12.23 aa amicus brief

A145573

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

______________________________________________________

COASTAL HILLS RURAL PRESERVATION,

Petitioner/Appellant

v.

COUNTY OF SONOMA

Respondent

______________________________________________________

JACK PETRANKER, an individual, et al.,

Real Parties in Interest and Respondents

______________________________________________________

Appeal from Sonoma County Superior Court

The Honorable Elliot Lee Daum, presiding

(Case No. SCV 255694)

______________________________________________________

APPLICATION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF AND [PROPOSED] BRIEF OF AMERICAN

ATHEISTS IN SUPPORT OF PETITIONER COASTAL

HILLS RURAL DEVELOPMENT

______________________________________________________

Amanda Knief

American Atheists Legal Center

1220 L St. NW Suite 100-313

Washington, D.C. 20005

Tel. 202-241-4905

Email: [email protected]

Attorney for Amicus Curiae

2

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Pursuant to California Rule of Court, Rule 8.208, amicus curiae

American Atheists, to the best of its knowledge, is unaware of any

entities or persons who have a financial interest in the outcome of

this proceeding that would be relevant to the zoning of the Tibetan

Nyingma Meditation Center.

Pursuant to California Rule of Court, Rule 8.208, amicus curiae

American Atheists asked the Appellant’s counsel for court filings,

including Appellant’s briefs, and to review the amicus curiae brief.

Dated: December 23, 2015

By /s/ Amanda Knief

AMANDA KNIEF



3

APPLICATION

Pursuant to Rule 8.200(c) of the California Rules of Court,

American Atheists respectfully applies for permission from the

presiding justice to file the Amicus Curiae Brief contained herein.

American Atheists is the premier secular organization advocating

for the absolute separation of religion and government in the

United States. Founded in 1963, American Atheists is a nonprofit,

nonpolitical, educational organization which offers a secular

perspective on the role of religious freedom in the United States as

envisioned by this country’s Founders. American Atheists has

hundreds of members in California as well as 17 affiliate

organizations in the state.

The zoning adjustment at issue in this case implicates

American Atheists’ core interest in preserving and strengthening

the constitutional separation between religion and government.

American Atheists is therefore deeply invested in ensuring

appropriate judicial scrutiny of religiously motivated zoning

decisions in accordance with the First Amendment and federal law.

Dated: December 23, 2015

By /s/ Amanda Knief

AMANDA KNIEF



A145573

4

COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

______________________________________________________

COASTAL HILLS RURAL PRESERVATION,

Petitioner/Appellant

v.

COUNTY OF SONOMA

Respondent

______________________________________________________

JACK PETRANKER, an individual, et al.,

Real Parties in Interest and Respondents

______________________________________________________

Appeal from Sonoma County Superior Court

The Honorable Elliot Lee Daum, presiding

(Case No. SCV 255694)

______________________________________________________

APPLICATION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF AND [PROPOSED] BRIEF OF AMERICAN

ATHEISTS IN SUPPORT OF PETITIONER COASTAL

HILLS RURAL DEVELOPMENT

______________________________________________________

Amanda Knief


1220 L St. NW Suite 100-313

Washington, D.C. 20005

Tel. 202-241-4905

Email: [email protected]


5

TABLE OF CONTENTS

TABLE OF AUTHORITIES…………………………… 6

SUMMARY OF ARGUMENT………………………… 8

ARGUMENT…………………………………………… 9

I. RLUIPA SHOULD BE CONSTRUED

NARROWLY TO AVOID CHILLING

NONDISCRIMINATORY GOVERNMENT

ACTIVITY……………………………… 9

A. SONOMA COUNTY GRANTED

ZONING EXEMPTION TO TNMC

BECAUSE OF RLUIPA’S

CHILLING EFFECT…………… 9

B. THE SUBSTANTIAL BURDEN

REQUIREMENT SHOULD BE

READ NARROWLY TO AVOID

THE DANGER OF RLUIPA BEING

EXPLOITED AS A LOOPHOLE

TO EVADE REASONABLE

ZONING LAWS……………….. 12

II. BROADLY INTERPRETED, RLUIPA

VIOLATES THE ESTABLISHMENT CLAUSE

OF THE FIRST AMENDMENT……….. 18

CONCLUSION………………………………………… 21

6

TABLE OF AUTHORITIES

CASES PAGES

McCreary County v. ACLU

545 U.S. 844 (2005)…………………………… 16, 19

Santa Fe Independent School District v. Doe

530 U.S. 290 (2000)…………………………… 19-20

Lee v. Weisman

505 U.S. 577 (1992)…………………………… 20

Employment Division v. Smith

494 U.S. 872 (1990)…………………………… 9, 18

Edwards v. Aguillard

482 U.S. 578 (1987)…………………………… 19

Wallace v. Jaffree

472 U.S. 38 (1985)…………………………….. 19-20

Larkin v. Grendel’s Den

459 U.S. 116 (1982)…………………………… 20-21

Stone v. Graham

449 U.S. 39 (1980)…………………………….. 19

Lemon v. Kurtzman

403 U.S. 602 (1971)…………………………… 8, 14, 19

Walz v. Tax Commission of New York

397 U.S. 664 (1970)…………………………… 20

School District of Abington Township v.

