Epona, LLC, et al v. County of Ventura, et al

Filing

FILED OPINION (DIANA GRIBBON MOTZ, MILAN D. SMITH, JR. and JACQUELINE H. NGUYEN) Each party shall bear its own costs on appeal. See Fed. R. App. P. 39(a)(4). REVERSED IN PART, AFFIRMED IN PART, VACATED IN PART, REMANDED. Judge: MDS Authoring, FILED AND ENTERED JUDGMENT. [10681637]--[COURT UPDATE: Attached correct PDF of opinion (corrected typos). 12/07/2017 by SLM]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EPONA, LLC, a California limited
liability company; MICHAEL
FOWLER, an individual,
Plaintiffs-Appellants,

No. 17-55472
D.C. No.
2:16-cv-06372DMG-PLA

v.
COUNTY OF VENTURA, a political
subdivision of the State of
California; DOES, 1–25,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted October 3, 2017
Pasadena, California
Filed December 7, 2017
Before: DIANA GRIBBON MOTZ, * MILAN D. SMITH,
JR., and JACQUELINE H. NGUYEN, Circuit Judges.
*

The Honorable Diana Gribbon Motz, United States Circuit Judge
for the U.S. Court of Appeals for the Fourth Circuit, sitting by
designation.

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EPONA V. COUNTY OF VENTURA

Opinion by Judge Milan D. Smith, Jr.

SUMMARY **

Civil Rights
The panel reversed the district court’s dismissal of
appellants’ First Amendment claim, affirmed the dismissal
of appellants’ Religious Land Use and Institutionalized
Persons Act claim, vacated the denial of a preliminary
injunction and remanded in an action challenging the County
of Ventura’s permitting scheme, which requires individuals
to obtain a Conditional Use Permit to host weddings on their
properties.
Applying Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir.
2012), the panel first held that appellants functioned as
wedding “vendors” because they sought to profit from
facilitating and providing a commercial space for weddings.
The panel held that because they were wedding vendors,
they may suffer economic injury as a result of the permitting
scheme, and an injunction may redress this harm. Thus, the
panel held that appellants had Article III standing to bring
their First Amendment challenge.
The panel reversed the dismissal of appellants’ First
Amendment claim, holding that the permitting scheme
lacked definite and objective standards and also failed to
**

This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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provide any limitation on the time period within which a
permit must be approved. Together, these defects conferred
unbridled discretion on permitting officials. The panel
affirmed the dismissal of appellants’ equal treatment claim
under the Religious Land Use and Institutionalized Persons
Act because appellants did not assert that they were a
religious institution or assembly. The panel vacated the
district court’s denial of appellants’ motion for a preliminary
injunction as to the First Amendment claim because the
motion was no longer moot, and remanded to the district
court for its consideration in the first instance.

COUNSEL
Matthew D. Hinks (argued) and Benjamin M. Reznik, Jeffer
Mangels Butler & Mitchell LLP, Los Angeles, California,
for Plaintiffs-Appellants.
Ronda J. McKaig (argued), Assistant County Counsel;
Leroy Smith, County Counsel; County of Ventura County
Counsel, Ventura, California; for Defendants-Appellees.

OPINION
M. SMITH, Circuit Judge:
Epona, LLC and Michael Fowler (collectively,
Appellants) appeal the district court’s order dismissing
Appellants’ First Amendment and Religious Land Use and
Institutionalized Persons (RLUIPA), 42 U.S.C. § 2000cc et
seq., claims, and denying as moot Appellants’ motion for a
preliminary injunction. Appellants challenge the County of
Ventura’s (the County) permitting scheme, which requires

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EPONA V. COUNTY OF VENTURA

individuals to obtain a Conditional Use Permit (CUP) to host
weddings on their properties.
We reverse the dismissal of Appellants’ First
Amendment claim because the permitting scheme vests
permitting officials with unbridled discretion. We affirm the
dismissal of Appellants’ equal treatment claim under
RLUIPA because neither Appellant is a religious institution
or assembly. We vacate the district court’s denial of
Appellants’ motion for a preliminary injunction, and remand
to the district court for its consideration in the first instance
because the motion is no longer moot.
FACTUAL AND PROCEDURAL BACKGROUND
Michael Fowler is Epona, LLC’s sole member, and owns
a 40-acre parcel of land (the property) in Ventura County.
The property is zoned for agricultural use, and neighboring
properties either are agricultural, or are designated as open
spaces. Fowler created a garden area on the property, which
he hoped to rent out for use in wedding ceremonies and
related events.
The County’s Non-Coastal Zoning Ordinance (NCZO)
describes permissible land uses in specific zones. NCZO
§ 8105-4. Outdoor weddings are classified as “temporary
outdoor” events under NCZO § 8102-0, which encompasses
“[o]utdoor recreational events such as harvest festivals,
amusement rides, historic re-enactments, animal events, art
shows, concerts, craft fairs, weddings, and religious revival
meetings.” In order to hold a temporary outdoor event on an
agriculturally zoned property, the landowner must apply for
and receive a CUP.
The NCZO provides for issuance of a CUP when certain
standards are satisfied, or where “such conditions and

