of a conditional use per-
mit. The report noted positive features of granting the permit,
such as “rehabilitation of a deteriorated and long-vacant
building in the Old Town District.” But, the staff concluded,
use of the building as a church would be inconsistent with a
“24/7 downtown neighborhood involving retail, residential,
office and entertainment.” The liquor license problem was the
“pivotal factor.”3 The city wanted the three-block Main Street
to be an entertainment district, and the state prohibition on
liquor licenses for bars, nightclubs, and liquor stores within
300 feet of it would blight a whole block for purposes of an
entertainment district. The Commission accordingly denied
the conditional use permit.
Had Centro Familiar been a secular organization rather than
a church, it would not have needed the conditional use permit.
The Yuma City Code requires religious organizations,4 (and
schools,5 which also have the effect of preventing issuance of
are, at the time the license application is received by the director,
within three hundred horizontal feet of a church, within three
hundred horizontal feet of a public or private school building
with kindergarten programs or any of grades one through twelve
or within three hundred horizontal feet of a fenced recreational
area adjacent to such school building. This section does not pro-
hibit the renewal of a valid license issued pursuant to this title if,
on the date that the original application for the license is filed, the
premises were not within three hundred horizontal feet of a
church, within three hundred horizontal feet of a public or private
school building . . . .
Subsection B of Section 4-207 clarifies that the restrictions do not apply
to a restaurant, special event license, hotel-motel, government license, or
fenced playing area of a golf course. Ariz. Rev. Stat. § 4-207(B) (2000).
3
Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 615 F.
Supp. 2d 980, 1000 (D. Ariz. 2009).
4
Yuma City Code § 154-188(F) (“Religious organizations”) (2008).
5
Id. § 154-188(D) (“Educational Services”) (2008).
9364 CENTRO FAMILIAR v. CITY OF YUMA
liquor licenses within 300 feet) to obtain a conditional use
permit (CUP) to operate in the Old Town District, but “Mem-
bership organizations (except religious organizations (SIC
86))”6 may operate in Old Town without a permit.7 Many
uses, not just membership organizations and entertainment
venues, may operate without a conditional use permit. Audito-
riums, performing art centers, and physical fitness facilities;
museums, art galleries, and botanical and zoological gardens;
single- and multiple-family dwellings; and even jails and pris-
ons may operate in Old Town and on Main Street as of right.
Centro Familiar sued for a declaratory judgment invalidat-
ing the City Code provision subjecting churches but not secu-
lar membership organizations to conditional use permits, an
injunction to require issuance of the permit, and damages for
the financial consequences to the church of the denial. The
district court concluded that the different treatment of
churches did not violate the Religious Land Use and Institu-
tionalized Persons Act (RLUIPA) or other provisions of law,
and entered judgment for the city.8
Two subsequent events have changed the circumstances of
the case. First, while this appeal was pending, the church lost
the property to foreclosure. Second, Arizona passed a state
version of RLUIPA, a state statute very similar to the federal
6
“SIC” stands for “Standard Industrial Classification,” described in
Yuma’s 2010 City Code as a “statistical classification standard underlying
all establishment-based federal economic statistics classified by industry,
published by the Executive Office of the President, Office of Management
and Budget. The classification covers the entire field of economic activi-
ties and defines industries in accordance with the composition and struc-
ture of the economy.” See Yuma City Code § 154-01.07 (“Definitions.”)
(2010). The SIC Manual is available on the U.S. Department of Labor’s
website at http://www.osha.gov/pls/imis/sic_manual.html.
7
Yuma City Code § 154-187(XX) (“Membership organizations (except
religious organizations)”) (2008).
8
See Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 615 F.
Supp. 2d 980 (D. Ariz. 2009).
CENTRO FAMILIAR v. CITY OF YUMA 9365
statute.9 Arizona also changed the statutory ban on liquor
licenses within 300 feet of a church, allowing for waiver.10
We withdrew this case from submission so that counsel could
address the effect of the changed law. Counsel for the church
filed a letter brief addressing the foreclosure, and both sides
filed subsequent supplemental briefs on the effect of the new
statutes.