Schempp

374 U.S. 203, 223 (1963)……………………… 19

International Church of the Foursquare Gospel

v. City of San Leandro

673 F.3d 1059 (9th Cir. 2011).............................. 8, 12-14

San Jose Christian College v. City of Morgan

Hill

360 F.3d 1024 (9th Cir. 2004)………………… 8, 14-15

7

Lighthouse Institute for Evangelism, Inc.

v. City of Long Branch.

510 F.3d 253 (3rd Cir. 2007)…………………. 16-17

Lighthouse Institute for Evangelism, Inc.

v. City of Long Branch

100 Fed Appx. 70 (3rd Cir. 2004)…………….. 8-9, 16-17

Saints Constantine and Helen Greek Orthodox

Church, Inc. v. City of New Berlin

396 F.3d 895 (7th Cir. 2005)………………….. 16

Civil Liberties for Urban Believers v. City of

Chicago

342 F.3d 752 (7th Cir. 2003)………………….. 8, 14-16

Midrash Sephardi, Inc. v. Town of Surfside

366 F.3d 1214, (11th Cir. 2004)………………. 8, 17

Guru Nanak Sikh Society v. County of Sutter

326 F. Supp. 2d 1140 (E.D. Cal. 2003)……….. 8, 11-12

Cottonwood Christian Center v. Cypress

Redevelopment Agency

218 F. Supp. 2d 1203 (C.D. Cal. 2002)……….. 12

Westchester Day School v. Village of

Mamaroneck

280 F. Supp. 2d 230 (S.D.N.Y. 2003)………… 12

OTHER AUTHORITIES PAGES

42 U.S.C.S. § 2000bb…………………………… 14, 20

42 U.S.C.S. § 2000cc…………………………… 9

SONOMA CNTY., CAL., CODE § 26C-12 (2015)…... 10

Daniel P. Lennington, Thou Shalt Not Zone:

The Overbroad Applications and Troubling

Implications of RLUIPA’s Land Use

Provisions, 29 Seattle U. L. Rev. 805 (2006)..... 12

Appellant’s Opening Brief……………………… 10-11

8

SUMMARY OF ARGUMENT

This Court should not uphold the zoning adjustments

requested by Jack Petranker and the Tibetan Nyingma Meditation

Center (“TNMC”) because the zoning adjustment was made in

deference to an unsustainably broad reading of the Religious Land

Use and Institutionalized Persons Act (“RLUIPA”) “substantial

burden” requirement advanced by the Ninth Circuit Court of

Appeals in International Church of the Foursquare Gospel v. City

of San Leandro, 673 F.3d 1059, 1069-70 (9th Cir. 2011), and the

Eastern District of California in Guru Nanak Sikh Society v.

County of Sutter, 326 F. Supp. 2d 1140 (E.D. Cal. 2003). Evidence

shows that Sonoma County permitted TNMC to enjoy zoning

adjustments to allow a commercial printing press operation in a

high-fire zone and rural zoned area based entirely upon the

religious nature of the organization with no real assessment of the

impact on the surrounding area. Local governments are fearful of

challenging free exercise claims under RLUIPA because of broad

readings from courts which state that any delay, uncertainty, or

expense caused by a zoning restriction constitutes a “substantial

burden” on religious exercise. This court must read RLUIPA’s

“substantial burden” requirement narrowly to avoid the danger of

writing the requirement out of the law altogether, thus making

even incidental burdens on religious exercise subject to a least-

restrictive means test. A number of cases support a narrow reading

of RLUIPA and highlight the danger associated with the broad

interpretation. San Jose Christian College v. City of Morgan Hill,

360 F.3d 1024 (9th Cir. 2004); Lighthouse Institute for

Evangelism, Inc. v. City of Long Branch, 100 Fed Appx. 70 (3rd

Cir. 2004); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d

1214, 1221 (11th Cir. 2004); Civil Liberties for Urban Believers v.

City of Chicago. 342 F.3d 752 (7th Cir. 2003).

Moreover, the broad interpretation of RLUIPA’s

“substantial burden” requirement likely fails the Lemon Test for

Establishment Clause violations. Lemon v. Kurtzman, 403 U.S.

602, 612-13 (1971). Each of the Lemon Test’s three prongs are

violated by a broad reading of the requirement. First, under a broad

reading of the “substantial burden” requirement, RLUIPA has no

secular purpose. Despite the recitation of a secular purpose before

the Religious Freedom Restoration Act (“RFRA”), a statute which

almost always exempts religious entities from reasonable zoning

restrictions would reveal the alleged secular purpose to be a sham.

