Midrash Sephardi, Inc. v. Town of Surfside

• Citation: 366 F.3d 1214
• Decision Date: 21 April 2004
• Docket Number: No. 03-13858.,03-13858.
• Parties: MIDRASH SEPHARDI, INC., Young Israel of Bal Harbor, Inc., Plaintiffs-Counter-Defendants-Appellants, v. TOWN OF SURFSIDE, a Florida Municipal Corporation, Defendant-Counter-Claimant-Appellee, Paul Novack, Individually and in his capacity as Mayor of the Town of Surfside, et al., Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

366 F.3d 1214

MIDRASH SEPHARDI, INC., Young Israel of Bal Harbor, Inc., Plaintiffs-Counter-Defendants-Appellants, v. TOWN OF SURFSIDE, a Florida Municipal Corporation, Defendant-Counter-Claimant-Appellee, Paul Novack, Individually and in his capacity as Mayor of the Town of Surfside, et al., Defendants.

No. 03-13858.

United States Court of Appeals, Eleventh Circuit.

April 21, 2004.

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Nathan Lewin, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo PC, Washington, DC, Simon Schwarz, Miami, FL, for Plaintiffs-Counter-Defendants-Appellants.

Beverly A. Pohl, Bruce Rogow, Bruce S. Rogow, P.A., Ft. Lauderdale, FL, Steven D. Ginsburg, Natalie J. Carlos, Adorno & Yoss, P.A., Miami, FL, for Town of Surfside.

Derek L. Gaubatz, Washington, DC, for Becket Fund for Religious Liberty, Amicus Curiae.

Sarah E. Harrington, R. Alexander Acosta, U.S. Dept. of Justice, Washington, DC, for U.S., Intervenor.

Appeals from the United States District Court for the Southern District of Florida.

Before WILSON and KRAVITCH, Circuit Judges, and GOLDBERG^*, Judge.

WILSON, Circuit Judge:

Young Israel of Bal Harbour ("Young Israel") and Midrash Sephardi ("Midrash"), two synagogues serving the Surfside-Bal Harbour-Bay Harbor Islands area of Miami-Dade County, Florida, appeal the district court's entry of summary judgment in favor of the Town of Surfside ("Surfside") on the synagogues' claims challenging the Surfside Zoning Ordinance ("SZO") under the Religious Land Use and Institutionalized Persons Act ("RLUIPA" or the "Act"), 42 U.S.C. § 2000cc et seq.¹ We first hold that the SZO's provision excluding churches and synagogues from locations where private clubs and lodges are permitted violates the equal terms provision of RLUIPA. Consequently, we must decide whether RLUIPA is a constitutional exercise of Congress's authority under the First, Tenth, and Fourteenth Amendments. Finding that it is, we reverse the decision of the district court.

Background

Surfside, a small coastal town north of the City of Miami Beach and south of Bal Harbour, Florida, comprises roughly one square mile and has approximately 4,300 residents and an additional estimated tourist population of 2,030. Midrash and Young Israel (collectively the "congregations") are small Orthodox Jewish synagogues that serve the Surfside area. Together they have over one hundred members who reside in or around Surfside; their attendance triples during the winter tourist months. In addition to Midrash and Young Israel, two churches and two other synagogues presently operate in Surfside.

I. The Challenged Ordinance

Chapter 90 of the Code of the Town of Surfside, Florida, (hereinafter "SZO § X") divides Surfside into eight zoning districts, identified in Article III of the SZO. Article IV of the SZO sets forth the specific regulations governing the applicable districts, and delineates permitted uses as of right, and uses permitted subject only to special use permit or prior conditional use approval. Surfside's zoning scheme is permissive: any use not specifically permitted is prohibited. See SZO § 90-6(1).

Under Article IV, churches and synagogues are prohibited in seven of the eight zoning districts. SZO permits churches and synagogues in the "RD-1 two-family residential district" ("RD-1 district") by way of conditional use permit ("CUP") obtained after approval by the Surfside Town Commission. SZO § 90-147(d). The SZO requires a CUP because conditional uses are "generally of a public or semipublic character ... but because of the nature of the use and possible impact on neighboring properties, require the exercise of planning judgment...." SZO § 90-41(a). CUPs are also required for educational institutions and museums, off-street parking lots and garages, public and governmental buildings, and public utilities. See SZO § 90-41(b)(1)-(5).²

