Islamic CTR V Alpharetta

Case 1:10-cv-01922-JOF Document 163
Filed 01/25/12 Page 1 of 47
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION Islamic Center of North Fulton, Inc. a Georgia Non-Profit Corporation, Plaintiff, v. City of Alpharetta, Georgia a Municipal Corporation of the State of Georgia, et al., Defendants. : : : : : : : : : : : : :
CIVIL ACTION NO.

1:10-cv-01922-JOF
ORDER This matter is before the court on Defendants Motion for Summary Judgment [106], Plaintiffs Motion for Summary Judgment [107], Defendants Motion for Leave to File Excess Pages and Motion for Leave to File Reply to Plaintiffs Response to Defendants Statement of Material Facts [142], and Defendants Motion for Reconsideration and/or Motion for Clarification [152]. I. Background A. Procedural History
Plaintiff, Islamic Center of North Fulton, Inc. (the Islamic Center or Center), filed the instant action on June 22, 2010, against Defendants City of Alpharetta; the City Council of the City of Alpharetta; Arthur Letchas in his official capacity as Mayor of the
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City of Alpharetta, Georgia; and Douglas J. DeRito, Mike Kennedy, Chris Owens, Cheryl Oakes, and D.C. Aiken, individually and in their official capacities as Members of the City Council of the City of Alpharetta. Plaintiff seeks declaratory and injunctive relief under the First, Fifth, and Fourteenth Amendments of the Constitution of the United States, the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. 1983, and applicable law of the State of Georgia, as well as costs and attorneys fees under 42 U.S.C. 1988 and 42 U.S.C. 2000cc-2(a). On May 2, 2011, Plaintiff and Defendants filed cross motions for summary judgment. The court heard oral arguments on the parties motions on December 8, 2011. B. Facts
The following facts are undisputed. In 1998, the Islamic Center sought approval from the Fulton County Board of Commissioners to use a residence at 1265 Rucker Road in Alpharetta, Georgia, as a mosque. Pl.s Statement of Material Facts (PSMF), 3; Defendants Statement of Material Facts (DSMF), 1. In the letter of intent accompanying its application for a use permit, the Center asserted that it had a congregation of about twenty-five members. Faroqui Depo., Exh. 25. Prior to submitting the application, in a June 22, 1998, Board Meeting, members of the congregation discussed their plans subsequent to obtaining the use permit: Brother Iqbal suggested that we remodel to accommodate more people. As a group, we decided that this must be done in a low-keyed manner to avoid
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attracting attention to our purpose. Upon obtaining the [u]se permit, we can be more aggressive with our plans to remodel and re-design the facility. Faroqui Depo., Exh. 186. On November 4, 1998, the Fulton County Board of Commissioners approved the Centers use permit application subject to certain conditions, one of which was [t]o restrict the use of the site to a church/place of worship in the existing structure. No modifications will be made to the exterior of the structure, other than normal maintenance. Faroqui Depo., Exh. 30. Attaching this condition to use permits was a normal procedure in Fulton County and the Center agreed to it. DSMF, 5, 7; Huff Depo., at 21. Subsequently, the Center purchased the adjoining property at 1255 Rucker Road. DSMF, 17. In 2004, the Center submitted another use permit application to the Fulton County Board of Commissioners, this time requesting approval to add the adjacent property at 1255 Rucker Road to its site in order to provide the Imam with a residence. DSMF, 16-17; PSMF, 5. The Centers plan was to combine the two properties and relocate the driveway to the middle of the lots. DSMF, 17. In its application, the Center represented that it had a small congregation of about 200 members. Faroqui Depo., Exh. 33. In the time leading up to the Board of Commissioners consideration of its application, members of the congregation met with neighboring homeowners in an effort to alleviate any concerns they had regarding the Centers request. Faroqui Depo., 39. It appears that the homeowners were assured that the Centers application did not represent an expansion of the worship structure
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and that the existing residence being added to the use permit would be limited to residential use for the Imam. Faroqui Depo., Exhs. 38 and 39. On March 3, 2004, the Fulton County Board of Commissioners considered the Centers application. During the Boards meeting, the following exchange took place between Commission Chair Handel and the Islamic Centers attorney, Nathan Hendricks: Commission Chair Handel: I have one question. Was there a I thought there was a private agreement with Fairfax? Can we get that put in the record as well? Mr. Hendricks: I just handed that to the Clerk. Commission Chair Handel: Super. Mr. Hendricks: Its from the president of Fairfax. And I just submitted that in. Commission Chair Handel: Excellent. Wakefield Depo., Exh. 22, at 217. Commission Chair Handel and Mr. Hendricks were referring to a letter from J. Dexter Edge III, President of the Fairfax Homeowners Association, which represented a subdivision adjacent to the Islamic Center, to Stephen Cover, Director of the Fulton County Department of Community Development. See Faroqui Depo., Exh. 38. In that letter, Mr. Edge conveyed the homeowners understanding of the Centers application: [O]ur understanding of the development is not an expansion of the existing structures, but only an addition of one residence, which is to be used by their Imam, and a new drive/parking area. Faroqui Depo., Exh. 38 Id. Mr. Edge also wrote that the
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homeowners approval of the application was based upon the assumption that [t]he size of the Worship building is restricted to its existing structure. No modifications will be made to the exterior of the structure, other than normal maintenance, as per previously approved Petition 98U-046 NFC. Id. The Fairfax homeowners thus wanted to be sure that this restriction from the 1998 use permit carried over to the 2004 permit. The Fulton County Board of Commissioners spread the Fairfax letter on the minutes of the meeting as a condition of zoning and approved the Centers application subject to list of additional recommended conditions. Wakefield Depo., Exh. 22; PSMF, 7. One of the recommended conditions was similar to that requested by the Fairfax Homeowners Association: Restrict the use of the subject property to a place of worship in existing structures and accessory uses at an overall density of 596.7 gross square feet per acre zoned or a total gross floor area or [sic] 2,524 square feet, whichever is less. Restrict the structure at 1265 Rucker Road and accessory uses for a place of worship. Restrict the structure at 1255 Rucker Road and accessory uses for the residence of the Imam or equivalent. Wakefield Depo., Exh. 22, at 218. In 2005, the Islamic Centers property was annexed into the City of Alpharetta at the request of Fulton County. PSMF, 11. On August 3, 2009, Alpharetta issued a permit to the Center for an expansion of the Imams residence. DSMF, 27; Ivey Decl., 3. In connection with the permit application, the Center averred by signature, that this request is not in conflict with nor violates any covenants, conditions, and/or restrictions governing
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this property, despite the fact that the 2004 zoning conditions restricted the use of the Imams residence to the existing structure. Ivey Decl., Exh. A; DSMF, 27-28. In 2010, due to significant growth in the number of worshipers attending Friday srevices, the Islamic Center sought to expand once more. The Center filed an application with Alpharetta for modification of the previously-imposed use permit conditions limiting the overall density on the property and limiting development to the current site plan approved by Fulton County in 2004. PSMF, 20. Initially, the Center sought to replace its present worship structure, which is about 2,500 square feet, with two new buildings totaling 19,678 square feet. PSMF, 22. In response to concerns of the neighbors regarding additional traffic, buffers, lighting, and noise, the Center altered the size and design of the facility several times. Id. Ultimately, the Center submitted an application for a 12,032 square foot main building intended to be used as a mosque with accessory uses and a 1,910 square foot building intended to be used as a communing hall. Id. 23. In its letter of intent, the Center stated that the expansion was not intended to increase the size of the congregation, but rather to better accommodate its existing congregation. Wheeler Depo., Exh. 3. The Center also asserted that its congregation approximated 600 members. Id. The Alpharetta Community Development Department prepared a report on the Islamic Centers application. That report did not recommend approval or denial, but listed twenty-five recommended conditions if the City Council were to approve the application.