II. Analysis
Centro Familiar argues that the Religious Land Use and
Institutionalized Persons Act (RLUIPA) is not a mere restate-
ment of the Free Exercise Clause, that requiring a conditional
use permit for churches but not other organizations violates
RLUIPA, and that even if RLUIPA were a mere codification
of the Free Exercise Clause, the City Code would violate that
as well. The United States has filed an amicus curiae brief in
support of the church, though not agreeing with it on all
points.
A. Mootness.
[1] The claims for declaratory judgment and injunction are
moot. The church no longer owns the old J. C. Penney store
building, so the city could not be required to issue a condi-
tional use permit for the building to the church. Nor could the
church be entitled to a declaration that a code provision and
statute violate federal law, because they no longer affect the
church. The dispute does not fall within the “capable of repe-
tition, yet evading review” exception,11 both because the stat-
9
Ariz. Rev. Stat. § 41-1493.03 (2010).
10
Ariz. Rev. Stat. § 4-207(C)(4) (2010). This subsection allows a city
such as Yuma, with a population of less than 200,000, to designate one
“entertainment district” within its boundaries, and approve exemptions
from the distance restrictions on a case-by-case basis within that district.
11
Enyart v. Nat’l Conference of Bar Examiners, Inc., 630 F.3d 1153,
1159-60 (9th Cir. 2011).
9366 CENTRO FAMILIAR v. CITY OF YUMA
ute now allows for waiver of the liquor license restriction, and
because there is no reason to suppose that any similar subse-
quent denial would be unreviewable.
[2] The damages claim, though, is not moot. The com-
plaint seeks compensatory damages “for the Church’s mone-
tary expenses incurred as a result of the City’s” permit denial.
The letter brief claims that the permit denial forced the church
to pay for two facilities for two years, one check for the J. C.
Penney building that it could not use, and another for a facil-
ity in which to hold services, and the church lost the property
because it could not afford to pay for two facilities in order
to use one.
Although the Commission might have granted the permit
under the new statute enabling the city to waive the 300-foot
liquor license ban, that statute was not retroactive12 and had
no effect on the actual occurrences. The ban was not waived,
the church was stuck paying for a building it could not use,
and consequently, according to its representations, it wasted
the money and lost its building.
[3] RLUIPA does not say in so many words that a success-
ful plaintiff can obtain damages, but the city does not contest
that one can. If damages were not allowable, then mootness
of the declaratory judgment and injunction claims would moot
out the entire case. RLUIPA states that a successful plaintiff
may “obtain appropriate relief against a government.”13 The
12
In 2010, Arizona enacted its own version of RLUIPA, Ariz. Rev. Stat.
§ 41-1493.03, and amended the 300-foot ban to allow municipal waivers,
Ariz. Rev. Stat. § 4-207(C)(4). Under Arizona law, however, no statute is
retroactive “unless expressly declared therein.” Ariz. Rev. Stat. § 1-244;
see also Garcia v. Browning, 151 P.3d 533, 535 (Ariz. 2007), superseded
by statute on other grounds as recognized in State v. Rios, 237 P.3d 1052,
1054 (Ariz. 2010). There is no statement of retroactivity in the amending
bill, Chapter 323 of the 2010 Arizona Session Laws. We therefore must
decide this case under RLUIPA as applied to the Arizona statutes and code
provisions in effect at the times of the events at issue.
13
42 U.S.C. § 2000cc-2(1).
CENTRO FAMILIAR v. CITY OF YUMA 9367
statute defines “government” to include both states and munici-
palities,14 giving rise to an Eleventh Amendment question.
The question has been answered in two Supreme Court deci-
sions.
[4] Franklin v. Gwinnett County Public Schools15 holds
that federal courts may award monetary damages against
municipal entities, absent clear statutory indication to the con-
trary.16 Franklin uses the phrasing, used in RLUIPA, “appro-
priate relief.” RLUIPA both uses the “appropriate relief”
language and speaks without any “clear direction” excluding
damages relief, so under Franklin, municipalities are liable
for monetary damages for violations of RLUIPA.17
[5] Sossamon v. Texas holds that states may not be held
liable for monetary damages under RLUIPA because they
have not waived sovereign immunity.18 Sossamon is grounded
on the line of Eleventh Amendment authority requiring “clear
expression”19 to abrogate the sovereign immunity of states
from damages claims.20 The Eleventh Amendment require-
ment does not apply to municipalities.21 The City of Yuma,
14
42 U.S.C. § 2000cc-5(4).
15
Franklin v. Gwinnett County Public Sch., 503 U.S. 60 (1992).