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limitations, including time limits, as the decision-making
authority deems necessary, are imposed to allow the
standards to be met.” Id. § 8111-1.2.1.1. At the time
Appellants applied for a CUP, the NCZO stated that a permit
“may” issue if the applicant meets these standards, and
required the permitting official to make “[s]pecific factual
findings” that each standard “can be satisfied.” After the
initiation of this litigation, the County amended the CUP
scheme to provide that a permit “shall” issue if the relevant
standards have been satisfied, and to require specific factual
findings in support of an application denial. 1 Id. Under both
schemes, the applicant bears the burden of proving that all
of the relevant standards can be met.
Appellants’ CUP application sought permission to use
the property for up to 60 temporary outdoor events per year,
including weddings.
County agencies reviewed the
application, and found there were no grounds for denying the
permit.
The County’s Planning Commission held a public
hearing on Appellants’ application, at which County staff
presented its no-impact findings. After receiving objections
from neighboring land owners, the Commission denied the
application. In a subsequently issued resolution, the
Commission based its denial on the following findings:
(1) The venue is not compatible with the
rural community . . . ;
(2) The venue has the potential to impair the
utility of neighboring property or uses

1

The amended CUP scheme is the subject of appeal in this case.

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EPONA V. COUNTY OF VENTURA
and is inconsistent with the finding set
forth in the NCZO § 8111-1.2.1.1.c; and
(3) The venue has the potential to be
detrimental to the public interest, health,
safety, convenience, or welfare and is
inconsistent with the finding set forth in
the NCZO § 8111-1.2.1.1.d[.]

Appellants appealed the denial of their CUP application
to the Board of Supervisors. Contrary to its recommendation
in the previous report, this time the Commission staff
prepared a report that recommended denial of the CUP
application. The Board split its vote evenly on the
application, which had the effect of affirming the
Commission’s denial.
Appellants filed a complaint in federal district court on
August 24, 2016, followed by an amended complaint on
October 7, 2016, both of which alleged (1) abridgment of
free speech in violation of the First Amendment and
California Constitution Article 1, § 2; (2) violation of
RLUIPA; (3) denial of equal protection under the United
States and California Constitutions; (4) civil rights
violations pursuant to 42 U.S.C. § 1983; (5) entitlement to a
writ of mandate pursuant to California Code of Civil
Procedure § 1094.5; and (6) a request for declaratory relief.
Appellants also filed a motion for preliminary injunctive
relief on November 4, 2016, seeking to enjoin enforcement
of the amended CUP scheme. The County filed a motion to
dismiss for failure to state a claim the same day.
The district court granted the County’s motion to dismiss
and denied Appellants’ motion for a preliminary injunction.
The district court held that Appellants could only challenge

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the CUP scheme as applied, and thus dismissed their facial
challenge to the amended CUP scheme without leave to
amend. The court then dismissed, with leave to amend,
Appellants’ as-applied challenge for failing to plausibly
allege that the CUP was improperly denied based on content.
It further held that the CUP scheme did not grant unbridled
discretion to permitting officials, and did not require time
limits within which the County must act on a permit
application because the scheme is content neutral. The court
similarly dismissed Appellants’ equal protection claims.
The district court also found that Appellants had not shown
either a substantial burden on religious exercise or unequal
treatment as a religious assembly or institution under
RLUIPA. Finally, the district court denied Appellants’
motion for a preliminary injunction as moot because it had
dismissed the entire amended complaint. Appellants timely
appealed. 2
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over this appeal pursuant to
28 U.S.C. § 1291. We review the district court’s dismissal
of Appellants’ claims de novo. Fayer v. Vaughn, 649 F.3d
1061, 1063–64 (9th Cir. 2011) (per curiam). We review the
district court’s denial of a preliminary injunction for abuse
of discretion. Brookfield Commc’ns, Inc. v. W. Coast Entm’t
Corp., 174 F.3d 1036, 1045 (9th Cir. 1999).

