Yetto et al v. City of Jackson, Tennessee et al
Filing
66
FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Chief Judge S. Thomas Anderson on 6/28/19. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
SHARI YETTO and PAUL YETTO,
Plaintiffs,
v.
CITY OF JACKSON, JERRY GIST, in his
official capacity as mayor, and ELVIS
HOLLIS, in his official capacity
as city planner,
Defendants.
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No. 1:17-cv-01205-STA-jay
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiffs Shari and Paul Yetto filed this action against the City of Jackson, Tennessee,
Mayor Jerry Gist, in his official capacity, and City Planner Elvis Hollis, in his official capacity,
under the equal-terms provision of the Religious Land Use and Institutionalized Persons Act
(“RLUIPA”), 42 U.S.C. §§ 2000cc—2000cc–5, and under 28 U.S.C. § 1983, alleging a violation
of the First Amendment’s Free Exercise Clause. In addition to damages, Plaintiffs sought a
declaratory judgment ruling that the Zoning Ordinance at issue in this case does not regulate the
type of religious gatherings held by them in their home, as well as a permanent injunction
prohibiting the enforcement of the Zoning Ordinance against them and their religious
gatherings. 1
1
On December 22, 2017, after a hearing, the Court orally granted Plaintiffs’ motion for a
preliminary injunction; a written order was entered on January 29, 2018. Defendants and any
persons acting in concert with them were enjoined from enforcing or threatening to enforce the
Zoning Ordinance against Plaintiffs for holding religious gatherings in their home and on their
private residential property until further orders of the Court. (ECF Nos. 24, 25.)
On February 5, 2019, the Court granted Defendants’ motion for summary judgment on
Plaintiffs’ § 1983 claim on the ground that the claim was barred by the statute of limitations and
denied Defendants’ motion for summary judgment and Plaintiffs’ motion for summary judgment
on the RLUIPA claim because there were disputed issues of material fact that precluded
summary judgment. (ECF No. 43.)
The case was tried without a jury on February 28, 2019. In accordance with the Court’s
instructions, both parties have submitted proposed findings of fact and conclusions of law. (ECF
Nos. 64, 65.) The Court, having considered the evidence presented at trial, including its
credibility determinations, the arguments of counsel, the relevant case law, and the entire record,
makes the following findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52. 2
Findings of Fact
1.
The Yettos are a married couple and two of the founders of a non-profit religious
organization known as the Temple of the Ancient Ones.
2.
The Temple of the Ancient Ones is a 501(c)(3) religious organization.
3.
Prior to her marriage, Shari Yetto owned the two adjacent plots of land in the city of
Jackson, Tennessee, where she and her husband live and where the religious gatherings at issue
in this case occurred. One of the plots of land is located at 203 Harts Bridge Road. The other
plot of land is on the corner of Dustin Road, which is adjacent to the plot at 203 Harts Bridge
Road. One plot is owned in fee simple not subject to any liens or encumbrances, while the other
is owned subject to a mortgage.
4.
Although Paul Yetto does not own the property in question, he has resided there since
his marriage and has contributed to improvements and maintenance of the property.
2
“In an action tried on the facts without a jury ..., the court must find the facts specially
and state its conclusions of law separately.” Fed. R. Civ. P. 52(a).
2
5.
The Yettos follow the Pagan faith tradition, an “earth-based” religion through which they
celebrate Pagan gods and goddesses. There are ten to fifteen members of the Temple of the
Ancient Ones who gather to perform Pagan religious traditions at the Yettos’ residence. Each
year the members hold between twenty and thirty gatherings, with each gathering lasting thirty to
forty-five minutes. At the end of the gatherings, the members share a meal.
6.
During these gatherings, the Temple’s members gather in a circle that is marked by
stones and has an altar; the members worship their god and goddess during a traditional written
Pagan ritual that is presided over by Paul Yetto, the Temple’s high priest.
7.
The gatherings occurred over a period of approximately five and a half years prior to this
litigation.
8.
The property in question is the private residence of the Yettos and consists of a house and
barn. There are no building or instruction rooms or other portions of the property dedicated to the
gatherings. The residence is not open to the public. There are no regular hours for congregants
to visit and use the facilities. The Temple of the Ancient Ones does not own any part of the
property.