16
See also Sossamon v. Texas, 131 S. Ct. 1651, 1658-59 (2011).
17
Other circuits have allowed monetary damages against municipalities
under RLUIPA. See, e.g., Lighthouse Inst. for Evangelism, Inc. v. City of
Long Branch, 510 F.3d 253, 260-61, 273 (3d Cir. 2007).
18
Sossamon v. Texas, 131 S.Ct. 1651 (2011).
19
Hibbs v. Dep’t of Human Res., 273 F.3d 844, 852 (9th Cir. 2001),
aff’d, Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003).
20
See also Alaska v. EEOC, 564 F.3d 1062, 1066 (9th Cir. 2009)
(“Congress may abrogate this immunity in certain circumstances. To
determine when it has validly done so, we must ‘resolve two predicate
questions: . . . whether Congress unequivocally expressed its intent to
abrogate’ and, if so, ‘whether Congress acted pursuant to a valid grant of
constitutional authority.’ ” (quoting Kimel v. Fla. Bd. of Regents, 528 U.S.
62, 73 (2000)) (alteration in the original)).
21
Id. at 1085-86 (“political subdivisions of states, such as counties and
municipalities . . . are not shielded by sovereign immunity”) (citing N. Ins.
Co. v. Chatham Cnty., 547 U.S. 189, 193 (2006)).
9368 CENTRO FAMILIAR v. CITY OF YUMA
therefore, may be liable for monetary damages under
RLUIPA, if plaintiffs prove a violation and damages.
B. RLUIPA.
The facts are not at issue. We review the legal conclusions
of the district court de novo.22
RLUIPA has two separate provisions limiting government
regulation of land use. One prohibits governments from
implementing land use regulations that impose “a substantial
burden” on religious exercise unless the government demon-
strates that they further a “compelling governmental interest”
by the “least restrictive means.”23 That “substantial burden”
provision is not at issue here.
[6] The second RLUIPA land use provision prohibits a
government from imposing a land use restriction on a reli-
gious assembly “on less than equal terms” with a nonreligious
assembly.24 This “equal terms” provision is the one before us.
22
Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir.
2008) (en banc).
23
42 U.S.C. § 2000cc(a).
24
The second land use provision, on “Discrimination and exclusion,”
includes more than the “equal terms” provision. It says in full that:
(1) Equal terms
No government shall impose or implement a land use regula-
tion 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 regula-
tion 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 regula-
tion that—
CENTRO FAMILIAR v. CITY OF YUMA 9369
We have not had occasion to construe it.25
(A) totally excludes religious assemblies from a jurisdiction; or
(B) unreasonably limits religious assemblies, institutions, or
structures within a jurisdiction.
42 U.S.C. § 2000cc(b).
We need not reach the “nondiscrimination” and “exclusions and limits”
provisions in this case.
25
Six other circuits have applied and interpreted the equal terms provi-
sion, dividing roughly into two camps. The Eleventh Circuit in Midrash
Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004), held
that a statute or zoning ordinance that facially differentiates between reli-
gious and nonreligious assemblies or institutions violates the equal terms
provision. The statute or regulation must then undergo strict scrutiny to
see if it should be upheld despite the violation. The Third Circuit in Light-
house Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253
(3d Cir. 2007), held instead that a plaintiff must identify a similarly situ-
ated secular assembly or institution with respect to the goal of the regula-
tion, and compare the religious assembly’s treatment to that of the
similarly situated secular comparator. The Seventh Circuit sitting en banc
in River of Life Kingdom Ministries v. Village of Hazel Crest, Illinois, 611
F.3d 367 (7th Cir. 2010) (en banc) adopted a variation on the Third Cir-
cuit’s approach: there must be a similarly situated comparator with respect
to an accepted “regulatory criteria,” such as “commercial district” or “resi-
dential district” or “industrial district,” not the Third Circuit’s “regulatory
purpose.”