2

Appellants appeal the dismissal of their First Amendment claim,
the dismissal of their RLUIPA equal terms claim, and the denial of their
motion for preliminary injunctive relief.

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ANALYSIS

I. Standing
The County argues that Appellants lack standing because
(1) they failed to allege a sufficient nexus to the third parties
whose rights they are asserting, (2) the affected third parties
are fully capable of asserting their own rights, and
(3) Appellants’ purported injuries are not redressable. These
arguments fail.
In order to have Article III standing, a plaintiff must
establish (1) that it has suffered an injury in fact that is both
concrete and particularized, and actual or imminent;
(2) causation, meaning that the injury is fairly traceable to
the complained-of action; and (3) redressability, which
requires a likelihood that the injury will be remedied by a
decision in the plaintiff’s favor. See Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–
81 (2000). “Generally, a plaintiff may only bring a claim on
his own behalf, and may not raise claims based on the rights
of another party.” Pony v. County of Los Angeles, 433 F.3d
1138, 1146 (9th Cir. 2006). However, “vendors and those in
like positions have been uniformly permitted to resist efforts
at restricting their operations by acting as advocates of the
rights of third parties who seek access to their market or
function.” Craig v. Boren, 429 U.S. 190, 195 (1976).
We addressed challenges similar to the County’s first
two arguments regarding third-party standing in Kaahumanu
v. Hawaii, 682 F.3d 789 (9th Cir. 2012). There, a pastor who
performed wedding ceremonies, and a non-profit association
of wedding planners, challenged Hawaii’s permitting
scheme for commercial weddings on public beaches. See id.
at 793, 795–96. We held that the association members, each
of whom we characterized as a wedding “vendor,” had

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standing to assert a First Amendment challenge to the
permitting scheme. 3 Id. at 797–98. Application of the
permitting scheme to commercial weddings caused an
economic injury to wedding vendors who made a business
out of organizing weddings. Id. at 797. Furthermore, the
plaintiffs would have been subject to sanction if they had
violated the permitting scheme and organized a wedding
without authorization, which made them “a proper party in
interest to object to [the scheme’s] enforcement.” Id.
(quoting Craig, 429 U.S. at 193). The plaintiffs also had
standing to assert the First Amendment rights of their
potential clients because “‘[t]he legal duties created by [the
challenged regulations] are addressed directly to vendors
such as [the plaintiffs]. [The plaintiffs are] obliged either to
heed the regulatory prohibition, thereby incurring a direct
economic injury through the constriction of [their] market,
or to disobey the regulatory command and suffer’ legal
sanction.” Id. at 798 (alterations omitted) (quoting Craig,
429 U.S. at 194).
The County’s redressability argument fares no better.
The County argues that Appellants’ requested remedy—an
injunction against the challenged provisions of the County’s
permitting scheme—would fail to redress Appellants’
injury. The County reasons that (1) per County regulation,
land use is prohibited unless specifically allowed, and
(2) outdoor weddings are allowed only if an individual has a
CUP under the NCZO; therefore, (3) if the CUP scheme is
invalidated, there will be no means of acquiring a permit for
outdoor weddings, and such weddings will be entirely
disallowed. But application of the County’s logic would
3

While the association was the plaintiff in Kaahumanu, it had
standing only because its individual members had standing. See
Kaahumanu, 682 F.3d at 797–98.

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effectively insulate every county permitting scheme from
constitutional review. Rather than precluding outdoor
weddings altogether, elimination of the CUP scheme as it
applies to weddings would yield the result that “expressive
activities protected by the First Amendment that previously
were only conditionally permitted are now unconditionally
permitted.” See 3570 E. Foothill Blvd., Inc. v. City of
Pasadena, 912 F. Supp. 1268, 1281 (C.D. Cal. 1996)
(emphasis in original). Therefore, an injunction could
redress Appellants’ injury.
As in Kaahumanu, Appellants function as wedding
“vendors” because they seek to profit from facilitating and
providing a commercial space for weddings. Because they
are wedding vendors, they may suffer economic injury as a
result of the CUP scheme, and an injunction may redress this
harm. 4 Thus, pursuant to our holding in Kaahumanu,
Appellants have Article III standing to bring their First
Amendment challenge.
II. First Amendment Claim
A. Appellants can bring a facial challenge to the
County’s permitting scheme
In general, courts disfavor facial challenges to
legislation. S. Or. Barter Fair v. Jackson County, 372 F.3d
1128, 1134 (9th Cir. 2004). However, the Supreme Court
permits facial challenges to prior restraints of protected
4
To the extent the injunctive relief sought by Appellants is
overbroad, the district court could and should narrow it. See Stormans,
Inc. v. Selecky, 586 F.3d 1109, 1140 (9th Cir. 2009) (discussing the
district court’s obligation to narrow injunctive relief to proscribe only
unconstitutional conduct). But, the need to tailor any injunctive relief to
Appellants’ alleged harm does not impact Appellants’ standing.

