510 F.3d 253 (3rd Cir. 2007), 06-1319, Lighthouse Institute for Evangelism, Inc. v. City of Long Branch

Docket Nº:06-1319.
Citation:510 F.3d 253
Party Name:The LIGHTHOUSE INSTITUTE FOR EVANGELISM, INC., doing business as The Lighthouse Mission; Reverend Kevin Brown, Appellants v. CITY OF LONG BRANCH; BCIC Funding Corp; Breen Capital Services, Inc.; Abrams Gratta & Falvo, P.C.; Peter S. Falvo, Esq.; John Does A-Z; Eugene M. Lavergne, Esq.
Case Date:November 27, 2007
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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510 F.3d 253 (3rd Cir. 2007)

The LIGHTHOUSE INSTITUTE FOR EVANGELISM, INC., doing business as The Lighthouse Mission; Reverend Kevin Brown, Appellants


CITY OF LONG BRANCH; BCIC Funding Corp; Breen Capital Services, Inc.; Abrams Gratta & Falvo, P.C.; Peter S. Falvo, Esq.; John Does A-Z; Eugene M. Lavergne, Esq.

No. 06-1319.

United States Court of Appeals, Third Circuit.

Nov. 27, 2007

Argued March 27, 2007.

On Appeal from the United States District Court for the District of New Jersey (D.C. No. 00-cv-03366) District Judge: Hon. William H. Walls

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Derek L. Gaubatz, Esquire, (Argued), Anthony R. Picarello, Jr., Esquire, Lori Halstead, Esquire, The Becket Fund for Religious Liberty, Washington, D.C., Michael S. Kasanoff, Esquire, Red Bank, NJ, for Appellants.

Audrey J. Copeland, Esquire, (Argued), Marshall, Dennehey, Warner, Coleman & Goggin, King of Prussia, PA, Howard B. Mankoff, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Roseland, NJ, for Appellees.

Wan J. Kim, Esquire, (Argued), Assistant Attorney General, Civil Rights Division, Jessica Dunsay Silver, Esquire, Nathaniel S. Pollock, Esquire, United States Department of Justice, Civil Rights Division, Appellant Section, Washington, D.C., for Amicus-Appellant USA.

Paul J. Zidlicky, Esquire, David S. Petron, Esquire, Jason C. R. Oraker, Esquire, Jeffrey I. Shulman, Esquire, Sidley Austin LLP, Washington, D.C., for Amicus-Appellants Association of Christian Schools and International and General Conference of Seventh-Day Adventists.

Before: FISHER, JORDAN and ROTH, Circuit Judges.


ROTH, Circuit Judge.

This appeal requires us to clarify the nature of the constitutional and statutory protections enjoyed by religious assemblies against governmental interference in the form of land-use regulations. The plaintiff/appellants are the Lighthouse Institute for Evangelism, which describes itself as "a Christian church that seeks to minister to the poor and disadvantaged in downtown Long Branch, New Jersey," and its pastor, the Reverend Kevin Brown.1 The City of Long Branch is the defendant.

The case reaches us on appeal from the grant of summary judgment to Long Branch on Lighthouse's facial challenge to two Long Branch zoning ordinances which prevented Lighthouse from locating in a certain area of downtown Long Branch. Lighthouse challenged the ordinances under the Free Exercise Clause of the First Amendment and the Equal Terms provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc(b)(1).2

The primary question on this appeal is whether a municipality may exclude religious assemblies or institutions from a particular zone, where some secular assemblies or institutions are allowed, without violating the Free Exercise Clause of the First Amendment or RLUIPA's Equal Terms Provision.

For the reasons explained below, we will affirm in part and vacate in part the District Court's decision on the cross- motions for summary judgment and we will remand this case to the District Court for further proceedings consistent with this opinion.

I. Factual and Procedural Background

A. The Initial Dispute

Lighthouse began renting space at 159 Broadway in downtown Long Branch in

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1992. At the end of 1994, Lighthouse purchased nearby property at 162 Broadway (the Property). The Property was then located within the C-1 Central Commercial District, which was subject to City of Long Branch Ordinance 20-6.13 (the Ordinance). The Ordinance enumerated a number of permitted uses, including among others: restaurant; variety store and other retail store; educational service and college; "Assembly hall, bowling alley, and motion picture theater;" governmental service; municipal building; and new automobile and boat showrooms. A church was not listed as a permitted use.

Between 1995 and 2000, Lighthouse attempted to obtain permission from Long Branch to employ the Property for a number of uses, including as a soup kitchen, a job skills training program, and a residence for Rev. Brown, but the use was denied in each case because the application was incomplete or because the requested use was not permitted.3 Lighthouse was allowed, however, to use the Property as an office.

