Nuevas v. City of Yuma
| Decision Date | 12 July 2011 |
| Docket Number | No. 09–15422.,09–15422. |
| Parties | CENTRO FAMILIAR CRISTIANO BUENAS NUEVAS and Jorge Orozco, Pastor, Plaintiffs–Appellants,v.CITY OF YUMA, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Byron J. Babione, Alliance Defense Fund, Scottsdale, AZ, for the appellants.Ronald W. Messerly, Snell & Wilmer, Phoenix, AZ, for the appellee.Christopher C. Wang, United States Department of Justice, Appellate Section, Civil Rights Division, Washington, D.C., for the amicus curiae.Appeal from the United States District Court for the District of Arizona, Neil V. Wake, District Judge, Presiding. D.C. No. 2:08–cv–00996–NVW.Before: ANDREW J. KLEINFELD, A. WALLACE TASHIMA and SIDNEY R. THOMAS, Circuit Judges.
We address the “equal terms” provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA).1
Centro Familiar Cristiano Buenas Nuevas, founded in 1998, is a Christian congregation of around 250 members, associated with the Arizona Southern Baptist Convention. The church sued for a declaratory judgment, injunction, and damages, when the City of Yuma prevented it from conducting church services in a building it had bought for that purpose.
The parties agreed to consolidate the preliminary injunction hearing with trial on the merits, and stipulated to many of the facts. No facts are at issue on appeal. We describe the facts in accord with the trial judge's findings of fact. This is a sort of reverse urban blight case, with the twist that instead of bars and nightclubs being treated as blighting their more genteel environs, the church is treated as blighting the bar and nightclub district.
The City of Yuma, through the 1990s, tried to revive its Old Town Main Street area as a tourist district. The city decided to salt Main Street with a “mixture of commercial, cultural, governmental, and residential uses that will help to ensure a lively pedestrian-oriented district.” The three-block Main Street area included a large, vacant building that had been a J.C. Penney department store from 1952 to 1976, then declined into factory and warehouse space for garment manufacturers, then a temporary facility for a bakery in 1998, and then a vacant hulk. The church bought the building in 2007.
The church had been looking for space because the half of a former movie theater it had been renting was inadequate. It bought the old J.C. Penney store because it was cheap, and because the municipality did not impose parking requirements on Main Street. The old vacant store, with a big public parking lot in back, was in foreclosure, and had to be purchased fast in order to get the distress sale price. The city told the church that it would need a conditional use permit to hold church services there, but the owner of the building was not willing to hold off on selling while the permit was sought, so the church had to buy knowing that the permit might be denied.
Some owners of neighboring properties objected to a permit on various grounds. A major concern was that a church would prevent issuance of liquor licenses, because state law prohibited new bars, nightclubs, or liquor stores within 300 feet of a church.2 The Community Planning Staff of the City of Yuma prepared a report for the City Planning and Zoning Commission recommending denial of a conditional use permit. The report noted positive features of granting the permit, such as “rehabilitation of a deteriorated and long-vacant building in the Old Town District.” But, the staff concluded, use of the building as a church would be inconsistent with a “24/7 downtown neighborhood involving retail, residential, office and entertainment.” The liquor license problem was the “pivotal factor.” 3 The city wanted the three-block Main Street to be an entertainment district, and the state prohibition on liquor licenses for bars, nightclubs, and liquor stores within 300 feet of it would blight a whole block for purposes of an entertainment district. The Commission accordingly denied the conditional use permit.
Had Centro Familiar been a secular organization rather than a church, it would not have needed the conditional use permit. The Yuma City Code requires religious organizations,4 (and schools,5 which also have the effect of preventing issuance of liquor licenses within 300 feet) to obtain a conditional use permit (CUP) to operate in the Old Town District, but “Membership organizations (except religious organizations (SIC 86))” 6 may operate in Old Town without a permit.7 Many uses, not just membership organizations and entertainment venues, may operate without a conditional use permit. Auditoriums, performing art centers, and physical fitness facilities; museums, art galleries, and botanical and zoological gardens; single-and multiple-family dwellings; and even jails and prisons may operate in Old Town and on Main Street as of right.
