International Church of the Foursquare Gospel v. City of San Leandro et al

Filing 152

ORDER by Judge Hamilton denying 104 Motion for Partial Summary Judgment; denying 122 Motion for Summary Judgment; granting 126 Motion for Summary Judgment (pjhlc1, COURT STAFF) (Filed on 12/22/2008)

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1 2 3 4 5 6 7 8 9 10 INTERNATIONAL CHURCH OF THE FOURSQUARE GOSPEL, Plaintiff, v. CITY OF SAN LEANDRO, Defendant. _______________________________/ No. C 07-3605 PJH ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTIONS FOR SUMMARY JUDGMENT UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA United United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The parties' cross-motions for summary judgment came on for hearing before this court on October 1, 2008. Plaintiff appeared by its counsel Kevin T. Snider, Matthew B. McReynolds, and Peter MacDonald, and defendant appeared by its counsel Deborah J. Fox and Jayne W. Williams. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS defendant's motion and DENIES plaintiff's motions. BACKGROUND This is a case alleging violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc ("RLUIPA"), and also asserting claims under 42 U.S.C. 1983 for First and Fourteenth Amendment violations and violations of RLUIPA. Plaintiff is the International Church of the Foursquare Gospel ("ICFG"). Defendant is the City of San Leandro, California ("the City"). ICFG alleges that the real party in interest is Faith Fellowship Foursquare Church ("the Church"), a congregation affiliated with ICFG, and located in San Leandro. 1 2 3 4 5 6 7 8 9 10 The Church was originally founded in 1947. When the present senior pastor, Gary Mortara, took over the management of the Church at its present location in September 1993, the congregation consisted of 65 people. The Church grew rapidly after 1993, and in April 2003, the Church completed construction of a new sanctuary on an adjacent property, with 650-700 seats. By the end of 2005, however, the Church had again outgrown its space. According to ICFG, the Church presently conducts three religious services each Sunday for a total of more than 1700 attendees, and also runs numerous programs throughout the week, for children, the disadvantaged, women, youth, and persons struggling with addictions. The Church kitchen, which ICFG claims is smaller than the kitchen in most homes, is being used to feed between 300 and 400 people each Wednesday night. In addition, ICFG asserts that the parking lot has space for only 154 vehicles, and members of the congregation are forced to park on nearby residential streets, as much as a 20-minute walk away from the Church. In January 2006, the Church decided to look for a larger property. In February 2006, the Church found a site located on two parcels at 14600 and 14850 Catalina Street in San Leandro, comprising 3.56 acres ("the property" or "the Catalina property"). The Catalina property is located within the City's Industrial Park ("IP") zoning district, and is situated in the "West San Leandro Focus Area," which was set aside in the City's General Plan to preserve an environment for industrial and technological activity. The property is adjacent to several manufacturing plants, and is surrounded by numerous other industrial and lightindustrial uses. The property is developed with a single-story office building of approximately 46,000 square feet, and includes 188 parking spaces. ICFG claims that the Catalina property can potentially accommodate 1100 people in the sanctuary and an additional 500 in other activities (Sunday school, adult Bible studies, etc.) per service. In addition, the kitchen and food preparation area is five times as large as the kitchen in the present location. ICFG contends that there is room for nearly 500 parking spaces, and that the commercial zone 2 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 where the property is located is largely vacant on week-ends. ICFG argues that moving the Church to the Catalina property will enable the congregation to more fully follow their sincerely-held beliefs. On March 24, 2006, the Church signed a purchase and sales agreement for the property, and paid $50,000, half of a nonrefundable fee applicable to the purchase price of $5.375 million. On March 31, 2006, the Church paid the other $50,000 of the nonrefundable fee. At the time that ICFG identified the Catalina property as a potential site for the Church, the San Leandro Zoning Code ("the Zoning Code") did not allow "assembly uses" churches and private or non-profit clubs, lodges, and organizations to locate in the IP district or other industrial or commercial districts of the City, but did allow them to locate in districts zoned Residential ("R") if they obtained a conditional use permit. On May 3, 2006, Church representatives met with City Planning Staff to discuss the Church's desire to use the Catalina property for religious activities. According to Debbie Pollart, who was then the City's Planning Director, Planning Staff advised the Church that under the Zoning Code, religious assembly uses were conditionally permitted uses in the City's R zoning district only, and that the Zoning Code did not permit assembly uses within the IP district. Planning Staff further advised the Church representatives that in order for the Church to relocate to the Catalina property, two changes to the Zoning Code would be needed amendment of the Zoning Code to make assembly a conditionally permitted use in the Industrial Limited ("IL") zoning district, and an amendment of the zoning map to designate the Catalina property as IL. Planning Staff advised the Church to apply for rezoning from IP to IL because the IL zoning district was more amenable to assembly use than the IP zoning district. According to Ms. Pollart, this is because the IL district's purpose is to provide areas of low-tomoderate intensity industrial uses which are capable of being located adjacent to residential areas and serve as a buffer between residential areas and light industry. By 3 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 contrast, the IP zoning designation is meant to serve commerce, high technology, production and assembly, and retail and related uses. In early May 2006, the Church filed a planning permit application for a zoning map amendment on the Catalina property from IP to IL, to allow a subsequent application for a conditional use permit for an assembly use. The application was received by the City on either May 18 or May 19, 2006. On the same day that ICFG filed the permit application, the Church signed an amendment to their purchase and sales agreement and paid a further $50,000 nonrefundable fee, applicable to the purchase price, to extend the agreement to July 6, 2006. After receiving the Church's application to rezone the Catalina property from IP to IL, and to amend the Zoning Code to allow religious assembly use in the IL zoning district, Ms. Pollart and other Planning Staff began discussing some of the planning and policy issues raised by the Church's application. In particular, they began discussing issues relating to the need for consistency with the City's General Plan. On June 8, 2006, the City Council's Business Development Committee (the Mayor of San Leandro plus two members of the San Leandro City Council) met and discussed the Church's application to use the Catalina property. They expressed concerns over the policy implications of allowing an assembly use in an industrial zone. Ms. Pollart explains that an amendment to the text of the Zoning Code to allow assembly uses in the IL zone would apply to all