Second, the statute would inarguably advance religion under a

broad reading of its “substantial purpose” requirement. An

objective observer would undoubtedly perceive the extraordinary

9

ability of religious organizations to evade reasonable zoning

restrictions as an endorsement of religion on behalf of the

government. Finally, there is an excessive entanglement of religion

with government. A broad reading of the “substantial burden”

requirement essentially grants churches and other religious entities

the power to veto reasonable zoning restrictions which they are

disinclined to follow. Not only does this give churches

discretionary power which should be constitutionally reserved for

the government, it perpetuates the harm warned of by the U.S.

Supreme Court in Employment Division v. Smith by making such

churches “a law unto [themselves].” Employment Division v.

Smith, 494 U.S. 872, 879 (1990).

For the foregoing reasons, the court should set aside

TNMC’s Project approval with the lower court directed to enter a

judgment in favor of Appellant unless or until a full Environmental

Impact Report is prepared.

ARGUMENT

I. RLUIPA SHOULD BE CONSTRUED

NARROWLY TO AVOID CHILLING

NONDISCRIMINATORY GOVERNMENT

ACTIVITY

A. SONOMA COUNTY GRANTED ZONING

EXEMPTION TO TNMC BECAUSE OF

RLUIPA’S CHILLING EFFECT

RLUIPA applies to land use regulations that substantially

burden the religious exercise of the landowner. 42 U.S.C.S. §

2000cc. It applies to this case specifically as a result of subsection

(a)(2)(c), which extends RLUIPA’s protections to cases where a

government entity is permitted to make “individualized

assessments of the proposed uses for the property involved.” Id.

Sonoma County’s ability to provide exemptions from zoning

regulations for religious uses is part of what makes its adherence to

RLUIPA necessary.

Under the standards of RLUIPA, a government may only

substantially burden religious exercise if its action furthers a

compelling interest and if the course of action taken is the least

restrictive means of achieving that compelling interest. Id. This is a

far more demanding standard than strict scrutiny, which applies to

some constitutional challenges. Under strict scrutiny, a government

entity still needs to show a compelling interest, but must show only

10

that the course of action was narrowly tailored to meet the

compelling interest. Defeating strict scrutiny is difficult, to be sure,

but it allows more options for accommodation than RLUIPA.

In the instant case, Sonoma County gave Project approval

to Petranker’s application for a Master Use Permit (“MUP”) in

June 2014 by adopting a subsequent mitigated negative declaration

(“SMND”). Appellant’s Opening Brief at 20. In 2004, the printing

operation at the site was approved to produce only 100,000 books

per year. The Project approval almost completely deregulates press

production at TNMC. Id. at 29. Additionally, the 2004 approval

allowed one printing press at the site; the Project approval

sanctions five more printing presses. Id. Furthermore, the Project

approval permits commercial production of “sacred” objects and

Internet sales; increases the maximum occupancy of the press

buildings three-fold, from 27 persons to 80 persons; and removes

the previously enacted worker/housing ratio meant to ensure the

press facilities were operated as an “accessory” use. Id. at 30.

Finally, the Project approval adds 40,000 feet of permanent

storage, tripling the space used for printing operations from 18,750

to 60,000 square feet. Id. at 31.

The County’s approval of these adjustments was premised

on its characterization of the use as being an “accessory” to the

site’s primary use. The County’s use of the term “accessory” is

ambiguous. Section 26C-12 of the Sonoma County Code of

Ordinances defines the term thus: “‘Accessory use’ means a use of

land or a building that is related to and subordinate to the primary

use of the land or building located on the same lot.” However, in

some uses the County appears to compare the square footage of the

site dedicated to running the printing press operations against the

Center generally. For instance, in its Project approval, the County

apparently based part of its “accessory” use determination on

figures provided by Petranker that concluded just 1.25% of the

land was used by the printing press operation. Not only does this

analysis conflict with the “accessory” definition listed in the Code

of Ordinances, according to the Appellant it mistakenly includes

land which is undeveloped or undevelopable. Appellant’s Opening

Brief at 23-24. If the County had compared building area to

building use, it would have found the printing press operation

constitutes 49% of building space.

The massive increase in storage and printing press

operations at the site were also approved by the County despite the

fact that the storage structures did not meet the strict requirements

applicable to a Wildland-Urban Interface Fire Area. In fact,

11

Appellant shows that the site was made exempt from a major fire

code in the area as early as 2008. Id. at 26. Additionally, Appellant

has contacted the Timber Cove Fire Protection District, an all-

volunteer fire department which services the area. Appellant has

been informed that the project as approved by Sonoma County has

insufficient protections against the substantial risk of industrial

fire. Id. at 24-25. The TNMC site is in a “high” wildland fire

hazard severity zone, the area around which has been zoned as a

Rural Residential District (RRD) with no other significant

industrial operations. Id. The Fire District and the Sonoma County

Fire Chief agree that the fire department has neither the training

nor resources to respond to the type of danger posed by an

industrial operation of this size. Id. at 25-26.