Surfside's business district, which encompasses two blocks within the town, is defined by SZO § 90-152 "to provide for retail shopping and personal service needs of the town's residents and tourists." SZO § 90-152(a). Section 90-152 further states that regulations governing the business district are "intended to prevent uses and activities which might be noisy, offensive, obnoxious, or incongruous in behavior, tone or appearance and which might be difficult to police." Id. Theaters and restaurants are permitted on the first floor level of the business district, while private clubs and lodge halls, health clubs, dance studios, music instruction studios, modeling schools, language schools, and schools of athletic instruction are only permitted above the first floor. See SZO § 90-152(b)(8), (18). Although permitted, Surfside does not have private clubs, social clubs, lodges or theaters. Churches and synagogues are prohibited in the business district.³

II. The Litigants

Midrash was formed in 1995 and leases the second floor of 9592 Harding Avenue from Ohio Savings Bank ("OSB"). The Harding Avenue location is within Surfside's business district, on the south side of the 96th Street boundary between the towns of Bal Harbour and Surfside, three blocks away from Bay Harbor Islands. Midrash draws its membership from all three towns in the Surfside-Bal Harbour-Bay Harbor area.

Surfside denied a Midrash application for a special use permit, and denied Midrash's application for a zoning variance to operate in its current location because Midrash failed to provide written permission from OSB.⁴ Midrash did not appeal either denial, nor did it seek OSB's permission to re-apply for either a special use permit or a variance.⁵

In March 1999, Young Israel began leasing space in the Coronado Hotel, located in Surfside's tourist district, one block south of the 96th Street boundary between the towns of Bal Harbour and Surfside and several blocks away from Bay Harbor Islands. In November 2000, the Coronado Hotel was sold, and as a result, Young Israel congregants joined temporarily with Midrash congregants in Midrash's Harding Avenue location. Like Midrash, Young Israel draws its membership from all three towns in the Surfside-Bal Harbour-Bay Harbor area. Young Israel has never attempted to obtain a CUP or a variance. Both congregations maintain that any attempt to relocate in the permitted RD-1 district would be futile because suitable land is unavailable.

The members of Midrash and Young Israel adhere to the strict observance of Orthodox Judaism. Synagogue services include religious prayer, worship, song, Torah readings, sermons, group discussions, required Sabbath and holiday festivities, celebrations of religious events and religious study. A central tenet of Orthodox Jewish faith requires daily prayers and the presence of a "minyan" — a quorum of ten males over the age of thirteen — for the reading from the Torah on the weekly Sabbath and religious holidays. According to the synagogues, they have hosted weddings, Bar-Mitzvahs, Brit-Milahs, community holiday meals and festivities, lectures and group discussions on social and political issues, meetings on community welfare and public service activities, and singles events, all within the context of their religious and spiritual missions.

Orthodox Judaism forbids adherents to use cars or other means of transportation during the weekly Sabbath and religious holidays; thus, adherents prefer to gather for worship and religious study in synagogues close enough to their homes to allow them to walk to services.⁶ To this end, the congregations claim that the RD-1 district is out of the required walking range for a significant number of their members, particularly elderly ones, who reside on the northern side of Surfside and in the neighboring Bal Harbour and Bay Harbor communities.

Surfside claims that the SZO was designed in part to invigorate the business district and to create a strong tax base through its retail district.⁷ The economic viability of the business district — the only retail service area in Surfside — is critical to Surfside's tax base, job base, and servicing the needs of Surfside's residents. Accordingly, Surfside avers that allowing churches and synagogues in the business district would erode Surfside's tax base, on which Surfside is dependent for revenue, and would result in economic hardship on the residents. Because Surfside has a difficult time competing for business with the nearby Shops at Bal Harbour — and recently lost a major retail supermarket chain — Surfside claims that it cannot afford to place non-economic establishments in the business district without risking the economic stability of Surfside.

Surfside allows private clubs and similar places of assemblage in the business district because it believes such organizations are compatible with the retail character of the business district. Surfside contends that private clubs are entertainment centers and typically occupy retail space in commercial districts where revitalization is required. Surfside argues that churches and synagogues, on the other hand, contribute little synergy to retail shopping areas and disrupt the continuity of retail environments.

III. Procedural History

In May 1999, Surfside initiated two actions against the congregations and their respective lessors in state court to enjoin the use of the Harding Avenue site and the Coronado Hotel as synagogues and to impose civil penalties for alleged violations of the SZO. The actions were removed to federal court and dismissed without prejudice. In July 1999, the congregations filed the instant action seeking declaratory and injunctive relief under 42 U.S.C. § 1983.⁸ Surfside answered and filed a two-count counterclaim seeking declaratory and injunctive relief, as well as civil penalties and attorneys' fees.

Both parties moved for summary judgment. Surfside submitted evidence from land use experts on the economic viability of a small business district, who asserted that allowing churches and synagogues in the...