properties zoned IL, and would therefore have City-wide implications. In the view of Planning Staff, the expansion of assembly uses outside of residential zoning districts would represent a major shift in policy regarding the location of assembly uses in the City. Thus, the Church's rezoning application raised a broader policy issue for the City determining which non-residential areas were appropriate for an expansion of assembly use. Planning Staff therefore advised the Church in a letter dated June 29, 2006, that the request would require careful analysis by Staff and consideration at public hearings by numerous civic advisory bodies, the Planning Commission, the Board of Zoning 4 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 Adjustments, and, ultimately, the City Council, to ensure that any such change was consistent with the City's General Plan.1 According to Ms. Pollart, the potential for conflicts between industrial uses and assembly uses was a matter of particular concern, with a need to avoid unacceptable impacts such as noise, dust, or constant truck traffic on permitted assembly uses, as well as a need to minimize unacceptable constraints on industrial operations in order to avoid impacts on, or complaints from, permitted assembly uses. Of equal concern was the issue of potential displacement of industrial and commercial uses by assembly uses, and the resulting effects on the City's industrial employment and economic base. The June 29, 2006, letter further advised that in light of "current staff commitments, vacation schedules, and the fact that the [Business Development] Subcommittee does not meet during the month of August, staff is anticipating returning to the Subcommittee with this matter in September." Thus, following submission of the application to the Planning Commission and the Redevelopment Advisory Commission, "[a] public hearing before the Planning Commission is anticipated in October/November, followed by the City Council hearing in November/December." On July 11, 2006, the Church signed an amendment to the purchase and sales agreement and paid an additional $50,000 nonrefundable fee, applied to the purchase price, to extend the agreement to October 31, 2006. On October 10, 2006, Church representatives addressed the City Council during the "public comment" portion of the Council meeting, informing the Council about the proposed purchase of the Catalina property and the delays that the City had assertedly caused in the review process. According to Planning Manager Pollart, by October 2006, Planning Staff had United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Under California law, a General Plan is "a statement of development policies and shall include a diagram . . . and text setting forth objectives, principles, standards, and plan proposals." It must also include designated elements. Cal. Gov't Code 65302. In California, zoning laws must conform to the General Plan. Neighborhood Action Group v. County of Calaveras, 156 Cal. App. 3d 1176, 1183 (1984). 5 1 1 2 3 4 5 6 7 8 9 10 developed two legislative options by which the City could expand the accommodation of assembly uses in non-residential districts. Option 1 would make assembly use a conditionally permitted use in all areas zoned IL, which would increase the area in which assemblies were allowed by about 94 acres. Option 2 would create a new "Assembly Use Overlay District," which, when applied to any non-residential property, would make assemblies an allowable use in addition to those allowed under the pre-existing zoning. Option 2 would also apply the Assembly Use ("AU") Overlay designation to certain non-residential properties identified by Planning Staff as suitable for assembly use, according to criteria Staff had developed from the City's General Plan. Option 2 would increase the area in which assemblies are allowed by over 200 acres. On October 12, 2006, the City Council's Business Development Sub-Committee met and discussed the Church's application. Church representatives attended the meeting. The two alternatives developed by Staff were presented at the meeting. After the presentation, the members of the Sub-Committee expressed a strong preference for the second alternative the overlay zoning approach because it appeared to provide greater opportunities for expansion of religious and other assembly uses in the City. On October 19, 2006, the Board of Zoning Adjustments and the Planning Commission held a joint session during which they discussed the Church's application. Ms. Pollart explained that the two options were designed to lay the groundwork for accommodating religious and secular assembly uses in non-residential areas throughout the City, though neither option would immediately affect the Catalina property. If Option 1 were approved, ICFG would need to obtain rezoning of the property to IL. If Option 2 were approved, ICFG would need to obtain rezoning of the property to "AU Overlay." The Church's senior pastor, Gary Mortara, urged the City to act quickly, pleading that the Catalina property had been in escrow since February, and that ICFG was obliged to complete its purchase by October 31, 2006. In response, Ms. Pollart explained that under either option, ICFG's use of the Catalina property could not feasibly be made 6 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 allowable by October 31. At the close of the meeting, the City decision-makers expressed a preference for Option 2. After the October 19, 2006, joint work session, Planning Staff continued to refine the criteria for selection of properties for inclusion in the AU Overlay zone, and began drafting proposed text for the actual Zoning Code amendments that would create the AU Overlay zoning classification and regulations. On October 23, 2006, the Church signed an amendment to the purchase and sales agreement and paid an additional $50,000 nonrefundable fee, applicable to the purchase price, to extend the agreement to December 31, 2006. On December 7, 2006, the Board of Zoning Adjustments reviewed the proposal for the AU Overlay zone. Planning Staff had recommended that the Board review the proposed amendments and make comments that would be forwarded to the Planning Commission. On December 29, 2006, the Church closed escrow on the Catalina property. According to ICFG, the Church could not obtain any further extensions. To close escrow, the Church made a final down payment of $53,903.39. ICFG claims that Church representatives believed there was a "good chance" that the application would be approved by the City, based on statements of City officials that other amendments for assembly uses by commercial recreation and entertainment businesses had been previously approved, and also based on supportive statements by City officials at public meetings. On January 2, 2007, the deed of trust was recorded in Alameda County Recorder's Office, in the names of ICFG and the Church. On February 22, 2007, the Planning Commission conducted a public hearing on the proposed AU Overlay zoning amendments. Planning Staff presented the Planning Commission with proposed amendments that would replace all references to "religious assembly" and "clubs and lodges" with a religiously neutral category of "assembly use," and would also create the new AU Overlay District. Staff further indicated that they had identified nearly 200 properties as suitable for 7 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 AU Overlay designation, using eight criteria, which Staff had developed after consulting applicable General Plan policies, and in light of the Zoning Code's stated purpose of implementing the General Plan. The