The Tenth and Sixth Circuits did not need to decide between the cir-
cuits, since Rocky Mountain Christian Church v. Board of County Com-
missioners, 613 F.3d 1229 (10th Cir. 2010), and Third Church of Christ
v. City of New York, 626 F.3d 667 (2d Cir. 2010), were as-applied, not
facial, challenges to an ordinance.
The Fifth Circuit, in Elijah Group, Inc. v. City of Leon Valley, ___ F.3d
___, 2011 WL 2295215 (5th Cir. 2011), recently held that a city ordinance
violated the equal terms provision, without explicitly adopting any of the
above tests. The Fifth Circuit explained that a church must show “more
than simply that its religious use is forbidden and some other nonreligious
use is permitted,” because the equal terms provision “must be measured
by the ordinance itself and the criteria by which it treats institutions differ-
ently.” Id. at *4.
9370 CENTRO FAMILIAR v. CITY OF YUMA
We decided a Sikh temple case under the “substantial bur-
den” provision in Guru Nanak Sikh Society v. County of Sutter.26
We laid out the history of RLUIPA, that Congress promul-
gated RLUIPA after City of Boerne v. Flores27 had invalidated
the Religious Freedom Restoration Act of 1993 (RFRA).
RLUIPA’s purpose was to address what Congress perceived
as inappropriate restrictions on religious land uses, especially
by “unwanted” and “newcomer” religious groups.28 We held
that the “substantial burden” portion of RLUIPA (unlike
RFRA) “is constitutional because it addresses documented,
unconstitutional government actions in a proportional man-
ner.”29
We reversed a summary judgment against a church, and
held that the church had established enough to get to trial
under the “substantial burden” provision, in International
Church of the Foursquare Gospel v. City of San Leandro.30
Because we reversed under the “substantial burden” provi-
sion, we expressly did not address the “equal terms” provision
in Foursquare Gospel.31 Now we do.
[7] The statutory text of the equal terms provision says:
No government shall impose or implement a land
use regulation in a manner that treats a religious
26
Guru Nanak Sikh Soc’y v. Cnty. of Sutter, 456 F.3d 978 (9th Cir.
2006).
27
City of Boerne v. Flores, 521 U.S. 507 (1997).
28
Guru Nanak Sikh Soc., 456 F.3d at 994.
29
Id. at 993. The Supreme Court confirmed that Section 3 of RLUIPA,
concerning institutionalized persons, is constitutional. Cutter v. Wilkinson,
544 U.S. 709, 720 (2004).
30
Int’l Church of the Foursquare Gospel v. City of San Leandro, ___
F.3d ___, 2011 WL 1518980 (9th Cir. 2011).
31
Id. at *1 n.1.
CENTRO FAMILIAR v. CITY OF YUMA 9371
assembly or institution on less than equal terms with
a nonreligious assembly or institution.32
Most of the elements of the prohibition are not at issue: (1)
there must be an imposition or implementation of a land-use
regulation, (2) by a government, (3) on a religious assembly
or institution. The challenge here is to an imposition by the
ordinance itself, not to implementation of a facially nondis-
criminatory ordinance, so we need not construe the “imple-
ment” term. What is at issue is the fourth element, that the
imposition be “on less than equal terms with a nonreligious
assembly or institution.”
[8] The Old Town District portion of the Yuma City Code
says that “religious organizations” are permitted only upon
the granting of a conditional use permit, but numerous other
uses are permitted as of right, and do not need a conditional
use permit. The uses permitted as of right include several uses
that would seem to put a damper on entertainment, such as
“correction centers,”33 or create a dead block uninteresting to
tourists and locals seeking “lively” entertainment, such as
“multiple-family dwellings.”34 Speaking to membership orga-
nizations specifically, the ordinance allows as of right, with-
out a conditional use permit, “membership organizations
(except religious organizations (SIC 86)).”35 It is hard to see
how an express exclusion of “religious organizations” from
uses permitted as of right by other “membership organiza-
tions” could be other than “less than equal terms” for religious
organizations.