9.
In March 2016, Elvis Hollis, a city planner, received an anonymous complaint over the
telephone in which the caller reported that someone was operating a church on the Yettos’
property, which is in a residential neighborhood. This was the only complaint received by the
City concerning the use of the property.
10.
After receiving the anonymous phone call, Hollis drove by the property and observed a
sign labeled “Temple of the Ancient Ones.” 3
3
The sign was small and was on the lot adjacent to the Yettos’ residence. It stood alongside
other signs showing subjects for which the Yettos had an affinity - such as a sign for Avon
3
11.
On March 31, 2016, Hollis, on behalf of the City’s Planning Department, sent a letter to
the Yettos with a subject line that read: “ZONING VIOLATION AT 203 Harts Bridge Road,
Jackson, TN 38301.” The letter stated:
Our office has been made aware that there may be a church operating at this
location.... Churches or similar places of worship are uses permitted as special
exceptions within [the RS-1] zoning classification. Therefore, you must obtain
approval by the City Board of Zoning Appeals in order to operate a church at this
location. A site plan that includes an off-street parking area must be submitted
along with your application to appear before this board which meets on the fourth
Monday of every month. In addition, the structure used for this purpose must be
in compliance with all building and fire codes. The use of this property for a
church should be discontinued until the process outlined above is completed. 4
The letter provided that “[f]ailure to correct this problem within thirty (30) days of your receipt
of this letter will result in further action by the City of Jackson.” “Further action” was explained
as:
[A]ny person violating any provision of the City of Jackson Zoning Ordinance
who fails to correct said violation within this notification period shall be issued an
injunction through the Environmental Court to correct this problem or face a fine
of Fifty Dollars ($50.00) for each separate violation until the required action has
been taken or face imprisonment not to exceed ten (10) days. Each day that any
such violation continues shall constitute a separate violation.
12.
Hollis sent the letter in response to the complaint from the anonymous caller and his
observance of the Temple sign on the Yettos’ property.
products and a sign reading “Watch Out for Motorcycles.” The Yettos later removed the sign, in
part, in response to the City’s letter.
4
Plaintiffs contends that the letter from Hollis “informed Plaintiffs that they were in violation of
Zoning Ordinance, art. V § 2, because their gatherings constituted operation of a ‘church,’ which
would require Plaintiffs to obtain a special exception permit.” (Pls’ Trial Br. p. 21, ECF No. 64.)
The Court does not read the letter quite so definitely. The plain language of the letter states that
the City had been made aware that Plaintiffs “may” be operating a church at the property in
question and, if they were, certain steps needed to be taken to get a special zoning exception and
to avoid “further action.”
4
13.
Pursuant to the City’s Zoning Ordinance, each zoning category has uses that are
permitted uses, uses that are prohibited, and uses that are permitted only with approval from the
Board of Zoning Appeals by a special exception. The Board of Zoning Appeals may attach
conditions for approval of requests for special exceptions.
14.
To get a special-use exception, a property owner must submit an application, a letter of
justification, a site plan, and pay a fee; after the application is completed, the request is placed on
the agenda for the next Board of Zoning Appeals meeting. As part of the process for obtaining a
special exemption, an applicant must appear before the Board. The application fee for obtaining
a special exemption is $100.
15.
The Yettos’ property is located in a RS-1 single family residential district. Churches or
similar places of worship are not permitted in residential districts except by special exception. 5
The City of Jackson Zoning Ordinance, art. V § 2, provides, in relevant part:
Following public notice and hearing and subject to appropriate conditions and safeguards, the
Board of Zoning Appeals may permit, as special exceptions:
1. Churches or similar places of worship
16.
The Zoning Ordinance does not define the phrase “churches or similar places of
worship,” and the City maintains no policies or guidance with respect to the definition or
interpretation of “churches or similar places of worship” as that phase is used in the Zoning
Ordinance.
17.
The Planning Department reviews applications for special exceptions and makes
recommendations to the Board of Zoning Appeals through a planning staff report. Before the
Board meeting, a planning staff member orally reviews the recommendations with the applicant.