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expression for two reasons: (1) such restraints may have a
chilling effect on protected speech because potential
speakers may choose to self-censor rather than either acquire
a license or risk sanction for speaking without one; and
(2) where a regulation lacks clear standards for the issuance
of a permit, an as-applied challenge may fail to provide
sufficient protection against content-based censorship. See
City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,
757–59 (1988); see also Barter Fair, 372 F.3d at 1134–35.
In accordance with these justifying principles, permitting
schemes are subject to facial challenge if they “have a close
enough nexus to expression, or to conduct commonly
associated with expression, to pose a real and substantial
threat” that protected speech or conduct will be suppressed.
City of Lakewood, 486 U.S. at 759; see Real v. City of Long
Beach, 852 F.3d 929, 933 (9th Cir. 2017) (concluding a
plaintiff can bring a facial First Amendment challenge to a
CUP scheme “when he ‘argue[s] that an ordinance . . .
impermissibly restricts a protected activity’” (alterations in
original) (quoting Santa Monica Food Not Bombs v. City of
Santa Monica, 450 F.3d 1022, 1033–34 (9th Cir. 2006))).
The County argues that Appellants may not bring a facial
challenge to the CUP scheme because the NCZO does not
directly regulate marriage ceremonies or their content. The
County supports its argument by reference to Kaahumanu,
in which we held that the plaintiffs could only bring an asapplied challenge to a regulation requiring a permit for all
commercial activity on state beaches, except to the extent
that that regulation vested broad discretion in permitting
officials. See Kaahumanu, 682 F.3d at 800–02.
Two points are relevant. First, unlike the regulation at
issue in Kaahumanu, which applied broadly to every
commercial activity on state beaches, the regulation at issue

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here expressly includes “weddings” as part of a list of
regulated activities, and treats other commercial activities
(most notably commercial filming) differently. 5 Second,
and more significantly, we did permit a facial challenge to
the licensing scheme in Kaahumanu to the extent that the
scheme gave permitting officials unbridled discretion to
grant or revoke permits. Id. at 802. True, we require that
the grant of discretion present a sufficient nexus to protected
expression so as to pose a “real and substantial threat” of
censorship. Id. (quoting Long Beach Area Peace Network v.
City of Long Beach, 574 F.3d 1011, 1020 (9th Cir. 2009));
see also Barter Fair, 372 F.3d at 1135. But, where the
activity to be permitted or not per the exercise of official
discretion is a commercial wedding, this nexus requirement
is satisfied. See Kaahumanu, 682 F.3d at 802; see also
Barter Fair, 372 F.3d at 1136 (holding that a regulation
giving discretion over allowing mass gatherings had “a
sufficiently close nexus to conduct commonly associated
with expression” to be subject to facial challenge).
Here, Appellants challenge the NCZO on the basis that
it confers unbridled discretion on the permitting officials
reviewing their application to hold commercial weddings.
Thus, Appellants may bring a facial challenge.

5
In Kaahumanu, we rested our rejection of the plaintiffs’ facial
challenge not only on the breadth of the regulation, but also on the
regulation’s “failure to regulate in any manner who may officiate at a
wedding, who may attend the wedding, what may be worn at a wedding,
and what words may be spoken at a wedding,” 682 F.3d at 801, which
the presently challenged regulation also fails to regulate.