32
42 U.S.C. § 2000cc(b)(1).
33
Yuma City Code § 154-187(GGG) (“Correction centers”) (2008).
34
Id. § 154-187(CCC) (“Multiple-family dwellings”) (2008).
35
Id. § 154-187(XX) (“Membership organizations (except religious
organizations (SIC 86))”) (2008). “SIC 86” refers to “Standard Industrial
Classification 86,” which includes business associations, professional
membership organizations, labor unions, civic associations, social associa-
tions, fraternal associations, political organizations, and others. Available
at http://www.osha.gov/pls/imis/sic_manual.html.
9372 CENTRO FAMILIAR v. CITY OF YUMA
[9] The statute imposes the burden of persuasion on the
government, not the religious institution, once the religious
institution establishes a prima facie case:
If a plaintiff produces prima facie evidence to sup-
port 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.36
It is undisputed that Centro Familiar is a religious institution,
and the express distinction drawn by the ordinance establishes
a prima facie case for unequal treatment.
[10] The statute does not provide for “strict scrutiny” of a
“compelling governmental interest” to see if the government
can excuse the equal terms violation.37 The Constitutional
phrases, “substantial burden,” “compelling governmental
interest,” and “least restrictive means,” are all included in the
“substantial burden” provision,38 not the “equal terms” provi-
sion.39 The statutory burden of proof provision speaks to all
parts of the statute, and also the Free Exercise Clause of the
Constitution.40 It does not impose new language into any pro-
36
42 U.S.C. § 2000cc-2(b).
37
We recognize that the Eleventh Circuit does read the “strict scrutiny”
provisions from the substantial burden subsection into the separate equal
terms subsection, but we do not agree. See Midrash Sephardi, Inc. v. Town
of Surfside, 366 F.3d 1214, 1232 (11th Cir. 2004) (“a violation of § (b)’s
equal treatment provision, consistent with the analysis employed in
Lukumi, must undergo strict scrutiny”).
38
42 U.S.C. § 2000cc(a)(1).
39
42 U.S.C. § 2000cc(b)(1).
40
42 U.S.C. § 2000cc-2(b).
CENTRO FAMILIAR v. CITY OF YUMA 9373
visions of the statute. The equal terms provision does not use
language from the Free Exercise Clause, or otherwise support
the conclusion that Congress meant merely to meaninglessly
say “the Constitution applies to land use provisions.”
[11] Congress expressly provided for broad construction
“in favor of a broad protection of religious exercise, to the
maximum extent permitted by the terms of this chapter.”41
Both because the language of the equal terms provision does
not allow for it, and because it would violate the “broad con-
struction” provision, we cannot accept the notion that a “com-
pelling governmental interest” is an exception to the equal
terms provision, or that the church has the burden of proving
a “substantial burden” under the equal terms provision.
That is not to say that anything allowable for any institution
has to be allowed for a church under the equal terms provi-
sion. The Third Circuit gave the example that when a town
allows a ten-member book club, it would also have to permit
a 1000-member church.42 This is not the case, but the reason
why is not the “substantial burden” and “compelling govern-
ment interest” test. That test is for the “substantial burden”
subsection, not the “equal terms” subsection. The reason is
that a 1000-member church is not equal, for land-use pur-
poses, to a ten-member book club.
[12] 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
41
42 U.S.C. § 2000cc-3(g). See also Khatib v. County of Orange, 639
F.3d 898, 904 (9th Cir. 2011) (en banc) (“where Congress expressly
instructs that provisions of a statute shall be construed liberally, ‘we
should not . . . read into the statute an unwritten additional hurdle, even
if well intentioned’ ” (quoting United States v. W.R. Grace, 526 F.3d 499,
505 (9th Cir. 2008) (en banc))); id. at 900-01.
42
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d
253, 268 (3d Cir. 2007).
9374 CENTRO FAMILIAR v. CITY OF YUMA
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 con-
cerns.”43 Thus, an ordinance that allowed membership organi-
zations below some size would not have to allow churches
substantially above that size, if parking were a relevant con-
cern.