Finally, the Project Approval included conditions requiring

termination of the printing press operations at the site if it were

conveyed to a property owner unaffiliated with Tibetan Buddhism.

Id. at 22. According to Appellant, this means that the same use

would no longer be considered an “accessory” use if a nonreligious

or non-Tibetan Buddhist owner took control of the property. Yet

the added storage and printing presses should be permitted under

either definition of “accessory,” given the numbers used by the

County, no matter the owner.

This signifies surrender to TNMC’s interest in unfettered

religious exercise at the expense of the County’s compelling

interests in safety and nondiscrimination. Appellant provides

information suggesting that the County granted the “accessory”

designation solely on the basis of TNMC’s religious character.

During one hearing, Supervisor Shirlee Zane drew attention to this

inconsistency, asking: “[C]an anybody set up some type of factory

and say it’s for religious purposes and have that [accessory use

analysis] waived?” Id. at 22-23. The response from Permit and

Resource Management Department Deputy Director Jennifer

Barrett was, “That’s a policy call for the board.” Id.

Governments fear accidentally crossing the invisible line

between merely burdening religious exercise and substantially

burdening religious exercise; there is no clear rule to help

governments delineate what sort of burdens are or are not

acceptable. Sonoma County and other governments’ reluctance to

challenge allegedly religious land use “is understandable, for the

strict scrutiny standard imposed by RLUIPA is a difficult one to

meet.” Guru Nanak Sikh Society v. County of Sutter, 326 F. Supp.

2d 1140, 1154 (E.D. Cal. 2003). Moreover, courts in California

and elsewhere have found that preventing religious organizations

from building worship sites inhibits religious exercise. E.g., Id. at

12

1152-53; Cottonwood Christian Center v. Cypress Redevelopment

Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002); Westchester Day

School v. Village of Mamaroneck, 280 F. Supp. 2d 230 (S.D.N.Y.

2003).

B. THE SUBSTANTIAL BURDEN

REQUIREMENT SHOULD BE READ

NARROWLY TO AVOID THE DANGER OF

RLUIPA BEING EXPLOITED AS A LOOPHOLE

TO EVADE REASONABLE ZONING LAWS

Because of governmental reluctance to push back against

religious organizations’ attempts to use land for purposes other

than that for which it was zoned, churches and other religious

entities “may very well become immune from local zoning laws—

if they are not already.” 29 Seattle U. L. Rev. 805, 806 (2006).

Governments are wary of taking any action in opposition to a

religious organization’s desires, but “RLUIPA was meant to

address intentional discrimination” and not zoning ordinances of

every stripe. Id. at 835-36.

In International Church of the Foursquare Gospel v. City

of San Leandro, the Ninth Circuit held that being able to build

space for a religious institution is an indispensable part of free

exercise. 673 F.3d 1059, 1069-70 (9th Cir. 2011). Despite agreeing

that a government action must do more than inconvenience

religious exercise, and that it “must be ‘oppressive’ to a

‘significantly great’ extent,” the court went on to cite approvingly

of a California district court case which found a substantial burden

on religious exercise in the denial of a conditional use permit to

allow construction of a large church sufficient to hold 4,000

persons and to accommodate ministry programs. Id. at 1067-70.

The International Church of the Foursquare Gospel

decision can be distinguished from this case for a number of

reasons. First, the church in that case provided evidence that no

suitable alternative sites existed for services of the type the church

wished to hold. Id. at 1067. Appellant here has identified superior

alternative locations for the printing press operations TNMC

wishes to engage in—locations which are better zoned for

industrial printing operations and which have easier access to

shipping to Asia, the primary destination of TNMC’s sales.

Appellant’s Opening Brief at 28-29. Moreover, Petranker

successfully operated the press operations in Berkeley, California,

for many years before relocating them (without County approval)

to their current location at the TNMC site. Id.

13

Second, the Ninth Circuit’s decision in International

Church of the Foursquare Gospel is distinguishable because there

had been an “improper scrutiny of the church’s core religious

beliefs.” 673 F.3d at 1069. Although the Church in that case had

expressed its religious belief in the necessity of meeting as a single

group, the lower court had accepted the City’s argument that the

church could hold multiple Sunday services or relocate some

services offsite. Id. No improper scrutiny of TNMC’s religious

beliefs has occurred in the instant case. (However, Appellant has

rightly questioned whether Petranker/TNMC are acting pursuant to

sincere religious beliefs. For example, although Petranker has

claimed the printing operation must occur at its current location

because it is a “sacred place,” the history of operations occurring

elsewhere contradicts his claim. Appellant’s Opening Brief at 28.

Furthermore, Petranker in 2004 alleged that the press operation

“does not operate as a conventional commercial business,” but by

2010, the facility offered 551 products for sale on its website,

including incense, cushions, and wrapping paper. Id. at 16-17.)

Appellant’s approach would invoke appropriate scrutiny to ensure

that RLUIPA protections are not exploited as a “loophole” to

evade reasonable zoning restrictions.