eight criteria are as follows: 1) 2) Site is not located along a major commercial corridor; Site is not located within certain General Plan Focus Areas (Downtown, Bayfair, Marina Blvd/SOMAR, or West San Leandro); 3) Site is not located in regional-serving retail area (Greenhouse Marketplace, Westgate, Marina Square, or "old" Target site); 4) Site is not located inside the one-half mile study area identified for Downtown Transit-Oriented Development Strategy; 5) 6) 7) Site abuts or is within one-quarter mile of an arterial street; Site is not located in a Residential zone; Site is not considered public land, and is not zoned Public Service, United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 acres. Open Space, or Commercial Recreation; is not owned by an Exempt Public Agency or leased/owned by a public utility; 8) Overlay area must allow a contiguous area greater than or equal to two At the close of the public hearing, the Planning Commission unanimously recommended that the City Council approve the proposed amendments. On March 19, 2007, the City Council approved the AU Overlay District and Map amendments, effective on May 1, 2007, passing an ordinance that consolidated and equalized treatment of secular and religious assembly uses, and establishing a new AU Overlay District. The City Council applied the new AU Overlay designation to the 196 properties (over 200 acres total) that Staff had identified as suitable. Based on the selection criteria that had been utilized to select properties for inclusion in the AU Overlay District, the City Council determined that the Catalina property should not be included in the new zone. On March 30, 2007, representatives of the Church filed an application to amend the 8 1 2 3 4 5 6 7 8 9 10 zoning of the Catalina property from "IP" to "IP with the Assembly Use Overlay." The public hearing on the rezoning application was set for April 12, 2007. In a report submitted to the Planning Commission for the April 12, 2007, meeting, Ms. Pollart stated that Planning Staff recommended that the Planning Commission deny the Church's application for the zoning amendment; and that Staff had considered the eight criteria listed above, which were based on the City's General Plan, and which the City had used to produce the already approved AU Overlay District covering 196 properties. The report stated that the Catalina property did not meet two of the criteria No. 2, because the property is located within one of the General Plan Focus Areas, and No. 5, because the property does not abut or is not located within 1/4 mile of an arterial. The report added that the site failed to meet additional criterion of public health and safety, because the presence and the potential future presence of hazardous materials and activities in the vicinity of the Church's proposed assembly use rendered it inappropriate for rezoning within the AU Overlay District. This last conclusion was based on the fact that there were eight businesses operating under a Hazardous Materials Business Plan ("HMBP") within 500 feet of the Catalina property, and an additional 13 businesses between 500 feet and one-quarter mile of the site. Following the close of the public hearing, the Planning Commission voted to deny the application. The Church appealed the decision to the City Council on April 16, 2007. On May 7, 2007, the City Council met to consider the appeal, and denied it in a unanimous vote. The primary ground for denying the rezoning application was that it did not meet two of the eight criteria, as noted above. Specifically, the Catalina property is located in a General Plan "focus area" the West San Leandro Business District and is also located more than 1/4 mile from a designated arterial. Policy 7.09 of the City's General Plan establishes a policy of developing the West San Leandro industrial area as a major industrial, technology, and office employment center, and therefore a policy of promoting additional development and redevelopment of such uses while limiting encroachment of 9 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 incompatible uses in the area. Meanwhile, on March 28, 2007, the Church had submitted an application for a conditional use permit for a proposed assembly use at the Catalina property, under the existing zoning. The application stated, "We are applying for an existing permitted use, entertainment activities same church use conditional use permit." The Church submitted a site plan with the conditional use permit application. Ms. Pollart reviewed the application for the conditional use permit, and determined that it could not be processed because it was incomplete. On April 25, 2007, she wrote to advise the Church that the application was missing information relating to proposed use and construction at the site. She also noted that the City had received conflicting information from the Church regarding the intended hours/days of operation for the assembly use, and that the Planning Department needed the intended days/hours of the activities for which the conditional use permit was being sought. Ms. Pollart states that the Church did not respond to any of the issues raised in her letter, and did not submit the required information. Thus, she took no further action regarding the application. She states that she understands that a complete application was eventually submitted to the City and processed at the Church's request, even though the rezoning to allow assembly uses on the Catalina property without a conditional use permit had been denied. The conditional use permit application was eventually denied by the Planning Commission, and the City Council on appeal, because of inconsistency with the zoning and additional factors such as inadequate parking space. Following the May 7, 2007 denial of the appeal of the denial of the rezoning application, the City immediately offered assistance to ICFG to locate an alternative site within the City's AU Overlay District, and ICFG offered to work with the City toward that end in the context of settlement negotiations. ICFG apparently accepted the offer, but nevertheless filed the present lawsuit on July 12, 2007. ICFG asserts that the denial of the Church's application for use of the Catalina property has caused, and continues to cause, economic damage to the Church. In addition 10 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 to the $100,000 payment the Church made with the purchase and sales agreement on March 24, 2006, it was required to make three additional payments of $50,000, while it waited for a response to its application. Since January 2, 2007, when it completed the purchase, the Church has made monthly mortgage payments of more than $1100 a day, without being able to use the property. The Church was also forced to hire an attorney to facilitate the application with the City. ICFG alleges that the City "intentionally delayed" the review of the Church's application for fourteen months, knowing that such delay was substantially burdening the Church's religious exercise and violating the Church's rights to freedom of speech, freedom of assembly, and free exercise of religion under the First Amendment, its right to equal protection under the Fourteenth Amendment, and its rights under RLUIPA. In the original complaint, ICFG named as defendants the City, plus the Mayor of San Leandro and various City officials. ICFG alleged that defendants had violated the Church's constitutional rights and rights under RLUIPA by refusing to rezone the Catalina property which is located in an industrial zone to allow the Church to expand its operations from its current location. On