Pentecostal Church of God v. Douglas County ( 2020 )

FILED
NOT FOR PUBLICATION
JAN 17 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PENTECOSTAL CHURCH OF GOD, No. 18-15788
DBA Great Life Church; LARRY
SPIVEY, Pastor, D.C. No. 3:16-cv-00400-LRH-WGC
Petitioners-Appellants,
MEMORANDUM*
v.
DOUGLAS COUNTY; DOUGLAS
COUNTY COMMISSIONERS,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted December 5, 2019
San Francisco, California
Before: W. FLETCHER and MILLER, Circuit Judges, and PREGERSON,** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dean D. Pregerson, Senior District Judge for the
Central District of California, sitting by designation.
Pentecostal Church of God (“the Church”) and its pastor, Larry Spivey,
appeal the district court’s order affirming Douglas County’s denial of a special use
permit application sought by the Church. We have jurisdiction under 28 U.S.C. §
1291, and we affirm.
The Church filed a petition for judicial review of the denial by the Board of
County Commissioners (“Board”) in Nevada state court. See NEV. REV. STAT. §
278.3195(4). The case was removed to federal court. The Church argues that the
Board’s decision to deny its permit was not supported by substantial evidence, as
required by Nevada law. The Church further argues that the County violated the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”) by imposing a
substantial burden on its religious exercise, and that the County’s decision violated
the Church’s rights to substantive due process as well as to equal protection under
the federal Constitution.
After the appellate briefs were filed, the Church sold the underlying property
in this action and received design review approval for a project at a different
location. We GRANT the County’s motions for judicial notice of these facts [Dkt.
Entries 33, 35].
Because of these recent events, the Church’s request for injunctive relief is
moot. We address the Church’s claims only for the purpose of determining
2
damages. See NEV. REV. STAT. § 278.0233 (damages available for agency actions
that improperly limit or condition use of property); Centro Familiar Cristiano
Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1169 (9th Cir. 2011) (damages
available for RLUIPA violations); 42 U.S.C. § 1983 (damages available for
constitutional violations). Although neither party filed a dispositive motion below,
we construe the district court’s order as granting summary judgment to the County
on the Church’s RLUIPA and federal constitutional claims. See FED. R. CIV. P.
12(d). We review de novo the district court’s denial of the Church’s legal claims.
See Guru Nanak Sikh Soc. v. Cty. of Sutter, 456 F.3d 978, 985 (9th Cir. 2006).
1. For the Church’s state-law claim, we review the administrative record
to determine whether substantial evidence supports the Board’s decision. See Kay
v. Nunez, 146 P.3d 801, 805 (Nev. 2006). “[S]ubstantial and specific” public
opposition can constitute substantial evidence upon which a local government can
base its decision to deny a request for a special use permit. City of Las Vegas v.
Laughlin, 893 P.2d 383, 385 (Nev. 1995). Such public opposition was expressed to
the Board and formed the basis of its decision. We will not substitute our judgment
for the Board’s. See City of Reno v. Citizens for Cold Springs, 236 P.3d 10, 15–16
(Nev. 2010).
3
2. To establish an RLUIPA violation, the Church must first show that the
implementation of a land use regulation imposed a “substantial burden” on its
religious exercise. See 42 U.S.C. § 2000cc(a)(1); see also Int’l Church of
Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1067 (9th Cir. 2011)
(holding that a “substantial burden” must be “oppressive” to a “significantly great
extent”) (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024,
1034 (9th Cir. 2004)); San Jose, 360 F.3d at 1034 (holding that a “substantial
burden” must “impose a significantly great restriction or onus upon such
exercise.”). According to the record, the Board’s decision was based on
neighborhood compatibility and traffic concerns, not potential religious use of the
property. There is no evidence that the Church “has no ready alternatives,” or that
alternatives required “substantial delay, uncertainty, and expense.” Foursquare
Gospel, 673 F.3d at 1068. There is likewise no adverse “history” behind the
Church’s application, the denial, or the proceedings leading up to it. See Guru
Nanak, 456 F.3d at 989. Indeed, the record now shows quite the opposite. The
Church has not shown its religious exercise was substantially burdened.
3. The Church brings its equal protection claim under a class-of-one
theory. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). To succeed
on such a claim, the Church must show that the Board “(1) intentionally (2) treated
4
[it] differently than other similarly situated property owners, (3) without a rational
basis.” Gerhart v. Lake Cty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011). We hold
that the Church has not met the second prong. The record does not show that other
churches in the County are in fact similarly situated to the Church.
4. To succeed on its substantive due process claim, the Church must show
“as a threshold matter” that the County deprived it of a “constitutionally protected
life, liberty or property interest.” Shanks v. Dressel, 540 F.3d 1082, 1087 (9th Cir.
2008). To have a constitutionally protected property interest in a government
benefit such as a permit, the Church must have a “legitimate claim of entitlement to
it” created by a source such as state law that “imposes significant limitations on the
discretion of the decision maker.” Gerhart, 637 F.3d at 1019. Douglas County
Code § 20.12.020 does not significantly limit the discretion of the Board in
deciding an appeal from a special use permit denial within the meaning of
substantive due process doctrine.
AFFIRMED.
5