On April 26, 2000, Lighthouse submitted an application for a zoning permit to use the Property as a church. Long Branch denied the application because the "proposed use [was] not a permitted use in the Zone" and "would require prior approvals from the Zoning Board of Adjustment." Lighthouse did not seek a variance or appeal the decision.

B. First Round of Litigation

On June 8, 2000, Lighthouse filed suit in state court against Long Branch and other defendants, alleging a variety of constitutional and other violations. Long Branch removed the case to federal court. In September 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA). Lighthouse promptly amended its complaint to add claims under sections 2(a) and 2(b) of RLUIPA (42 U.S.C. §§ 2000cc(a) and (b)(1)--the "Substantial Burdens" and "Equal Terms" sections), claiming that the Ordinance violated RLUIPA both on its face and as applied.4 Lighthouse requested injunctive relief as well as damages of eleven million dollars for Lighthouse and $7,777,777 for Rev. Brown.

The District Court dismissed as either unexhausted or unripe all the claims attacking the Ordinance as applied and denied Lighthouse's motion for a preliminary injunction. Lighthouse appealed the denial of the preliminary injunction. We affirmed in a nonprecedential opinion. Lighthouse Inst. for Evangelism Inc. v. Long Branch, 100 Fed. Appx. 70 (3d Cir. 2004) ("Lighthouse I"). We reasoned that the record did not show that the Ordinance on its face barred the use of the property as a church; in particular, it was not clear to us that Lighthouse would not gain approval of its intended use by applying as an "assembly hall." Id.at 74-75. We noted also that Lighthouse had not proferred evidence that the Ordinance was not a neutral law of general applicability. Thus, under the rule of Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), it could not be defeated by a Free Exercise claim alone. For that reason, we concluded that Lighthouse did not have a reasonable probability of success on the merits of its claim that the Ordinance on

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its face violated the Free Exercise clause. Lighthouse I, 100 Fed. Appx. at 75-76. As to the RLUIPA "equal terms" claim, we noted again that it was not clear that the use of the Property as a church would not be approved under the "assembly hall" language. We also concluded that Lighthouse had "failed to provide evidence to support its contention that the secular assemblies it identified were actually similarly situated such that a meaningful comparison could be made under this provision." Id. at 77.

C. The Redevelopment Plan

While the litigation on the Ordinance made its way through the courts, the applicable zoning ordinance was changed. On October 22, 2002, Long Branch adopted a Redevelopment Plan under N.J.S.A. 40A:12A-7 that strictly limited the use of properties within the "Broadway Corridor" area.5 The Property was located in this area. The Broadway Redevelopment Plan (the Plan) superseded the Ordinance as the land use regulation applicable to the Property.

Long Branch adopted the Plan "in order to achieve redevelopment of an underdeveloped and underutilized segment of the City." The goals of the redevelopment included "[s]trengthen[ing] retail trade and City revenues," "[i]ncreas[ing] employment opportunities," and "[a]ttract[ing] more retail and service enterprises." The Property is located in the "Broadway Corridor" of the redevelopment area, a "Regional Entertainment / Commercial" sector where the City aimed to encourage a "vibrant" and "vital" downtown residential community centered on a core "sustainable retail 'main' street." Primary uses in that sector included theaters, cinemas, culinary schools, dance studios, music instruction, theater workshops, fashion design schools, and art studios and workshops. Restaurants, bars and clubs, and specialty retail (including book and craft stores), among others, were allowed as secondary uses. Churches were not listed as a permitted use, nor were schools or government buildings; the Design Guidelines under the Plan provided that "[a]ny uses not specifically listed" were prohibited.

The Plan also created new application requirements for development within the relevant area. The first step in the process, the RFQ (Request for Qualifications), required applicants to describe the development team members' expertise and qualifications. The second step, the RFP (Request for Proposal), required a detailed description of the project. No property could be developed in the Redevelopment Area until the plans had been approved by the City Council. The Plan provided that the approved developers would acquire the necessary properties from their owners, but reserved the right for Long Branch to condemn properties if negotiations failed.

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The Plan did not include an individual waiver procedure, but the Plan could be amended by ordinance of the City Council after review of the proposed amendment by the Planning Board.

On November 11, 2003, Lighthouse, as the "Long Branch Center of Faith," submitted an RFQ seeking to be designated as developer for the Property. The application, about one page long, also requested a "waiver of prohibition of church use." It specified that Rev. Brown sought "to use the...

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