Third, the Ninth Circuit criticized the City’s rejection of a

conditional use permit (“CUP”) to the Church based on the

proposed location’s proximity (within a quarter mile) to a

hazardous materials business plan site. 673 F.3d at 1070. Because

all of the properties in the “Assembly Use Overlay” zoned district

were within a quarter mile of a hazardous materials business plan

site, the church’s CUP application would never succeed. Id. Citing

Guru Nanak, the court said a substantial burden on religious

exercise exists where government actions “significantly . . .

lessened the possibility that future CUP applications would be

successful.” Id. However, unlike the instant case, the “Assembly

Use Overlay” district in International Church of the Foursquare

Gospel was implemented only after the Church had expressed

interest in a property in the area. Id. at 1064. There was therefore a

greater likelihood that the zoning denial was made with

discriminatory motive, whereas the RRD zoning and Wildland-

Urban Interface Fire Area designations were already in effect upon

TNMC’s application for zoning adjustment.

Finally, the Ninth Circuit correctly stated that a substantial

burden is one which pressures “an adherent to modify his behavior

and to violate his beliefs,” but subsequently interpreted RLUIPA

far too broadly. Id. at 1067. In rejecting the district court’s

conclusion that neutral, generally applicable zoning laws could

only create incidental burdens on religious exercise, the Ninth

14

Circuit argued that the effect of that conclusion would be to

“write[] RLUIPA's substantial burden provision out of RLUIPA.”

Id. at 1067-68. Yet the court arguably did just that! After

expressing concern that the district court’s rule would eliminate the

“substantial burden” requirement by minimizing the burden such

zoning laws create, the Ninth Circuit adopted an alternative rule

guaranteeing that virtually every zoning decision will be labeled a

substantial burden on religious exercise. Id. at 1068-69. In

particular, it dispensed with the claim that “RLUIPA does not

insulate religious institutions from ‘the harsh realit[ies] of the

marketplace’”. Id. at 1068 (quoting Civil Liberties for Urban

Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003).

Instead, it found the “delay, uncertainty, and expense” caused by

zoning laws which exclude religious entities necessarily create a

“substantial burden” on religious exercise. Id. (quoting Saints

Constantine and Helen Greek Orthodox Church, Inc. v. City of

New Berlin, 396 F. 3d 895, 901 (7th Cir. 2005). This rule truly

writes the substantial burden provision out of RLUIPA, such that

any zoning decision is viewed as a substantial burden on religious

exercise.

Clearly, Congress’ purpose in passing RLUIPA was not to

allow religious entities to circumvent any zoning law that conflicts

with their beliefs. RLUIPA as drafted is identical in wording to the

Religious Freedom Restoration Act (RFRA), which was passed in

1993 in response to the Supreme Court’s decision in the 1990 case

Employment Division v. Smith. 42 U.S.C.S. § 2000bb. The stated

purpose of RFRA was not to grant religious persons a right to

ignore laws with which they disagreed, but instead to create what

the Congress viewed as “a workable test for striking sensible

balances between religious liberty and competing prior

governmental interests.” Id (emphasis added). If granting religious

entities freedom to sidestep all zoning laws had been the intent

behind RLUIPA, the U.S. Supreme Court certainly would not have

upheld the statute as a constitutional exercise of Congressional

power. See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

Under the “substantial burden” interpretation favored by the Ninth

Circuit in International Church of the Foursquare Gospel,

RLUIPA would violate the Establishment Clause of the First

Amendment. This is discussed in greater detail in Part II, below.

1. San Jose Christian College v. City of Morgan Hill

Rather than perpetuate the tremendous deference to

religious entities favored by the Ninth Circuit in International

Church of the Foursquare Gospel, this court should adhere to the

narrower interpretation of the “substantial burden” requirement

15

reflected in the 2004 case San Jose Christian College v. City of

Morgan Hill—also a Ninth Circuit case. 360 F.3d 1024 (9th Cir.

2004). In that case, a private Christian college was denied a zoning

adjustment in part because of the college’s failure to comply with

environmental quality regulations. Id. at 1036.

Recognizing its duty to interpret RLUIPA consistently with

the intent of Congress, the Ninth Circuit found the term

“substantial burden” to mean that a significantly great restraint has

been placed on religious exercise. Id. at 1035. The denial of a

zoning adjustment in this case did not reach that threshold. The

college was being treated the same as all other applicants for

rezoning, yet the court found the college was “simply adverse to

complying with the . . . ordinance’s requirements.” Id. Though the

costs and procedural requirements incidental to urban land use had

affected the college’s ability to use the land it desired, no evidence

existed “demonstrating that College was precluded from using

other sites within the city.” Id. Accordingly, the college was not

“substantially burdened” by the zoning laws in effect.

2. Civil Liberties for Urban Believers v. City of

Chicago

The Ninth Circuit’s narrower interpretation of the

“substantial burden” requirement was influenced by the Seventh

Circuit’s 2003 decision in Civil Liberties for Urban Believers v.

