410 F.3d 1317 (11th Cir. 2005), 04-10481, Konikov v. Orange County, Florida

Docket Nº:04-10481.
Citation:410 F.3d 1317
Party Name:Joseph KONIKOV, Plaintiff-Appellant Cross-Appellee, v. ORANGE COUNTY, FLORIDA, Joel D. Hammock, as an individual and/or as an agent/employee of Orange County, Florida, et al., Defendants-Appellees Cross-Appellants.
Case Date:June 03, 2005
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1317

410 F.3d 1317 (11th Cir. 2005)

Joseph KONIKOV, Plaintiff-Appellant Cross-Appellee,


ORANGE COUNTY, FLORIDA, Joel D. Hammock, as an individual and/or as an agent/employee of Orange County, Florida, et al., Defendants-Appellees Cross-Appellants.

No. 04-10481.

United States Court of Appeals, Eleventh Circuit

June 3, 2005

Page 1318

[Copyrighted Material Omitted]

Page 1319

John Thomas Sternberger, Orlando, FL, Frederick Herbert Nelson, Am. Liberties Institute, Orlando, FL, for Konikov.

Gary M. Glassman, Orlando, FL, for Defendants-Appellees.

Mitchell A. Karlan, Gibson, Dun & Crutcher, LLP, New York City, Nathan Lewin, Lewin & Lewin, LLP, Washington, DC, for Amicus Curiae.

Mark B. Stern, App. Staff, Lowell V. Sturgill, Dept. of Justice, Civ. App. Div., Washington, DC, for Intervenor.

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

Before ANDERSON and WILSON, Circuit Judges, and JORDAN [*], District Judge.


Rabbi Joseph Konikov, a resident of Orange County, Florida, appeals the district court's grant of summary judgment in favor of Defendants Orange County, Florida, and members of the Orange County Code Enforcement Board on his claim that the Orange County zoning code violates the Religious Land Use and Institutionalized Persons Act ("RLUIPA" or the "Act"), 42 U.S.C. § 2000cc et seq. 1 Because the district court erred with respect to Konikov's RLUIPA claim and his due process claim, we reverse and remand to the district court for proceedings consistent with this opinion.


Orange County, Florida, is the most populous county in central Florida, as well as the home of Disney World, Sea World,

Page 1320

and Universal Studios. Nearly one million people are regular residents of Orange County, not including the throngs of tourists that swell the County's ranks daily. Orange County is comprised of a large swath of unincorporated land as well as several cities including Orlando, where the Appellant resides.

I. The Challenged Ordinance

Chapter 38 of the Orange County Code ("OCC" or "the Code") establishes a comprehensive zoning scheme, dividing the County into districts and setting forth the restrictions that apply to each district. For properties in residential R-1A districts, such as the property at issue in this case, the Code permits single-family homes, accessory buildings, home occupations, model homes, and family day care homes, but requires an application to the zoning board for a "special exception" for other land uses. OCC § 38-77. Among the uses requiring a special exception are "religious organizations" and day care centers. Id. In order to operate a "religious organization" in an area zoned R-1A, a landowner or tenant must submit an application to the Orange County Board of Zoning Adjustment-an entity distinct from the Code Enforcement Board ("CEB"), which determines whether a violation has occurred. The application for a special exception must be accompanied by a $912 fee and a survey or plan indicating the proposed changes to the property.

II. The Litigants

Konikov resides in Sand Lake Hills, a neighborhood in Orange County. Konikov's property is located in a residential district zoned R-1A. Though previously a tenant, he purchased the property on March 7, 2002. Orange County alleges that, as the head of one of six Chabad 2 organizations in the greater Orlando area, Konikov is operating a religious organization in violation of the Code. As part of his activities as a Chabad rabbi, Konikov held meetings on Friday nights and Saturday mornings, in addition to other meetings for Torah study and celebration of holidays. The parties hotly debate the frequency of these gatherings. We discuss the evidence adduced by each party below in our consideration of Konikov's RLUIPA claim.