The city may be able to justify some distinctions drawn
with respect to churches, if it can demonstrate that the less-
than-equal-terms are on account of a legitimate regulatory
purpose, not the fact that the institution is religious in nature.
In this respect, our analysis is about the same as the Third Cir-
cuit’s: we look to see if the church is “similarly situated as to
the regulatory purpose.”44 The Seventh Circuit, en banc, has
refined this test to avoid inappropriate subjectivity by requir-
ing equality with respect to “accepted zoning criteria,” such
as parking, vehicular traffic, and generation of tax revenue.45
That refinement is appropriate where necessary to prevent
evasion of the statutory requirement, though it makes no prac-
tical difference in this case.46
[13] The 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
43
River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d
367, 371 (7th Cir. 2010) (en banc).
44
See Lighthouse Inst., 510 F.3d at 266.
45
River of Life Kingdom Ministries, 611 F.3d at 373.
46
As Judge Cudahy’s concurrence points out, there is “little real contrast
in basic approach or result between the Third Circuit and the [Seventh Cir-
cuit] majority analysis”. Id. at 374 (Cudahy, J., concurring).
CENTRO FAMILIAR v. CITY OF YUMA 9375
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.47
[14] In this case, no “accepted zoning criteria” justifies the
exception of religious organizations in the “as of right” ordi-
nance provision, “Membership organizations (except religious
organizations (SIC 86)).” The City Code does not address
vehicular traffic or parking needs, as a neutral restriction on
the size of membership organizations might. It does not
address generation of tax revenue, since it allows all sorts of
non-taxpayers to operate as of right, such as the United States
Postal Service,48 museums, and zoos.49 The church exception
does not address the “street of fun”50 criterion, since the city
allows jails and prisons to operate on the three-block Old
Town Main Street.51
[15] The only criterion that may justify the exception for
churches is the damper they put on liquor licenses for bars
and nightclubs. Schools, which also invoke the damper, are
also required to have conditional use permits before they oper-
47
See 42 U.S.C. § 2000cc-2(b). We here depart from the Third Circuit’s
analysis. See Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch,
510 F.3d 253, 270 (3d Cir. 2007) (explaining that a plaintiff “must show
(1) it is a religious assembly or institution, (2) subject to a land use regula-
tion, which regulation (3) treats the religious assembly on less than equal
terms with (4) a nonreligious assembly or institution (5) that causes no
lesser harm to the interests the regulation seeks to advance”). As explained
above, Section 2000cc-2(b) imposes the burden of persuasion on the gov-
ernment, once the plaintiff establishes a prima facie case.
48
Yuma City Code § 154-187(F) (“United States Postal Service (SIC
431)”) (2008).
49
Id. § 154-187(WW) (“Museums, art galleries, and botanical and zoo-
logical gardens (SIC 84)”) (2008).
50
See River of Life Kingdom Ministries, 611 F.3d at 368-69.
51
Yuma City Code § 154-187(GGG) (“Correction centers”) (2008).
9376 CENTRO FAMILIAR v. CITY OF YUMA
ate.52 However, there are three reasons that, taken together,
explain why the 300-foot restriction on liquor licenses does
not vitiate the inequality.
[16] First, the language of the City Code says “religious orga-
nizations,”53 not “uses which would impair issuance of liquor
licenses.” The ordinance gives no indication that schools and
churches are being treated similarly for the same reason. The
limitation on educational institutions is in a separate section,
not the one establishing the unequal treatment of religious
groups. The provision creating the inequality says that “Mem-
bership organizations (except religious organizations) (SIC
86)” may operate as of right. It does not say “membership
organizations, except religious and educational organiza-
tions.”