5
The RS-1 Zoning Ordinance also permits similar nonreligious uses such as country clubs,
private clubs, and schools by special-use exception.
5
At the Board meeting, the planning staff presents the recommendations. At this meeting, the
applicant can present reasons as to why the Board should reject any conditions set forth in the
recommendations. Members of the Board are not City employees, but rather citizens appointed
by the mayor and city council. The Board has final authority on whether to accept, alter, or reject
the recommendations made by the planning staff. The Board has the final decision on whether to
grant or deny a special-use exception application and to determine any conditions. The Board
does not always accept the recommendations of the planning staff.
18.
When the Planning Department receives a complaint about a possible zoning violation, a
form letter is sent to the property owner on whose property the violation allegedly occurred. If
the property owner responds and denies the alleged violation, no further action is taken, unless
the Planning Department receives another complaint or receives other information showing a
violation.
19.
While the parties agree that the Yettos discussed the situation repeatedly and at length
with Planning Department staff, they dispute whether the Yettos claimed to be a church when
they communicated with the staff. The Yettos acknowledge that they used the term “church”
initially during calls with Hollis, but they maintain that they stated more than once that they did
not believe that their gatherings were any different than Bible studies that were occurring in
Christian homes in the area; they also contend that they described the nature of their gatherings
to the staff.
In light of the Yettos’ admission that they used the term “church” at least initially in
communications with officials and the evidence in the record showing that the Yettos repeatedly
described their gatherings as a “church” in certain documents and on social media, the Court
credits the testimony of Hollis that the Yettos did not dispute that they were operating a church
6
on their property after receiving the possible zoning violation letter and during the application
process for a special exception. 6
20.
The City did not define Plaintiffs’ property use as a church, nor did it try to rezone the
property as a church; instead, the planning staff determined that the RS-1 Zoning Ordinance
applied to the Yettos’ property based on the Yettos’ statements and documents presented by the
Yettos that indicated that they were operating a church. 7
21.
Both Hollis and Stan Pilant, head of the Planning Department, testified that, if the Yettos
had reported that they were hosting small gatherings of fellow Pagans for fellowship and
discussion of their religion akin to a Bible study, the City would not have required a special-use
exception and no further action would have been taken unless another complaint was filed. The
Court credits this testimony.
22.
With the assistance of Hollis, the Yettos submitted an application to the Board of Zoning
Appeals seeking a special exception. Hollis went to the Yettos’ residence, toured their property,
and took photographs, which he placed in the application file.
The City’s Engineering
Department, at the request of Hollis, conducted a traffic review at the Yettos’ residence.
6
See, e.g., Complaint at ¶ 11 (ECF No. 1) (“Plaintiffs are members of the Pagan church known
as the Temple of Ancient Ones”.); S. Yetto Declaration, at ¶ 4 (ECF No. 15-2) (“I am a member
of the Pagan church known as the Temple of Ancient Ones”.); P. Yetto Declaration, at ¶ 3 (ECF
No. 15-2 (“I am a member of the Pagan church known as the Temple of Ancient Ones”.); Trial
Exhibit 1, Tab 6 at pp. 272 (“The Temple of the Ancient Ones is a Pagan Church that was
founded in Jackson, Tennessee in 2011.”); 273 (“Call us at the church in Jackson, TN at . . . .”);
277 (“WE, THE UNDERSIGNED, being original incorporators as herein before named, for the
purpose of incorporating this not-for-profit church corporation under the laws of the state of
Tennessee, do make . . . .”); Trial Exhibit 1, Tab 17 at p. 1 (“Shari and Paul Yetto are members
of a pagan church, ‘The Temple of Ancient Ones.’”).
7
The Court does not believe that Plaintiffs failed to clarify that they were not operating a church
out of a desire to create confusion but, instead, in a good faith attempt to be law-abiding citizens
and comply with the City’s Zoning Ordinance.
7
23.
Hollis prepared a planning staff report for the use of the Board of Zoning Appeals. The
report stated that the planning staff recommended approval of the use of the property as a place
of worship contingent upon the following:
1. A walk thru inspection be completed by the City of Jackson Building Department and
Fire Marshal before occupying the buildings.