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Cook Depo., Exh. 21, at 2; DSMF, 61. On May 24, 2010, Diana Wheeler, Director of the Community Development Department, presented the Departments findings to the City Council. Ms. Wheeler testified generally about the Centers current facilities and its proposed expansion. She testified that due to the growth of the congregation, the folks there are basically underserved by the facilities that are on the site. May 24, 2010, Transcript Excerpt, Part I, D.E. [95-1], at 5. As to the Centers parking situation, Ms. Wheeler stated that, although many people parked where it was convenient and not necessarily in designated spaces (some parked in drive aisles and some near the front door), the actual number of parking spaces on the site met the facilitys need.1 Id. at 8. Ms. Wheeler then summarized her staffs findings with respect to comparisons it made between the Centers proposed development and a number of existing religious institutions in Alpharetta. Using metrics such as the size of the properties, the zoning classifications, the size of the facilities and the number of parking spaces provided, the staff There is some evidence in the record that the Islamic Center had parking issues at the time of its application, despite Ms. Wheelers testimony. On Fridays, the Islamic Center holds two religious services between 12:30 and 2:30 p.m. DSMF, 48. During these heavily attended services, parking on the site is typically maxed out, the mosque is generally full and the Center frequently closes its gate in order to control traffic. DSMF, 49; Pl.s Resp. to DSMF, 49, 56. Once the gates have been closed, cars have been observed parking in the deceleration lanes, turning around on Rucker Road, or parking in neighboring subdivisions. DSMF, 57; Pl.s Resp. to DSMF, 57. Yomi Sokoya, a member of the Centers Board, acknowledged during her deposition that it was fair to assume that there would still be a parking problem at the current facility with the addition of the fifteen or twenty parking spaces that would be required if the expansion went through as planned. Sokoya Depo., at 36-37.
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concluded that the Centers proposed development fell within the mid-range of comparably situated religious facilities. Cook Depo., Exh. 21, at 8. Ms. Wheeler noted that the proposal as requested is really not dissimilar to other religious facilities that are similarly situated. May 24, 2010, Transcript Excerpt, Part I, D.E. [95-1], at 10. Ms. Wheeler also testified that (1) any increase in traffic would not reduce the current level of service, (2) it is not out of character to have churches in residential areas, (3) the Centers proposal would not create a precedent, and (4) no parking variances would be needed because the Center could restripe parking spots to take advantage of compact spaces and meet the regulatory requirement for parking. Id. at 11-13. Ms. Wheeler went on to testify to the City Council about certain commitments the Center had allegedly made: It is important to consider the original commitment that was made by the applicant at Fulton County when their property was originally approved for this use. It is important the commitments be honored. Its important that surrounding property owners can rely on representations that are made at public hearings. The condition that was imposed on the Islamic Center may have been overly restrictive, but it was a condition that was self-imposed. The applicant told the County that they wanted this restriction, and I would refer you to the County Commission minutes of March 3rd 2004 where the attorney representing the applicant stated and he says and I quote we ask the staff to go ahead and condition so that 1265 Rucker may only be used in a existing structure for worship and that 1255 Rucker in an existing structure may only be used for residential reasons. This was based on a commitment that was given to the Fairfax subdivision homeowners and that letter, a third-party agreement between the applicant and Fairfax is included in your packet. It was included
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as part of the Fulton County agreement and it was the basis for the approval and so these third-party agreements are basically what the applicant is now requesting that the Council overturn and thats something that merits some serious consideration. Id. at 15. Ms. Wheeler concluded by discussing the Alpharetta Planning Commissions decision. On May 6, 2010, the Planning Commission heard fifty-one speakers; nineteen spoke in opposition to the Centers application, while thirty-two spoke in support. Id. at 16. According to Ms. Wheeler, the Planning Commission gave serious consideration to all those who spoke and acknowledged the shortcomings of the Centers existing facilities. Id. Ultimately, however, the Planning Commission felt that the overriding factor was the Centers commitment not to expand their facilities beyond the existing two structures, and so the Commission unanimously recommended denial of the Centers request. Id. at 16-17. That same day, the City Council unanimously denied the Islamic Centers application. Defendant Council Member Douglas DeRito began the discussion: I thank everybody for being out here, all neighbors and friends. And I took a little bit of personal offense to some of the comments tonight, particularly the one about for some reason that the governing body decides to deny this application tonight that we should put a big sign of, you know, Muslims are not welcome in Alpharetta. That couldnt be so far from the truth. We welcome you all. We are happy you are here. We are happy you are part of our community. We are a better country, state and city. Alpharetta particularly has been tremendously welcoming of diverse populations and diverse religions and thoughts.
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.... We arent going to deny anyone [the right] to continue your right of religious expression as you are enjoying it today. No one is saying that, but what we hopefully will say here tonight is that were going to uphold the conditions or the agreements that one puts on a public record in public hearings with public input and much public agreement both in 1998 and 2004 that lead us here to this very awkward position tonight. I call it awkward because frankly . . . one of the things that many communities around this country sometimes do when you get a lot of pressure like this and theres been a lot of pressure on both sides of this issue as elected officials, but I always look at what is, what is our responsibility as elected officials and thats to uphold the laws that we pass and apply it equitably despite whether its a religious organization or a gas station or a residential construction project or a commercial establishment. .... So no one is stopping the expression of your religious freedoms here. We are basically, I think, my personal point of view is upholding the conditions on this property that was committed to the resident population in that area some years ago. And I think we have a duty and a right to protect their property rights and their interests and their commitments that they make to you or whoever represented you back in the 1990s. Unfortunately, that other people become squeezed here tonight because this is a very difficult discussion. I listened to the passion from the people of the Islamic Center of North Fulton, and as I have to say I have tremendous appreciation for the growth you are experiencing. I hope you can come up if this fails tonight or if it does not get approved or that you leave here tonight with a passion to continue your growth of religion maybe in partnership with other Islamic Centers or find a conducive piece of property that can meet not only your current needs but future growth needs. May 24, 2010, Transcript Excerpt, Part II, D.E. [95-2], at 3-8. Defendants Council Member D.C. Aiken and Mayor Arthur Letchas echoed Council Member DeRitos sentiments.
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Council Member Aikens testimony reflected his belief that the homeowners reliance on certain alleged commitments had to be honored: I heard a lot of good things on both sides tonight. I believe if Im forced to vote this evening I have to vote on what the intent of the agreement is. Whether its signed or not signed it was the intent of the agreement in 1998, it was the intent of an agreement in 2004. They accepted the condition. So I ask myself because I do believe that you, you know, I hope you are able to grow regardless of the decision this evening and able to find a place. It may not be this particular place, but I have to ask myself what has changed since 1998? What has changed since 2004? Is Rucker Road still a two-lane road? Yes, it is. Has there been any new subdivisions built since 1998 on Rucker Road surrounding this property. The answer is no. Or 2004, no. I have lived here most of my life, gentlemen, I know the property pretty well. Things have not changed. It is still residential in character. So the intent of the agreement not to grow is there. However, with that said the change in the building architecture, the reduction in the square footage, Im not sure has been bedded properly or at least to everyones satisfaction to where maybe theres a middle ground, maybe theres a middle ground. There may not be. It is my hope that there is. Id. at 10-11. Mayor Letchas gave the same reasoning for his vote to deny the Centers application: [O]ne of the things that bothers me though or a big thing that bothers me which has been brought up all night is an agreement and Mr. DeRito said it and Mr. Aiken said it in 1998 and 2004. When you make an agreement . . . you hold to that agreement . . . . And unless things have changed and like Mr. Aiken has said not much has changed out there. Its been a residential community. You know theres not commercial here and there and everywhere. You just dont kick out an agreement like that and thats concerning. I think we need to stick to an agreement particularly when everybody agrees to it.