October 7, 2007, the court denied ICFG's motion for a preliminary injunction, finding that ICFG had failed to demonstrate either likelihood of success on the merits or the possibility of irreparable harm. The court also found that ICFG had made an inadequate showing in view of the fact that the relief sought by the motion would alter (not preserve) the status quo and would provide ICFG with essentially all the relief it was seeking in the lawsuit. On October 23, 2007, the parties stipulated to the filing of a first amended complaint ("FAC"), and also stipulated to the dismissal from the suit of the individual defendants. Thus, the sole remaining defendant is the City. The FAC alleges three causes of action under RLUIPA, asserting that the City's land restrictions place a "substantial burden on religious exercise" (42 U.S.C. 2000cc(a)); that the denial of the rezoning application constitutes "treatment of religious assembly on less 11 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 than equal terms with nonreligious assembly" (42 U.S.C. 2000cc(b)(1)); and that the denial of the Church's use of the Catalina property constitutes "total exclusion from jurisdiction or unreasonable limits on religious assemblies within jurisdiction" (42 U.S.C. 2000cc(b)(3)). In addition, ICFG alleges six constitutional claims under 42 U.S.C. 1983 claims under the First Amendment for violation of the right to free exercise of religion, the right to freedom of speech, the right to freedom of assembly, and the right to freedom of association; and claims under the Fourteenth Amendment for violation of the right to equal protection and the right to due process. ICFG now seeks summary judgment on the claims asserted in the FAC, and on the City's affirmative defenses. The City also seeks summary judgment on ICFG's claims. DISCUSSION A. Legal Standard Summary judgment is appropriate when there is no genuine issue as to material facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. Material facts are those that might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Southern Calif. Gas. Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 324-25. If the 12 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 moving party meets its initial burden, the opposing party must then set forth specific facts showing that there is some genuine issue for trial in order to defeat the motion. See Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250. B. RLUIPA RLUIPA is Congress' most recent effort "to protect the free exercise of religion guaranteed by the First Amendment from government regulation." Guru Nanak Sikh Soc. of Yuba City v. County of Sutter, 456 F.3d 978, 985 (9th Cir. 2006). RLUIPA applies only to regulations regarding land use and prison conditions. Cutter v. Wilkinson, 544 U.S. 709, 715-16 (2005). In the land use context, RLUIPA applies in cases where a substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which the government makes or is permitted under the law to make, individualized assessments of the proposed uses for the property involved. 42 U.S.C. 2000cc(a)(2)(C). RLUIPA provides, in relevant part, 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. 42 U.S.C. 2000cc(a)(1). This is referred to as the "substantial burden" provision. The plaintiff in a land use case challenging the denial of a conditional use permit bears the burden of proving that the governmental authority's denial of the application imposes a substantial burden on its religious exercise. Guru Nanak, 456 F.3d at 988. It is generally agreed that the term "substantial burden" in RLUIPA is to be construed in light of federal Supreme Court and appellate jurisprudence involving the Free Exercise Clause of the First Amendment. Id. A "`substantial burden'" must place more than an inconvenience on religious United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 1 2 3 4 5 6 7 8 9 10 exercise." Id. (citation omitted). The Ninth Circuit has held that for a land use regulation to impose a substantial burden, "it must be oppressive to a significantly great extent. That is, a substantial burden on religious exercise must impose a significantly great restriction or onus upon such exercise." Id. at 988-89 (quoting San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). A "substantial burden" is thus one that exerts substantial pressure on an adherent to modify his behavior and to violate his beliefs. Id. at 988. If the plaintiff establishes that the land use regulation or denial of conditional use permit imposes a substantial burden, the governmental authority must then show that the restrictions are narrowly tailored to accomplish a compelling government interest. Id. at 992. Generally, in considering the nature and context of the challenged governmental actions, the court must consider whether the action is specifically targeted at core religious activities, or whether it is purely arbitrary or fails to serve any valid purpose. In such cases, the action will likely be found to impose a substantial burden. See Westchester Day School v. Village of Mamaroneck, 504 F.3d 338, 350-51 (2nd Cir. 2007). At the other extreme, the burdens imposed by facially neutral regulations of general applicability, which were adopted for purposes unrelated to religion, are considered incidental burdens that must be borne by religious organizations and by non-religious organizations alike. Zoning regulations, absent abuse or arbitrary application, generally fall within the "generally applicable" category of regulation. Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 275-76 (3rd Cir. 2007). A law is one of neutrality and general applicability if it does not aim to "infringe upon or restrict practices because of their religious motivation, and if it does not in a selective manner impose burdens only on conduct motivated by religious belief." San Jose Christian, 360 F.3d at 1032 (quotation and citation omitted). Because incidental burdens do not trigger strict scrutiny, "courts confronting free exercise challenges to zoning restrictions rarely find the substantial burden test satisfied even when the resulting effect is to completely prohibit a religious congregation from building a church on its own property." 14 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 Westchester, 504 F.3d at 350; see also Lighthouse, 510 F.3d at 274-75. Of relevance to the present case, RLUIPA further prohibits treatment on "less than equal terms," and also prohibits "exclusion," as set forth in the following provisions in subsection (b): 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. 42 U.S.C. 2000cc(b)(1). This is referred to as the "equal terms" provision. In addition, no government shall impose or implement a land use regulation that (A) totally excludes religious assemblies from a jurisdiction . . . 