2. All applicable building permits are obtained before any modification of the buildings.
3. A privacy fence or a vegetative screen needs to be installed around the perimeter of the
parking area in order to provide a screen for the adjoining residential properties.
4. The existing 16’ driveway needs to be widened to a minimum 24’ two-way drive in
order to meet the standards governing driveways.
5. Both lots owned by the applicant need to be combined by a final plat since the
driveway access is located on 104 Dustin Drive.
The report stated that the parking lot exceeded the requirements for “a place of worship with the
seating capacity of 20 people,” which was drawn from Hollis’ knowledge that the Yettos planned
on having a maximum of twenty people attend their gatherings.
24.
The July 25, 2016 meeting of the Board of Zoning Appeals at which the Yettos’
application was to be considered was canceled because the notice to affected property owners
was not sufficient. Additionally, the Yettos had not submitted a revised site plan which was
required in order for their application to be complete. Consequently, no decision was made as to
whether the Yettos could obtain a special exception.
25.
Given that Hollis would not recommend that they receive a special exception without the
changes listed in the planning staff report and the high cost of these changes, the Yettos decided
that they would not pursue a special exception and, instead, would pursue their rights in a
lawsuit. Thus, the Board of Zoning Appeals was never given the opportunity to make a decision
as to whether it would approve a special exception with or without the recommended changes.
8
26.
The Zoning Ordinance of the City of Jackson was created to provide administration,
enforcement, and amendment” of city zoning regulation. “In interpreting and applying the
provisions of [the Zoning Ordinance, its provisions] shall be considered as the minimum
requirements for the promotion of the public safety, health, morals and general welfare.” Zoning
Ordinance, art. VIII § 4.
27.
The Planning Department of the City of Jackson regulates the use of property in
accordance with the Zoning Ordinance.
28.
The Zoning Ordinance includes “Private Clubs” as a use that is permitted only by way of
special exception. The term “Private Clubs” is defined in the Zoning Ordinance as “[b]uildings
and facilities owned or operated by a corporation, association, person or persons for a social,
educational or recreational purpose, but not primarily for profit or to render a service which is
customarily carried on as a business.” Zoning Ordinance, art. III.
29.
In the City, there are organizations and assemblies of a secular nature that regularly meet
on private property, such as Boy Scouts and Girl Scouts. In addition, families regularly hold
events of comparative size and frequency to that of the Yettos’ religious gatherings, such as
family reunions, holiday parties, and gatherings to watch sports. There is no Zoning Ordinance
provision which governs small secular gatherings in homes. Accordingly, even if the City were
to receive a similar anonymous complaint regarding the hosting of sports viewing parties or
barbeques, there would be no code provision under which to cite them.
30.
There are multiple churches in the Jackson area that advertise that they host weekly or
monthly Bible study groups in various residential homes. None of these homes have been
required to comply with zoning regulations for religious organizations.
9
31.
The Yettos ceased holding all religious gatherings after receiving the letter from Hollis
and did not host another gathering until after this Court granted a preliminary injunction in their
favor. During the time period between the receipt of the letter from the City and the issuance of
the injunction, the Yettos were not only prohibited from holding regular Pagan assemblies at
their home, they were also prohibited from holding sacred ceremonies for loved ones who had
passed away. Shari Yetto did not have religious memorial services for either of her parents.
Conclusions of Law
Standing
1.
As an initial matter, the Court finds that both Shari Yetto, as owner of the property, and
Paul Yetto, as her husband and resident of the property and host of the religious gatherings, have
standing to bring this lawsuit.
2.
RLUIPA provides that a claimant has standing under the statute “if the claimant has an
ownership, leasehold, easement, servitude, or other property interest in the regulated land or a
contract or option to acquire such an interest.” 42 U.S.C. § 2000cc-5(5).
3.
As noted by Plaintiffs, in Tennessee whether a particular asset is marital or separate
property depends on the conduct of the parties rather than the record title of the asset. Cohen v.