Centro Familiar sued for a declaratory judgment invalidating the City Code provision subjecting churches but not secular membership organizations to conditional use permits, an injunction to require issuance of the permit, and damages for the financial consequences to the church of the denial. The district court concluded that the different treatment of churches did not violate the Religious Land Use and Institutionalized Persons Act (RLUIPA) or other provisions of law, and entered judgment for the city.8
Two subsequent events have changed the circumstances of the case. First, while this appeal was pending, the church lost the property to foreclosure. Second, Arizona passed a state version of RLUIPA, a state statute very similar to the federal statute.9 Arizona also changed the statutory ban on liquor licenses within 300 feet of a church, allowing for waiver.10 We withdrew this case from submission so that counsel could address the effect of the changed law. Counsel for the church filed a letter brief addressing the foreclosure, and both sides filed subsequent supplemental briefs on the effect of the new statutes.
Centro Familiar argues that the Religious Land Use and Institutionalized Persons Act (RLUIPA) is not a mere restatement of the Free Exercise Clause, that requiring a conditional use permit for churches but not other organizations violates RLUIPA, and that even if RLUIPA were a mere codification of the Free Exercise Clause, the City Code would violate that as well. The United States has filed an amicus curiae brief in support of the church, though not agreeing with it on all points.
The claims for declaratory judgment and injunction are moot. The church no longer owns the old J.C. Penney store building, so the city could not be required to issue a conditional use permit for the building to the church. Nor could the church be entitled to a declaration that a code provision and statute violate federal law, because they no longer affect the church. The dispute does not fall within the “capable of repetition, yet evading review” exception,11 both because the statute now allows for waiver of the liquor license restriction, and because there is no reason to suppose that any similar subsequent denial would be unreviewable.
The damages claim, though, is not moot. The complaint seeks compensatory damages “for the Church's monetary expenses incurred as a result of the City's” permit denial. The letter brief claims that the permit denial forced the church to pay for two facilities for two years, one check for the J.C. Penney building that it could not use, and another for a facility in which to hold services, and the church lost the property because it could not afford to pay for two facilities in order to use one.
Although the Commission might have granted the permit under the new statute enabling the city to waive the 300–foot liquor license ban, that statute was not retroactive 12 and had no effect on the actual occurrences. The ban was not waived, the church was stuck paying for a building it could not use, and consequently, according to its representations, it wasted the money and lost its building.
RLUIPA does not say in so many words that a successful plaintiff can obtain damages, but the city does not contest that one can. If damages were not allowable, then mootness of the declaratory judgment and injunction claims would moot out the entire case. RLUIPA states that a successful plaintiff may “obtain appropriate relief against a government.” 13 The statute defines “government” to include both states and municipalities,14 giving rise to an Eleventh Amendment question. The question has been answered in two Supreme Court decisions.
Franklin v. Gwinnett County Public Schools15 holds that federal courts may award monetary damages against municipal entities, absent clear statutory indication to the contrary.16 Franklin uses the phrasing, used in RLUIPA, “appropriate relief.” RLUIPA both uses the “appropriate relief” language and speaks without any “clear direction” excluding damages relief, so under Franklin, municipalities are liable for monetary damages for violations of RLUIPA.17
Sossamon v. Texas holds that states may not be held liable for monetary damages under RLUIPA because they have not waived sovereign immunity. 18Sossamon is grounded on the line of Eleventh Amendment authority requiring “clear expression” 19 to abrogate the sovereign immunity of states from damages claims.20 The Eleventh Amendment requirement does not apply to municipalities.21 The City of Yuma, therefore, may be liable for monetary damages under RLUIPA, if plaintiffs prove a violation and damages.
The facts are not at issue. We review the legal conclusions of the district court de novo.22
RLUIPA has two separate provisions limiting government regulation of land use. One prohibits governments from implementing land use regulations that impose “a substantial...
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