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B. The NCZO grants permitting officials unbridled
discretion
“While ‘prior restraints are not unconstitutional per se[,]
any system of prior restraint comes to [the court] bearing a
heavy presumption against its constitutional validity.’”
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990)
(alterations omitted) (quoting Se. Promotions, Ltd. v.
Conrad, 420 U.S. 546, 558 (1975)). It is well settled that
“an ordinance which . . . makes the peaceful enjoyment of
freedoms which the Constitution guarantees contingent upon
the uncontrolled will of an official—as by requiring a permit
or license which may be granted or withheld in the discretion
of such official—is an unconstitutional censorship or prior
restraint.” Shuttlesworth v. City of Birmingham, 394 U.S.
147, 151 (1969) (quoting Staub v. City of Baxley, 355 U.S.
313, 322 (1958)). The heart of Appellants’ argument is that
the NCZO imposes an unconstitutional prior restraint on
protected speech by vesting permitting officials with
unbridled discretion due to the CUP scheme’s (1) lack of
definite and objective standards for granting a permit, and
(2) failure to specify a timeframe within which a permit must
be granted or denied. If the NCZO grants permitting
officials an impermissible degree of discretion, then the
regulation fails to qualify as a valid time, place, and manner
restriction on speech. See Kaahumanu, 682 F.3d at 806–07.
1. The CUP scheme lacks definite and objective
standards
“[A] law subjecting the exercise of First Amendment
freedoms to the prior restraint of a license, without narrow,
objective, and definite standards to guide the licensing
authority, is unconstitutional.” Shuttlesworth, 394 U.S. at
150–51; see also City of Lakewood, 486 U.S. at 755–56.
That is, absent definite and objective guiding standards,

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permit requirements present a “threat of content-based,
discriminatory enforcement.” G.K. Ltd. Travel v. City of
Lake Oswego, 436 F.3d 1064, 1082 (9th Cir. 2006). While
permitting guidelines need not eliminate all official
discretion, see Ward v. Rock Against Racism, 491 U.S. 781,
793–94 (1989), they must be sufficiently specific and
objective so as to effectively place some “limits on the
authority of City officials to deny a permit,” Desert Outdoor
Advert., Inc. v. City of Moreno Valley, 103 F.3d 814, 819
(9th Cir. 1996).
Our cases reflect the context-specific nature of this
unbridled discretion inquiry. In Moreno Valley, we struck
down an ordinance under which, prior to granting a permit,
officials were required to find that a structure or sign would
not “have a harmful effect upon the health or welfare of the
general public” or be “detrimental to the welfare of the
general public . . . [or] to the aesthetic quality of the
community or the surrounding land uses.” Id. at 818–19.
The abstract language of the ordinance, paired with the lack
of any requirement that officials provide some “evidence to
support the conclusion that a particular structure or sign is
detrimental to the community,” impermissibly granted
officials “unbridled discretion in determining whether a
particular structure or sign [would] be harmful to the
community’s health, welfare, or ‘aesthetic quality.’” Id. at
819.
We subsequently rejected a First Amendment challenge
to a permitting scheme in G.K. Ltd. Travel, holding that the
sign code at issue there contained sufficient guidelines to
avoid the dangers posed by unbridled official discretion.
436 F.3d at 1083. The code required that permitting officials
assess whether a sign was “compatible with the surrounding
environment.” Id. While this requirement, standing on its

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own, provided little authoritative guidance, the terms
“surrounding environment” and “compatibility” were
explicitly defined elsewhere in the code by “a limited and
objective set of criteria.” Id. The code also provided
additional safeguards by requiring that officials render
application decisions within a limited time period and “state
the reasons for [each] decision to either grant or deny a
permit so as to facilitate effective review.” Id.
In a third case, Desert Outdoor Advertising, Inc. v. City
of Oakland, 506 F.3d 798 (9th Cir. 2007), we addressed
permitting guidelines that “f[ell] somewhere between the
abstract standards invalidated in Moreno Valley and the
more explicit criteria and procedural requirements upheld in
G.K. Limited Travel.” Id. at 807. Officials were required to
determine whether (1) the denial of a variance from the
applicable sign restrictions “would deprive the applicant of
privileges enjoyed by owners of similarly zoned property,”
(2) a variance would confer a “special privilege” upon the
applicant, and (3) strict compliance with the code would
“result in practical difficulty or unnecessary hardship
inconsistent with the purposes of the zoning restrictions, due
to unique physical or topographic circumstances or
conditions of design.” 6 Id. at 806. We held that while the
procedure’s requirements were “somewhat elastic” and
required “reasonable discretion to be exercised by the
permitting authority,” they nevertheless contained
“appropriate standards cabining the [City’s] discretion.” Id.

6
A fourth condition, that a variance “not adversely affect the
character, livability, or appropriate development of abutting properties
or the surrounding area, and [could] not be detrimental to the public
welfare,” was removed from the ordinance while the lawsuit was
pending. City of Oakland, 506 F.3d at 801–02 (alteration in original).