Cohen, 937 S.W.2d 823, 833 n. 12 (Tenn. 1996); Altman v. Altman, 181 S.W.3d 676, 680-81
(Tenn. Ct. App. 2005). Tennessee courts have classified separately owned real property as
marital property when the parties agreed that it should be owned jointly even though the title was
never changed, Robertson v. Robertson, 2001 WL 459100 at *3 (Tenn. Ct. App. May 2, 2001),
or when the spouse owning the separate property intended the separate property to be converted
to marital property. Cronin-Wright v. Wright, 121 S.W.3d 673, 675 (Tenn. Ct. App. 2003).
10
4.
Although the property at issue in this case is titled in Shari Yetto’s name and she
purchased it prior to the marriage, Paul Yetto lives on the property, has contributed to its
improvement, and the couple treats the home as marital property. Accordingly, Paul Yetto has a
property interest under Tennessee law sufficient to meet RLUIPA’s requirements.
Declaratory Judgment
1.
Plaintiffs seek a declaratory judgment that the RS-1 Zoning Ordinance does not apply to
their small religious gatherings because these gatherings do not constitute a “church or similar
place of worship” within the meaning of the Zoning Ordinance.
2.
The Zoning Ordinance does not define “church or similar place of worship,” and the City
has no official policy as to how to define that term.
3.
The parties have presented various definitions concerning the meaning of the word
“church” and debate whether a “church” requires a dedicated building, see, e.g., Black’s Law
Dictionary (10th ed. 2014) (defining “church” as “a building dedicated to worship, esp. Christian
worship; loosely a building dedicated to any type of religious worship” and as “[a]n organization
or assembly of worshippers, esp. Christian ones having a distinct history, liturgy, and ecumenical
practice; a particular division or sect of Christian believers; a denomination.”) and Webster’s
Ninth New Collegiate Dictionary (1988) (defining “church” to include “a building for public and
esp. Christian worship,” “a body or organization of religious believers,” and “a public divine
worship”). However, the Court need not refer to a dictionary to ascertain the definition of the
term ““church or similar place of worship” because both Hollis and Pilant testified that the RS-1
Zoning Ordinance does not apply to small religious gatherings such as those held at Plaintiffs’
residence. Despite the confusion caused by Plaintiffs’ use of the term “church” in referring to
their gatherings, ultimately, the Court relies on how the City defined that term.
11
4.
Accordingly, the Court finds as a matter of law that the RS-1 Zoning Ordinance does not
apply to the type of gatherings being held at the Yettos’ residence on the date that Hollis sent the
letter to the Yettos informing them of the anonymous complaint. Consequently, the Yettos are
not required to obtain a special-use exception in order to operate the Temple of the Ancient Ones
on their property.
5.
The Court hereby issues a permanent injunction enjoining Defendants and their officers,
agents, servants, employees, attorneys, and any other persons acting in concert with them from
enforcing or threatening to enforce the RS-1 Zoning Ordinance against Shari and Paul Yetto for
holding small religious gatherings in their home and on their private residential property of the
type that were held on their property and which led to this litigation. Thus, the Yettos are free to
continue, as in the past, to invite and host small groups of people on their property for gatherings
that include religious worship.
RLUIPA Claims
1.
RLUIPA prohibits governments from implementing land use regulations that impose “a
substantial burden” on religious exercise or that “treat[ ] a religious assembly or institution on
less than equal terms with a nonreligious assembly or institution.” 42 U.S.C.A. § 2000cc.
Plaintiffs’ claims are brought under the equal-terms aspect of RLUIPA.
2.
It is a violation of RLUIPA if: (1) a statute facially differentiates between religious and
nonreligious assemblies or institutions; (2) a facially neutral statute is “gerrymandered” in a way
that it places a burden solely on religious, as opposed to nonreligious, assemblies or institutions;
or (3) a truly neutral statute is selectively enforced against religious, as opposed to nonreligious,
assemblies or institutions. Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward
Cty., 450 F.3d 1295, 1308 (11th Cir. 2006). Plaintiffs have asserted claims for the first and third
12
types of violations. That is, they claim that (1) the Zoning Ordinance facially differentiates
between religious and nonreligious assemblies and institutions and that (2) the Zoning Ordinance
is selectively enforced against religious assemblies or institutions.