City of Chicago. 342 F.3d 752 (7th Cir. 2003). In the case, an

association of Chicago churches challenged the city’s zoning laws,

which restricted the location of churches to R (Residential) zoned

areas. Churches could be allowed in a B (Business) or C

(Commercial) zoned area upon submission of a Special Use

permit, but approval was “conditioned upon the design, location,

and operation of the proposed use consistent with the protection of

public health, safety, and welfare.” Id. at 755. The Seventh Circuit

ultimately reached the conclusion that the conditions of the zoning

laws did not constitute a substantial burden under RLUIPA.

In coming to that conclusion, the Seventh Circuit expressly

rejected the interpretation favored by the Ninth Circuit currently.

The court correctly summarized the argument in favor of a broad

reading of the substantial burden requirement: “Application of the

substantial burden provision to a regulation inhibiting or

constraining any religious exercise, including the use of property

for religious purposes, would render meaningless the word

‘substantial.’” Id. at 761. Under such a reading, “the slightest

obstacle to religious exercise incidental to the regulation of land

use . . . could then constitute a burden sufficient to trigger

16

RLUIPA.” Id. The court went on to find that the burdens the

churches wished to avoid (e.g., costs, procedural requirements,

etc.) result from any land use, and therefore cannot be described as

a substantial burden on religious exercise. Id.

The Ninth Circuit, in International Church of the

Foursquare Gospel, was critical of the Seventh Circuit’s ultimate

conclusion regarding what constitutes a substantial burden. To

create a substantial burden, the Seventh Circuit wrote, a law must

make “religious exercise . . . effectively impracticable.” Id. The

Ninth Circuit felt that a step too far and in fact saw support for this

position in the later Seventh Circuit case Saints Constantine and

Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396

F.3d 895 (7th Cir. 2005). In that case, the Seventh Circuit found a

substantial burden on religious exercise because of the delays and

expenses involved in finding a new location after a church was

denied access to the specific property on which it wished to locate.

Id. at 901. The court added: “That the burden would not be

insuperable would not make it insubstantial.” Id.

Nonetheless, even in its Saints Constantine and Helen

decision the Seventh Circuit recognizes that putting “religious

institutions in too favorable a position” may well violate the First

Amendment. Id. at 900. The court does offer, sua sponte, a

counterargument to this concern—that religious institutions are

particularly vulnerable to discrimination without procedural

safeguards in place—although this seems to reiterate RLUIPA’s

purpose without counteracting the potential First Amendment

violation inherent in favoring religion. Certainly neutralizing

discrimination is a worthy goal, but governments may not favor

religion over nonreligion. McCreary County v. ACLU, 545 U.S.

844, 875 (2005).

3. Lighthouse Institute for Evangelism, Inc. v. City of

Long Branch

The Third Circuit also interpreted RLUIPA’s “substantial

burden” requirement narrowly in the 2004 case Lighthouse

Institute for Evangelism, Inc. v. City of Long Branch. 100 Fed

Appx. 70 (3rd Cir. 2004). In that case, a church wished to locate in

the downtown area of the beachside town Long Branch, New

Jersey. The church was denied permission to locate downtown

because the area was not zoned for church use. Id. at 74. The

church later argued that it was similar to uses permitted in the

zoned area (in particular, secular assembly halls), an argument the

courts rejected because of a state statute prohibiting operation of

establishments with liquor licenses within 200 feet of a church; the

17

statute made churches dissimilar to secular assembly halls and

would hinder development in the area. Lighthouse Institute for

Evangelism, Inc. v. City of Long Branch. 510 F.3d 253, 270-71

(3rd Cir. 2007). Initially, however, the church made no attempt to

request a zoning variance or to characterize itself as similar to

secular assembly halls. 100 Fed. Appx. at 74.

The Court found there was no “substantial burden” on the

church’s religious exercise because it had in fact been meeting in a

rented location in the same district without its opportunity for free

exercise being curtailed. Id. at 76-77. The Third Circuit also noted

that the church had adequate alternatives by which it could operate

as a free-standing church elsewhere in the city. Id. at 77. For those

reasons, the Third Circuit was not convinced that a “substantial

burden” on the church’s free exercise opportunities existed.

4. Midrash Sephardi, Inc. v. Town of Surfside

In 2004, the Eleventh Circuit Court of Appeals also

expressed a preference for a narrow reading of RLUIPA’s

“substantial burden” requirement. In Midrash Sephardi, Inc. v.

Town of Surfside, two synagogues alleged that a zoning ordinance

which excluded religious institutions burdened their free exercise

because the approved locations were too far from their adherents’

homes. 366 F.3d 1214, 1221 (11th Cir. 2004). Members of the

synagogues practiced Orthodox Judaism, which forbids the use of

cars on the Sabbath or other holidays. Id. By excluding the

synagogues from their desired locations, so the argument went, the

synagogues’ members had to walk further and there was therefore

a substantial burden on their ability to practice their religion.