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at 807 (alteration in original) (quoting Moreno Valley,
103 F.3d at 818).
As with the scheme in City of Oakland, the scheme here
falls between Moreno Valley and G.K. Ltd. Travel. To
obtain permit approval under the amended CUP scheme, an
applicant must prove “to the satisfaction of the appropriate
decision-making authority,” that seven conditions can be
satisfied. The proposed use must be:
(a) “consistent with the intent and provisions
of the County’s General Plan and of
Division 8, Chapters 1 and 2, of the
Ventura County Ordinance Code;” 7
(b) “compatible with the
surrounding,
legally
development;”

character of
established

(c) “not [] obnoxious or harmful, [and must
not] impair the utility of neighboring
property or uses;”
(d) “not [] detrimental to the public interest,
health, safety, convenience, or welfare;”

7
Chapter 1 describes the Code’s purpose as: “to protect and promote
the public health, safety and general welfare; to provide the
environmental, economic and social advantages which result from an
orderly, planned use of resources; to establish the most beneficial and
convenient relationships among land uses and to implement Ventura
County’s General Plan.” NCZO § 8101-1.

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(e) “compatible with existing and potential
land uses in the general area where the
development is to be located;”
(f) “on a legal lot; and”
(g) “approved in accordance with the
California Environmental Quality Act
and all other applicable laws.”
NCZO § 8111-1.2.1.1.
The permitting official must be satisfied that every
condition has been or will be met. See id. Thus, if one
condition confers an impermissible degree of discretion, the
specificity of a separate condition will not save the scheme.
Criteria (f) and (g), located “on a legal lot” and
“approved in accordance with [CEQA],” are objective.
Conditions (a) through (e), however, echo those that we
previously have concluded do not provide sufficient
guidance to permitting officials. Unlike G.K. Ltd. Travel,
these standards are not defined elsewhere by a limited and
objective set of criteria. In particular, conditions (c) and (d)
mirror the requirements we struck down in Moreno Valley
that a proposed use not “have a harmful effect upon the
health or welfare of the general public” or be “detrimental to
the welfare of the general public . . . [or] to the aesthetic
quality of the community or the surrounding land uses.”
103 F.3d at 818. In that case, we were particularly
concerned about the combination of abstract language, and
the lack of a requirement that permitting officials support
their decision with objective evidence. Id. at 819.
The County argues that other provisions of the NCZO
provide additional specific factors for permitting officials to

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consider when applying the CUP requirements, making the
ordinance more akin to that upheld in G.K. Ltd. Travel. This
argument is unsuccessful because these additional factors do
not apply to the issuance of CUPs. Instead, they expressly
apply “in establishing permit conditions” for development
projects. NCZO § 8109-0.1. While planned developments
are governed by both section 8111-1.2.1.1 and section 81090.1, there is no indication that CUPs are governed by NCZO
§ 8109-0.1 and there is no cross reference between sections
8111-1.2.1.1 and 8109-0.1. Therefore, the additional factors
do not appear to apply to the issuance of a CUP.
The amended CUP scheme, however, differs from the
scheme at issue in Moreno Valley in that it requires the
permitting official to make “specific factual findings” to
support an adverse decision.
We have explained that “requiring officials to state the
reasons for a license denial provides an important check on
official discretion by ‘facilitat[ing] effective review of the
official’s determination’ and ‘ensur[ing] that the
determination . . . is properly limited in scope.’” Seattle
Affiliate of Oct. 22nd Coal. to Stop Police Brutality,
Repression and Criminalization of a Generation v. City of
Seattle, 550 F.3d 788, 801 (9th Cir. 2008) (alterations in
original) (quoting G.K. Ltd. Travel, 436 F.3d at 1083). The
amended CUP scheme requires specific factual findings in
support of a permit denial. However, it is unclear whether
the amendment requires the Commission to provide greater
specificity than before.
On the one hand, at the public hearing in support of the
amendment to the CUP scheme, the County stated that the
amendments “do not make any substantive changes to the
findings of approval for these permits,” and specifically in
regard to the newly explicit need for findings in support of a

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denial, it noted that the “board is already doing this.” This
suggests that the amendment might not require any greater
specificity than before. 8 On the other hand, the County also
explained a new procedural requirement according to which
the Commission would issue a factual report setting forth its
recommendation on a permit application, which the Board
would either adopt or, if it disagreed with the
recommendation, respond with a resolution “formaliz[ing]
and very clearly articulat[ing] the facts which preclude [it]
from making the findings of approval.” This procedural
change suggests a greater degree of specific fact finding is
required under the amended regulation.
Neither the provision of specific guidelines nor a
requirement of specific factual findings is “necessarily
determinative of whether a statute confers excess
discretion.” Id. at 798–99. Rather, we look to the totality of
the factors to assess whether an ordinance “contains
8