3.
Plaintiffs argue that, should the Court find that Plaintiffs’ gatherings fall within the
definition of “[c]hurch or similar place of worship,” then such an interpretation would cause the
Zoning Ordinance to violate RLUIPA by facially differentiating between religious and
nonreligious assemblies or institutions. Because the Court has found that the gatherings do not
fall within that definition, Plaintiffs’ facial challenge to the Zoning Ordinance fails.
4.
As for the as-applied challenge, Plaintiffs assert that Defendants have imposed zoning
requirements on their home which hosts a religious based group but have placed no additional
requirements on homes which regularly host secular gatherings so as to constitute a violation of
RLUIPA. In support of their argument, they point to evidence that organizations of a secular
nature, such as Boy Scouts and Girl Scouts, regularly meet on private property and families
regularly hold non-religious events of a comparative size and frequency to that of Plaintiffs’
religious gatherings. Plaintiffs argue that Defendants have applied the Zoning Ordinance in a
manner that requires them to go through the process of applying for and obtaining a special-use
exception to hold small, religious gatherings on their private property, while secular gatherings
of a similar size are not required to undertake such measures. Defendants contend that Plaintiff’s
as-applied claim fails because Plaintiffs have not identified proper comparators and because their
claim is not ripe for review.
5.
The Court need not determine if the comparators identified by Plaintiffs are proper
because the Court agrees with Defendants that the as-applied claim is not ripe for judicial review
in that a decision was never made as to Plaintiff’s request for a special-use exception.
13
6.
For land use disputes to be ripe, including RLUIPA claims, “the governmental entity
charged with implementing the regulations must have reached a final decision regarding the
application of the regulations to the property at issue.” Grace Community Church v. Lenox Tp.,
544 F.3d 609, 615 (6th Cir. 2008); see also Miles Christi Religious Order v. Township of
Northville, 629 F.3d 533, 538 (6th Cir. 2010). The need to develop a complete record,
“preference for avoiding unnecessary judicial entanglement in constitutional issues, and
preference for allowing local resolution of local land use disputes” supports dismissal based on a
lack of finality. Grace Community Church, 544 F.3d at 615; see also Insomnia Inc. v. City of
Memphis, Tenn., 278 F. App’x 609, 613 (6th Cir. 2008) (“[F]ederal courts have entertained a
long-standing rule that local government entities first issue final decisions regarding the land at
issue before any challenge to such decision is mature for federal review.”).
7.
In the present case, Plaintiffs filled out the initial application for a special-use exception
and paid the application fee but did not follow through with the application process. The
planning staff reviewed Plaintiffs’ application and recommended approval of the use of the
property as a place of worship contingent upon five conditions. Plaintiffs were informed of the
five conditions. After learning that a second piece of property was involved, Plaintiffs were
asked to provide a revised site plan to include the second parcel; but Plaintiffs refused to submit
a revised site plan. This led the City to cancel the July 2016 Board of Zoning Appeals meeting
that was set to hear Plaintiffs’ application. Consequently, the Board never heard or made a
determination on Plaintiffs’ special-use exception application. 8
8
Plaintiffs contend that their failure to submit a revised site plan should have alerted the City to
the fact that they were not claiming that their gatherings were a church. In light of Plaintiffs’
failure to clarify the nature of the gatherings initially, there is no reason that the City should have
been put on notice as to a change in Plaintiffs’ stated position.
14
8.
Plaintiffs argue that exhaustion of administrative remedies is not required for RLUIPA
claims outside the context of inmate actions. They rely on Dilaura v. Ann Arbor Charter Twp.,
30 F. App’x 501, 507 (6th Cir. 2002), in support of their argument. In DiLaura the board of
zoning appeals had denied the plaintiffs’ variance request. 30 F. App’x at 507. The present case
is more analogous to Grace Community Church because Plaintiffs, like Grace Community
Church, have not been before the Board of Zoning Appeals. 544 F.3d at 613-14.
9.