The Eleventh Circuit disagreed. “While walking may be

burdensome and ‘walking farther’ may be even more so, we cannot

say that walking a few extra blocks is ‘substantial,’ as the term is

used in RLUIPA,” the court wrote. Id. at 1228.

Were we to adopt the synagogues’ reasoning,

it would be virtually impossible for a

municipality to ensure that no individual will

be burdened by the walk to a temple of choice.

Municipalities that allow religious exemptions

to alleviate even the small burden of walking a

few extra blocks would run the risk of

impermissibly favoring religion over other

secular institutions, or of favoring some

religious faiths over others. Id.

18

Though there is arguably a difference in scope between the

burden in Midrash Sephardi and the instant case, the reasoning

utilized by the Eleventh Circuit seems applicable to the

interpretation of “substantial burden” favored by the Ninth Circuit

in its International Church of the Foursquare Gospel decision. If

the Ninth Circuit’s reasoning is followed, it will be practically

impossible to ensure no religious entity will be burdened by

reasonable zoning restrictions. If the incidental burden of seeking

an appropriate location for a commercial printing press

operation—i.e., a location which does not create a significant risk

of danger to the surrounding community because of the fire hazard

such activity poses and is consistent with the zoning—is awarded

an exemption from zoning ordinances, truly the risk of favoring

religion over secular institutions as a matter of right has already

occurred.

That the very narrow interpretation of cases like the

Seventh Circuit’s C.L.U.B. decision could make it impossible for

religious entities to establish a substantial burden does not justify

the movement of California courts toward an equally extreme

broad interpretation. The burden placed on religious exercise need

not be insuperable to be substantial, but it must require something

more than the mere denial of a zoning adjustment lest religious

institutions become law unto themselves. See Employment Division

v. Smith, 494 U.S. 872, 879 (1990) (citing Reynolds v. United

States, 98 U.S. 145, 167 (1879)). Whatever Congress’ intent in

implementing RFRA and RLUIPA, it cannot have been to make

religious actors immune from virtually all zoning regulations.

A broad reading of RLUIPA’s substantial burden

requirement is a mistake to which this court should not adhere. In

addition to unduly favoring religious entities, such a reading has

the effect of discouraging local governments from defending

reasonable zoning restrictions. A better reading of RLUIPA’s

substantial burden requirement would not permit the very existence

of uncertainty, delay, or expense on its own to stand in for a

substantial burden. Courts should instead look at RLUIPA claims

in context to determine whether the uncertainty, delay, or expense

caused by the zoning denial will be unusual given the type and

extent of activity in which the claimant is seeking to engage. In the

instant case, taking into account TNMC’s commercial printing

press activities, requiring it to locate in an area that is equipped to

handle such operation and the dangers associated with it is unlikely

to be an unusual or substantial burden.

II. BROADLY INTERPRETED, RLUIPA

VIOLATES THE ESTABLISHMENT CLAUSE

19

OF THE FIRST AMENDMENT

To analyze the existence and impact of alleged religious

favoritism, courts use the endorsement test, asking whether the

government’s actions have endorsed religion, via the Lemon Test.

Lemon, 403 U.S. at 612-13. The endorsement test requires viewing

the government action from the perspective of a reasonable,

objective observer—that is, one who is familiar with the legislative

history and the broader context within which the government

action arose. Through the Lemon Test, the fact-finder analyzes

whether the government action has a secular purpose, whether it

advances religion, and whether it leads to excessive entanglement

with religion. Id. Under the broad interpretation of RLUIPA’s

“substantial burden” requirement approved by the Ninth Circuit in

International Church of the Foursquare Gospel, RLUIPA itself

would result in an Establishment Clause violation. This is another

reason that a broad interpretation of the RLUIPA “substantial

burden” requirement cannot be sustained.

First, RLUIPA must have a viable secular purpose. This

element of the Lemon Test is typically easily satisfied by the

government. McCreary County, 545 U.S. at 863. To the courts, a

government’s desire to accommodate religious pluralism can be

separated from a desire to advance or promote religious beliefs or

religion generally. There is a difference between accommodating

religious pluralism and favoring religion; in cases where the U.S.

Supreme Court has found that a statute could not pass the first

prong of the Lemon Test, it was because “a religious objective

permeated the government’s action.” Id. If the broad interpretation

of “substantial burden” were accepted, religious entities would

almost never be required to abide by reasonable zoning

restrictions. It is difficult to envision a secular purpose behind this

extreme result.

It is not enough that the government may be able to recite

some secular purpose, as evidenced by the cases where no secular

purpose was found. See Santa Fe Independent School District v.

Doe, 530 U.S. 290, 301 (2000) (alleged secular purpose of prayer

is to “promote, among other things, honest and fair play, clean

competition, individual challenge to be one's best, importance of

team work,” etc.); Edwards v. Aguillard, 482 U.S. 578, 581 (1987)

(“academic freedom”); Stone v. Graham, 449 U.S. 39, 41 (1980)

(historical reverence); School District of Abington Township v.