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Id. at 12-13. C. Contentions
The Islamic Center appeals Defendants denial of its application to expand. The Center argues that Defendants denial violates several provisions of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the federal and Georgia constitutions, and applicable Georgia law. More specifically, the Center claims that Defendants denial of its application violates Section (a)(1) of RLUIPA because it imposes a substantial burden on the Centers religious exercise and Defendants can offer no compelling interest justifying that denial. The Center contends that Defendants also violated RLUIPAs equal terms provision because Alpharettas zoning code unlawfully differentiates between religious assemblies and secular associations in the C-1, C-2 and SU zoning classifications. The Center further submits that Defendants application of the zoning code discriminates against it on the basis of its religion. Defendants respond that the Islamic Center has waived the right to dispute the zoning conditions on its property because of certain representations it made in 1998 and 2004. Even if the Center can dispute the zoning restrictions, Defendants urge that no substantial burden has been imposed on the Islamic Center because all of the alleged burdens were selfimposed or represent mere inconveniences. Defendants also argue that it has not treated the
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Center on less than equal terms with non-religious assemblies and institutions in Alpharetta and its decision to deny the Centers application was in no way motivated by discriminatory animus. Each of the parties claims and arguments are addressed in more detail below. II. Discussion Before considering the parties RLUIPA and constitutional contentions, the court must first address Defendants antecedent waiver argument. A. Waiver
Defendants argue that the Islamic Center has waived the right to dispute the zoning conditions on its property. Defendants contend this is so for two principal reasons. First, the Center proposed and agreed to the conditions now in place on its property in order to obtain the zoning necessary to establish and maintain its place of worship. According to Defendants, the Center made certain assurances in 1998 and in 2004 in order to obtain its desired zoning. Second, the Islamic Center has accepted the benefits of that zoning for nearly 13 years. Therefore, Defendants submit, the Center is estopped from challenging the conditions it agreed to in order to obtain the necessary zoning. The Islamic Center responds that Alpharettas Unified Development Code (UDC) explicitly provides a procedure for modification of previously-imposed use permit conditions, such as the ones at issue here, to accommodate changing circumstances. Section 4.2.3E of the Code provides that [a]ny application that proposes a change in conditions of
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approval previously established by the City Council through action on a zoning change shall be reviewed in light of the standards set forth in this section for a map amendment or conditional use, as appropriate. Pl.s Mot. for Summary Judgment, at 33. Furthermore, Alice Wakefield, who was the Assistant Director of the Fulton County Planning Department when the Center submitted its applications in 1998 and 2004, testified that Fulton County always applied use and density conditions to use permits and that such conditions were not set in stone and could be changed. Wakefield Depo., at 10-11. Ms. Wakefield testified that it was not at all unusual for a property owner to agree to conditions and later come back and ask to have those conditions changed. Id. at 11. Ms. Wakefield also testified that there were no restrictions or conditions placed on the Centers property in 2004 that would have prevented a modification or change of conditions in the future. Id. at 15. Thus, the Islamic Center contends it should not be estopped from challenging Defendants action here because the Center was merely following the procedures in the UDC for seeking a change in previously-approved conditions, a common practice according to Ms. Wakefield. The court begins by examining the evidence related to the Islamic Centers 1998 and 2004 use permit applications to determine what, if any, representations were made. In 1998, the Center requested a use permit on 1265 Rucker Road to use the property as a mosque. Fulton County approved the Centers application, subject to several conditions, one of which was the Centers agreement [t]o restrict the use of the site to a church/place of worship in
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the existing structure. Faroqui Depo., Exh. 30. Ms. Wakefield testified that this condition was always applied to use permits. Wakefield Depo., at 10-11; see also Huff Depo., at 21 (Those conditions . . . are normal process that were in Fulton County even prior to me coming there in 1971. Basically, there was no zoning that takes place in Fulton County thats not a conditional zoning.). Defendants contend that the Center nonetheless promised not to expand in its letter of intent accompanying the 1998 application. In that letter, the Center stated that the property would be used as a place of worship with a congregation of about twenty five[sic] members. Faroqui Depo., Exh. 25. It is a statement concerning the mosques membership at the time of the application. There is no indication in this statement or elsewhere in the letter of intent that the Islamic Center promised to never seek an expansion of its facilities. The court therefore finds no evidence supporting Defendants contention that the Center represented in 1998 that it would not ever seek a modification of its use permit in order to expand its facilities. In 2004, the Center submitted another use permit application to the Fulton County Board of Commissioners, this time requesting approval to add the adjacent property at 1255 Rucker Road to the site in order to provide the Imam with a residence. Faroqui Depo., Exh. 33. According to Defendants, [i]n connection with its 2004 application, [the Center] promised the neighbors that it would limit its use to the existing structures with no modifications to the exterior. DSMF, 18. Defendants rely on the letter from the Fairfax
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Homeowners Association to Stephen Cover for support. In that letter, Mr. Edge wrote Furthermore, our understanding of the development is not an expansion of the existing structures, but only an addition of one residence, which is to be used by their Imam, and a new drive/parking area. Faroqui Depo., Exh. 38. The letter included the condition that [t]he size of the Worship building is restricted to its existing structure. No modifications will be made to the exterior of the structure. Id. Prior to the 2004 hearing, the Islamic Centers attorney, Mr. Hendricks, also sent a letter to Mr. Cover. Mr. Hendricks wrote that [t]here appears to be a much better understanding now that the structure housing the worship services will not be expanded and that the existing residence being added to the Use Permit is being limited to residential use for the Priest of the congregation. Faroqui Depo., Exh. 39. During the actual hearing, the Fairfax letter was referred to by the City Council Commission Chair, offered by Mr. Hendricks and spread upon the minutes as a condition of zoning. The court is unable to find in the record sufficient evidence that the Islamic Center promised the neighbors or the City Council in 2004 that it would never return seeking a modification of use permit conditions.2 The statements in the Fairfax letter and the letter from Mr. Hendricks relate to the 2004 application itself. The Fairfax letter refers to the
Although statements by City Council members and Ms. Wheeler in 2010 referenced an agreement and certain commitments that were made by the Center, the court focuses on the actual evidence in the record regarding the Centers representations in 1998 and 2004.
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homeowners understanding of the 2004 request as not representing an expansion of the existing structure, but only an addition of a residence to be used by the Imam. The letter from Mr. Hendricks also references the homeowners understanding of the purpose behind the Centers 2004 application. Neither letter demonstrates that the Center promised Fairfax it would never seek an expansion of its facilities in the future. Rather, it appears that the assurances and representations that the Center made to the homeowners, and that the City Council relied upon, related only to the Centers 2004 permit application and not the Centers plans going forward. Additionally, the condition imposed upon the Center restricting the mosque and residence to their existing structures was a normal zoning condition that was actually carried over from the Centers 1998 use permit. Testimony from local officials supports the Centers position that such conditions are routine practice in local zoning decisions and often subject to applications seeking their removal or modification, particularly from churches and other religious organizations. See Wakefield Depo., at 11, 16. The court therefore cannot find on the record before it sufficient evidence that the Islamic Center affirmatively promised the City Council or the Fairfax homeowners that it would never seek a modification of the zoning conditions imposed upon it in 1998 and again in 2004. Defendants waiver argument thus fails.
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B.