Indeed, the facts of this case demonstrate that little specificity was
required under the original scheme. Here, the Commission supported its
denial of Appellants’ CUP application under the original scheme with
findings that the proposed use (1) “is not compatible with the rural
community,” (2) “has the potential to impair the utility of neighboring
property or uses and is inconsistent with finding [sic] set forth in the
NCZO § 8111-1.2.1.1.c,” and (3) “has the potential to be detrimental to
the public interest, health, safety, convenience, or welfare and is
inconsistent with the finding set forth in the NCZO § 8111-1.2.1.1.d.”
None of these findings is specific. The first specifies that the proposed
use is “not compatible” with the community, but provides no explanation
as to why, and thus says no more than that the proposed use fails to meet
condition (b). Similarly, findings two and three each note the use’s
“potential” to violate one of multiple disjunctive conditions, then state
only that the proposed use violates conditions (c) and (d), respectively.
Neither explains why the use would be in violation nor what specific
aspect of the given conditions would be violated. The Commission’s
findings here provided little, if any, check on official discretion.

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adequate safeguards to protect against official abuse.” Id. at
799. In light of the specific nature of this case and the
existence of multiple conditions that we previously have
concluded are not definite and specific, the CUP scheme
fails to provide definite and specific guidelines for
permitting officials. Cf. id. (“Because Seattle has neither a
binding interpretation of the Parade Ordinance nor any wellestablished practices governing the exercise of official
discretion, the only question before us is whether the
Ordinance, on its face, provides sufficient guidance to these
officials.”).
2. The CUP scheme lacks a time limit
In Freedman v. Maryland, 380 U.S. 51 (1965), the
Supreme Court set forth procedural safeguards required to
render a prior restraint on speech constitutional. Id. at 58–
59. Among these procedural requirements is a guarantee that
the licensor “will, within a specified brief period, either issue
a license or go to court,” id. at 59, because “[w]here the
licensor has unlimited time within which to issue a license,
the risk of arbitrary suppression is as great as the provision
of unbridled discretion,” FW/PBS, 493 U.S. at 227; see Real,
852 F.3d at 935.
While the Freedman safeguards are not required for
content-neutral time, place, and manner permit schemes, see
Thomas v. Chi. Park Dist., 534 U.S. 316, 322–23 (2002), a
permitting scheme is not “content neutral” if it vests
unbridled discretion in a permitting official, see
Kaahumanu, 682 F.3d at 806 (adopting the view that “the
viewpoint neutrality requirement includes the prohibition on
a licensing authority’s unbridled discretion”); see also
Forsyth County v. Nationalist Movement, 505 U.S. 123, 130
(1992) (noting that unbridled discretion raises specter of
viewpoint discrimination); City of Lakewood, 486 U.S. at

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763–64 (same). Because the CUP scheme lacks adequate
standards for official decision making and specifically
targets weddings, it necessarily also requires the time
limitation contemplated by Freedman. Cf. Real, 852 F.3d at
935 (concluding a tattoo artist raised a cognizable priorrestraint claim where the ordinance vested excessive
discretion with the permitting city and lacked time limits to
grant or deny a CUP); Seattle Affiliate, 550 F.3d at 798
(noting the Supreme Court’s concern about statutes that do
not contain mechanisms for review of decisions).
The NCZO does not itself identify any specified time
period within which a permitting decision must be made.
Citing Citizens for Free Speech, LLC v. County of Alameda,
114 F. Supp. 3d 952, 965–66 (N.D. Cal. 2015), the County
argues that the California Permit Streamlining Act (CPSA)
provides a time limit that cabins official discretion. We
disagree. The CPSA only applies to “development projects”
as defined in California Government Code § 65928, which
“includes a project involving the issuance of a permit for
construction or reconstruction but not a permit to operate.”
Id. (emphasis added). Because a permit to host weddings
will not necessarily require construction or reconstruction,
the CPSA time limits do not apply. See 3560 E. Foothill
Blvd., 912 F. Supp. at 1276 (finding that the time limits
provided by the CPSA do not limit the timeframe for issuing
a permit on a specific use of property where neither
construction nor reconstruction would necessarily be
required).
The NCZO’s failure to provide any limitation on the time
period within which a permit must be approved further
compounds the problem created by the lack of definite
standards for permitting officials. See, e.g., FW/PBS,
493 U.S. at 226–27. Together, these defects confer

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unbridled discretion on permitting officials in violation of
the First Amendment. See Real, 852 F.3d at 935. We
therefore reverse the district court’s dismissal of Appellants’
First Amendment claim.
III.

