Member Article

Key Points

• The U.S. Court of Appeals for the Ninth Circuit held that the City of Salinas's challenged zoning ordinance did not violate the "substantial burden" provision of the federal Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") but that it did violate the "equal terms" provision.
• New Harvest Christian Fellowship's substantial burden claim failed for several reasons: (1) New Harvest failed to show that the zoning ordinance completely prevented it from conducting religious services in the building it occupied; (2) it could not demonstrate that it was precluded from using other sites within the city for religious activities; and (3) it failed to meet the burden of proof concerning available alternative sites.
• New Harvest's equal terms claim succeeded due to the court's view that the City's zoning ordinance expressly differentiated between clubs, lodges, places of religious assembly, and similar assembly uses on one hand and all other types of nonreligious assemblies within the Downtown Core Area zoning designation on the other hand.

New Harvest is an evangelical church that in 2018 purchased a two-story building (the Beverly Building) located on Main Street in downtown Salinas within the City's "Downtown Core Area." As part of the City's Downtown Vibrancy Plan, which aims to promote active uses in the Downtown Core Area, all businesses within the zone are subject to certain operational restrictions designed to "[e]ncourage pedestrian-oriented neighborhoods where local residents and employees have services, shops, entertainment, jobs, and access to transit within walking distance of their homes and workplace.” The zoning ordinance specifically prohibits “[c]lubs, lodges, places of religious assembly, and similar assembly uses” from operating on the “ground floor of buildings facing Main Street within the Downtown Core Area” (the "Assembly Uses Provision").

Despite the clear restrictions, New Harvest purchased the Beverly Building even after the City had advised New Harvest that it would not be permitted to conduct worship services on the ground floor facing Main Street. Instead, New Harvest sought a zoning code amendment to modify the Assembly Uses Provision and also applied for a conditional use permit to operate in the Downtown Core Area. The City denied both requests but encouraged New Harvest to submit a revised application that would maintain an active use on the ground floor facing Main Street, and even amended the zoning code to permit New Harvest's operation of a bookstore or café within that space. New Harvest did not submit a revised application and alternatively filed suit against the City, alleging violations of RLUIPA. It argued, in part, that religious uses were situated similarly to permitted theaters and cinemas, as both attracted visitors in the manner the City desired. The District Court that first heard these arguments sided with the City. (See New Harvest Christian Fellowship v. City of Salinas (N.D. Cal. 2020) 463 F.Supp.3d 1027.)

At the District Court level, New Harvest alleged violations of RLUIPA's "substantial burden" and "equal terms" provisions, and sought, among other remedies, injunctive relief, declaratory relief, nominal and economic damages, and attorneys' fees. After discovery, both New Harvest and the City motioned for summary judgment, which motion was granted for the City and denied for New Harvest. New Harvest promptly filed an appeal against the grant of summary judgment. On March 22, 2022, the U.S. Court of Appeals for the Ninth Circuit issued its opinion in New Harvest Christian Fellowship v. City of Salinas (2022) WL 840459. The Ninth Circuit held that the City of Salinas zoning ordinance did not violate the "substantial burden" provision of RLUIPA but that it did violate the "equal terms" provision. Accordingly, the Ninth Circuit ruled that the District Court erred in entering summary judgment in favor of the City on New Harvest's claim that the City's zoning ordinance failed to treat religious and non-religious entities on equal terms for purposes of RLUIPA.

RLUIPA contains four separate provisions limiting government regulation of land use: (1) a substantial burden provision; (2) an equal terms provision; (3) a nondiscrimination provision; and (4) an exclusions provision. Each of these provisions affords a shield to religious assemblies and institutions against zoning ordinances that may limit their ability to practice freely. In the past and as was the case here, religious institutions generally advance claims under the substantial burden and/or equal terms provisions. Because a city's developmental initiatives must strike a delicate balance between the needs of modernization, practicality of land uses, and well-established tenets of constitutional rights, RLUIPA cases always offer compelling insights into the interplay between constitutional and land use law.

Under the substantial burden provision, RLUIPA prohibits local governments from imposing or implementing land use regulations that impose a "substantial burden" on "religious exercise," unless the imposition of the burden is demonstrated to be in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. (42 U.S.C. § 2000cc(a)(1)). Constitutional law aficionados will notice the strict scrutiny standard used here—undoubtedly the most difficult test for a government entity to meet. However, the City of Salinas was able to meet the standard, partially due to its purposes for enacting the zoning ordinance and partially due to New Harvest's inability to demonstrate a substantial burden. The Ninth Circuit held that three factual circumstances thwarted New Harvest's substantial burden claim. First, New Harvest could have conducted worship services on the second floor of the Beverly Building or in a non-frontage area of the first floor. Second, New Harvest was not precluded from occupying another site in the City. Other comparable sites were available at the time of New Harvest's purchase of the Beverly Building, which were not subject to the same zoning restrictions. Additionally, New Harvest could have continued to operate from the building that it previously rented. Third, at the time of its purchase, New Harvest had actual knowledge that the zoning restrictions within the Downtown Core Area would prohibit it from conducting worship services on the frontage area of the first floor.

Although it lost on substantial burden grounds, New Harvest was able to prevail in its claim that the City's Assembly Uses Provision violated the equal terms provision of RLUIPA by prohibiting religious uses on the ground floor of buildings facing Main Street. This prong of RLUIPA "prohibits a government from imposing a land use restriction on a religious assembly 'on less than equal terms' with a nonreligious assembly or institution" within the same zoning designation (42 U.S.C. § 2000cc(b); Centro Familiar Cristiano Buenas Nuevas v. City of Yuma (9th Cir. 2011) 651 F.3d 1163, 1170-1171.) "A city violates the equal terms provision only when a church is treated on a less than equal basis with a secular comparator, similarly situated with respect to an accepted zoning criteria." (Centro Familiar, 651 F.3d at 1173.) Here, the secular comparators included theaters, cinemas, and private clubs operating in the Downtown Core Area.

The Ninth Circuit held that other nonreligious assemblies, including theaters, which were allowed to operate on the first floor facing Main Street, were similarly situated to religious assemblies with respect to the City's stated purpose (the stimulation of commercial activity) and zoning criterion (the Assembly Uses Provision). Under this reading, the Assembly Uses Provision draws an express distinction between “[c]lubs, lodges, and places of religious assembly, and similar assembly uses,” on the one hand, and all other nonreligious assemblies, on the other hand. (Salinas Zoning Code § 37-40.310(a)(2).) Because New Harvest met its burden in proving an express distinction, the City was then required to meet a two-part test, showing that: (1) the zoning criterion behind the regulation at issue was an acceptable one (a lower than strict scrutiny standard); and (2) that the religious assembly or institution was treated as well as every other nonreligious assembly or institution that is “similarly situated” with respect to that criterion. (See Opulent Life Church v. City of Holly Springs, (5th Cir. 2012) 697 F.3d 279, 292–93.)

Although the City's objective in enacting the restriction was deemed acceptable, the City could not demonstrate that the restriction treated religious and nonreligious assemblies equally. Because the City prohibited New Harvest from hosting worship services on the ground floor but permitted theatres to operate on the ground floor, the Ninth Circuit concluded that the City would be treating New Harvest dissimilar from nonreligious assemblies, such as theatres and cinemas, with respect to an acceptable zoning criterion. Thus, the Ninth Circuit ruled that the City's Assembly Uses Provision facially violated the equal terms provision of RLUIPA.

It remains to be seen whether the decision will be challenged further. At this point, no land use-related RLUIPA case has been argued at the U.S. Supreme Court level.