RLUIPA
The Islamic Center brings several claims under RLUIPA. Specifically at issue in this case are the substantial burden, equal terms, nondiscrimination, and exclusions and limits provisions. The court will address each in turn. 1. Substantial Burden on Religious Exercise
Section (a)(1) of RLUIPA provides that 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 interest; and (B) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. 2000cc(a)(1). As a preliminary matter, the court must determine whether jurisdiction is proper under RLUIPA. Section (a)(1) applies only if one of three jurisdictional tests is met. The relevant test here is whether the burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes . . . individualized assessments of the proposed uses for the property involved. 42 U.S.C. 2000cc(a)(2). Land use regulation is defined as a zoning or landmarking law, or the application of such a law, that limits or restricts a claimants use or development of land
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(including a structure affixed to land), if the claimant has . . . an ownership . . . interest in the regulated land . . . . 42 U.S.C. 2000cc-5(5). An individualized assessment involves a case-by-case evaluation of the proposed activity of religious organizations. Midrash Sephardi, Inc. v Town of Surfside, 366 F.3d 1214, 1225 (11th Cir. 2004). The parties here do not dispute jurisdiction and it is clear that jurisdiction is proper. Defendants applied local zoning law, Alpharettas Unified Development Code, when they considered and denied the Centers application to change the conditions of the previouslyapproved use permit. Defendants analyzed the Centers application, Diana Wheeler prepared a report on the Centers application, and the Planning Commission and City Council both held public hearings on the application. Ultimately, Defendants used their authority to individually evaluate and deny the Islamic Centers application. The court therefore finds that jurisdiction under Section (a)(1) is proper. Next, the court must determine whether Defendants denial of the Islamic Centers application to expand its facilities constitutes a substantial burden on the Centers religious exercise within the meaning of RLUIPA. The Islamic Center bears the burden of establishing a prima facie case that a substantial burden exists. If the Center makes such a showing, then the burden shifts to Defendants to demonstrate that the challenged action is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. 2000cc(a)(1)(B).
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In Midrash, the Eleventh Circuit interpreted the substantial burden provision of RLUIPA. The court began by noting that the Supreme Courts definition of substantial burden within its free exercise jurisprudence is instructive in determining what Congress understood the term to mean in RLUIPA.3 The Courts articulation of what constitutes a substantial burden has varied over time. See, e.g., Lyng v. Northwest Indian Cemetery Protective Assn, 485 U.S. 439, 450 (1988) (indicating that no substantial burden exists where regulation does not have a tendency to coerce individuals into acting contrary to their religious beliefs.); Hobbie v. Unemployment Appeals Commn of Fla., 480 U.S. 136, 141 (1987) (finding substantial burden when government put substantial pressure on an adherent to modify his behavior and to violate his beliefs); Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981) (same); Sherbert v. Verner, 374 U.S. 398, 404 (1963) (finding a substantial burden when an individual is required to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion . . . on the other); but see Bowen v. Roy, 476 U.S. 693, 707-08 (1986) (finding no substantial burden where government action interfered with, but did not coerce, an individuals religious beliefs); Lyng, 485 U.S. at 45 (same). Midrash, 366 F.3d at 1226-27. The common thread in these Supreme Court decisions is that a substantial burden existed where there was governmental coercion or substantial pressure on individuals causing them to violate their beliefs. With these cases, the Supreme Court This is consistent with RLUIPAs legislative history. The act does not include a definition of the term substantial burden because it is not the intent of this Act to create a new standard for the definition of substantial burden on religious exercise. Instead, that term as used in the Act should be interpreted by reference to Supreme Court jurisprudence. . . . The term substantial burden as used in this Act is not intended to be given any broader interpretation than the Supreme Court's articulation of the concept of substantial burden on religious exercise. 146 Cong. Rec. S7774-01, *S7776 (daily ed. July 27, 2000) (joint statement of Senators Hatch and Kennedy).
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has made clear that the substantial burden hurdle is high and that determining its existence is fact intensive. Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. Appx. 729, 734 (6th Cir. 2007). The Eleventh Circuit went on to conclude that a finding of substantial burden requires more than an inconvenience on religious exercise. Midrash, 366 F.3d at 1227. A substantial burden is akin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly. Thus, a substantial burden can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct. Id; see also Westchester Day Sch. v. Village of Mamaroneck, 504 F.3d 338, 349 (2d Cir. 2007) ([W]hen there has been a denial of a religious institutions building application, courts appropriately speak of government action that directly coerces the religious institution to change its behavior . . . .); Living Water Church of God, 258 Fed. Appx. at 741 (finding no substantial burden where the governments action did not require the church to modify, violate, or forego its religious precepts or beliefs); Williams Island Synagogue, Inc. v. City of Aventura, 358 F. Supp. 2d 1207, 1216 (S.D. Fla. 2005) (RLUIPA does not protect religious assemblies from being distracted while observing their religious beliefs; by its terms, the statute protects religious assemblies such as Plaintiff from substantial burdens, i.e. pressures that force assemblies to forego their religious beliefs.).
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The Islamic Center argues that Defendants denial of its application to expand substantially burdens the Centers religious exercise in a multitude of different ways. The Center claims its present facilities have become inadequate as the congregation has grown over the past 12 years. The court perceives the Islamic Centers complaints as breaking down into roughly three categories: burdens on the congregants worship experience, burdens on ancillary religious services, and maintenance issues. The burdens on the congregants worship experience are as follows: The existing building does not face Mecca. Therefore, the Islamic Center is forced to use a corner of the main room for the delivery of the Imams sermon and prayer. Prayer is most effective when nothing stands between the congregant and the Imam during worship. At present, only 7 persons can worship in the front row without a barrier between the worshiper and the Imam, leaving the rest of the worshipers with a less than satisfactory worship experience. Friday service is visually difficult to follow because the columns and beams block the view of the Imam. Due to space limitations and the configuration of the building, men and women are forced to worship in separate areas of the main building. The women, praying in a separate room, cannot see the Imam to follow his actions. On Fridays, the current ablution area is inadequate to serve the congregation and lengthy lines form at the purification area prior to the prayer time. In the winter, congregants line up outside in the cold. During Ramadan, most of the worshipers break their fast at the mosque. The Center is not able to serve the customary post-fast meal because there is no room to sit and eat, except on the floor of the
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prayer area. The existing facilities are inadequate for Ramadan observance. These issues existed at the time the Center decided to purchase the property and locate its religious practice there. For instance, the Center has known all along that the building does not face Mecca and has not made any modifications to rectify the issue. Defendants also contend that the Centers complaints are matters of inconvenience rather than substantial burdens and do not relate to any religious requirements. The burdens on the Centers ancillary services are as follows: The Center has no separate room for spiritual counseling. Therefore, in keeping with Islamic tradition, the Center is unable to provide counseling in the mosque The only place for group activities is the prayer area, and group activities disturb those who are praying. Sunday School must meet in the prayer area after the service or prayer and multiple, simultaneous classes must share the space. The Center had to move Mothers Morning Out to the Imams residence because the only space in the mosque is the prayer area, which cannot accommodate the furniture and equipment for the young children. Due to lack of space and privacy, the Imam is unable to give personalized spiritual coaching to children or adults in the mosque, but must bring them into his home. The Center has no library space. There is no recreational area for children.
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Finally, the Center complains of burdens that can be styled as maintenance issues: Because the mosque has no foyer at the entry of the prayer area and people enter the prayer area directly from the outside, the prayer area becomes dirtier faster than it can be cleaned. Only one electric circuit serves the entire building. The roof is forty years old and leaks. The insulation in the attic is outdated and ineffective The HVAC is inadequate and heating and cooling the building is difficult. The ceiling in the existing building is low and there is no attic space in which to raise the ceiling. The Center has replaced the HVAC system, but without being able to run the duct work through the necessary attic space, the HVAC problem cannot be solved. The congregants pray while kneeling, but there are cracks and crevices in the slab beneath the prayer area. Thus, the floor of the prayer room is uneven and causes the carpet to buckle. Prayer is thus uncomfortable and painful in many parts of the room.