42 U.S.C.A. 2000cc(b)(3). This is referred to as the "total exclusion" provision. C. The Cross-Motions for Summary Judgment ICFG argues that the City's denial of its rezoning application and request for a conditional use permit violated both RLUIPA and the First and Fourteenth Amendments to the United States Constitution. With regard to RLUIPA, ICFG asserts that the City's actions have substantially burdened the Church, and that the City has not established that its proffered interests are adequate to justify its violation of RLUIPA; that the City's actions violated both the "equal terms" provision and the "total exclusion" provision. ICFG also contends that the City's actions violated the Church's rights to free exercise of religion, freedom of speech, due process, and equal protection. The City asserts that its actions violate neither RLUIPA nor the Constitution. With regard to RLUIPA, the City contends that its actions did not impose a substantial burden on the religious activities of the Church, and that its actions serve a compelling government interest and were the least restrictive means of protecting that interest; that its regulations do not violate the "equal terms" provision; and that its regulations do not totally exclude or unreasonably restrict religious assemblies in San Leandro. The City also contends that ICFG's constitutional claims present no triable issue, as the City has not unconstitutionally interfered with the Church's right to free exercise of religion, or freedom of speech; has not interfered with the Church members' freedom to 15 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 assemble or freedom of association; and has not violated the Church's right to equal protection of the law or due process. 1. RLUIPA claims a. "Substantial burden" provision 2000cc(a)(1) In the FAC, ICFG alleges that the City's denial of the Church's request to use the Catalina property imposes a substantial burden on the religious exercise of the Church because the City's actions have significantly limited the Church's ability to fully exercise its beliefs in the commands of Jesus Christ to proclaim and propagate the Gospel, make disciples, and assist the poor. ICFG asserts that because the Church has outgrown its current facility, members and visitors are hindered in their attendance of worship services and in their participation in other religious instruction. ICFG asserts that the denial of the Church's use of the Catalina property does not further a narrowly tailored compelling government interest of preserving property, because RLUIPA does not allow a government to use broad and discretionary land use rationales to select the precise property where a religious group can worship. ICFG also alleges that the denial of the use of the property is not in furtherance of a narrowly tailored governmental interest in public health and safety, as the City has permitted other assembly uses in the same location. i. The City's arguments United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The City argues that summary judgment should be granted on this claim because its actions did not impose a substantial burden on the religious activities of the Church, and because the City's actions served a compelling government interest and were the least restrictive means of protecting that interest. With regard to the question of substantial burden, the City makes three arguments. First, the City asserts that churches, like other uses, are not entitled to rezoning upon demand under RLUIPA. The City contends that neither RLUIPA nor the Free Exercise Clause requires cities to grant churches preferential rights over other property owners, or to "insulate" churches from the reality that the marketplace sometimes dictates that certain 16 1 2 3 4 5 6 7 8 9 10 facilities are not available to those who desire them. The City's second argument is that its decision not to rezone the Catalina property does not amount to a substantial burden on the exercise of religion, because any burden this imposes on the Church is an incidental result of the City's larger zoning provisions. The City notes that there is no evidence of intentional discrimination or arbitrary conduct toward the Church, and that the record instead reflects a good faith effort by the City to actually expand opportunities for religious assembly uses in the wake of the Church's initial application. The City contends that the fact that the Catalina property was not ultimately included in this expansion does not entitle ICFG to relief under RLUIPA. The City submits that the evidence shows that its zoning provisions as a whole provide adequate sites for religious assemblies. The City notes that churches and other assembly uses have been allowed with a conditional use permit in all City residential zones for many years. Relying on documents attached to the Pollart Declaration, the City asserts that residential zones comprise more than 50% of the City, and the enactment of the Assembly Use Overlay zoning amendments in early 2007 added an additional 196 properties of various sizes, located in both commercial and industrial zones. The City also notes that there are currently 45 churches in San Leandro, and that it has received only two applications for new church facilities in the last five years. The City asserts that the amount of extra space released for assembly use by the Assembly Use Overlay zoning amendments is thus proportionate to the demand for church space in the City. As for ICFG's argument that there are no available sites, other than the Catalina property, which are large enough to accommodate the size of the congregation and the range of additional activities that the Church claims are essential to its free exercise of religion, the City responds that the evidence does not show that no other similarly sized sites are available. The City provides evidence showing that there are approximately 78 sites over 3.5 acres, located in the City's residential zones. Of the parcels subject to the AU Overlay, four 17 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 are over 10 acres, eight are over 5 acres, and 24 are over 2 acres; the largest parcel is 27.15 acres. Beyond this, the City notes that the AU Overlay District was deliberately applied only to parcels containing a minimum of 2 acres of contiguous land, so that smaller parcels could be aggregated to allow larger assembly uses (as is the case with the three parcels that adjoin the Catalina property). The City also argues that ICFG has failed to show that all the Church's activities must occur at the same location, and that conducting activities such as educational activities or counseling services, or the Church's food programs at alternative locations would not effectively prevent the Church's members from practicing their religion. The City contends that because burdens resulting from neutral operation of a rational zoning scheme are considered incidental not substantial burdens on religious exercise, the Church is not justified in insisting on a single large property of its own choosing, where that choice would require the City to jettison its adopted zoning plans to accommodate the Church's demand. The City notes that were a large chain bookstore, for example, to sue the City under the First Amendment because there were no commercially zoned parcels left in San Leandro that could accommodate the chain's desire to build a large bookstore, the suit would clearly fail. The City contends that it is under no obligation to guarantee the Church its chosen location in contravention of neutral zoning regulations simply because the Church is a church. The City's third argument is that its actions have not imposed a substantial financial burden on the Church; and, moreover, that any financial difficulty the Church finds itself in was of its own making. Citing the March 24, 2006 purchase agreement, the City notes that the original offer made by the Church for the property was conditioned "upon Buyer in its sole judgment determining that the subject real property is suitable for and approved for use as a church," with the condition to "remain in full force and effect until removed in writing by Buyer," but that Church itself deleted this contingency four days later. With regard to the second part of the 2000cc(a)(1) "substantial burden" test, the City contends that its actions served a compelling government interest and were the least 18 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 