[17] Second, the ordinance’s exception is too broad to be
explained away by the liquor license restriction. It excludes
not only churches, but also religious organizations that are not
churches. Religious organizations that are not “churches” do
not cause the 300-foot restriction on liquor licenses to operate,
but are nevertheless required to obtain a conditional use per-
mit. The Arizona statute defines a “church” as “a building
which is erected or converted for use as a church, where ser-
vices are regularly convened, which is used primarily for reli-
gious worship and schooling and which a reasonable person
would conclude is a church by reason of design, signs or
architectural or other features.”54 To be considered a church
under the Arizona statute, a building must appear to be a
church because of its architecture, and the group occupying it
must regularly convene services there. The Yuma City Code’s
definition of “religious organizations” covers more than just
visibly identifiable churches in which services are regularly
52
Id. § 154-188(D) (“Educational Services (SIC 82)”) (2008).
53
Id. § 154-187(XX) (“Membership organizations (except religious
organizations (SIC 86))”) (2008)
54
Ariz. Rev. Stat. § 4-207(D) (2000).
CENTRO FAMILIAR v. CITY OF YUMA 9377
held. “Religious organizations (SIC 8661)” include “religious
organizations operated for worship, religious training or
study, government or administration of an organized religion,
or for promotion of religious activities.”55
[18] An advertising agency is allowed in Old Town as of
right,56 but not if it promotes religion. The heads of a fraternal
lodge or a merchants’ association could have a permanent
meeting room in Old Town, but the heads of a religious group
could not, even though this would not bring into effect the
300-foot restriction on liquor licenses for bars if the meeting
room is not in a church. An office building could administer
a restaurant chain, but could not host a chapel, even though
the office building is not a church. The exclusion of religious
organizations is too broad for the liquor license statute to
explain it away, because it excludes religious uses other than
churches.
The exclusion of “educational services” from use as of
right similarly indicates that the ordinance was not written
with the liquor license restriction in mind. Only schools serv-
ing kindergarten through twelfth grade throw a wet blanket on
liquor licenses,57 but the City Code also excludes colleges,
universities, professional schools, and libraries.58 And the
exception disallowing religious organizations from operating
as of right pertains regardless of whether the statute allows
waiver of the liquor license restriction, as it did not when this
case arose, but does now.
55
Standard Industrial Classification 8661, available at http://
www.osha.gov/pls/imis/sic_manual.html.
56
Yuma City Code § 154-187(GG) (“Advertising agencies (SIC 7311)”)
(2008).
57
Ariz. Rev. Stat. § 4-207(A) (2000).
58
Yuma City Code § 154-187(D) (“Educational services (SIC 82)”)
(2008). Standard Industrial Classification 82 includes SIC 8221
(“Colleges, Universities, and Professional Schools”), and SIC 8231
(“Libraries”), among others. Available at http://www.osha.gov/pls/imis/
sic_manual.html.
9378 CENTRO FAMILIAR v. CITY OF YUMA
Third, 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.59 An apartment building taking
up the whole block may be developed as of right, and so may
a post office or prison. Prisons have bars, but not the kind pro-
moting “entertainment.”
[19] Thus the ordinance before us expressly treats religious
organizations on a less than equal basis. In order to excuse
facial treatment of a church on “less than equal terms,” the
land-use regulation must be reasonably well adapted to “ac-
cepted zoning criteria,” even though “strict scrutiny” in a
Constitutional sense is not required. The Yuma City Code’s
exclusion of religious organizations is not reasonably well
adapted to the zoning criteria it is purported to serve. And it
therefore violates the equal terms provision of RLUIPA.60
[20] Because Yuma requires religious assemblies to obtain
a conditional use permit, and does not require similarly situ-
ated secular membership assemblies to do the same, it violates
RLUIPA’s equal terms provision. Because it does, we need
not reach Centro Familiar’s argument that the ordinance vio-
lates the Free Exercise Clause.
III. Conclusion
Because the Yuma City Code violates the equal terms pro-
vision, we reverse. On remand, the district court shall proceed
as appropriate to adjudicate Centro Familiar’s claim to dam-
ages.
REVERSED and REMANDED.
59
See River of Life Kingdom Minst. v. Hazel Crest, Ill., 611 F.3d 367,
374 (7th Cir. 2010) (en banc) (“should a municipality create what purports
to be a pure commercial district and then allow other uses, a church would
have an easy victory if the municipality kept it out”).
60
42 U.S.C. § 2000cc(b)(1).