Defendants maintain that nothing in the zoning conditions prevents the Center from modifying the interior or from repairing the HVAC and electrical system, fixing the uneven floors, or even replacing the roof. The court begins with the Islamic Centers maintenance issues. The relevant density restriction imposed upon the Center in 2004 does not prohibit repairs or maintenance of the worship building. See Faroqui Depo., Exh. 40. The condition in the Fairfax letter spread upon the minutes of the 2004 hearing explicitly permits modifications to the exterior of the
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worship structure that are part of normal maintenance. See Faroqui Depo., Exh. 38. Thus, as Defendants have pointed out, there is no zoning condition, nor has there been any action taken, preventing the Islamic Center from addressing these issues. In his deposition, Parwaiz Iqbal, an Islamic Center Board member, recognized that such issues can be repaired without expanding the size of the mosque. Iqbal Depo., at 84-86. The Defendants challenged action in this case therefore has no bearing upon these alleged burdens because they can be addressed outside of the zoning process and without any interference from Defendants. The court now turns to the heart of the case. The Islamic Center sought to significantly expand its facilities to allow for a larger worship building with office and meeting space, a gymnasium, and additional room for Mothers Morning Out. PSMF, 21. The Center submits that its property as presently constructed is inadequate for, or does not allow, many of its desired ancillary uses. It further claims that the growth of the congregation and lack of adequate space creates problems for those attending Friday prayer services. RLUIPA does not exempt religious entities from all land use regulations. See Living Water Church of God, 258 Fed. Appx. at 739. Simply because a religious organizations facility is too small does not give the organization free reign to construct on its lot a building of whatever size it chooses, regardless of the limitations imposed by the zoning ordinances. Id. The mere fact that a church, mosque or synagogue has outgrown its current facilities does not mean that it is substantially burdened under RLUIPA. If it were otherwise,
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there would be no practical limit on such growth, regardless of the surrounding land uses. Instead, the substantial burden threshold is high and generally difficult to meet. See id. at 734; Church of Scientology of Ga., Inc. v. Sandy Springs, No. 10-cv-00082, 2011 WL 4793144, at *17 (N.D. Ga. Sept. 30, 2011) (Totenberg, J.). Thus, no substantial burden is imposed where Defendants action merely makes the Centers religious exercise more expensive or difficult but does not place significant pressure on the Center to violate, modify or forego its religious beliefs. Church of Scientology, 2011 WL 4793144, at *17. The court finds that the Centers problems do not amount to a substantial burden under RLUIPA. Although the Islamic Centers inability to expand to its desired size has made worship more difficult and left some congregants with, in the Centers own words, a less than satisfactory worship experience, the court is unable to find any evidence that worshipers have been pressured or coerced into violating, modifying, or forgoing their religious beliefs. Pl.s Mot. for Summary Judgment, at 11. Rather, congregants are faced with a less effective prayer session because many cannot worship in the front row; Friday service is visually difficult to follow for some congregants, depriving them of a full worship experience; lines form at the ablution area on Fridays; and the only place to sit during the post-fast meal for Ramadan is in the prayer area. Id. at 11-12. The Centers own descriptions of the issues it faces belie the assertion that Defendants action has imposed a substantial burden upon its religious exercise. Surely, the congregants face some inconveniences and difficulties, but there is no contention that worshipers have been forced
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or coerced into abandoning, modifying or violating their religious beliefs or precepts. Moreover, as Defendants point out, certain of the Centers alleged burdens have existed from the time it purchased the property and at that time the leadership of the Center expected grow well beyond the initial 25 worshipers. The Center knew in 1998 that the building did not face Mecca, that it would have to use a corner of the main room for prayer services and that only seven worshipers would be able to pray in the front row. Yet, Mr. Faroqui testified that in 1998 he and others did not look at other properties because the current facility met both the congregations needs and Fulton Countys requirements. Faroqui Depo., at 95. Mr. Faroqui admitted that we were only interested and we kind of honed in on this property. Faroqui Depo., at 97. Thus, these burdens are largely self-imposed. And even if the Center was able to expand to its desired size, not all worshipers would be able to pray in the front row, meaning that many would continue to have a less than satisfactory worship experience. This conclusion is buttressed by case law in other circuits. In Living Water, the Sixth Circuit confronted a churchs assertion that denial of its application to expand represented a substantial burden upon its religious exercise. The plaintiff claimed that the denial (1) effectively caused the church to shut down its daycare ministry because there was not enough room to juggle the logistics of operating both the daycare and other church ministries; (2) denied the churchs religious school a home, and . . . limited the churchs ability to recruit students to its school . . .; (3) caused the church to lose members because [of] insufficient space and seating to add new services and accommodate new members; (4) forced the church to cut back on activities, including midweek worship service, adult education and outreach activities, and childrens ministry; and (5) denied the
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churchs staff onsite office space to run the churchs ministries, including the school. Living Water, 258 Fed. Appx. at 738. The burdens claimed were more significant than those claimed here. The Sixth Circuit rejected the churchs substantial burden claim, noting that the townships denial does not require the church to forgo providing religious education; it does not preclude the church from enrolling students in its school; it does not prevent church members from entering the property and conducting worship or prayer services; it does not preclude the church from running religious programs and meetings in the evenings and on weekends; it does not preclude the church from accepting new members into its congregation. Moreover, the Townships decision does not prevent the church from building [a smaller expansion not requiring a special use permit] to house the school. Id. at 738. Similarly, here, even though the Islamic Center may not have ideal facilities, Defendants denial of its application does not preclude the Center from providing congregants with all or most support services, such as spiritual counseling, Mothers Morning Out and Sunday School. In fact, the Center already provides such services out of the Imams residence and mosque, but would prefer to provide them in an expanded worship building. The Center purchased a residential home in a residential neighborhood to house its prayer services, but now seeks to expand the mosque by over five times its current size. See PSMF, 6, 23 (from 2,524 square feet to nearly 14,000 square feet). As stated earlier, however, RLUIPA does not provide the Islamic Center with immunity from land use regulations. See 146 Cong. Rec. S7774-01, *S7776 (2000) (joint statement of Senators Hatch and Kennedy). The mere fact that [its] current facility is too small does not give [the
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Center] free reign to construct on its lot a building of whatever size it chooses, regardless of the limitations imposed by the zoning ordinance. Living Water Church of God, 258 Fed. Appx. at 739. The court in Episcopal Student Foundation v. City of Ann Arbor reached a similar result. 341 F. Supp. 2d 691 (E.D. Mich. 2004). In that case, the church experienced significant growth and outgrew its facility as a result. Id. at 693. The plaintiff argued that the denial of its application to expand imposed a substantial burden upon its religious exercise for several reasons: (1) Due to the limited space in its facility, the church was unable to accommodate all those who wished to attend worship services and could not seek growth; (2) The church was unable to fulfill its religious mission to help the hungry because of its small and outdated kitchen and lack of a dining area; (3) With no space for a student lounge and no dedicated space for meditation, the church was unable to provide its members with an informal gathering place and an opportunity for individual worship; and (4) Without a larger facility, the congregation may be unable to worship as a whole, as the faith requires Id. at 694. The church also asserted that it could not renovate or expand its current building in a way that would satisfy its needs and relocation was not a feasible alternative. Id. The court rejected the churchs argument, finding that the burdens placed upon its religious exercise did not rise to the level of severity contemplated by Supreme Court and Sixth Circuit jurisprudence. Id. at 704. The denial of the churchs permit did not prevent it from pursuing its religious beliefs, coerce its members into abandoning or violating those