restrictive means of protecting that interest. The City claims that the principal reason for refusing to rezone the Catalina property was that the property is considered a core property for maintaining the City's industrial base, as evidenced in the City's General Plan. The City notes that while it may not have a compelling interest in preserving every industrially-zoned parcel for industrial uses, it has a compelling interest in preserving some land for industrial use. The Catalina property site historically employed some 400 people, and the City contends that the site is uniquely important by virtue of its location and current accommodations to the preservation of a viable industrial base in the City. The City asserts that denial of the rezoning request was indisputably the only practical and therefore least restrictive means of achieving the City's legitimate goal. ii. ICFG's arguments United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ICFG argues that it should prevail on this claim because the denial of the rezoning and conditional use permit requests have imposed a substantial burden on the Church. ICFG asserts that since the City denied the rezoning application, the Church has looked into dozens of other properties, but claims that none are suitable. ICFG asserts that of the properties "suggested by" the City, only one was for sale and it was under contract. In addition, ICFG contends that of the properties within the AU Overlay district, only 13 are 3 acres or more the property size that ICFG claims is required for the Church's needs. In support, ICFG cites the deposition testimony of Ed Bullok, identified by the City as the Church's "real estate agent." Mr. Bullok testified that all these parcels are "either dilapidated, fractionalized and irregularly shaped . . . or occupied commercial shopping centers . . . which have no interest in selling to the Church." ICFG also cites the deposition testimony of then-City Manager John Jermanis. ICFG asserts that Mr. Jermanis "confirmed" that there are no properties available for the Church in all of San Leandro. ICFG contends that the Church's "core functions" are being inhibited by the inadequate facility in which the City has "forced it to remain." ICFG claims that the inability of the Church to use the Catalina property significantly restricts its pursuit of its core tenets which it describes as joyous, united worship of God; local and global evangelism to lead 19 1 2 3 4 5 6 7 8 9 10 people to faith in Christ; instruction; and works of compassion, justice, and human aid because it limits the number of members and visitors who can attend, participate in its activities, and receive spiritual help at its current location. ICFG argues that the burdens the Church has encountered in searching for an alternative property are substantial, as is the burden it experiences by having to pay $1,100 a day for property it cannot use. It also asserts that the Church is substantially burdened by having to meet at its current location, where there is inadequate parking, and inadequate space for the large congregation to meet all together at one time. Moreover, ICFG contends, the Church is forced to turn away many vehicles every Sunday, and this means that it is severely restricted in its efforts to evangelize these non-Christians who are seeking to attend services. As for the second part of the required "substantial burden" showing, ICFG contends that the City's proffered interests are inadequate to justify its RLUIPA violation. ICFG notes that the City has articulated only three such interests the preservation of sufficient land and facilities to maintain the City's industrial base; the need to maintain consistency with and to implement the City's General Plan; and the need to avoid conflicts with neighboring industrial areas. ICFG contends that none of these interests is compelling, and that the restrictions placed on the Church were not the "least restrictive means." First, ICFG contends that preservation of sufficient land and facilities to maintain the City's industrial base is not a compelling state interest, because otherwise municipalities could exclude all religious institutions from their cities. Second, ICFG argues that maintaining consistency with and implementing the City's General Plan is not a compelling state interest. ICFG claims that RLUIPA does not permit a government to use broad and discretionary land use rationales to select the precise property where a religious group can worship. Third, ICFG asserts that avoidance of conflict with neighboring industrial uses is not a compelling state interest. Moreover, ICFG argues, the City has provided no evidence showing the existence of any "conflict" with other uses at the Catalina property, and has 20 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 provided no authority establishing that "avoidance of conflict" is a compelling state interest. Finally, ICFG contends that the City has not used the least restrictive means of furthering the stated compelling state interest. ICFG argues that if the City can permit commercial recreation and entertainment activities in the Assembly Use Overlay zone, it can surely permit churches. iii. Analysis The court finds that the City's motion must be GRANTED and that ICFG's motion must be DENIED. Courts have long recognized that burdens that are not oppressive and that are imposed on religion merely by the operation of laws of general application do not constitute "substantial burdens" on religion triggering strict scrutiny. Lighthouse Institute, 510 F.3d at 275-77; see also San Jose Christian, 360 F.3d at 1031. In this case, the City's zoning scheme is clearly neutral, as it treats religious assemblies on the same footing as other assembly uses, and permits those uses with a conditional use permit in areas zoned R which constitute more than 50% of the City's land area. In addition, in adopting the AU Overlay District, the City increased the area in which religious and other assembly uses could be located within the City, by adding approximately 211 acres to the total of the areas zoned R, to which assembly uses had previously been restricted. The fact that the Catalina property was not included in the AU Overlay district is an incidental consequence of a valid and clearly neutral zoning scheme. RLUIPA does not require cities to grant churches preferential rights over other property owners, or to protect churches from the reality that the marketplace might dictate that certain facilities are not available to those who desire them. For example, in San Jose Christian, the plaintiff sued after the city denied an application to rezone property for use as a religious college. Id., 360 F.3d at 1027-28. The Ninth Circuit found that denial of the rezoning application did not impose a substantial burden. The court noted that even if the applicable ordinance may have rendered the plaintiff unable to provide worship or education services at the proposed site, there was no evidence in the record demonstrating that the applicant was precluded from using other sites in the city. Id. at 1035. 