Chabad of Nova, Inc. v. City of Cooper City

• Decision Date: 29 July 2008
• Docket Number: No. 07-60738-CIV.,07-60738-CIV.
• Citation: 575 F.Supp.2d 1280
• Parties: CHABAD OF NOVA, INC., Plaintiff, v. CITY OF COOPER CITY, Defendant.
• Court: U.S. District Court — Southern District of Florida

575 F.Supp.2d 1280

CHABAD OF NOVA, INC., Plaintiff, v. CITY OF COOPER CITY, Defendant.

No. 07-60738-CIV.

United States District Court, S.D. Florida, Miami Division.

July 29, 2008.

COPYRIGHT MATERIAL OMITTED

Franklin Lewis Zemel, Jason Gordon, Arnstein & Lehr, Fort Lauderdale, FL, for Plaintiff.

Michael Thomas Burke, Johnson Anselmo Murdoch Burke Piper & McDuff, Fort Lauderdale, FL, for Defendant.

ORDER ON SUMMARY JUDGMENT MOTIONS

CECILIA M. ALTONAGA, District Judge.

THIS CAUSE is before the Court upon Plaintiff, Chabad of Nova, Inc.'s ("Chabad['s]") Motion for Partial Summary Judgment ("Chabad Mot.") [D.E. 79] and Defendant, City of Cooper City's (the "City['s]") Amended Motion for Partial Summary Judgment ("City Mot.") [D.E. 75], both filed on June 13, 2008. Chabad moves for a summary judgment finding the City liable on Chabad's claims pursuant to the Religious Land Use and Institutionalized Persons Act of 2000 (the "RLUIPA"), 42 U.S.C. §§ 2000cc et seq. (Counts I and II), and the Fourteenth Amendment Equal Protection Clause (Counts VI and VII). The City, in turn, moves for summary judgment in its favor on Counts I, II, VI, and VII, and also on Counts VIII, IX, XI and X, which variously challenge the City's zoning ordinances based on 42 U.S.C. § 1983 single-act liability, and the Free Exercise and the Free Speech Clauses of the First Amendment. The Court has carefully considered the parties' written and oral submissions,¹ the record, and applicable law.

I. BACKGROUND²

A. Introduction

Plaintiff, Chabad, is a Jewish Orthodox Chabad Outreach Center and a non-profit Florida corporation. (See Amended Complaint ("Am.Compl.") [D.E. 32] ¶ ¶ 8, 23). Plaintiff is part of the Chabad movement, a particular philosophy/denomination within Orthodox Judaism that emphasizes certain mystical teachings, as well as outreach and education in the Jewish World. See Konikov v. Orange County, Fla., 410 F.3d 1317, 1320 n. 2 (11th Cir.2005) (citing Arthur Green & Shaul Magid, Hasidism: Habad Hasidism, in ENCYCLOPEDIA OF RELIGION (Lindsay Jones ed., 2d ed.2005)).

Defendant, Cooper City, is a municipal corporation created by Special Act of the Florida Legislature on June 20, 1959. See City of Cooper City Website, History of Cooper City, Florida (Aug. 28, 2007), at http://www.coopercityfl.org. Cooper City encompasses approximately 6.7 square miles in Broward County, Florida, and has a population of approximately 30,000 people. (See App. to City Mot., Ex. 18, Aff. of Matt Wood ¶ 4 [D.E. 78-26]). The City is empowered to regulate the use of land and structures within the City's borders, consistent with the law. (See Am. Compl. ¶ 9; Answer to Am. Compl. ("Answer") [D.E. 33] ¶ 9).

B. Cooper City's Land Use Code Pre-October 2006

The Cooper City Code of Ordinances (the "COO") defines "church or place of worship" as "any structure or site such as a church, synagogue, chapel, sanctuary or cathedral, used for the collective or individual involvement with a religious activity, such as rites, rituals, ceremonies, prayers, and discussions, and further customary accessory uses on the same site, such as parochial schools and day care centers." COO § 21-8 [D.E. 81-5]. Prior to October 2006, the COO did not include religious worship as a permitted use in the Planned Neighborhood Business District (the "B-1 District"), the Planned Community Center District (the "B-2 District"), the General Business District (the "B-3 District") (collectively, the "Business District"), the Office Park District (the "OP District"), or the Park and Recreational District (the "P-1 District"). (See COO §§ 23-46, 23-48, 23-50 [D.E. 81-6]; Am. Compl., Ex. E, Ordinance No.2006-10-2 [D.E. 32-6] at 2; Ex. F, Ordinance No.2006-10-3 [D.E. 32-7] at 2).

The COO, however, permitted other non-religious assembly use in the OP and P-1 Districts, including community assemblies.³ (See Ordinance No.2006-10-2 at 2; Ordinance No.2006-10-3 at 2). Pursuant to the text of the COO, the B-1 Districts were intended "to provide for the local neighborhood shopping and personal service needs of a limited surrounding residential area." COO § 23-46(a). Day care centers were permitted in all of the Business Districts. See COO §§ 23-46, 23-48, 23-50. "Personal improvement services" were also permitted in all of the Business Districts. See id. "Personal improvement services" were defined as establishments "primarily engaged in the provision of informational, instructional, personal improvement and similar services of a nonprofessional nature," including aerobic studios, martial arts studios, art, music, dancing, and drama schools, and handicraft or hobby instruction. COO § 21-8. "Recreation, indoor" was a use permitted in the B-2 and B-3 Districts. See COO §§ 23-48, 23-50. "Recreation, indoor" was defined as an "establishment offering exercise, entertainment or games of skill to the general public," including movies theaters.