RLUIPA Equal Treatment Claim

To bring an equal treatment claim under RLUIPA,
“(1) there must be an imposition or implementation of a
land-use regulation, (2) by a government, (3) on a religious
assembly or institution,” and (4) the regulation must treat the
religious assembly or institution “on less than equal terms
with a nonreligious assembly or institution.” Centro
Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d
1163, 1170–71 (9th Cir. 2011); see 42 U.S.C.
§ 2000cc(b)(1). Appellants do not argue that they are a
religious assembly or institution. Instead, they contend that
a plaintiff need not be a religious assembly or institution in
order to bring an equal treatment claim.
In Centro Familiar, when discussing the plaintiff’s equal
terms claim, we held that “the government, not the religious
institution,” bears the burden of persuasion “once the
religious institution establishes a prima facie case.” Centro
Familiar, 651 F.3d at 1171. This repeated reference to
“religious institution” indicates that a plaintiff must be a
religious assembly or institution to bring an equal terms
claim, and we so hold. Consistent with this holding, the
Third, Fifth, and Eleventh Circuits also require that a
RLUIPA plaintiff be a religious assembly or institution in
order to bring an unequal treatment claim. See Opulent Life
Church v. City of Holly Springs, 697 F.3d 279, 290 (5th Cir.
2012) (finding appellant was a religious assembly or
institution); Lighthouse Inst. for Evangelism, Inc. v. City of
Long Branch, 510 F.3d 253, 270 (3d Cir. 2007); Primera
Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward

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County, 450 F.3d 1295, 1307–08 (11th Cir. 2006); see also
Tree of Life Christian Schs. v. City of Upper Arlington,
823 F.3d 365, 377–78 (6th Cir. 2016) (White, J., concurring
in part and dissenting in part) (citing Primera Iglesia,
450 F.3d at 1307).
Appellants advance two more arguments regarding their
equal terms claim. First, they contend that they may bring
an equal terms claim because the use of their property for
weddings falls within RLUIPA’s definition of religious
exercise. However, the cases cited by Appellants all involve
a substantial burden claim, of which religious exercise is an
element. See, e.g., Westchester Day Sch. v. Village of
Mamaroneck, 504 F.3d 338, 347–48 (2d Cir. 2007); see also
42 U.S.C. § 2000cc(a)(1). Because religious exercise is not
an element in the equal treatment analysis, this argument is
unavailing. See 42 U.S.C. § 2000cc(b)(1). Second,
Appellants argue that Article III standing is enough to bring
any RLUIPA claim. While Appellants are correct that
standing under RLUIPA “shall be governed by the general
rules of standing under Article III,” 42 U.S.C. § 2000cc-2(a),
Appellants must still satisfy the elements for an equal terms
claim to prevail thereon. Because Appellants are not a
religious assembly or institution, the district court’s
dismissal of Appellants’ equal treatment claim was proper.
IV.

Preliminary Injunction

After the district court dismissed all of Appellants’
claims, it denied Appellants’ motion for a preliminary
injunction as moot. The district court never considered
whether Appellants had demonstrated a likelihood of
success or irreparable harm, nor whether the balance of
equities and public interest favor injunctive relief. See All.
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th

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Cir. 2011) (citing Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 20 (2008)).
Because we reverse the district court’s dismissal of
Appellants’ First Amendment claim, Appellants’ motion for
a preliminary injunction is no longer moot. Therefore, we
vacate the district court’s denial of the motion on that
ground. But, because “[a] preliminary injunction is an
extraordinary remedy never awarded as of right,” Winter,
555 U.S. at 24 (citing Munaf v. Geren, 553 U.S. 674, 689–
90 (2008)), and “[t]he grant of a preliminary injunction is a
matter committed to the discretion of the trial judge,” Sierra
On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421
(9th Cir. 1984), we remand this case to the district court for
consideration of all the Winter factors in the first instance.
See Evans v. Shoshone-Bannock Land Use Policy Comm’n,
736 F.3d 1298, 1307 (9th Cir. 2013).
CONCLUSION
For the foregoing reasons, we reverse the district court’s
dismissal of Appellants’ First Amendment claim, affirm the
district court’s dismissal of Appellants’ RLUIPA equal
treatment claim, vacate the denial of Appellants’ motion for
a preliminary injunction, and remand to the district court for
consideration of the motion for a preliminary injunction.
Each party shall bear its own costs on appeal. See Fed.
R. App. P. 39(a)(4).
REVERSED IN PART, AFFIRMED IN PART,
VACATED IN PART, REMANDED.