21 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 Similarly, in Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003), five churches sued after they were denied "special use" permits. The court rejected the RLUIPA and free exercise claims, finding that the alleged "scarcity of affordable land" and the costs of navigating the municipal permitting requirements did not constitute a substantial burden on religion where viable sites ultimately existed, and in that case, were ultimately located by the plaintiffs. Id. at 761-62. In another Seventh Circuit case, Petra Presbyterian Church v. Village of Northbrook, 489 F.3d 846 (7th Cir. 2007), the court rejected the plaintiff's RLUIPA claim, finding that a prohibition on churches in industrial zones was neither unreasonable nor a substantial burden on religion. Id. at 850-51. The court noted that where there is available land on which religious organizations may build churches in a community, the fact that they are not permitted to build anywhere and everywhere does not create a substantial burden. Id. at 851. In the absence of a showing that the City acted arbitrarily in ways suggesting actual discrimination, the fact that there may be no other properties available to which the Church can expand its operations in the specific way it wants does not mean that the City's zoning code imposes a substantial burden on the Church. Moreover, the evidence provided by ICFG to support its claim that no other suitable properties exist is not sufficient to create a triable issue as to substantial burden. With regard to the Bullok testimony, ICFG does not explain how Mr. Bullok is qualified to make this determination. In addition, Mr. Bullok appears to have based his evaluation solely on the Church's stated requirements cost, size of parcel, access and egress arrangement, configuration of the lot, and the construction type and configuration of the existing buildings rather than on a detailed objective analysis of the 196 parcels in the AU Overlay District and their suitability as a location for a church. Moreover, Mr. Bullok's comments are generally vague, providing no specific details as to why he deems a majority of the 196 parcels "unsuitable." Nor does the testimony by former City Manager John Jermanis support ICFG;s 22 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 position. In his deposition, Mr. Jermanis was asked: "[I]n looking at the whole issue of Faith Fellowship Church, are you aware of any locations within San Leandro which would which any buildings within San Leandro which they could acceptably locate." Mr. Jermanis responded, "No." This testimony reflects the fact that there appeared (to Mr. Jermanis) to be no other properties in San Leandro with buildings that were ready for occupancy and that also met all the Church's stated requirements. Mr. Jermanis did not testify that there were no other sites that were objectively reasonable alternatives for churches generally, or for the Church specifically, if it were willing to modify some of its demands in light of the available choices. Moreover, as the City notes, there is no indication that Mr. Jermanis was in charge of land-use issues in this case. For a land use regulation to constitute a "substantial burden," it must be "oppressive" to a "significantly great extent. Guru Nanak, 456 F.3d at 988. Here, however, the Church already has an operation ongoing at its current location, and ICFG has not provided any meaningful response to the City's argument that some of the Church's operations could be conducted at alternative sites. ICFG simply asserts that it is the Church's "unique core beliefs" that require that all activities be located at one facility. Carried to its logical conclusion, this argument would ultimately exempt religious assemblies (as opposed to other entities) from the requirement of complying with any zoning regulation, regardless of how neutrally applied. As for ICFG's argument that the City's actions have imposed a substantial financial burden on the Church, the court notes that the costs of acquiring real estate and of pursuing necessary government approvals are inherent costs incidental to any acquisition and development or reuse of property, and are not normally cognizable as a burden on religion. See San Jose Christian, 360 F.3d at 1035; Civil Liberties for Urban Believers, 342 F.3d at 760-61. Finally, while it is unnecessary for the court to reach the question whether the City has established that its actions were justified by a compelling government interest, as ICFG has not established that the City's actions constituted a substantial burden on the exercise 23 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 of religion, the court finds that the City has established that it had a compelling government interest in preserving certain land for industrial use, because such preservation is required by the City's General Plan. Further, the City's actions appear to have been the least restrictive means of furthering that interest. b. "Equal terms" provision 2000cc(b)(1) ICFG alleges that the City's denial of the Church's use of the Catalina property treats the Church on a less than equal basis with non-religious assemblies, because the City has approved AU amendments for commercial recreation and entertainment businesses without subjecting them to all the same criteria that it has applied to the Church, and because the City has imposed a 1/4 mile circumference from an HMBP requirement exclusively on the Church. i. The City's arguments United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The City argues that the challenged regulations do not violate the "equal terms" provision of RLUIPA, because they do not treat religious assemblies or institutions differently from nonreligious assemblies or institutions. ICFG contends that the City has violated RLUIPA because it has allowed "commercial recreation" and "entertainment activities" in the IP and IL industrial zones with a conditional use permit, whereas it permits churches and other assembly uses in those zones, but only in areas subject to the AU Overlay District. The City argues that this claim fails because commercial recreation and entertainment activities are not similar to religious assemblies or institutions in any relevant respect, and do not even qualify as "assemblies" or "institutions." The Zoning Code defines "Assembly Uses" as "[m]eeting, recreational, social facilities of a private or non-profit organization primarily for use by members or guests, or facilities for religious worship and incidental religious education (but not including schools as defined in this section). This classification includes union halls, social clubs, fraternal organizations, and youth centers." City of San Leandro Zoning Code, Art. 3, 1-304. By contrast, the Zoning Code defines "Entertainment Activities" to include specified 24 1 2 3 4 5 6 7 8 9 10 types of recurring performing events, plus dancing and electronically displayed events, but to exclude uses for "non-profit, charitable, or educational purposes of public or private institutional uses." Id. And "Commercial Recreation" is defined as "[p]rovision of participant or spectator recreation or entertainment" and includes "amusement parks, bowling alleys, ice/roller skating rinks, golf courses, miniature golf courses, and scale-model courses." Id. Thus, the City asserts, the Zoning Code distinguishes between "assembly uses" on the one hand, and "entertainment" uses and "commercial recreation" uses on the other, and neither "entertainment" uses nor "commercial recreation" uses can be classified as "assemblies" or "institutions." RLUIPA does not define "assembly" or "institution," and the City argues that the court must construe the terms in accordance with their ordinary, contemporary, common meaning. The City asserts that there is no evidence that Congress intended religious or non-religious "assembly" or "institution" to be equated with common types of commercial for-profit uses, such as bars, nightclubs, sports stadiums, or amusement parks. The City notes that the common dictionary definition of "assembly" is "a number of persons gathered together, usually for a particular purpose, whether religious, political, educational, or social." The City argues that this definition suggests a group of people voluntarily gathered together for associational purposes not a random group whose common denominator is that they paid the price of admission. The City argues that nothing in RLUIPA suggests that Congress intended to abolish the distinctions between conventionally recognized and typically non-profit assembly uses, and common commercial activities involving random aggregations of people. The City makes a similar argument with regard to "institution," which has several common dictionary definitions, but primarily is "an organization, establishment, foundation, society, or the like, devoted to the promotion of a particular object, exp. one of public, educational, or charitable character." The City acknowledges that "institution" can be used to refer to commercial enterprises, such as banks, but argues that the term is seldom used to refer to ordinary commercial enterprises such as skating rinks and movie theaters. 