While the COO permitted religious assembly in the E-1, E-2, R-1-A, R-1-B, R-1-C, and R-1-D Districts (the "Residential Districts"), such use required 300 feet of main road frontage, while buildings with other uses in the Residential Districts needed only 200 feet of main road frontage. COO § 23-93. Further, the COO required 1,000 feet of separation between buildings of a non-residential or agricultural nature, including religious assemblies, located in the A-1 District (the "Agricultural District") exclusively. See COO § 23-118 [D.E. 81-7].⁴ Variances are available when "owing to conditions peculiar to the property and not the result of the actions of the applicant," enforcement would result in "unnecessary and undue hardship." COO § 23-153(a). However, a variance is not permitted to establish a use "otherwise prohibited" in the particular zoning district. COO § 23-153(b).

C. Chabad Attempts to Locate in a Business District

On July 5, 2005, Rabbi Shmuel Posner ("Rabbi Posner"), on behalf of Chabad, entered into a lease for commercial space located at 8608 Griffin Road in Cooper City ("the Property"). (See App. to City Mot., Ex. 14, Chabad of Nova Lease for 8608 Griffin Road [D.E. 78-17, 78-18]). The property was a store front in a shopping center known as Timberlake Plaza. (See id.) Rabbi Posner intended to operate a Jewish Orthodox Chabad Outreach Center to serve the students at Nova University, Florida Atlantic University, and Broward Community College. (See App. to City Mot., Ex. 16, Depo. of Rabbi Shmuel Posner ("Posner Depo.") [D.E. 78-23] at 74-75). Soon after Chabad entered into the lease, however, the City notified Rabbi Posner that Chabad could not operate a place of worship at the Property because the COO prohibited religious assembly in the B-1 Districts. (See id. at 62-63; Am. Compl. ¶ 27; Answer ¶ 27).

In October 2005, Rabbi Posner and counsel for Chabad met with Cooper City officials. (See Am. Compl. ¶ 28; Answer ¶ 28). The City agreed to permit Chabad to operate its Outreach Center on the Property during the 2005 High Holidays, but the City required Chabad to close the Outreach Center immediately thereafter. (See Am. Compl. ¶ 31; Answer ¶ 31; Posner Depo. at 63). Rabbi Posner and his attorneys again met with City officials on September 13, 2006 to discuss Chabad's concerns with respect to the COO. (See Am. Compl. ¶ 33; Answer ¶ 33).

D. Cooper City Alters Its Land Use Code in October 2006

In October 2006, the City amended the COO by adopting three ordinances (the "October 2006 Amendments"). (See Ordinance No.2006-10-2; Ordinance No.2006-10-3; Am. Compl., Ex. G., Ordinance No.2006-10-4 [D.E. 32-8]). Ordinance Numbers 2006-10-2 and 2006-10-3 amended sections 23-44(c) and 23-58(c) of the COO respectively, to permit churches and/or other places of worship in both the OP and P-1 Districts, in addition to non-religious community assemblies. Moreover, Ordinance Number 2006-10-4 repealed section 23-93 of the COO in its entirety and amended section 23-95 so places of worship located in the Residential Districts need only possess 200 feet of main street frontage, instead of the previous 300-foot requirement. Pursuant to this ordinance, places of worship are further subject to a requirement that they be located in a lot of at least 40,000 square feet in the Residential Districts. (See Ordinance Number 2006-10-4). The new frontage and lot size requirements are identical to those which are imposed upon non-religious community assemblies in the Residential Districts.

E. Chabad's Claims Against Cooper City

On October 29, 2007, Chabad filed its eleven-count Amended Complaint against Cooper City. In Counts I and II, Chabad claims the restrictions placed upon religious assemblies by the COO, both before and after the October 2006 Amendments, unreasonably limit religious assemblies in violation of section (b)(3) of the RLUIPA. (See Am. Compl. ¶¶47-78). Specifically, Chabad alleges, inter alia, the following portions of the COO were and are unreasonable limitations placed upon religious assemblies: (1) the outright ban of religious assemblies in the Business Districts; (2) the pre-October 2006 ban of religious assemblies in the OP and P-1 Districts; (3) the pre-October 2006 requirement that religious assemblies maintain 300 feet of main road frontage; (4) the post-October 2006 requirement that religious assemblies maintain 200 feet of main road frontage and a minimum lot size of 40,000 square feet; and (5) the requirement that religious assemblies maintain 1,000 feet of separation from one another in the Agricultural Districts. (See id.).

Counts III and IV state claims for violations of section (b)(1) of the RLUIPA, which prohibits government from imposing land use regulations in a manner that treats religious assemblies on less than equal terms with non-religious assemblies. In Count III, Chabad claims that, on its face, the COO violates section (b)(1) of the RLUIPA and places religious assemblies on unequal terms with non-religious assemblies because the COO...