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beliefs, or dissuade members from practicing their faith. Id. The court found it important that the church also had other alternatives it could pursue outside of demolishing its current building to construct a new one, such as leasing or subleasing an existing church or meeting hall to facilitate its worship as a whole or to pursue its other religious endeavors. Id. at 704705. Although these alternatives may be less appealing or more costly, neither the RLUIPA, nor the Constitution, requires Ann Arbor to subsidize the real estate market. Id. at 705 (internal quotations and citation omitted). Equally important, the record demonstrates that Canterbury House presently offers or participates in many, if not all, of the religious activities which it cites in support of its substantial burden. For example, the record reveals that Canterbury House currently contributes financial assistance to the Ann Arbor Hunger Coalition, and its members currently prepare and serve meals at many different local churches. Although it may be incredibly beneficial if Canterbury House were able to offer its own kitchen and dining room for such services, there is no indication that Canterbury House cannot continue to feed the hungry at such alternate locations, and thus fulfill its religious mission. Id. The Islamic Center is similarly able to offer and participate in many of the activities it cites in support of a substantial burden finding. It presently offers spiritual counseling, Mothers Morning Out, and Sunday School on its premises. See Pl.s Mot. for Summary Judgment, at 13. Thus, of the Centers complaints in this regard, it appears to lack only library space for books and a recreational area for children. The court cannot find that such inconveniences rise to the level of a substantial burden. Furthermore, it is self-evident that
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there are many ready alternatives for children who want to participate in recreational activities or congregants who wish to use a library. The Center attempts to distinguish Episcopal Student Foundation on the ground that the church in that case leased one half of its current building to commercial tenants and could have used that space to satisfy many of its needs for additional space. While the court did take note of this factor, it was clearly not central to the courts holding. The court stated that [e]ven putting aside the second floor option, Plaintiffs religious exercise has not been substantially burdened, before engaging in the reasoning cited above. Episcopal Student Foundation, 341 F. Supp. 2d at 704. The Islamic Center asks this court to follow the lone expansion decision it cites in support of its position, Mintz v. Roman Catholic Bishop of Springfield, 424 F. Supp. 2d 309 (D. Mass. 2006). The circumstances of Mintz, however, make it readily distinguishable and inapplicable to the facts at hand. There, a religious organization was not pitted against a governmental entity, as in the typical RLUIPA case. Rather, the governmental entity and the religious organization were aligned and agreed that a certain bylawwhich would have prevented expansionsubstantially burdened the organizations religious exercise. The abutting landowners challenged the local zoning boards approval of the churchs permit to construct the center on the grounds that the board failed to properly fulfill its obligations under the bylaw and applicable state statutes. The court upheld the zoning boards decision, finding that its decision, on the issue of substantial burden, was clearly not based on a
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legally untenable ground, nor was it unreasonable, whimsical, capricious or arbitrary. Mintz, 424 F. Supp. 2d at 322. The Massachusetts district court thus reviewed the zoning boards decision under a wholly different standard than the court must apply here. In sum, the court finds that the Islamic Center has failed to establish a prima facie case that Defendants denial of its application to expand imposes a substantial burden upon its religious exercise. The Centers complaints concern either correctable problems or inconveniences and distractions, and do not rise to the level of a substantial burden under RLUIPA and controlling precedent. Thus, the court need not determine whether Defendants can justify the burden created by articulating a compelling governmental interest. 2. Equal Terms
In Count Two, the Islamic Center brings a claim pursuant to RLUIPAs equal terms provision, which provides that [n]o government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution. 42 U.S.C. 2000cc(b)(1). This provision requir[es] equal treatment of secular and religious assemblies [and] allows courts to determine whether a particular system of classifications adopted by a city subtly or covertly departs from the requirements of neutrality and general applicability. Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d 1295, 1307 (11th Cir. 2006) (citing Midrash, 366 F.3d at 1232).
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The Center contends that Alpharettas Unified Development Code unlawfully differentiates between religious assemblies and secular associations in the C-1, C-2 and SU zoning classifications. In those zoning classifications, the UDC permits private clubs and secular assemblies as of right, but requires a conditional use permit for religious assemblies. The Islamic Center argues that this distinction violates the equal terms provision of RLUIPA. The court finds, sua sponte, that the Center does not have standing to raise its equal terms claim. The property on which the Center presently sits is zoned AG-1. See Wheeler Depo., Exh. 3. But the Centers equal terms claim relates to UDC provisions governing the C-1, C-2 and SU zoning classifications. The Center does not allege that it had any interest in relocating or opening a mosque in these other zoning classifications. Because the Islamic Center does not allege or present any evidence suggesting that it had an interest in relocating or opening a mosque or other religious facility in these other zoning classifications, the Center has failed to show it has suffered an injury in fact as a result of the UDC provisions governing the C-1, C-2 and SU zoning classifications. Thus, the court is hard pressed to articulate how [the Center] could be injured by [UDC provisions] that apply to areas of [Alpharetta] in which [the Center] does not currently, nor has ever planned, to locate in. Chabad of Nova, Inc. v. City of Cooper City, Civil Action No. 07-60738 (S.D. Fla. Oct. 15, 2007), Docket Entry [29], at 12. Similarly, in Midrash, the Eleventh Circuit concluded that two synagogues lacked standing to challenge a towns ordinances that applied to areas of
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the town in which neither synagogue was located or had any concrete and specific plans to locate in. See Midrash, 366 F.3d at 1224 n.9 ([W]e find that neither Midrash nor Young Israel has standing to challenge the application of 90-151, which defines Surfsides tourist district and, like 90-152, permits private clubs but excludes churches and synagogues. Neither party is located in the tourist district, and neither party has concrete and specific plans to locate in there.). 3. Nondiscrimination
Also in Count Two, the Center claims that Defendants violated RLUIPAs nondiscrimination provision, which provides that [n]o government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination. 42 U.S.C. 2000cc(b)(2). The Center mounts an as-applied challenge to Alpharettas UDC. The application of neutral zoning laws may violate RLUIPAs nondiscrimination provision if it differentially treats similarly situated religious organizations on the basis of denomination. See Church of Scientology of Ga., Inc., at *24 (citing Primera, 450 F.3d at 1311). To prevail on this selective enforcement claim, the Center must show (1) that it was treated differently from other similarly situated religious assemblies or institutions, and (2) that the [Defendants] unequally applied a facially neutral ordinance for the purpose of discriminating against [the Center]. Id. (citing Campbell v. Rainbow City, 434 F.3d 1306, 1314 (11th Cir. 2006) (analyzing a plaintiffs selective enforcement claim under the Equal Protection Clause)).
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a.