Plaintiffs also contend that a final decision was actually made. They note that the City’s
planning staff has decision-making authority as to zoning enforcement and they contend that the
letter sent to Plaintiffs was a “zoning violation” letter. According to Plaintiffs, the planning staff
was vested with decision-making authority to send an enforcement letter enjoining their
constitutional rights and to determine whether a use complied with approved uses under the
Zoning Ordinance. Thus, they reason that their RLUIPA claims challenge the “enforcement” of
the Zoning Ordinance against them which was a final decision ripe for adjudication.
To the contrary, as discussed above, the letter merely stated that information had been
received that Plaintiffs were operating a church at their residence and that churches in that
particular zone required a special zoning exception. No “enforcement” action was taken against
Plaintiffs.
10.
Although Hollis testified that a zoning violation letter is part of the zoning enforcement
process and that any planner on the staff has the authority to issue a zoning violation letter and
Pilant testified that the Planning Department is “charged with carrying out the regulations that
are within our zoning ordinance and governing the uses to minimize hazards and impacts to
health safety we offer the public” and that that the Planning Department has the ability to cite
individuals in Environmental Court and issue summons (Trial Tr. PageID 1315, ECF No. 60),
15
enforcement only comes into play when a decision as to a use or special exception has been
made.
11.
Furthermore, although Plaintiffs are correct that the Planning Department staff, including
Hollis and Pilant, have the authority to make determinations of whether a use complies with the
Zoning Ordinance, it is undisputed that, pursuant to the Zoning Ordinance, a church may not
operate in a RS-1 zone without going before the Board of Zoning Appeals to get a special-use
exception. Hollis and Pilant had no authority on their own to approve a special-use exception.
The letter sent by Hollis merely put Plaintiffs on notice that, if they were operating a church at
their home, they would need to apply for a special-use exception. Plaintiffs then sought to obtain
a special-use exception but did not complete the process. Therefore, there was never a decision
by the Board as to whether they could continue to hold their gatherings at their home.
12.
Next, Plaintiffs contend that the letter sent by Hollis “enjoined Plaintiffs constitutional
rights and was not received by Plaintiffs in any respect as anything other than a final
determination.” Even if Plaintiffs’ subjective view of the letter is relevant as to whether a
decision had been made, their subjective view was not objectively reasonable in light of the
City’s willingness to work with them on the special exception process.
13.
Plaintiffs refused to provide a revised site plan to complete their application. This
prevented the Board from considering the application. Thus, the Board has never made a
decision on Plaintiffs’ application. Consequently, there is a need to develop a complete record.
Further, the presence of both the preference for avoiding unnecessary judicial entanglement in
constitutional issues and for allowing local resolution of land use disputes support a finding that
Plaintiffs’ claim is not ripe. The Board could have approved Plaintiffs’ request for a special-use
exception without the recommendations from the planning staff, which would have negated any
16
need for this litigation. Therefore, the Court finds that Plaintiffs’ as-applied claim is not ripe for
review. See Grace Community Church, 544 F.3d at 615-616 (finding that the RLUIPA as-applied
claim lacked finality when the plaintiff failed to complete the process before the zoning board).
14.
Plaintiffs also contend that the City was also put on notice that their gatherings did not
constitute a church in communications between the City and their attorneys. According to
Plaintiffs, they clarified their position in letters from their counsel. (Tr. Ex. 1, tabs 17 & 18.) In
the second letter, Plaintiffs’ counsel reiterated that Plaintiffs should not be subject to zoning
ordinances for church buildings and requested that the City withdraw its position that the
religious activities that took place on Plaintiffs’ property did not fall under the City’s Zoning
Ordinance. (Id. at tab 18.) However, counsel continued to describe Plaintiffs as being “members
of a pagan church.” (Id. at tab 17.)
15.