25 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 Thus, the City argues, since entertainment activities and commercial recreation as defined by the Zoning Code are not "assemblies" or "institutions" within the meaning of RLUIPA, it should be unnecessary to further consider whether these uses should be "similarly situated" with assembly uses. Moreover, the City asserts, while some assembly uses and some commercial entertainment or recreation businesses may have features in common, there are also substantial differences in intensity of use, hours of operation and resulting traffic, impacts on neighboring uses and locational preferences, and profit motive. The City contends that given these differences and the historical distinction between assembly and institutional uses versus commercial uses generally, the City could lawfully determine that assembly uses as defined in the Zoning Code are not "similarly situated" to commercial entertainment and recreational uses. ICFG's second "equal terms" claim is that the City has imposed a standard on the Church's use of the Catalina property that has not been applied to any other assembly use that is, the requirement that the Church not be located within a 1/4 mile circumference of any business operating under an HMBP. The City contends that it has not enacted any such standard, let alone selectively applied it to the Church. The basis for ICFG's claim is that the staff reports for the Planning Commission and City Council hearings on the Church's 2007 rezoning application recommended denial of the application in part based on the presence of some eight businesses with HMBPs within 500 feet of the Catalina property, and a total of 13 such businesses within 1/4 mile. The City asserts, however, that the record does not show that the City Council actually relied on this fact in making the decision to reject the rezoning. Rather, the record shows that the primary ground for the denial was the fact that the Catalina property did not satisfy two of the eight criteria used to select properties to be placed into the AU Overlay District the property was more than 1/4 mile from an arterial street, and was in a "focus area" reserved by the General Plan for industrial and commercial development. Moreover, the City argues, there is no evidence that the City applied different criteria 26 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 to similarly situated applicants, or either a religious or a non-religious character that is, no evidence that the City intentionally ignored the presence of HMBPs in the context of another similar rezoning application as no other applicant has ever requested rezoning of industrial land to accommodate an assembly use. ii. ICFG's arguments ICFG argues that the City has violated the "equal terms" provision of RLUIPA in three ways. First, ICFG contends that the City subjected the Catalina property to eight criteria that have never been applied to any other property within the jurisdiction of the City. ICFG asserts that since no other applicant for assembly use, before or since, has been subjected to the "burden" of these eight criteria, there is a showing of an "equal terms" violation under RLUIPA. Second, ICFG contends that the City violated the "equal terms" provision by allowing entertainment and recreational assembly uses but not religious assembly use. ICFG claims that the legislative history of RLUIPA specifically identifies "recreation centers" and "places of amusement" as being comparable to religious assemblies for purposes of the statute. ICFG argues that the City allows both entertainment and commercial recreational assembly uses by permit in IL and IP areas, and notes that other assembly uses in IL and IP areas include day care facilities, farmers markets, cafes, bars, business and trade schools, and full service restaurants. ICFG contends further that the California Uniform Building Code contains a nondiscriminatory definition of "assembly," which defines an "assembly building" as a building "used for the gathering together of 50 or more persons at one time for such purposes as deliberations, education, worship, entertainment, amusement, drinking or dining, or waiting for transportation." Uniform Building Code 203A. ICFG argues that the only difference between the Church's proposed use and these other uses is that the Church wants to use its property for religious assembly. Third, ICFG asserts that the City violated the "equal terms" provision by placing a hazardous materials burden on the Church but not on any of the 196 properties approved 27 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 for assembly use or any other assembly uses within the jurisdiction of the City. ICFG contends that denial of the rezoning request was based in part on the presence of businesses with HMBPs within 1/4 mile, and that that criterion was not applied across the board to all proposed assembly uses. iii. Analysis The court finds that the City's motion must be GRANTED, and that ICFG's motion must be DENIED. To establish violation of the "equal terms" provision of RLUIPA, a plaintiff must show that it is a religious assembly or institution that was subject to a land use regulation, which regulation treated the religious assembly on less than equal terms with a similarly situated nonreligious assembly or institution. See 42 U.S.C. 2000cc(b)(1). With regard to the application of the eight planning criteria, the evidence shows that those criteria were developed as objective planning criteria for selecting sites to be included in the AU Overlay District, and were based on policy and planning considerations set forth in the City's General Plan. More than 196 properties were found to meet the eight criteria, but the Catalina property was not one of them. ICFG argues that the eight criteria were applied to the Catalina property on less than equal terms because the Catalina property is the only property to which they have been applied. However, the evidence shows that this argument is without merit. In determining which properties to include in the AU Overlay District, the City analyzed every nonresidential property within the City limits to determine whether it met the eight criteria. The fact that the eight criteria may not have been used in deciding another application for a zoning amendment is not relevant, as there have been no other applicants other than the Church since May 2007, the effective date of the AU Overlay District. With regard to the hazardous materials is

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