Whether the Comparators
Center
Identified
Similarly
Situated
In the context of zoning decisions, a showing that two projects were similarly situated requires some specificity. Id. at *25 (citing Campbell, 434 F.3d at 1314). The Islamic Center should thus provide the court with information concerning what the Alpharetta City Council had before it when it made decisions on other religious institutions applications to expand or locate within the city limits. See Campbell, 434 F.3d at 315 ([F]or a reasonable jury to find the development to be similarly situated to Plaintiffs development, Plaintiffs would need to provide a record of what the developer had brought before the planning commission when it was granted tentative approval. Without such information, neither a jury nor the court would be able to determine whether the Planning Commission had a rational reason for the different treatment.). Furthermore, for any religious assembly or institution to be similarly situated to the Center, it must be prima facie identical in all relevant respects. Id. at 1314; see also Church of Scientology of Ga., Inc., at *25. To satisfy its burden, the Islamic Center relies in part on an April 30, 2010, Council Agenda Report prepared by the Alpharetta Community Development Staff. In that report, the staff collected information about other religious facilities in Alpharetta and compared the proposed Islamic Center expansion with these other facilities. The staff concluded that the Islamic Centers proposed development plan falls within the mid-range of comparably situated religious facilities. When the size, density and parking are compared, the Islamic Center is neither at the high end nor the low end of
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any measure. The North Fulton Jewish Center has a higher density and less parking than the applicants proposal. The Center is comparable to densities of other religious facilities in the area and the seats per site acreage are lower than the Church of God on Mid Broadwell Road. Cook Depo., Exh. 3. In her presentation of the Centers application to the City Council, Ms. Wheeler noted that Alpharetta Presbyterian, a much larger facility than proposed by the Center, sits on a two-lane road and is completely surrounded by residential homes. See May 24, 2010, Transcript Excerpt, Part I, D.E. [95-1]. Ms. Wheeler commented that it is not unusual to find churches on two-lane roads in residential areas. . . . Right on Rucker Road, which is where the applicant is located, further west there are existing two churches that are already there and have been for many years on a two-lane road. So its not out of character to have churches in residential areas. Id. The Center also provides brief descriptions of several religious institutions it contends were similarly situated and that received more favorable treatment. The Center asserts that St. Thomas Aquinas and the Restoration Church of God, two institutions also located on Rucker Road, have been allowed to expand multiple times over the years and are allowed to have all the programs typically associated with a religious facility, such as recreational areas, schools and treatment facilities, even though both churches abut residential property and do not have the same substantial buffers that the Centers facility has. The rest of the Centers descriptions are shorter and less specific: The North Fulton County Jewish Center has no buffers to the directly adjacent, fairly new subdivision. The pre-school has an outside,
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unscreened play area. Parking is all in the front and to the side of the buildings, all visible from the street. Sae Han Presbyterian Church does not have a fifty foot landscape buffer along the Kimball Bridge Road frontage and no visual separation from the surrounding neighborhood. Alpharetta Presbyterian, a much larger church than that proposed by the Center, is also on a two-lane road and is completely surrounded by residential homes. Alpharetta Church of God on Mid-Broadwell Road has a retention pond at the front side of the property directly adjacent to the property line with no buffers to the single family, detached home next door. The Founding Faith Church on Cogburn Road was approved for a twostory 12,000 square foot building in 2007. In September 2010, Alpharetta approved a modification of the churchs site plan to increase the density to 14,720 square feet. The City Council also deleted the Staffs proposed conditions regarding no overnight stays and limiting the hours of operation.
Pl.s Mot. for Summary Judgment, at 41-42. The Islamic Center has failed to provide the requisite level of specificity for the court to determine whether the identified religious organizations are prima facie identical in all relevant respects. Campbell, 434 F.3d at 1315. The Council Agenda Report and testimony from Ms. Wheeler discuss in broad terms other churches and religious facilities located in Alpharetta but do not reveal any details concerning those institutions applications to locate or expand within the city limits or whether they went through the public hearing process at all. Similarly, blanket assertions that St. Thomas Aquinas and the Restoration Church of God have been allowed to expand multiple times over the years tell the court nothing
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about what those churches presented to the City Council or what the Council relied upon in making its decision.4 Without such information, the court cannot determine whether these organizations were in fact similarly situated to the Islamic Center if and when they went through Alpharettas zoning process. See Campbell, 434 F.3d at 315 ([F]or a reasonable jury to find the development to be similarly situated to Plaintiffs development, Plaintiffs would need to provide a record of what the developer had brought before the planning commission when it was granted tentative approval. Without such information, neither a jury nor the court would be able to determine whether the Planning Commission had a rational reason for the different treatment.). Furthermore, the fact that both St. Thomas Aquinas and the Restoration Church of God sit on Rucker Road and abut residential property does not establish that these churches were prima facie identical in all relevant respects because the court needs additional information concerning the surrounding land uses. The rest of the Centers comparators suffer from the same or similar flaws.5
Ms. Wheeler testified that the city made no zoning decisions with regard to St. Thomas Aquinas or the Restoration Church of God. Wheeler Decl., 25-26. The Center disputes Ms. Wheelers declaration on the ground that it had no opportunity to cross examine her about these additional facts and was unable to test their veracity or rebut them. Nonetheless, even assuming these churches did in fact go through the hearing process, the court finds that the Center has failed to provide enough specificity to establish that the churches were similarly situated to the Islamic Center. The Center provides very limited details concerning the Founding Faith Churchs request to expand in 2010. According to the Center, that church sought to increase its density by approximately 2,720 square feet. As stated earlier, without any information regarding Founding Faiths surrounding land uses and what it presented to the City Council, the court cannot determine whether it qualifies as a similarly situated comparator.
38
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The court does find in the record, however, several staff planning reports related to the Sae Han Presbyterian Church. The first such report indicates that in 1997 Sae Han sought conditional zoning to allow a church and accessory uses on an approximately 10-acre property located on Kimball Bridge Road. D.E. [101-1], at 1. The staffs analysis states that [t]he land use of the area is characterized by a variety of uses and zoning classifications. Id. at 2. Along Kimball Bridge Road there is an elementary school and a large amount of vacant property that is zoned OI. Id. Thus, when Sae Han Presbyterian Church went before the Alpharetta City Council, its surrounding land uses were dramatically different from the Islamic Centers. Sae Hans request to locate a church near an elementary school and a large amount of vacant property was thus much different from the Centers request to significantly increase the size of its facilities in a completely residential area. For the foregoing reasons, the court finds that the Islamic Center has failed to satisfy its burden of identifying similarly situated comparators. The Centers RLUIPA nondiscrimination claim must fail.6
Furthermore, the court notes the dramatic difference in the scales of the Founding Faith Churchs expansion and the Centers proposed expansion. Because the Center has failed to satisfy its burden of establishing a prima facie case under RLUIPAs equal terms and nondiscrimination provisions, the Centers claims in Count VI (Establishment Clause) and Count IX (Equal Protection) also fail. See Church of Scientology of Ga., Inc., at *31.
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4.
Exclusions and Limits
RLUIPAs exclusions and limits provision prohibits a land use regulation that unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. 42 U.S.C. 2000cc(b)(3). It is clear from the plain language of the statute that the purpose of this provision is not to examine the restrictions placed on individual landowners, but to prevent municipalities from broadly limiting where religious entities can locate. Church of Scientology of Ga., Inc., at *31 (citing Adhi Parasakthi Charitable, Med., Educ., and Cultural Socy of N. Am. v. Township of West Pikeland, 721 F. Supp. 2d 361, 387 (E.D. Pa. 2010)). The Islamic Center contends that Alpharettas UDC, as applied, deprives the Center and other religious assemblies of reasonable opportunities to practice their religions within the city. The Centers focus on the restriction on its own ability to expand in this instance, however, is misplaced. The application of the UDC to prevent the Centers proposed expansion does not suggest that Alpahretta has broadly limited where religious entities can locate within its jurisdiction. The Center does not point to any other actions taken by Alpharetta that have had such an effect. The Center also contends that the dearth of land in the one zoning classification where religious institutions can locate without a special use permit unreasonably limits religious assemblies, institutions or structures within Alpharetta. Yet, as Defendants point out, religious institutions are allowed as a conditional use in all other 18 zoning districts. Special use and conditional use permits are common requirements for religious institutions
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in many jurisdictions. The court does not find that such a requirement violates RLUIPAs unreasonable limitations provision. This finding is buttressed by the fact that, as both parties point out, numerous churches already exist within the city limits. Defendants are entitled to summary judgment on the Centers exclusions and limits claim. C. Constitutional Claims 1. Free Exercise, Freedom of Speech and Freedom of Assembly
Defendants seek summary judgment on the Centers free exercise, freedom of speech and freedom of assembly claims in Counts V, VII, and VIII. The Center claims its free exercise right was violated because it cannot fully and properly use its property for religious exercise. Without the ability to expand to its desired size, the Center contends its ability to practice its religion and grow its congregation is seriously limited. The Center concedes that analysis under the Free Exercise Clause is the same as under RLUIPAs substantial burden provision. The Center also acknowledges that its freedom of speech and freedom of assembly claims are essentially the same as its free exercise claim and should be construed as such. Because the court has already found that Defendants are entitled to summary judgment on the Centers RLUIPA claims, Defendants are also entitled to summary judgment on the Centers free exercise, freedom of speech and freedom of assembly claims in Counts V, VII, and VIII.