Despite these communications, Plaintiffs provided enough evidence initially to give the
City reason to believe that they were a church. Even though bad faith may not be required for a
RULIPA violation, property owners bear some responsibility in providing correct information
about their property usage to the Planning Board. Property owners cannot fail to dispute that
they are operating a church and then fault the Planning Board for going forward with its zoning
requirements. The complaint itself alleges that Plaintiffs are “members of the Pagan church
known as The Temple of the Ancient Ones.” (Cmplt para. 11, ECF No. 1.) At her deposition,
when Plaintiff Shari Yetto was asked if she was “a member of the Pagan church known as The
Temple of the Ancient Ones,” she answered “yes.” (S. Yetto’s Depo. p. 8, ECF No. 34-4.) Shari
Yetto also testified that they put events on Temple of the Ancient Ones’ Facebook page to let
people know “hey, we have a pagan church here.¨ (Id. at p. 24). Internet postings and documents
describe The Temple of the Ancient Ones as a church. (“We are a 501c3 Pagan Church located
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in Jackson, TN since February 1, 2011.” (ECF No. 38-2); Temple of the Ancient Ones Release of
Liability and Agreement to Hold Harmless (referring to the Temple as “the Church¨) (ECF No.
38-3).
16.
Throughout their testimony, both Hollis and Pilant stated that it was Plaintiffs’ own use
of the term “church” that motivated the City to inform Plaintiffs that they must go through the
process of attempting to obtain a special exception permit. Hollis testified that it is the applicant,
not the City, that determines whether they constitute a church. The City has no duty to
investigate whether applicants have correctly labeled their gatherings, and planning staff does
not investigate whether the applicants have given the correct label. By the time Plaintiffs tried to
straighten out the confusion through their attorneys, it was too late to change definitions as far as
the City was concerned. As Pilant testified, they had been given too much information by
Plaintiffs indicating that they were, in fact, operating a church.
17.
The Court concludes that there is no evidence that the City requires a special-use
exception permit for small gatherings at private residences regardless of the purpose of that
gathering – whether secular or non-secular. If Plaintiffs had initially reported that they were only
hosting small gatherings of fellow Pagans for fellowship and discussion of their religion akin to a
Bible study, the City would not have required a special-use exception. Therefore, the Court finds
that the City does not generally treat gatherings for a religious purpose on less than equal terms
as nonreligious gatherings, and, in particular, did not treat Plaintiffs’ religious gatherings
differently; thus, Plaintiffs’ as-applied claim fails for this reason also.
Attorney Fees
Clearly, Plaintiffs do not qualify as prevailing parties on their § 1983 claim or their
RLUIPA claim so as to qualify for attorney fees under 42 U.S.C. § 1988(b). See Tex. State
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Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989) (holding that prevailing
party status is a “statutory threshold” which must be crossed before there is any consideration of
a fee award.) However, the litigation has resulted in the entry of a permanent injunction barring
enforcement of the Zoning Ordinance against Plaintiffs’ gatherings which may entitle them to an
award of attorney’s fees.
Plaintiffs will have seven (7) days from the entry of this order in which to file a notice as
to whether they seek an award of attorney’s fees based on the granting of their request for a
declaratory judgment and the issuance of a permanent injunction. If Plaintiffs file a notice of
intent to seek attorney’s fees, the Court will enter a briefing schedule on the issues of whether
Plaintiffs are entitled to such an award and, if so, the amount to which they are entitled.
Summary and Conclusion
The Court finds in favor of Plaintiffs on their request for a declaratory judgment and
finds that the issuance of a permanent injunction is warranted. The Court concludes as a matter
of law that the RS-1 Zoning Ordinance does not apply to the type of gatherings being held at
Plaintiffs’ residence on the date that the City sent the letter to Plaintiffs informing them of the
anonymous complaint and Plaintiffs are not required to obtain a special-use exception in order to
operate the Temple of the Ancient Ones on their property.
The Court hereby issues a permanent injunction enjoining Defendants and their officers,
agents, servants, employees, attorneys, and any other persons acting in concert with them from
enforcing or threatening to enforce the RS-1 Zoning Ordinance against Plaintiffs for holding
small religious gatherings in their home and on their private residential property of the type that
were held on their property that led to this litigation.
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The Court finds in favor of Defendants on Plaintiffs’ claims brought under RLUIPA.
Defendants have previously been granted summary judgment on Plaintiffs’ claims brought under
28 U.S.C. § 1983.
The Clerk of the Court is directed to withhold judgment until the issue of attorney’s fees
has been decided as discussed above.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: June 28, 2019.
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