Starting in early 2001, residents of the Sand Lake Hills subdivision began to complain to the Code Enforcement Division about Konikov's use of his property. The Enforcement Division began recording the results of their investigation of Konikov's property on or about July 13, 2001, and continued to observe the property through March 18, 2002. During that eight-month period, the investigators observed the property on sixty-eight days and reported activity on forty-nine of those days. In summarizing their findings, the investigators simply noted the number of cars and people that they observed at the residence.

On May 9, 2001, Code Enforcement Officer LaPorte issued a Code Violation Notice for "operating a synagogue or any function related to a synagogue and or church services is not a permitted use in residential zoned area." The CEB scheduled a hearing for June 20, 2001, that was subsequently canceled. Code Enforcement Officer Caneda issued another Code Violation Notice on February 4, 2002, allowing Konikov seven days to bring his property into compliance. The Notice stated that Konikov was in violation for

Page 1321

operating a "religious organization ... from a residential property without special exception approval. Corrective action to be taken: Obtain special exception approval or cease religious organization operations." At the March 20, 2002, hearing, the CEB found that Konikov had not complied with the Code and that he continued to violate sections 38-3, 38-74, and 38-77 of the Code for operating a religious organization in a residential subdivision zoned R-1A. The CEB ordered that Konikov correct the violation by May 19, 2002. The order also stated that he would be subject to a daily fine of $50.00 for each day the violation continued beyond May 19. After the Code Enforcement Division determined during reinspection that Konikov had not come into compliance, the CEB created a lien upon Konikov's property. As of oral argument, Orange County continued to fine Konikov daily.

III. Procedural History

Konikov has never applied for a special exception to the Code, nor did he appeal the CEB's finding to the state circuit court as permitted by Fla. Stat. ch. 162.11. Rather, after the CEB entered its finding on March 20, 2002, Konikov filed a complaint seeking compensatory damages and injunctive and declaratory relief under 42 U.S.C. § 1983. In his complaint, Konikov alleged that the Code violates the U.S. Constitution and state and federal statutes and that members of the CEB engaged in civil conspiracy.

The district court denied Konikov's first and second Motions for Preliminary Injunction, and denied Konikov's Motion to Recuse. Orange County moved for Summary Judgment. Opposing Orange County's motion, Konikov claimed that the only evidence that should be considered for the as-applied challenge was the evidence before the CEB at the March 20 hearing. In response, Orange County filed an Alternative Motion for Summary Judgment, which was granted with respect to the as-applied equal protection challenge. The court found that Konikov was not similarly situated to Paul Bosch, a neighbor who held weekly, and sometimes biweekly, prayer meetings. The district court also granted summary judgment in Orange County's favor on the facial constitutional challenges, the conspiracy claim, and the allegations of federal and state statutory violations, holding that these claims were without merit. This appeal followed.

Standard of Review

We review questions of law such as the construction and constitutionality of a statute de novo. See Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1277 (11th Cir.2001). A district court's grant of summary judgment is reviewed de novo as well, and we apply the same legal standards that bind the district court. See NAACP v. Hunt, 891 F.2d 1555, 1559 (11th Cir.1990). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir.1996). On a summary judgment motion, we "view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion." Cast Steel Prods., Inc. v. Admiral Ins. Co., 348 F.3d 1298, 1301 (11th Cir.2003) (internal quotation and citations omitted).

Page 1322


I. Ripeness

Article III of the U.S. Constitution, limiting the jurisdiction of federal courts to actual cases or controversies, requires that we consider whether Konikov's claims are ripe for judicial review. U.S. CONST. art. III, § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). At times, even when the constitutional requirements are met, we may refrain from intervention for prudential reasons. Digital Properties, Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.1997) . The purpose of this doctrine is to avoid "entangling [our]selves in abstract disagreements," and also to shield agencies from judicial interaction "until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).

In deciding the ripeness of a claim, we inquire into 1) whether the issues are fit for...

To continue reading