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2.
Due Process
In Count X of its Complaint, the Islamic Center alleges that Defendants violated its procedural and substantive due process rights under the Fourteenth Amendment of the United States Constitution by unlawfully depriving the Center of its right under Alpharettas UDC to modify a condition of a use permit and improperly treating the Fairfax letter as a binding agreement. Defendants argue they are entitled to summary judgment because the City Councils zoning decision enjoys a presumption of validity, bears a rational relation to a legitimate government interest, and is not clearly arbitrary and unreasonable. Defendants also submit that the City Councils decision to deny the Centers proposed expansion was an executive act not entitled to due process protection under the U.S. Constitution. The Center responds that Defendants outright denial of its application to expand without any justification other than the Fairfax letter was arbitrary, capricious and unreasonable. The Center does not make any procedural due process arguments, and the court therefore deems any such arguments abandoned. It also appears that the Center focuses only on substantive due process under Georgia law, which the court will address later. Out of an abundance of caution, however, the court now turns to any substantive due process claim that the Center may have under the federal constitution. The substantive component of the Due Process Clause protects those rights that are fundamental, that is, rights that are implicit in the concept of ordered liberty. McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (internal quotation and citation omitted). However,
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areas in which substantive rights are created only by state law are not subject to substantive due process protection under the Due Process Clause because substantive due process rights are created only by the Constitution. Spratlin Outdoor Media, Inc. v. City of Douglasville, No. 04-CV-3444, 2006 WL 826077, at *13 (N.D. Ga. Mar. 27, 2006) (Carnes, J.) (quoting Lewis v. Brown, 409 F.3d 1271, 1272-73 (11th Cir. 2006)). In the Eleventh Circuit, [t]he list of state-created rights . . . includes land-use rights like the zoning restrictions at issue here. Lewis, 409 F.3d at 1273. Here, because the Islamic Center bases its substantive due process claim on the City Councils denial of its state-granted state-defined property right to modify a condition of a use permit, a substantive due process claim is not available. See Spratlin Outdoor Media, 2006 WL 826077, at *13. The only exception to this general rule would be if the Centers state-created right to seek a modification of a use permit was infringed by legislative act. Lewis, 409 F.3d at 1273. The City Councils decision to deny the Centers application, however, affected only a limited class of persons. For purposes of a partys substantive due process rights under the federal Constitution, this kind of zoning decision, an enforcement of existing zoning regulations, is an executive act. Spratlin Outdoor Media, 2006 WL 826077, at *13. Thus, the Islamic Center has no substantive due process claim under the Fourteenth Amendment and the court grants Defendants motion for summary judgment on Count X of the Complaint.
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3.
Federal Takings and State Inverse Condemnation
The Islamic Center concedes that its Fifth Amendment takings and state inverse condemnation claims are not ripe for adjudication until the state court considers them in a pending related action filed in the Superior Court of Fulton County. Nonetheless, the Center asks the court to deny Defendants motion for summary judgment and retain jurisdiction until the Center has exhausted its remedies in state court. The Center cites no authority for its request. Under Supreme Court precedent, a federal constitutional takings claim is not ripe until the plaintiff has unsuccessfully pursued a compensation claim in state court. Church of Scientology of Ga., Inc., at *32 (citing Williamson Cnty. Regional Planning Commn v. Hamilton Bank of Johnson City, 473 U.S. 173, 195 (1985)). Thus, the Centers takings claim does not present a case or controversy ripe for judicial review and this court lacks subject matter jurisdiction over that claim. Id. (citing Tari v. Collier Cnty., 56 F.3d (1533, 1535-36 (11th Cir. 1995)). Defendants are entitled to summary judgment on the Centers takings and inverse condemnation claims in Counts XII and XIV. D. Other Claims 1. Attorneys Fees
The Center seeks attorneys fees and costs on its RLUIPA and Section 1983 claims. Because the court has granted Defendants summary judgment on those claims, the Center
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is not entitled to an award of attorneys fees. Accordingly, the court grants Defendants summary judgment on Count IV of the Complaint. 2. Declaratory Judgment
In Count XI, the Center seeks a declaratory judgment that the Fairfax letter does not represent a binding agreement on the Defendants which would prohibit or restrict the use of the Centers property as conditioned by the Fulton County Board of Commissioners in 2004. Defendants contend they are entitled to summary judgment on this claim because the Fairfax letter does not present any uncertainty or insecurity with regard to the propriety of some future act or conduct and declaring the Fairfax letter non-binding would not end this controversy because the representations the Center made therein were incorporated into the zoning regulations. The Center responds that [d]eclaratory judgment would have a salutary effect toward settling this controversy and would serve a useful purpose in clarifying Defendants right to rely on the Fairfax letter to deny the [a]pplication. Pl.s Resp., at 22. The court finds the Centers arguments unavailing. The court has already ruled on the merits of this dispute in favor of the Defendants. Any further declaration regarding the Fairfax letter would constitute an unconstitutional advisory opinion. Accordingly, the court grants the Defendants motion for summary judgment on the Centers declaratory judgment claim (Count XI).
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3.
Mandamus and Injunction Claims
The Center seeks relief in the form of a mandamus directing Defendants to approve its application to expand. Federal district courts do not have the authority to issue writs of mandamus to direct state officials in the performance of their duties. Church of Scientology of Ga., Inc., at *34; see also 28 U.S.C. 1361; Moye v. Clerk, DeKalb Superior Court, 474 F.2d 1275, 1276 (5th Cir. 1973).7 Therefore, because this court lacks jurisdiction over such a claim, the court grants Defendants motion for summary judgment as to Count XV. The Centers requests for preliminary and permanent injunctions are also denied for the same reasons its other claims fail. 4. Remaining State Law Claims
The remainder of the claims asserted by the Center are based in state law. This court does not have independent subject matter jurisdiction over these claims because there is no diversity of citizenship. The only source of jurisdiction over these claims, then, is supplemental jurisdiction pursuant to 28 U.S.C. 1367. Section 1367 also provides, however, that the court may decline to exercise supplemental jurisdiction over a claim if it has disposed of all the claims over which it had original jurisdiction. The court therefore declines to exercise supplemental jurisdiction over the Centers remaining state law claims in Count XIII.
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the former Fifth Circuit filed prior to October 1, 1981.
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E.
Summary
The court grants Defendants motion for summary judgment on all of the Islamic Centers federal claims, its state inverse condemnation claim, and its request for mandamus. (Counts I - XII, XIV-XVI). The court denies Defendants motion for summary judgment on the Islamic Centers state law claims in Count XIII. The court declines to exercise supplemental jurisdiction over the Centers pendant state law claims and those claims are dismissed without prejudice. III. Conclusion The court GRANTS IN PART AND DENIES IN PART Defendants Motion for Summary Judgment [106], DENIES Plaintiffs Motion for Summary Judgment [107], GRANTS Defendants Motion for Leave to File Excess pages and Motion for Leave to File Reply to Plaintiffs Response to Defendants Statement of Material Facts [142], and DENIES AS MOOT Defendants Motion for Reconsideration and/or Motion for Clarification [152]. IT IS SO ORDERED this 25th day of January, 2012. s/ J. Owen Forrester J. OWEN FORRESTER SENIOR UNITED STATES DISTRICT JUDGE
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