Schempp, 374 U.S. 203, 223 (1963) (“promotion of moral values,

the contradiction to the materialistic trends of our times, the

perpetuation of our institutions and the teaching of literature”). The

Court’s role is to distinguish a “sham secular purpose from a

20

sincere one.” Wallace v. Jaffree, 472 U.S. 38, 75 (1985)

(O’CONNOR, J., concurring in judgment). Consequently, even

though Congress recited a secular purpose of balancing religious

liberty with government interests when it enacted RFRA and

RLUIPA, a broad reading of the “substantial burden” requirement

would show the purpose of balancing interests to be a sham. 42

U.S.C.S. § 2000bb.

Next, RLUIPA must not advance religion as its primary

effect. The ability of governments to accommodate religious

exercise does not give them the ability to supersede the

Establishment Clause. Lee v. Weisman, 505 U.S. 577, 587 (1992).

This prong of the Lemon Test is violated when government action

endorses one religion over others, or when it endorses religion

generally. Id. at 585. To an objective observer, the broad

interpretation of RLUIPA’s “substantial burden” requirement

would give the impression of government support for religion

generally; rather than rectifying inequities, the policy favors

religious entities, giving them a way to avoid zoning ordinances.

An objective observer would unquestionably perceive the

exceptional ability of religious entities to evade reasonable zoning

restrictions as stamped with government approval of religion as a

whole. See Santa Fe Independent School District, 530 U.S. at 308.

Last, RLUIPA must not create an excessive entanglement

between government and religion. Typically, this prong of the

Lemon Test questions whether the government has involved itself

to an inappropriate degree in a religious institution’s administration

or “call[s] for official and continuing surveillance.” Walz v. Tax

Commission of New York, 397 U.S. 664, 674-75 (1970). Yet the

entanglement prong can also be used to consider whether religion

is too deeply entangled in the business of government. For

example, in the 1982 case Larkin v. Grendel’s Den, a state law

permitted churches to veto applications for liquor licenses. 459

U.S. 116 (1982). The U.S. Supreme Court found that the wall of

separation between religion and government “is substantially

breached by vesting discretionary governmental powers in

religious bodies.” Id. at 123. The Court went on to assert: “The

Framers did not set up a system of government in which important,

discretionary governmental powers would be delegated to or

shared with religious institutions.” Id. at 127. Surely the broad

interpretation of RLUIPA’s “substantial burden” requirement is

akin to designating governmental power to churches, essentially

granting them veto power over zoning ordinances except in the

most extraordinary circumstances. Like the state law in Larkin, a

broad interpretation of the “substantial burden” requirement

exchanges church authority “for the reasoned decisionmaking of a

21

public legislative body acting on evidence,” a scheme which

“[o]rdinary human experience” confirms is at odds with the U.S.

Constitution.

CONCLUSION

Because a broad interpretation of RLUIPA’s “substantial

burden” requirement has the effect of chilling governments from

defending reasonable zoning restrictions and fails all three prongs

of the Lemon Test, it is a violation of the Establishment Clause and

cannot be sustained. This court should not support the sweeping

zoning exemptions granted to TNMC for its commercial printing

press operations. Such exemptions were granted on the basis of a

broad reading of RLUIPA’s “substantial burden” requirement

which made Sonoma County unwilling to challenge the Center’s

free exercise claim and which is likely unconstitutional.

TNMC’s Project approval should be set aside with the

lower court directed to enter a judgment in favor of Appellant

unless or until a full Environmental Impact Report is prepared.

Date: December 23, 2015

By /s/ Amanda Knief

AMANDA KNIEF



22

CERTIFICATE OF WORD COUNT

Pursuant to California Rules of Court, rule 8.204(c)(1), the

undersigned certifies that the word count for the Amicus Curiae is

less than 14,000 words. The undersigned relied on the word count of

a Microsoft Word processing program in preparing this certificate.

I certify under penalty of perjury under the laws of the State

of California that the foregoing is true and correct. Executed in

Washington, D.C.

DATED: December 23, 2015

By /s/ Amanda Knief

AMANDA KNIEF



23

DECLARATION OF SERVICE

I declare that I am over the age of eighteen years and am not a party to this action. I am a

resident of or employed in the district where the mailing took place. My business address is 1220

L St. NW , Suite 100-313, Washington, D.C. 20005.

On December 23, 2015, I served the following document:

Amicus Curiae

on the interested parties in the action by ELECTRONIC COPY at Washington, D.C. addressed as

follows:

ADDRESSED TO:

Verne Ball

[service via email; address omitted]

Rebecca Davis


Noreen Evans


Janis Harwood Grattan


Elena Herrera


Tina Wallis


(X) (BY ELECTRONIC FILING) By transmission of the Notification of Electronic Filing by the

Clerk to Registered Participants who have consented to service.

(X) (State) I declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

Executed on December 23, 2015

By /s/ Amanda Knief

AMANDA KNIEF



12.23 aa amicus brief

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